1 Burr. R. 110. Abeyance of the Freehold. Coke, in his comment on this passage, observes, that every entry is not a disseisin, unless there be an ouster of the freehold. 34. There is scarcely a subject in the English law so obscure as that of disseisin. The full effect of disseisins must formerly have been, not only a dispossessing of the freeholder, but also a substitution of the disseisor, as tenant to the lord, and as one of the pares curiæ, in the place of the disseisee. Now, as the consent of the lord was formerly necessary to the admission of a new tenant into the feud, it is difficult to conceive how a complete disseisin could take place without the consent, or connivance, of the lord. 35. Lord Mansfield has therefore justly observed, that "the precise definition of what constituted a disseisin, which made the disseisor the tenant to the demandant's præcipe, though the right owner's entry was not taken away, was once well known, but it is not now to be found. The more we read, unless we are very careful to distinguish, the more we shall be confounded. For after the assise of novel disseisin was introduced, the legislature by many acts of parliament, and the courts of law by liberal constructions, in furtherance of justice, extended this remedy, for the sake of the owner, to every trespass or injury done to his real property, if, by bringing his assise, he thought fit to admit himself disseised." 36. Where there is no person in esse in whom the 1 Inst. 342 b. freehold is vested, it is said to be in abeyance; that is in expectation, remembrance, and contemplation of the law. But it is a principle of the highest antiquity that there should always be a known and particular owner of every freehold estate, so that it should never, if possible, be in abeyance. This rule Dyer, 71 a. was established for two reasons: 1. That the supe rior lord might know on whom he was to call for the military services that were due for the feud; for otherwise the defence of the realm would have been considerably weakened. 2. That every stranger, who claimed a right to any particular lands, might know against whom he ought to bring his præcipe for the recovery of them, as no real action could be brought against any person but the actual freeholder. Hob. 338. 5 Rep. 94 b. 37. In consequence of this doctrine, it is a rule 1 Inst. 217 a. of law, that a freehold estate cannot be created to commence in futuro; because in that case the freehold would be in abeyance from the execution of the conveyance to the moment when the estate created was to commence. 38. One of the few instances in which a freehold Lit. § 647. estate can be in abeyance is where the parson of a church, or other ecclesiastical person, dies: for in that case the glebe, &c. is in abeyance, till a successor is appointed. have Free 39. All natural persons, born within the dominions Who may of the crown of England, are capable of holding hold Estates. freehold estates; unless they are attainted of treason or felony, or have incurred the penalties of a premunire; in those cases they are considered as civilly dead, and therefore incapable of possessing any real property. 40. Aliens, that is, persons born out of the domi- 1 Inst. 2 b. nions of the crown of England, except the children Tit. 29. c. 2. and grandchildren of natural-born subjects, are in capable of holding freehold estates; unless they are naturalized by act of parliament, or made denizens by the king's letters patent. 41. Bodies corporate, whether sole or aggregate, ecclesiastical or lay, may hold those freehold estates that have been transmitted to them by their predeTit. 32. c. 2. cessors. They are however prohibited by several antient and modern laws, usually called the statutes Estates in Wright's of mortmain, from purchasing more lands, without licence from the crown; nor is even such licence, in all cases, sufficient. 42. Estates of freehold are either estates of inheritance, or not of inheritance. The former are again divided into inheritances absolute, or fee simple, and inheritances limited, one species of which is called fee tail. 43. "Tenant in fee simple (says Littleton, § 1.) is he which hath lands or tenements to hold to him and his heirs for ever, and it is called in Latin feodum simplex; for feodum is the same that inheritance is, and simplex is as much as to say lawful or pure; and so feodum simplex signifies a lawful or pure inheritance." 44. Littleton has been censured for annexing an improper meaning to the word feodum in this definition; and it has been contended that the word feodum signifies land holden of a superior lord, by military or other services. But although this was certainly the original meaning of the word; yet when the feudal law was fully established here, and it was universally acknowledged that all the lands in England were held mediately or immediately of the king; the word feodum, or fee, became generally used to denote the quantity of estate or interest in the land. Thus it appears from Bracton, that the word feodum was often used, at the time when he wrote, in both Bract. 263 b. these senses. Et sciendum quod feodum est id quod quis tenet, ex quacunque causa, sibi et hæredibus suis.-Item dicitur feodum alio modo ejus qui alium feoffat, et quod quis tenet ab alio; ut si sit qui dicat, talis tenet de me tot feoda per servitium militare. And it is evidently for the purpose of denoting the quantity of interest, that the word feodum is used, in pleading an inheritance in the king, viz. Rex seisitus fuit in dominico suo ut de feodo; where the word feodum cannot possibly import an estate holden, the king not holding of any superior lord, but merely denotes an inheritance. Vaugh. 269. 45. An estate in fee simple is the entire and Lit. $11. absolute property of the land; from which it follows that no person can have a greater estate or interest. And whenever a person grants an estate in fee simple, he cannot make any further disposition of it, because he has already granted the whole interest; consequently nothing remains in him. An estate in fee simple may however be granted on condition; and in devises, and deeds deriving their effect from the statute of uses, an estate in fee simple may be rendered defeasible on the happening of some future event. Lyddall v. 46. Tenant in fee simple is the absolute master of all houses and other buildings erected on the land; as also of all wood growing thereon, for trees are considered as parcel of the inheritance, and the law does not favour the severance of them from the freehold, because they would be thereby wasted and destroyed. He is also entitled to all mines of metal, ante, 3. except gold and silver; and to work and dispose of Weston, all minerals and fossils which are under the land. 47. We have seen that the law requires the free- Abeyance of hold should never, if possible, be in abeyance. But where there is a tenant of the freehold, the remainder or reversion in fee may exist for a time without any 2 Atk. 19. the Fee. particular owner, in which case it is said to be in abeyance. Thus, if an estate be limited to A. for 1 Inst. 342 a. life, remainder to the right heirs of B., the fee simple is in abeyance during the life of B., because it is a maxim of law, that nemo est hæres viventis. 48. The law, however, does not favour the abeyance of the fee simple, for in that case many operations are suspended. The particular tenant, or person in possession of the freehold, is rendered disTit. 3. c. 2. punishable at law for waste; for a writ of waste can only be brought by one entitled to the fee simple. The title, if attacked, could not formerly be completely defended; for there was no person in being whom the tenant of the freehold could pray in aid to support his right: nor could the mere right itself, if subsisting in a stranger, be recovered in this interval; for in a writ of right patent, a tenant for life could not join the mise, on the mere right. In modern times the courts do not favour the abeyance of the fee simple; because it is a restraint on alienation. All other Estates merge in the Fee. 2 P. Wins, 604. 49. All inferior estates and interests in land are derived out of the fee simple; therefore whenever a particular estate, or limited interest in land, vests in the person who has the fee simple of the same land, such particular estate, or limited interest, is immediately drowned or merged in it; upon the principle that omne majus continet in se minus. * 50. Where a sum of money is charged upon a real estate, which estate comes to the person entitled to the money; if in fee, the charge is merged. But where the money is secured by a term, or other legal * There is one exception to this rule as to estates tail, which will be mentioned in Title 2. |