Cornell University Law Library The Moak Collection PURCHASED FOR The School of Law of Cornell University And Presented February 14, 1893 IN nenoRY of JUDGE DOUGLASS BOARDMAN FIRST DEAN OF THE SCHOOL By his Wife and Daugliter A. M. BOARDMAN and ELLEN D. WILLIAMS Digitized by Microsoft® KD 979.C43"" ""'"'""y Library The law of real 3 1924 021 759 828 Digitized by Microsoft® This book was digitized by Microsoft Corporation in cooperation witli Cornell University Libraries, 2007. You may use and print this copy in limited quantity for your personal purposes, but may not distribute or provide access to it (or modified or partial versions of it) for revenue-generating or other commercial purposes. Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® THE LAW OF REAL PROPERTY: CHIEFLY IN RELATION TO CONVEYANCE. BY HENEY W. ^ALLIS, M.A. OF THE IlrNSB IBUFLE, BARRIST£B-AT-LAW. PHILADELPHIA : THE BLAOKSTONE PUBLISHING COMPANY, 1887. Digitized by Microsoft® Entered according Vo the Act of Congress, in the yeax 1887, By the BLACKSTONB PUBLISHING COMPANY, In the office of the Librarian of Congress, at Washmgton, D. C. (806) Digitized by Microsoft® (iii) *PBEFACE. M In its earliest shape this work was prefixed to a work on the Con- veyancing and Settled Land Acts, published by the Author in con- junction with his friend Mr. Henry J. Hood. Though it has been so greatly enlarged that it might almost seem to be a new work, its original plan has been retained ; and much of the matter con- tained in the newly added chapters, is an expanded and completed version of detached remarks upon the same subjects contained in the last edition. The following chapters are entirely novel : — Chapter XI. on the Kules of Limitation at Common Law ; Chapter XIII. on the Rule in Shelley's Case; Chapter XVI. on the Descent of a Fee Simple ; and Chapter XXV. on Concurrent Ownership. The Author is indebted to his friend Mr. W. R. Sheldon, of Lin- coln's Inn, for the General Index at the end of the work. A good many additional references, chiefly to the serial reports, will be found in the Table of Cdses. The new series of the Law Journal Reports and Law Times Reports are cited without any ad- dition. The new series of the Jurist is indicated by the addition of "N. S." It is hoped that the Report of the Case of Witham v. Vane, be- fore the House of Lords, which is given in the Appendix, will be found of interest to the profession. To the attention of any reader who may be inclined to think that these pages are cumbered with an overdose of archaic learn- ing, the Author would commend the lesson to be learned from the (807) Digitized by Microsoft® iV PREFACE. Case of Blake v. Hynes, referred to at p. 227 of this work. That the recondite question there discussed should, after some centuries of oblivion, have emerged into practical importance in the year 1884, affords as striking a confirmation as could be desired of the truth of Lord Coke's remark : — " There is no knovdedge, case, or " point in law, seeme it of never so little account, but will stand " our student in stead at one time or other, and therefore in read- " ing nothing to be pretermitted." (Co. Litt. 9 a.) In the Preface to his Essay on Estates, Preston speaks of the " incredible labour " which that work had cost him. If the present writer had never attempted to grapple with kindred subjects, he would never have understood the significance of those words. He will, therefore, have the less right to complain, if his readers should skim lightly over his sentences with small thought of the pains it cost to frame them. 2, Stonb Buildings, Lincoln's Inn, 1st February, 1885. (808) Digitized by Microsoft® (V) *TABLE OF CONTENTS. P^^] [The paging refew to the [*] pages.] ^ PAGE Preface . . v Table of Contents . . vii Table of Cases xi List of Text-Books cited ... xx Inteoduotoey Eemaeks ... 1 — 3 Part I. ON TENURE. Chapter I. Tenure by the Common Law 4 — 15 Chapter II. The Statute of Quia Emptoees 16 — 20 Chapter III. The Statute 12 Cae. 2, c. 24 21 — 22 Chapter IV. Tenure by Custom of the Manor (Copyhold Tenuee) .... 23 — 25 Chapter V. Tenure by the Custom op Ancient Demesne (Customary Free- holds) 26—28 Chapter VI. Escheat . . 29—35 Forfeiture for High Treason ... ... 32 The relation of Escheat to Incorporeal Hereditaments and Equi- table Estates . 33 (800) Digitized by Microsoft® yi TABLE OF CONTENTS. [The paging refers to the [*] pages. ] Part. n. ON ESTATES IN GENERAL. Chapter VII. PAGE Of the Subjects in which Estates may subsist 36 — 41 Chapter VIII. Of Estates at Common Law 42 — 48 Cbujter IX. On the Derivation and Succession of Estates 49 — 65 Original Estates and Derivative Estates 50 On the terms Vested, Contingent, and Executory 56 Remainders and Reversions 59 Possibility of Reverter 63 Chapter X. Merger ... . . 66 — 75 Estates en autre droit . 71 Of Estates Tail and Base Fees . 72 The Modem Law of Merger, and Merger in Equity 73 Chapter XI. Rules of Limitation at Common Law 76 — 92 Chapter XII. Contingent Remainders 93 — 122 First Class of Contingent Remainders 98 Second Class of Contingent Remainders 100 Third Class of Contingent Remainders 100 Exception from the Third Class 101 Fourth Class of Contingent Remainders 103 Exceptions ftom the Fourth Class ... 104 Further Remarks on the Liability to Destruction 107 Trustees to preserve Contingent Remainders 113 Chapter XIII. The Rule in Shelley's Case . 123 — 135 The Statement of the Rule 132 (810) Digitized by Microsoft® TABLE OF CONTENTS. VU [The paging refers to the [*] pages.] Chapter XIV. ExECTJTOEY Limitations 136—166 The pule against Perpetuities 146 Eestrictions upon Trusts, or Directions, for Accumulation of Income (The TheUusson Act) , .... 162 Part III. THE NATURE AND QUANTUM OP ESTATES. Chaptek XV. Of a Fee Simple 167—177 Chaptee XVI. The Descent of a Fee Simple lys — 196 The Distinction between Seisin in Deed and Seisin in Law 180 The Eules of Descent 184 Chapter XVII. Determinable Fees 197—208 Examples of Determinable Fees 201 Chapter XVIIL CiONDITIONAL FEES 209 — 214 Chapter XIX Qualified Fees Simple 215—229 Chapter XX Pees Tail, or Estates Tail 230—243 Classification of Estates Tail 233 Tenant in Tail after Possibility of Issue Extinct 234 The Limitation of Estates Tail 235 Chapter XXL The Alienation of Fees Tail 244 — ^263 The Protector of the Settlement under the Fines and Recoveries Act . 257 Assurances not operating under the Act 261 Modem Statutory Powers 262 Chapter XXIL Base Pees 264—272 List of Base Fees 265 (811) Digitized by Microsoft® Vlll TABLE OF CONTENTS. . [The paging refers to the [*] pages, j Chaptee XXIII. PAGE An Estate fob the Life op the Tenant 273 — 285 Curtesy , . . 276 Dower 279 Statutory Powers 281 Chaptee XXIV. Estates pue autee Vie 286 — 292 Chaptee XXV. Of Conoueeent Owneeship 292 — 305 (1) Joint Tenancy 294 (2) Tenancy in Common 297 (3) Parceny or Coparceny 301 (4) Tenancy by Entireties 303 Part IV. ON ASSURANCES. Chaptee XXVE. ASSUEANCES IN GENEEAL . . . . 306 Chaptee XXVH. Of Fines and Eecoveeies 317 Chapter XXVIIL Op a Feoffment 321 Chaptee XXIX. Op a Release 331 Chaptee XXX. Of a Statutoey Geant 333 Chaptee XXXI. Of Assueanoes by ,Way op Use without Teansmtjtation op Pes- APPENDIX. The case of Witham v. Vmie, before the House of Lords . . . GENERAL INDEX . . 341 . 367 (812) Digitized by Microsoft® (ix) *TABLE OF CASES. [*xi] A. PAGE Abbiss v. Burney, 17 Ch. C. 211 ; 50 L. J. Ch. 348 ; 29 "W. E. 449 ; 44 L. T. 267 95, 113 Adams v. Angell, 5 Ch. D. 634 ; 46 L. J. Ch. 352 ; 36 L. T. 334 74 Allen V. Allen, 2 Dr. & War. 307 ; 4 Ir. Eq. Rep. 472 291, 292 Althamt'. Anglesea, 11 Mod. 210; 2Salk. 676 319 Archer's Case, or Baldwin v. Smith, 1 Eep. 66 ; Cro. Eliz. 453 ; 2 Anders. 37 110 Astley V. Micklethwait, 15 Ch. D. 59 ; 28 W. E. 811 ; 43 L. T. 58 ... 95 Atcheson i'. Atcheson, 11 Beav. 485 . . , . 304 Atkins r. Mountague, 1 Ch. Cas. 214 ; Case of St. Katherine's Hospital, 1 Vent. 149 ; and see Thos. Jon. 176 ; 2 Keb. 808 89 Atkinson v. Baker, 4 T. E. 229 289 Atkyns v. Horde. See Doe v. Horde. Att.-Gen. of Ontario v. Mercer, 8 App. Cas, 767 ; 52 L. J. P. C. 84 ; 49 L. T. 312 6 Att.-Gen. v. Heydon. See Heydon's Case. V. Poulden, 3 Ha. 555 165 V. Eye, 2 Vem. 453 246 B. Bagshaw v. Spencer, 1 Ves. sen. 142 205 Baker v. Wall, 1 Ld. Eaym. 185 210 V. Willis, Cro. Car. 476. And see Beaumont's Case 270 Baldwin's Case, or Baldwin v. Marton, 2 Eep. 23 ; Anders. 223 334 Baldwin v. Smith. See Archer's Case. Bankes v. Le Despencer, 11 Sim. 508 ... 258 Barber's Settled Estates, 6e, 18 Ch. D. 624 ; 50 L. J. Ch. 769 ; 29 W. E. 909 ; 45 L. T. 433 144 Barwick's or Berwick's Case, 5 Eep. 93 ; Serj. Moore's Eep. 393 ... 80, 87 Basset v. Clapham, 1 P. Wms. 358 115 Bath's (Earl of) Case, Carter, 96 205 Beale v. Symonds, 16 Beav. 406 34 Beaumont's Case, 9 Rep. 138; 2 Inst. 681; or- Baker v. Willis, Cro. Car. 476 ; or Dixie v. Beaumont, W. Jo. 393 . 270 Beaumont and Long. See Darbison v. Beaumont. (813) Digitized by Microsoft® X TABLE OF CASES. [The paging refers to the [*] pages.] PAGE Beckley v. Newland, 2 P. "Wms. 182 59 Bell V. Holtby, L. E. 15 Eq. 178 : 42 L. J. Ch. 266 ; 21 W. E. 321 ; 28 L. T. 9 '. .258 Bennet v. Davis, 2 P. Wms. 316 278 Benson v. Scott, or Scot, 4 Mod. 251 ; Garth, 275 ; 3 Lev. 385 25 Beresford's Case, or Beresford v. Beresford, 7 Eep. 41 236 Berry v. Berry, 7 Cli. D. 657 ; 47 L. J. Ch. 182 ; 26 W. R. 337 ; 38 L. T. 474 95 Beverley v. Beverley, 2 Vern. 131 . . 102 Bickley v. Bickley, L. R. 4 Eq. 216 14 Birmingham Canal Co. v. Cartwright, 11 Ch. D. 421 ; 48 L. J. Ch. 552 ; 27 W. R. 597 ; 40 L. T. 784 149, 150 Blagrave v. Clunn, 2 Vern. 576 . 204 Blake v. Hynes, L. E. (Ir.) 11 Eq. 417; 11 L. E. Ir. 284 227, 228 V. Peters, 1 De G. J. & S. 345 172 Blight V. HartnoU, 19 Ch. D. 294 ; 51 L. J. Ch. 162 ; 30 W. R. 513 ; 45 L. T. 524 149 Boddington v. Robinson, L. E. 10 Exch. 270 ; 44 L. J. Ex. 223 ; 23 W. E. 92i ; 33 L. T. 364 .81, 84, 276, 333 Boraston's Case, or Hynde v. Ambrye, 3 Eep. 19 . . 77, 142 Bowles's (Lewis) Case, or Bowles v. Bury, 11 Rep. 79 ; 1 Roll. Eep. 177 . 199 Brackenbuxy v. Gibbons, 2 Ch. D. 417 . . 87, 97 Brandlyn v. Ord, 1 Atk. 571 319 Brandon v. Brandon, 31 L. J. Ch. 47 ; 9 W. R. 825 ; 5 L. T. 339 .... 75 Brook V. Ward, Dy. 310 b. pi. 81 '...'. 30 Brown and Sibly's Contract, Re, 3 Ch. D. 156 . 156 Brown v. Rawlins, 7 East, 409 27 Brudenell v. Elwes, 1 East, 442 90 Bruerton's Case, 6 Rep. 1 . 17 Bryan, Ee, see Godfrey v. Bryan. Buckeridge v. Ingram, 2 Ves. 652 40 Buckler's Case, or Buckler v. Harris, 2 Eep. 55 ; Serj. Moore's Eep. 423 ; Cro. Eliz. 450, 585 ; 2 Anders. 29 80, 87, 275, 334 Burchett v. Durdant, 2 Vent. 311 ; Carth. 154 ; sub nom. James v. Eichaid- son, 2 Lev. 232 104 Burgess v. Wheate, 1 W. Bl. 123 ; 1 Eden, 177 33 Burrell v. Dodd, 3 Bos. & P. 378 27 Bushby v. Dixon, 3 B. & C. 298 184 C. Cadell V. Palmer, 1 CI. & F. 372 I47, 143 Campbell v. Sandys, 1 Sch. & Lef. 281 289, 291 Carter v. Madgwick, 3 Lev. 339 333 Casbome or Casbume v. Scarl'e, 1 Atk. 603 ; 2 Jac. & AV. 194 ; 2 Eq. Ca. Ab. 728 277 Case of Perpetuities, The. See Chudleigh's Case. Cattlin V. Brown, 11 Ha. 372 161 (814) Digitized by Microsoft® TABLE OF CASES. XI tThe paging refers lo tlie [*] pages.] PAGE ■ Chambers v. Kingham, 10 Ch. D. 743 ; 48 L. J. Ch. 169 ; 27 W. R. 289 ; 39 L. T. 472 71, 74 V. Taylor, 2 My. & Cr. 376 230, 235 Chapman v. Pendleton. See Talbot's Case. Cherry v. Heming, 4 Exoh. 631 ; 19 L. J. Ex. 63 ; 14 L. T. (O. S.) 274 . . 327 Chester v. Willan, 2 Wms. Saund. 283 , • • • 308 Cholmley's Case, or Cholmley u Hanmer, 2 Rep. 50; Serj. Moore's Rep. 342 ' . 91 Christie v. Ovington, 1 Ch. D. 279 ; 24 W. R. 204 . . .... 261 Chudleigh's Case, or Dillon v. Freine, or Fraine, or The Case of Perpetui- ties, 1 Rep. 120 ; Poph. 70 ; 1 Anders. 309 237 Clark V. Manning. See Matthew Manning's Case. Clarke v. Chamberlin, 16 Ch. D. 176 ; 29 W. R. 415 259 Clere's Case oV Parker v. Clere, 6 Rep. 17; Serj. Moore's Rep. 567; aff. Cro. Eliz. 877 ; Cro. Jac. 31 .... 205 Cocketu Shelden, Serj. Moore's Rep. 15 204 Cole V. Levingston, 1 Vent. 224 301 V. Sewell, 4 Dr. & W. 1 ; in Dom. Proc. 2 H. L. C. 186 .. . 80, 147, 161 CoUard v. Collard, Poph. 47 ; sub nam. Callard v. Callard, Serj. Moore's Rep. 687 ; mb nom. Tallarde v. Tallarde, 2 Anders. 64 338 Compton (Lord) v. Oxenden, 2 Ves. 261 74 Cook V. Gerrard, 1 Wms. Saund. 170 301 Cooper V. France, 19 L. J. Ch. 313 ; 14 Jnr. 214 . . . . 303 • V. Kynoch, L. R. 7 Ch. 388 ; 41 L. J. Ch. 296 ; 20 W. R. 503 ; 26 L. T. 566 312 V. Laroche, 17 Ch. D. 368 ; 29 W. R. 438 155 V. Maedonald, 7 Ch. D. 288 ; 47 L. J. Ch. 373 ; 26 W. R. 377 ; 38 L. T. 191 . 278 Corbet's Case, or Corbet v. Corbet, 1 Rep. 83 ; Serj. Moore's Rep. 601 ; 2 Anders. 134 _. . 89, 245 Cox V. Parker, 22 Beav. 168 ' .33 Crawley v. Crawley, 7 Sim. 427 165 Crofts V. Middleton, 8 De G. M. & G. 182 ; 4 W. R. 439 ; 27 L. T. (O. S.) 114; 2Jur. (N. S.) 528 58 Cunliffe v. Brancker, 3 Ch. D. 393 ; 46 L. J. Ch. 128 ; 35 L. T. 578 . . 87, 95, 112, 153 Cunninghams. Moody, 1 Ves. sen. 174 278 Cunynghame's Settlement, Re, L. R. 11 Eq. 324 ; 40 L. J. Ch. 247 ; 19 W. R. 381 ; 24 L. T. 124 157 Curtis V. Lukin, 5 Beav. 147 . 149, 156 D. Danby ». Danby, Rep. temp. Finch, 220 74 ■ Darbison v. Beaumont, 1 P. "Wms. 229 ; 2 W. Jo. 99 ; sub nom. Beaumont and Long, 1 Eq. Ca. Ab. 214 ; in Dom. Proc. 3 Bro. P. C. 60 . . . 104, 105 Davallt;. NewRiverCo., 3DeG. &Sm. 394 33 Dawson v. Robins, 2 C. P. D. 38 ; 46 L. J. C. P. 62 ; 25 W. R. 212 ; 35 L. T. 599 38 (815) Digitized by Microsoft® Xll TABLE OF CASES. [The paging refers to the [*] pages. ) De Grey v. Richardson, 3 Atk. 469 184 Delacherois v. Delacherois, 11 H. L. C. 62 ; 10 Jur. (N. S.) 886 ; 10 L. T. 884 19 Dillon V. Dillon, 1 Ball & B. 77 291 . «. Frenie. See Chudleigh's Case Dixie V. Beaumout. See Beaumont's Case. Dodds V. Thompson, L. E. 1 C. P. 133 38 Doe V. Burnsall, 6 T. E. 30 61 V. Clark, 5 E. & Aid. 458 242 V. Danvers, 7 East, 299 27 V. Dixon, 5 Ad. & E. 834 302 V. Dorvell, 5 T. E. 518 301 V. Horde, Cowp. 689 ; 1 Burr. 60 ; Bro. P. C. (1st ed.) 247 ; 6 Bro. P. C. 633 329 V. Huntington, 4 East, 271 8, 27 V. Keen, 7 T. R. 386 184 V. Luxton, 6 T. R. 289 288, 291 V. Martin, 4 T. R. 39 96 V. Martyn, 8 B. & C. 497 58 V. Oliver, 10 B. & C. 181 58 V. Parratt, 5 T. R. 652 304 V. Rivers, 7 T. E. 276 282 V. Shilson. See Goodright v. Mead. V. Simpson. See Simpson v. Simpson. V. Taylor, 5 B. & Ad. 575 ; 2 N. & M. 508 323 V. Whichelo, 8 T. R. 211 184, 190, 262 Don's Estate, Ee, 4 Drew. 194 197 Dormer v. Parkhurst, 3 Atk. 135 ; 6 Bro. P. C. 351 ; Willes, 327 ; 18 Vin. Abr. 413, pi. 8 114, 115 Drybutter v. Bartholomevr, 2 P. Wms. 127 40 Duhber v. Trollope, Ambl. 453 235 Dudson's Contract, Re, 8 Ch. D. 628 ; 47 L. J. Ch. 680 ; 27 W. R. 179 ; 39 L. T. 182 257 Dunn V. Flood, 25 Ch. D. 629 ; 53 L. J. Ch. 537 ; 32 W. R. 197 ; 49 L. T. 670 ; aff. on app. W. N. 1885, p. 9 154 E. Eager v. Fumivall, 17 Ch. D. 115 ; 50 L. J. Ch. 537 ; 29 W. R. 649 ; 44 L. T. 464 277 F. Termor's Case, or Fermor v. Smith, 3 Eep. 77 ; Jenk. 253 ; 2 Anders. 176 318 Festing v. Allen, 12 M. & W. 279 ; S. C. in Ch. 5 Ha. 573 97 Finch, Re. See Abbiss c. Burney. Flower v. Hartopp, 6 Beav. 476 153 Forbes v. Moffatt, 18 Ves. 384 74 (816) Digitized by Microsoft® TABLE OF CASES. XIU [The paging refers to the [*] pages. ] PAGE Forsbrook v. Forsbrook, L. R. 3 Ch. 93 ; 16 W. E. 290 91 Freke v. Lord Carbery, L. R. 16 Eq. 461 ; 21 W. R. 835 166 Fulmerston v. Steward, Plowd. 102 313 G-. Gage V. Acton, 1 Salk. 325 71 Gallard v. Hawkins, 27 Ch. D. 298 ; 33 W. R. 31 33 Germain or Jerman v. Orchard, 1 Salk. 346 ; 3 Salk. 222 ; Skin. 528 ; Holt, 331 .. . . . r . . 333 Godfrey v. Bryan, 14 Ch. D. 516 ; 49 L. J. Ch. 504 ; 28 W. R. 761 ; 42 L. T. 582 . . ■ . 304 Godwin v. Winsmore, 2 Atk 525 280 Goodhill V. Brigham, 1 Bos. & P. 192 314 Goodier v. Johnson, 18 Ch. D. 441 ; 51 L. J. Ch. 369 ; 30 W. R. 449 ; 45 L. T. 515 . . 156 Goodman v. Mayor of Saltash, 7 App. Cas. 633 ; 52 L. J. Q. B. 193 ; 31 W. R. 293 ; 48 L. T. 239 . 158 Goodright v. Cornish, 1 Salk. 226 93, 94 V. Mead (sometimes cited as Doe v. Shilson), 3 Burr. 1703 . 262 V. White, 2 W. Bl. 1010 . . 105 Goodtitle v. Burtenshaw, Feame, Cont. Rem. App. 1 128, 230 V. Gibbs, 5 B. & C. 709 ; 4 L. J. (O. S.) K. B. 284 333 Gravenor, Re, 1 De G. & Sm. 700 260 Greet v. Greet, 5 Beav. 123 . . 156 Grey v. Mannock, 2 Eden, 339 ; also cited 6 T. R. at p. 292 . . . . 291 Griffiths V. Vere, Ves. 127 164 Grute V. Locroft, Cro. Eliz. 287 304 H. Haggerston v. Hanbury, 5 B. & C. 101 ; 7 D. & R. 723 308 Haley v. Bannister, 4 Madd. 275 164 Hallett to Martin, 24 Ch D. 624; 52 L. J. Ch. 804; 32 W. R. 112; 48 L. T. 894 , 97 Hannaford v. Hannaford, L. R. 7 Q. B. 116; 41 L. J. Q. B. 62; 20 "W. R. 292 ; 25 L. T. 820 , 301 Haslewood v. Pope, 3 P. Wms. 322 36 Hay V. Earl of Coventry. 3 T. R. 83 91 Haywood v. Brunswick Permanent Benefit Building Society, 8 Q. B. D. 403; 51 L. J. Ch. 73: 30 W. R. 299; 45 L. T. 699 150, 151 Heasman v. Pearse, L. E. 7 Ch. 275; 20 W. R. 271; 26 L. T. 299 146 Heathersall v. Mildmay. See Mildmay's Case. Heydon's Case, or Att.-Gen. v. Heydon, 3 Rep. 7; Serj. Moore's Rep. 128 . 25, 242, 243 Heywood v. Smith. See Seymor's Case, Hinde and Lyon, 3 Leon, 64 138 Hynde v. Ambrye. See Boraston's Case. (817) Digitized by Microsoft® XIV TABLE OF CASES. [The paging refers to the [*] pages.] PAGE Hogg V. Cross, Cro. Eliz. 254 80, 334 Holdernesse (Lady) v. Marquis of Carmarthen, 1 Bro. C. C. 377 40 Holland v. Boins or Bonis, 2 Leon. 121; 3 Leon. 175 313 Hooper v. Clark, L. E. 2 Q. B. 200; 8 B. & S. 150; 36 L. J. Q. B. 79; 15 W. R. -347; 16 L. T. 152 [Hooper u Lane] .40 Howard v. Duke of Norfolk, 2 Swanst. 454 . .203 Hudson D. Hudson, 20 Ch. D. 406; 51 L. J. Ch. 455 ; 30 W. E. 487; 46 L. T. 93 301 I. Idle V. Cook, Coke or Cooke, 1 P. Wms. 70 ; 2 Salk. 620 ; 2 Ld. Eaym. 1144 208 J. James v. Richardson. See Burchett v. Durdant. Jerman ii. Orcliard. See Germain v. Orchard. John Talbot's Case. See Talbot's Case. Johnstone v. Hamilton, 5 Giff, 30 . ... 33 Jones V. Davies, 7 H. & N. 507; 31 L. J. Exch. 116; 10 W. E. 464; 6 L. T. 443; 8 Jur. (N. S.) 593 . . .71 V. Maggs, 9 Ha. 605 165 V. Eoe, 3 T. E. 88 58, 142 Josselyn v. Josselyn, 9 Sim. 63 156 K. Keen o. Kirby, 1 Mod. 199 27 Kemp V. Westhrook, 1 Ves. sen. 278 . . . . . 318 Keppell V. Bailey, 2 My. & K. 517 150 Knight's Case, or Knight v. Breech, 5 Eep. 54 ; Serj. Moore's Eep. 199 ; 1 Anders. 173; 3 Leon. 124; Goulds. 15, pi. 14 139, 267 liampet's Case or Lampet v. Starkey, 10 Eep. 46; 2 Brownl. 172 . . .58, 139 Leach v. Jay, 9 Ch. D. 42; 47 L. J. Oh. 876; 27 W. E. 99; 39 L. T. 242 . 47, 70 Leake v. Eobinson, 2 Her. 363 164 Lechmere and Lloyd, Ee, 18 Ch, D, 524; 45 L. T. 551 • 87, 97, 98 Lee's (Vincent) Case, 3 Leon. 110 71 LethieuUier or Letheullier v. Tracy or Tracey, 3 Atk. 774; Ambl. 204 . . 204 Lewis Bowles's Case, or Bowles v. Bury, 11 Eep. 79; 1 Eoll. Eep. 177 . 109 Lewis V. Eees, 3 Kay & J. 132 • .... 115 Lilley v. Whitney, Dy. 272a. pi. 30 333 Lloyd v. Carew, 1 Show. P. C. 137 147 Loddington v. Kime, 1 Salk. 224; 1 Ld Eaym. 203 61 London and Southwestern Eailway v. Gomm, 20 Ch. D. 562; 51 L. J. Ch. 530; 30 W. E. 620; 46 L. T. 449 149, 150, 151, 152, 154 (818) Digitized by Microsoft® TABLE OF CASES. XV [The paging refers to the [*] pages. 1 PAGE Long V. Beaumont. See Darbison v. Beaumont. V. Blackall,' 7 T. R. 100 148 Longdon v. Simson, 12 Ves. 295 164 Lovell V. Lovell, 3 Atk. 11 27 Low V. Burron, 3 P. Wms. 262 288 Lusher v. Banbong, Dj. 290a 205 M. Machil or Machell v. Clark, Clarke, or Clerk, 2 Salk. 619; 2 Ld. Raym. 778; 7 Mod. 18 262 Machu, Re, 21 Ch. D. 838; 30 W. R. 887 • . 207 Macleay, Re, L. R. 20 Eq. 186; 44 L. J. Ch. 441 153, 162 Mander v. Harris, 24 Ch. D. 222; 52 L. J. Ch. 680; 31 W. E. 885; 49 L. T. 168; on app. 32 W. R. 941 115, 305 Mandeville's Case, Co. Litt. 26b 241 Mamiing's Case. See Matthew Manning's Case. Mansell v. Mansell, 2 P. Wms. 678 95, 115 March, Re. See Mander v. Harris. Marlborough (Duke of) i'. Earl Godolphin, 1 Eden, 404 149 Marquis of Winchester's Case, 3 Rep. 1 64 Marshall v. G-ingell, 21 Ch. D. 790; 51 L. J. Ch. 818; 47 L. T. 159 ... 95 V. Holloway, 2 Swanst. 432 164 Martin r. Mowlin, 2 Burr. 969 304 v: Strachan, Willes, 444 253 Mary Portington's Case, or Portington v. Rogers, 10 Rep. 35; 2 Brownl. 65, 138 244, 245 Matthew Manning's Case, or Clark v. Manning, 8 Rep. 94 139 Metteforde's Case, Dy. 362 b, pi. 20 322 Mildmay's Case, or Hethersall v. Mildmay, 6 Rep. 40; Serj. Moore's Rep. 632 245 Mogg V. Mogg, 1 Mer. 654 291 Monypenny v. Bering, 2 De G. M. & G. 145 91 Moore v. Webster, L. R. 3 .Eq. 267; 36 L. J. Ch. 429; 15 W. E. 167; 15 L. T. 460 278 Morgan v. Morgan, 4 De G. & Sm. 164 165 V. Swansea Urban Sanitary Authority, 9 Ch. D. 582 ; 27 W. R. 283 261 Moseley's Trusts, Re. See Pearks v. Moseley. Murthwaitei). Jenkinson 2 B. &C, 357 205 N. Mcolls V. Sheffield, 2 Bro. C. C. 215 146 Norfolk's (Duke of) Case, 3 Ch. Ca. 1; PoUexf. 223 92, 147, Sf03 Nurse v. Yerworth, 3 Swanst. 608 71, 74 O. Oldham v. Pickering, 2 Salk. 464; Garth. 376 289, 291 O'Neill V. Lucas, 2 Keen, 313 164 (819) Digitized by Microsoft® XVI TABLE OP CASES. [The paging refers to tlie [*] pages.J PAGE Onslow V. Wallis, 1 Mac. & G. 506 34 Ontario, Att-Gen. of v. Mercer, 8 App. Cas. 767 ; 52 L. J. P. C. 84 ; 49 L. T. 312 6 Page V. Hayward, 2 Salk, 570 239 V. Moulton, Dy. 296 a, pi. 22 338 Paine's Case, or Paine v. Sammes, 8 Rep. 34 ; 1 Anders. 184 ; 1 Leon. 167 ; Gouldsb. 81, pi. 22 , 213 Parfitt r. Hember, L. E. 4 Eq. 443 . . 91 Parker v. Glare. See Clere's Case. Paterson v. MiUs, 19 L. J. Ch. 310 ; 15 Jur. 1 303 Peacock v. Eastland, L. R. 10 Eq. 17 ; 39 L. J. Ch. 534 ; 18 W. R. 856 ; 22 L. T. 706 . 256 Pearks v. Moseley, 5 App. Cas. 714 ; 50 L. J. Cli. 57 ; 43 L. T. 449 . . 155 Pells V. Brown, Cro. Jac. 590 ... 143, 169 Pendred v. Griffith, 1 Bro. P. C. 314 151 Perpetuities, The Case of. See Chudleigh's Case. Pimb's Case, Serj. Moore's Rep. 196 . 32 Portington's Case. See Mary Portington's Case. Powdrell v. Jones, 2 Sm. & Giff. 407 ; 24 L. J. Ch. 123 ; 3 W. R. 32 ; 24 L. T. (0. S.) 88; 3 Eq. Rep. 63 ; 18 Jur. 1111 281 Powell V. Howells, L. R. 3 Q. B. 654 . . 301 Prince's Case, The, 8 Rep. 14 89 Pullen V. Lord Middleton, 9 Mod. 483 242 E. Ray V. Pung. 5 Madd. 310 ; 5 B. & Aid. 561 280 Reeve or Eeve v. Long, 1 Salk. 227 ; 3 Lev. 408 ; 4 Mod. 282 . . . Ill, 112 Rex V. Coggan, 6 East, 431 .... 33 V. Ellis, 3 Eag. & Y. 776 ; 3 Price, 323 37 V. Shingle, 1 Eag. & Y. 738 ; 1 Stra. 100 37 Rhodes v. Whitehead, 2 Dr. & Sm. 532 . . 97, 98 Richards v. Lady Bergavenny, 2 Vern. 324 235 Ridge's Trusts, Ee, L. R. 7 Ch. 665 301 Ring V. Hardwick, 2 Beav. 352 156 Ripley v. "Waterworth, 7 Ves. 425 289 Robinson v. Litton, 3 Atk. 209 172 Roe !'. Briggs, 16 East, 406 13, 96 V. Galliers, 2 T. R. 133 151 V. Jones, 1 H. Bl. 30 58, 142 V. Quartley, 1 T. R. 630 298 V. Tranmarr, or Tranmer, Willes, 682 ; 2 Wils. 75 82, 340 r. Vernon, 5 East, 51 27 Ross (Earl of) v. Worsop, 1 Bro. P. C. 281 151 Rowden v. Maltster, Cro. Car. 42 242 Rowlet's Case, Dy, 188a 40 (820) Digitized by Microsoft® TABLE OF CASES. XVU [The paging refers to the [*] pages.] s. PAOE Saint Katherine's Hospital, Case of. See Atkins v. Montague. Salter v. Butler, or Salter's Case Cro. Eliz. 901 ; Yelv. 9 ; Noy, 46 . . . 290 Saunders v. Vautier, 4 Beav. 115 ; S. C. 1 Cr. & Ph. 240 156 Seymor's Case, or Heywood v. Smith, 10 Eep. 95 ; 1 Bulst. 162 ... 81, 288 Sharp's Case, or Sharp v. Swan, 6 Rep, 26 ; Cro. Eliz., 482 ; [Serj. Moore's Eep. 458] . . . . 323 Shelley's Case, 1 Eep. 93 ; Serj. Moore's Eep. 136 ; 1 Anders. 69 ; Dy. 373 h, pi. 15; Jenk. Cent. 6, c. 40 106, 108, 109, 123, 124, 132, 134 Sherwood v. Winchcomhe, Cro. Eliz. 293 . 37 Shields v. Atkins, 3 Atk. 560 205 Shove V. Pincke, 5 T. E. 124, 310 308 Simpson v. Simpson, 4 Bing. N. C. 333 242 Slark V. Dakyns, L. E. 10 Ch. 35 ; 44 L. J. Ch. 205 ; 23 W. E. 118 ; 31 L. . T. 712 .... 156 Smith V. Adams, 5 De G. M. & G. 712 ; 24 L. J. Ch. 258 ; 2 W. E. 698 ; 23 L. T. (0. S.) 325 . ... 281 d. Dormer v. Parkhurst. See Dormer v. Parkhurst. Southampton (Lord) v. Marquis of Hertford, 2 Ves. & B. 54 164 Spencer v. Chase, 10 Yin. Ab. 203 ; 9 Mod. 28 ; . . 204 Sperling v. Eochfort, 16 Ch. D. 18 ; 50 L. J. Ch. 1 ; 29 W. E. 84 ; 44 L. T. 161 34 Stafford (Earl of) v. Buckley, 2 Ves. sen. 170 40, 45, 65 Standsfield v. Hahergham, 10 Ves. 273 172 Stapilton v. Stapilton, 1 Atk. 2 262 Stephenson v. Hill, 3 Burr. 1273 27 Stone v. Newman, Cro. Car. 427 262, 266, 330 Styant v. Staker, 2 Vern. 250 .... ' 283 Surtees v. Surtees, L.. E. 12 Eq. 400 ; 19 W. E. 1043 SOl Sweet V. Anderson, 2 Bro. P. C. 256 151 Sweetapple v. Bindon, 2 Vem. 536 277 Swyft V. Eyres, Cro. Car. 546 87 Talbot's Case, or Chapman v. Pendleton, 8 Eep. 103 ; 2 Brownl. 293 .. . 17 Taltarum's Case, M., 12 Edw. 4, pi. 25, f. 19a ..... . . . 244, 245, 250 Taunton v. Pepler, Madd. & Geld. 166 327 Taylor v. Frobisher, 5 De G. & Sm. 191 156 V. Haygarth, 14 Sim. 8 33 V. Horde. See Doe v. Horde. Teague's Settlement, Ee, L. "E. 10 Eq., 564 ; 18 W. E. 752 ; 22 L. T. 742 157 Thellusson v. Woodford, 4 Ves. 227 ; in Dom. Proc, 11 Ves. 112 . . 148, 163 Thomas v. Kemeys, 2 Vern. 348 74 Thomasin v. Mackworth, Carter, 75 204 Thompson v. Hardinge, 1 C. B. 940 ; 14 L. J. C. P. 268 ; 9 Jur. 927 .. . 27 Thomson ^..Shakespear, 1 DeG. F. & J. 399 157 Thorn v. Newman, 3 Swanst, 603 71, 74 B (821) Digitized by Microsoft® XVm TABLE OF CASES. [The paging refers to the [*] pages.] PAGE Throgmorton v. Tracey, Dy. 124 b, pi. 40 336 Took V. Glascock, 1 Saund. 260 262 Toulmin v. Steere, 3 Mer. 210 74, 75 Townsend v. Ash, 3 Atk. 336 325 Tulk V. Moxhay, 2 Ph. 774 ; 18 L. J. Ch. 83 ; 13 Jur. 89 ... . 150, 151, 152 Turner v. Turner, Amhl. 776 40 V. Wright, 2 De G. F. & J. 234 172 V. Van Hagen, Ee. See Sperling v. Rochfort. Venables v. Morris, 7 T. E. 342 133 Vincent Lee's Case, 3 Leon. 110 ... 71 "W. Wainewright, Ee, 1 Phill. 258 . 260 Wallis V. Freestone, 10 Sim. 225 157 Walsingham's Case, Plowd. 547 ... . 266 Ward V. Ward, 14 Ch. D. 506 ; 49 L. J. Ch. 409 ; 28 W. E. 943 ; 42 L. T. 523 304 Waring v! Coventry, 1 My. & K. 249 157 Weale v. Lower, Pollexf. 54 . 58 Weatherall )). Thornburgh, 8 Ch. D. 261 ; 47 L. J. Ch. 658 ; 26 W. E. 593 ; 39 L. T. 9 . 164 Webb V. Webb, 2 Beav. 493 . . . . . 164 Webber v. Lee, 9 Q. B. D. 315 ; 51 L. J. Q. B. 485 ; 30 W. E. 866 ; 47 L. T. 215 40 Wellington v. Wellington, 1 W. Bl. 645 - 205 Westfaling v. Westfaling, 3 Atk. 460 '. . 36 Whaley v. Tankard or Tankred, 2 Lev. 52; 1 Vent. 241 319 White and Hindle's Contract, Ee, 7 Ch. D. 201 ; 47 L. J. Ch. 85 ; 26 W. E. 124 . .... 61, 134 Williams v. Lord Lonsdale, 3 Ves. 752' . . . 33 . V. Willia-ms, 12 East, 209 ...... 235 Willion V. Berkeley, Plowd. 223 64, 241 Wills V. Palmer, 2 W. Bl. 687; 5 Burr. 2615 128 Winchester's (Marq. of) Case, 3 Eep. 1 64 Windham's Case, 5 Eep. 7; Serj. Moore's Eep. 191 , . . . ; 298 Wiscot's Case, 2 Rep. 60 .' 72 Witham v. Vane, Appendix, p. 341, infra 150 Wright V. Wright. See Bishop of Winchester's Case. V. Wright, 1 Ves. sen. 409 58, 170 Y. Yeap Cheah Neo v. Ong Cheng Neo, L. E. 6 P. C. 381 157 Z. Zouch V. Forse, 7 East, 186 288 (822) Digitized by Microsoft® (xix) *LIST OF TEXT-BOOKS CITED. [*-] *4t* In the absence of special mention, numbers preceding tlie name refer to volumes, and numbers following the name refer to pages. Bacon, Uses. Lord Bacon's Reading upon the Statute of Uses ; ed. by Eowe, 1806. The references are to the marginal pages. The corrections of the text in this edition are important, and the explanatory notes are valuable. Bl. Com. Blackstone's Commentaries ; 15th ed. by Christian, 4 vols. 1809. Booth, Real Actions. 2nd ed. 1811 ; with Serjeant Hill's notes. Chance on Powers. With Supplement, 2 vols. 1841. This able work appears to have met with undeserved neglect. The present writer's copy obviously belongs to an edition of 1831, with a vamped-up title dated ten years later to match the Supplement. Co. Cop. Lord Coke's Compleat Copyholder. See his Law Tracts. Co. Law Te. Three Law Tracts : (1) The Compleat Copyholder ; (2) A Reading on the Statute Beflnibus levatis; (3) A Treatise of Bail and Mainprize. Ed. by Serj. Hawkins. 1764. Co. LiTT. Lord Coke's Commentary upon Littleton's Tenures ; forming the First Part of his Institutes of the Laws of England ; 19th ed. 1832 ; with notes by Francis Hargrave and Charles Butler; among which are inserted the MS. notes of Lord Hale and Lord Nottingham. This edition is a reprint of the 18th, published in 1823, with some additions to the notes. The former numbering of the notes is preserved, and the additions made thereto are distinguished ; but there is nothing to show to which of the annotators each particular addition is due. Mistakes and misprints oc- curring in the 18th edition, are for the most part reproduced in the 19th. Com. Dig. Digest of the Laws of England ; by Sir John Comyns, Lord Chief Baron ; 5th ed. by Hammond ; 8 vols. 8vo. 1822. This edition contains much valuable additional matter ; but it is very inconvenient for reference, and some of the titles are displaced. References are to this edition ; except at p. 30, 1. 7 from bottom, where the reference 1 Com. Dig. 378, which is to the first edition of 1762 — 1767, has been inadvertently re- printed. The corresponding reference to the 5th ed. is 1 Com. Dig. 618. (823) Digitized by Microsoft® XX LIST 0¥ TEXT-BOOKS CITED. Ckuise, Fines and Eec. Cruise on Fines and Recoveries ; 3rd ed. 2 vols. 1794. Cruise made great alterations in the successive editions of this -work. DocT. & SrtT. Doctor and Student, or dialogues between a doctor of divinity and a stu- dent in the laws of England. 17th ed. by "Wm. Muchall, gent. 1787. Fbaene, Cont. Rem. Feame's Essay on Contingent Remainders and Executory Devises ; 10th ed. 1844 ; with Butler's notes. To this edition was added a second voL ume upon Executory Interests by Mr. Josiah W. Smith. The latter is cited as Smith on Executory Interests. The earliest edition of Fearne, edi- ted l^y Butler was the 6th. The paging of the 5th ed. is preserved in all the subsequent editions. Feaene, Posth. Woeks. Feame's Posthumous "Works, 1797 ; edited by T. M. Shadwell, who had been one of his pupils ; see Butl. Pref. to Fearne, Cont. Rem. This contains (1) a reading on the Statute of Inrolments, 27 Hen. 8, c. 16 ; (2) two aorguments, one for each side, in the case of General Stanwix, composed as an amusement, and rever delivered or intended to be deliv- ered ; and (3) numerous Cases with Fearne's Opinions thereon. Finch, Law. Law, or a discourse thereof, in four books ; by Sir Henry Finch ; edited by Danby Pickering, 1759. This is a work of considerable authority, now little read. It fell into disuse after the publication of Blackstone's Commentaries. (Butler's Reminiscences, p. 131). FiTZH. N. B. The New Natura Brevium, of Mr. Justice Anthony Fitzherbert, 8th ed. 4to. 1755. Translated from the law French of the text, and the law Latin of the writs, into English. With Lord Hale's Commentary. The references are to the marginal pages, and to the sections into which they are divided by capital letters. 2 Inst. The Second Part of Lord Coke's Institutes of the Laws of England ; 2 vols. 1809. A commentary upon certain statutes, from Magna Carta, 9 Hen. 3 to 25 Hen. 8, c. 15. This is commonly called the best edition ; but the editing, so far as there is any, is beneath contempt. The same remark applies to the third and fourth parts. 3 Inst. The Third Part of Lord Coke's Institutes. 1809. On pleas of the Crown and criminal offences. 4 Inst. The Fourth Part of Lord Coke's Institutes. 1809. On the jurisdiction of courts. Jaem. "Wills. Jarmau on "Wills, 4th ed. 2 vols. 1881. (824) Digitized by Microsoft® LIST OF TEXT-BOOKS CITED. XXI KiTCHIN, JUKISDICTIONS. Jurisdictions, or the Lawful Authority of Courts Leet, &c. By John Kitchin, double reader in Gray's Inn. 5th ed. 1675. On the readers to the Inns of Court, see the Preface to the Third Part of Lord Coke's Reports, p. xxxv of ed. 1826. Mad. Bar. Angl. Madox, Baronia Anglica ; fol. 1741. An exhaustive account, as the title page imports, of Honours, land-baronies, and tenure in capite. Peek. Perkins' Profitable Book ; 15th ed. by Greening, 1827. This is the best edition. The references are to the sections. Pkbst. Abst. Preston on Abstracts of Title ; 2nd ed. 3 vols. 1823. The present writer chanced once to buy a copy of this work containing numerous MS. notes in the margin, all apparently in the same hand, some signed ' 'E. P." and others " W. S. P." while many have no signature. It is obvious to connect the signed notes with Eichard Preston and his son, "William Scott Preston. (See Vol. 3, p. v. ) Many MS. alterations have also been made in the text, which are evident improvements. On the title page is written " Jeff. Jno. Edwards, 29 Octr. 1827." This writing resembles the writing of the notes, except in being much larger. Ed- wards was probably one of Preston's pupils. The notes (some of which appear to have been transcribed from a MS. which the transcriber in places could not decipher) are full of tantalizing references to "MS. op." and "MSS."with dates, many of the dates being considerably earlier than 1827, which may not improbably refer to Preston's own manuscripts. If any such manuscripts are in existence, it is a great pity that no use should be made of them. Pebst. Conv. Preston's Ti-eatise on Conveyancing. 3rd ed. 3 vols. 1819, 1825, and 1821, respectively. The third volume treats of the law of merger, and is the only systematic treatise upon that subject known to the present writer. Pebst. Est. Preston's Essay on Estates ; 2nd ed. 2 vols. 1820, 1827. No third vol- ume was published, but the work has no index and seems in other re- spects to be incomplete. Pebst. Shep. T. The additions made by Preston to Sheppard's text, in his edition of the Touchstone, 2 vols. 1820. The pages cited in the references, are the pages of the Touchstone. Where the text itself of the latter work is cited, it is referred to as " Shep. T." Bob. Gav. Eobinson on Gavelkind and Borough English ; 3rd ed. by Wilson. 1822. This is the most masterly treatise ever published upon a detached and limited subject. It exhausts not only the printed authorities, but the unpublished records of gavelkind cases. (8251 Digitized by Microsoft® XXll LIST OF TEXT-BOOKS CITED. Sand. Uses. Sanders on Uses and Trusts ; 5th ed. 2 vols. 1844. Shep. T. See Peest. Shep. T. Smith on Execdtoey Interests. An Original View of Executory Interests, by Josiah W. Smith. 1844. Added as vol. 2, to the 10th ed. of Feame, Cont. Eem. The references are to the pages. SuGD. Pow. Sugden on Powers, 7th ed. 2 vols. 1845. ViN. Abe. General Abridgment of Law and Equity ; by Charles Tiner ; 23 vols, folio. 1742—1753. Viner died in 1756. See Pref to Bl. Com. On this work, Hargrave expresses the following opinion: "It is inded a most usefol compilation, and would have been infinitely more so, if the author had been less singular and more nice in his arrangement and method, and more studious in avoiding repetitions. Thpse faults, in great measure, proceeded from the author's error of judgment, in attempting to engraft his own very extensive Abridgment on that of Mr. Serjeant Rolle, whose work, though most excellent in its kind, and in point of method, suc- cinctness, legal precision, and many other respects, fit to be proposed as an example for other abridgments of law, was by no means calculated for the excessive enlargement from 2 vols, to 23 vols, in folio. It is not to be wondered at, that an incorporation of works so widely different in proportion as well as in exeeution, should produce much confusion and. disorder in the effect. Mr. Viner's labours would probable have ad- vanced his reputation as a compiler much higher, if he had not at- tempted an union so unnatural." (Harg. n. 3 on Co. Litt. 9 a.) Watk. Cop. Watkins on Copyholds ; 4th ed. by Coventry. 2 vols. 1825. This is in- comparably the best book on copyholds ever written, and deserves a new edition. The references are to the pages of this edition. Watk. Des. "Watkins on Descents ; 3rd ed. by Tidal. 1819. The references are to the pages of this edition. (826) Digitized by Microsoft® THE LAW OF REAL PROPERTY: CHIEFLY IN RELATION TO CONVEYANCING. *INTRODUCTOET REMARKS. [*1] The Real Property Law of England had its origin at a time when land and its rents and profits constituted nearly the whole tangible wealth of the country. The vast increase in modern times of kinds of property called moveable has lessened in a corresponding degree the importance of rules and principles which are applicable to real property alone ; and the tendency of legislation has long been to as- similate real property law to the law of moveable property. But, in spite of the numerous simplifications which have been efFected during the last half century, the bulk of the law peculiar to real property is still large, and it still contains not a few intricate and abstruse technicalities, which are undoubted law, and would cer- tainly be recognized as such by the Courts. Of these technicalities some, being little used in the common practice, only emerge at rare intervals and under extraordinary circumstances from their normal obscurity. Bat others are of more frequent occurrence, and some are in constant use ; nor can the practice of conveyancing be exercised with prudence and safety, or the recent Acts be com- pletely understood, without a thorough knowledge of the whole. In the absence of express mention, the following remarks will be restricted, so far as they refer to estates, to legal estates of free- hold in land, and, so far as they refer to assurances or conveyances, to assurances, other than testamentary dispositions, by which legal estates of freehold in land can be created or transferred. 1 (827) Digitized by Microsoft® -i INTKODOCTOEY REMARKS. [*2] *It is obviously impossible, within the present limita, to enter upon the details of practical conveyancing ; but the bulk of the information which is here collected together, has a special bear- ing upon the work of the conveyancer, as distinguished from that of the pleader and advocate. Notwithstanding the present decayed state of its general applica- tion and importance, some knowledge of the essential characteristics of tenure is necessary to the adequate treatment of the other parts of the subjects ; nor without such knowledge is a clear apprehen- sion possible of some distinctions which are still of practical im- portance ; such as the distinctions between (!) Eent which is in- cident to tenure ; (2 ) Rent which is not incident to tenure, but is a tenement, and is capable of being the subject of estates limited by analogy to estates in land ; and ( 3 ) Rent incident to a rever- sion. The whole social and political organization of the kingdom rested upon tenure as its foundation for about four centuries after the Norman Conquest. Its political importance had declined to a shadow of its former self at the end of the reign of Henry VII. ; but for anothe:f century and a half it continued to flourish in full vigour, as an acknowledged source of legal rights, at all events as between the crown and the tenants of the crown in capite, until its operation was interrupted by the abeyance of the royal authority in 1645, followed by tbe abolition in 1660 of the burdensome in- cidents attached to tenure in capite, by the statute 12 Car. 2, c. 24 The abolition by that statute of the rights enjoyed by the crown in respect to its freeholds tenants, is probably the chief cause why the evidence of freehold tenure, in respect to lands holden of private persons, has for a long time been much less carefully preserved than the evidence of copyhold tenure ; because thenceforward there was no strong inducement to rebut claims of the crown, arising by presumption in the absence of express evidence. Though the growing importance of the political franchise subsequently gave to freehold tenure, which carried with it the right to vote at the elec- tion of knights of the shire, a new political importance, this was in a great measure lost by the passing of the Reform Act of 1832 ; [*3] and even previously to that time the political *privileges at- tached to freehold tenure did not much favour the careful preserva- tion of the express evidence relating to it, because all tenure ia presumed to be freehold unless proved to be copyhold. The de- (828) 'Digitized by Microsoft® INTRODDCTORY REMARKS. d creased practical importance of freehold tenure has led to some- thing like oblivion of its existence ; and the word tenure is often used in reference, not to the tenure properly so called, but to the quantum of the estate or interest of the tenant. The practical consequences of tenure, in the proper sense of the word, are now almost confined to (1) rights by escheat, which are seldom claimed, in respect to freeholds, except by the crown ; partly because freehold tenure holden of private persons is comparatively rare, and partly because its existence, even when it exists, is diffi- cult to prove ; (2) rights of the lord in respect to copyhold of the manor ; and (3) rights of the lord on the one hand, and of the com- moners on the other, in respect to the waste lands of the manor. The importance of manorial rights, whether of lord or tenant, as distinguished from proprietary rights, has been greatly reduced by the enfranchisement of copyholds and the enclosure of wastes ; though some check has been recently imposed upon the latter pro- cess. Ancient quit-rents which affect freehold lands held for a fee simple and are undoubted incidents of their tenure, still exists ; but these must be at least as old as the year 1290, in which year the statute of Quia JSmptores made it thenceforward impossible for a subjact to reserve a rent as incident to tenure only. They are therefore comparatively rare, and the change in the value of mo- ney makes them now of little importance, unless as evidence to support a title by escheat. These also will tend to be extinguished by the operation of sect. 45 of the Conveyancing Act of 1881, which provides, among other things, for the compulsory redemption of quit-rents, at the instance of any person interested in the land. (829) Digitized by Microsoft® (4) Part I. ON TENURE. [*4] *CHAPTBE I. TENUKE BY THE COMMON LAW. All land is ^T the doctrine of the common law, all the land in held either England is either in the hands of the king himself, or mediately or jg held of him by his tenants in capite (a). The king 'f'th'^i?*^^''' [*5J is. therefore styled, y-ar i^o^fy, *the Lord Para- of the king. (a) For some purposes it is necessary to distinguish between tenants of the king ut de corond and ut de honore. The former held by direct grant from the king. The latter held of the king only by reason that the land-barony, or Honour, of which they held had come to the king's hand by forfeiture or escheat. They held of the king by the same services as of the barony before it came to the king's hand. See Mag. Cart. (9 Hen. 3) cap. 31. With regard to the inaccurate phrase, ut de persond, which, in Lord Coke's day, was very commonly used instead of the more accurate expression ?rf de corond, see Harg. n. 1, on Co. Litt. 77 a ; and notes 2, 3, on 108 a. If a tenant of the king by knight-service, who held ut de coiond, died leaving his heir under age, the king, by virtue of his prerogative, had the wardship both of the lands held of him- self and also of any other lands which the tenant held of inferior lords ; but if the tenure was ut de honore, the king had in gene- ral the wardship only of his own lands. (Co. Litt. 77 a.) The duchies of Lancaster and of Cornwall, and some few other Honours, were exceptions from this rule. As to Honours in general, the curious reader may consult 5Iad. Bar. Angl. Book I. , passim. An Honour was the aggregate of a number of manors, usually, and by ancient custom, granted out together under that title by the crown to a great baron ; and so long as the English nobility remained of the true feudal type, the tenants for the time being of the principal Honours in the gift of the crown were the chief territorial magnates of the kingdom. Upon the decadence of the feudal system, nobility became a mat- ter of mere titles, unconnected with the tenure of the land, and the meaning of the word "Honour " was almost forgotten. Ma- dox ridicules Henry VIII. for his absurd conduct in passing Acts of Parliament to turn the manors of Ampthill, Hampton Court, and Crrafton, into "Honours," at a time when the word no longer retained any of the significance of its original meaning. (Mad. Bar. Angl. 8, 9.) The king could, of course, if he chose, instead of granting out in its entirety an Honour of which he had obtained possession, subdivide it into aliquot parts, or separate from it some of its (S30) Digitized by Microsoft® TENURE OF THE COMMOS LAW. 5 mount ; as being the " sovereigne lord, or lord para- mount, either mediate or immediate, of all or every parcell of land within the realme." (Co. Litt. 65 a.) To this rule there is no exception ; but Hargrave seems to surmise that allodial lands may still exist in Scot- land In case of a failure of heirs of the person entitled, it would be impossible for a person in possession of land in England to withstand a claim by escheat of the crown, upon a plea that the land was allodial or not held of any lord. The tenants of the crown in capite Immediate- are commonly referred to as " the tenants in capite ;" and ly, by tlie that phrase imports, iu the absence of any addition, tenants m tenure holden imrtiediately of the crown, though tenure in capite might in fact be holden of a subject. (Co. Litt. 73 a ; and see Dy. 277 a, pi. 57 ; Mad. Bar. Angl. 166.) Under the tenants in capite came others Mediately who held of them ; and until the statute of Quia Emptores by tenants' ol prevented the practice of sub-inf eudation from being mesne lords. carried further, the tenants of the tenants in capite might, by the common law, convey lands in fee simple to tenants of their own, and these again to others un- der them, and so on theoretically ad inflnitum (6), though in practice the successive links could not be very numerous. After the last - mentioned statute, manors, or some parcel of its demesne lands ; and this Avas some- times done even in early times, though not to a great extent, be- cause the practice, if common, would then have disarranged both the political and the military organization of the Kingdom. Some early examples are collected iu Mad. Bar. Angl. 44 — 60. At a later period, when it was no longer attended bj' the same public inconvenience, the practice became more common. "Thus," says Madox, at p. 59, " land-baronies were divided and subdi- vided, till at length they were brought to naught." Perhaps the only Honour now held by a subject is the Honour of Arun- del, which gives to the Duke of Norfolk his title as Earl of Arun- del. For some mention of this Honour, see Mad. Bar. Angl. 63, 71. (b) As is shown by the Statute of Westminster, 2, 13 Edw. 1, c. 32 ; which, in order to prevent evasion of the Statutes of Mort- . main by means of feigned recoveries enacted that the bona fides of default made by the defendant in actions of recovery brought by ecclesiastical persons should be inquired by a jury ; and that, if it should be found that the demandant had a good title, he should have judgment ; but if it should be found that he had no right, ' ' the land shall accrue to the next lord of the fee, if he de- mand it within a year from the time of the inquest taken ; and if he do not demand it within the year, it shall accrue to the next lord above? if he do demand it within half a year after the same year ; and so every lord after the next lord (quilibcl dominiin post proximum dominum) shall have the space of half a year to de- mand it successively, until it come to the king, to whom at length, through default of other lords, the land shall accrue." (2 Inst. 428.) (S-31) Digitized by Microsoft® b ON TENURE. though successive feoffments in fee might be made, [*6] yet the feoffee did *not hold under the feoffment of the feoffor, but, under the statute, of the chief lord of the fee. Meanina; of '^^® tenure by which this system was held together, common law because it existed by for3e of the common law, is often tenure. styled tenure by the common law or common law ten- ure. Since the decadence of the feudal system, which has deprived the true doctrine of tenures of nearly all its practical importance, the word tenure has often been confused with terms referring to the quantum of the tenant's estate : a confusion which is chiefly due to the fact, fiu-ther referred to in the next following para- graph, that common law tenure is found only in con- nection with estates having a certain conventional quan- tum. But the word properly denotes the specific feudal relation subsisting between the lord and the tenant. (See Att. Gen. of Ontario v. Mercer, 8 App. Gas. 767, at Does not ex- P- '^'^'^■) It refers only to those relations which were tend to terms comprised within the feudal organization of the realm, of years. and does not properly include the relation between a reversioner and a termor for years. Until the Statute of Gloucester (6 Edw. 1) gave a partial, and the 21 Hen. 8, c. 15, gave a complete remedy, the reversioner, as common law tenant of the freehold, had power to destroy the terms of years at his own will and pleasure, by suffering a collusive recovery. (Co. Litt. 46 a; and see further, as tj the origin of terms of years, regarded as legal estates, p. 46, infra.) Oonnectiou There does not necessarily exist any definite relation between com- between the nature of the tenure by which the tenant mon law ten- holds, and the quantum of the estate held by the ten- ure and free- g^-^^ . ^^j, ^^ invariable custom did, in fact, establish such a definite relation, and also went a considerable way towards maintaining a definite relation between the nature of the tenure and the political status of the tenant. Thus it is the fact (1 ) that common law tenure was always associated with estates not falling below a certain conventional quantum ; and (2) that such tenure was so far associated with the status of a free man, that the grant to a villein by his lord of an estate to be held thereby, or (which is the same thing) the grant of an estate not falling below the standard quantum, would operate as an enfranchisement. (Litt. sect. [*7J *206. ) Fromits connection with political status, the common law tenure acquired the name of free or frank Digitized by Microsoft® TENURE OF THE C03IM0N LAW. 7 tenure, and the common law estates were styled estates of freehold. These estates remain, in point of quan- tum, the same now as in the days of Littleton ; but the practical importance of the distinction between estates of freehold and estates not of freehold, has been much lessened. Moreover, certain important distinctions have been enacted and established by statute, between estates of mere freehold arising under a settlement, and estates of mere freehold taken under a lease granted at a rent. Both the nomenclature and the history of tenures shows that, so long as the feudal system retained its practical importance, a strong connection existed, both in public opinion and in common practice, between free status and free tenure, and between villein status and villein tenure. It is probable that, during the early period of the Norman conquest, the division between The connec- free and villein tenure accurately corresponded with the tion between division of the population in regard to status ; but the *^^°^ tenuie connection between tenure and status, at all events gWus^not after the earliest days of the feudal system, was not absolute, absolute. (1) A free man did not lose his freedom by accepting lands to be held by villein tenure. (Litt. sects. 172, 174.) (2) Not only the grant of an estate of freehold, but also the grant of a term of years, or any fixed interest whatever, greater than a tenancy at will, by the lord to the villein, operated as an enfran- chisement ; as also did the grant of an annuity, or the giving of a bond, or anything whereby the villein ac- quired the right to maintain an action against the lord. (Ibid, sects. 205, 208; and Lord Coke's comment.) The existence of these breaks in the connection between tenure and status is sufficiently explained by the lean- ing in favorem libertatis, which has from very early times been a marked feature of English law. (Anglice jura in omni casu libertati dant favorem.) All free or common law tenure (other than spiritual Divisions of tenure) was either in chivalry or in socage. (Litt. sect, common law, 118.) It is necessary to restrict Littleton's words, °gjj^r° ' which are general, to lay tenure ; for frankahnoigne is indubitably entitled to rank as a distinct third kind of common law tenure. (Co. Litt. 86 a. ) *(I. ) Tenure in chivalry comprised, until its [*8] Tenure in abolition in the year 1660 ( which took effect as from cbivalry. 1645) by the 12 Car. 2, c. 24, the following species : — (833) Digitized by Microsoft® b ON TENUEE. Tennrein 1. Grand Serjeanty. (Litt. sects. 153 — 158, and chivalry. Lord Coke's comment.) This tenure could be of none but the crown. (Litt. sect. 161.) Its distinguishing characteristic is the nature of the services to be performed by the tenant. These ■were always of an honourable and dignified kind, closely connected with the person or the sei-vice of the king. They might be either merely or- namental, as to carry the king's spurs or sword at his coronation ; or useful, as to keep guard in one of the royal castles, or to perform the duties of constable, marshal, or chamberlain of Eng- land: (Co. Litt. 105 a, 106 b ; Mad. Bar. Angl. 247.) The office of Usher of the Exchequer was held by grand serjeanty. (Dy. 213 b, pi. 42. See also ibid. 285 b, pi. 39.) Language has been sometimes used which would seem to import that this tenure has not been destroyed, as a separate species, by 12 Car. 2, c. 24. (For an instance of this, see Lord Ellenborough in Doe V. Huntington, 4 East, 271, at p. 288.) But the language of the statute better supports the view, that grand serjeanty has thereby been con- verted into free and common socage, retaining nevertheless its honorary incidents. 2. Homage Ancestral, on which some remarks will be made shortly. (Vide infra, p. 11.) 3. Knight service, commonly so called, of which escuage, cornage, castle-guard, &c., were inci- dental services. The term escuage is sometimes used by metonymy to denote the tenure of which it was a prominent incident : for example, in Litt. sect. 99. Escuage certain, i. e., payable to a fixed amount, is sometimes used to denote socage ; of which fixity in the extent of the ser- vices lawfully demandable is the most salient characteristic. (Co. Litt. 87 a.) But when the term is used without any specific addition, it re- fers to knight- service. It is unnecessary for the present purpose to make any particular mention of the burdensome [*9] incidents of knight-*service, which were abolish- ed, together with that tenure, by the statute 12 Car. 2, c. 24. Tenure in (H-) Tenure in socage, also styled free and common socage. socage, comprises: — (834) Digitized by Microsoft® TENURE OF THE COMMON LA\T. 1. Petite Serjeanty. (Litt. Sects, 159, IGO.) This Tenure in tenure also can be of none but the crown. (Ibid, socage, sect. 161.) Sundry incidents of this tenure have been abolished by the 12 Car. 2, c. 24, but its name seems to remain. (Harg. n. 1 on Co. Litt. 108 b.) On the distinction between grand and petite serjeanty, see Co. Litt. 108 a. 2. Homage Ancestral in Socage. (See Litt. sect. 152.) Tbis tenure may be said to have been converted into mere fealty ancestral by the abo- lition of homage; but the conditions under which homage ancestral, whether in chivalry or in socage, existed, make it very improbable that any specimens survived in practice till the Restora- tion. ?3. Peculiar species of socage, distinguished by the association with them of peculiar customs ; as for example, Burgage Tenure (Litt. sect. 162), distinguished by its frequent connection with the custom of borough-english, and also with a cus- tom to devise by will lands so held, before the first Statute of Wills, 32 Hen. 8, c. 1; also gavel- kind, when the first word is used to denote the tenure and not the attendant customs. Other species might perhaps be discriminated, which have not acquired distinct names by reason of their rarity and comparative unimportance. But the practice of distinguishing between species of socage or other tenures, by their connection with. peculiar customs of inheritance, is of doubt- ful propriety; because an alteration in the ten- ure does not effect any alteration in the associ- ated custom. (Vide infra, p. 12.) 4. Common Socage, so styled generally, in the absence of any special characteristic. (in. ) Frankalmoigne is a species of tenure to which Tenure in the following conditions are necessary: — (1) that the frankal- tenant be an ecclesiastical corporation, whether aggre- moigne. gate or sole; (2) that the grant be made by the words in liberam (or puram) eleemosinam, *or the [*10] Norman or English equivalents. (Co. Litt. 94 b. ) But no gift to be held by this tenure can be made, since the statute of Quia Emptores, except by the crown. (Litt. sect. 140. ) Even a corporation sole would take a con- tinuing estate by the use of the word frankalmoigne without words of succession. (Co. Litt. 9 b; ibid. 94 b.) Fealty was not due to the lord. (Litt. sect. 135.) (835) Digitized by Microsoft® 10 ON TENURE. But if by escheat the lordship passed to a superior lord {Ibid. sect. 141), or if by alienation the lands passed to a new tenant {I hid. sect. 139), fealty became due, and the tenure was converted into socage, even though the new tenant v^ere an ecclesiastical person, for the tenure of frankalmoigne could only exist between doner and donee. (Litt. sect. 141; 2 Inst. 502.) No definite or specified services could be reserved to the lord on a gift in frankalmoigne, but a general obli- gation was implied to say prayers and masses for the souls of him and his heirs. If any definite or specified ecclesiastical service was annexed to the gift, the tenure was not properly frankalmoigne, but by Divijie Service. (Litt. sect. 137. ) Therefore it would be the more strictly correct method to treat frankalmoigne as being only one species or sub -division of spiritual tenure, as Lord Coke says the old books did. (Co. Litt. 97 a.) A res- ervation of a secular service, such as a rent, was void, as being repugnant to the nature of a grant purporting to be made in frankalmoigne. [Ibid). Estates in Frankmarriage (sometimes vaguely coupled with frankmar- frankalmoigne, and sometimes erroneously styled a I'l'ig*"- tenure) is the name, not of a species of tenure, but of a species of estate; namely an estate in special tail given to a man and his wife and the heirs of their two bodies, in consideration of the marriage and of a near blood relationship between the doner and one of the parties to the marriage; which estate has some peculiar char- acteristics distinguishing it from an estate in special tail not limited upon those particular considerations. (See Co. Litt. 21 b. ) Land may be given in frankmar- riage as well after the marriage as before. (Dy. 272 b, pi. 32.) Frankmarriage is a word of limitation sufficient (when the postulated state of the facts actually exists) to con- fer such an estate in special tail vnthout the word heirs. [*11] The fact that old *precedents of deeds, or char- ters, relating to feoffments purporting to be made in frankmarriage, often contain words of express limita- tion, may be explained, without supposing that the persons who made the deeds had any doubt as to the sufficiency of the word frankmarriage alone. Their motive may have been, to avoid the necessity for actual proof to the relationship between the parties, in case the deed should be required as evidence of the estate. At common law, before the statute De Bonis had given to conditional fees the peculiar characteristics (8:36) Digitized by Microsoft® TENURE OF, THE COMMON LAW. H ■which have caused them to be distinguished as fees tail or estates tail, the estate created by a gift in frank- marriage was a conditional fee. Homage and Fealty were not themselves tenures, but liomage and incidents of tenure. Homage was due only in respect lealty. of estates of inheritance (Litt. sect. 90); and was al- most confined to tenure in chivalry, though it was sometimes found as a rare incident of socage tenure. (Ibid. sect. 117.) Fealty not only pertained equally to chivalry and to socage, but by custom also to copyhold and customary tenure, and even to a reversion (Co. Litt. 93 a); and it was due in respect of every estate and interest in land, except a common law tenancy at will; that is, a tenancy at will other than the customary tenancy upon which copyhold tenure depended. But (as above remarked) fealty was not due in respect of lands held in frankalmoigne. It sometimes happened Tenure by that homage, or fealty, was the sole obligation which homage an- the tenant was bound to discharge; of which the best '^^ '^^ ' known example is the case of lands held by homage ancestral, where the tenant and his ancestors had held the land, either of the same lord and his ancestors or of the same corporation, time out of memory, by homage alone. (Litt. sect. 143; Co. Litt. 102 b.) This tenure tends by its nature rapidly to become extinguished; since it generally requires for its validity a double pre- scription, one on the side of the lord and the other on the side of the tenant; and Lord Coke doubted whether any specimens of it were still in being at his day. (Co. Litt. 100 b. ) It is sometimes mentioned as though it had been a special tenure; but may more properly be regarded as knight- service (in some rare cases, so- cage) which had never been subject to any other ser- vices, *or perhaps, in some cases, had practically [*12] lost the liability to such services by long disuse. Ten- ure in frankalmoigne (as above remarked) might be converted into socage, with no service incident to it ex- cept fealty, either by alienation or by escheat. Homage was abolished by 12 Car. 2, c. 24; but Homage now fealty remains due, if demanded; though long neglect abolished, would, in many cases, make the title, where it exists in j-^aSs.'^ inferior lords, difficult to prove in respect of freehold tenure. In the absence of proof that the tenure is of an inferior lord, the tenure is presumed to be of the crown, which presumption carries with it the right to the lands upon an escheat. On admittances to copy- (837) Digitized by Microsoft® 12 ON TENURE. holds, where the lord's right to fealty is generally in- di8patable,.it is usual expressly to respite the tenant's feaity. Bat by the custom of some manors, the copy- holders are not bound to do fealty. (Litt. sect. 84) On o-avelldnd Oavelkind (in its usual sense) and borough-english and'borough- are not tenures, but customary modes of devolution af- english. fecting lands in particular places, by virtue of which the inheritance of them descends differently from the course of descent prescribed by the common law, al- though the tenure is socage, and the words of limita- tion used to create the estate are those used to create common law fees. The word gavelkind is used, or con- fused, in three different senses: — (1) To denote the tenure, which is a species of socage having certain pe- culiar customs connected with it; (2) to denote the sev- eral particulars which together make up the custom of Kent; and (3) to denote only the custom of eqijal par- tition among males upon a descent. (Rob. Gav. 9.) But it is conceived that the word is not properly used to denote the tenure; for the custom "runs with the land and not with the tenure" (Ibid. p. 80; and see pp. 87, 90) ; and the descent of copyholds subject to the custom is not altered by enfranchisement. (Ibid. f2. ) A fine (improperly) levied at common law of gavelkind lands in ancient demesne, did not alter the tenure, though remaining unreversed. (Dy. 72 b, pi, 4. ) Some later writers seem to use the word gavelkind, in conjunction with the word tenare, to denote the cus- tom — a highly inappropriate combination. In relation to borough-english, the name of the tenure is burgage [*13] tenure. The custom of borough-english, *how- ever, is not confined to boroughs, but may exist in manors. (See Roe v. Briggs, 16 East, 406.) Customs of inheritance do not de- pend upon the tenure. Gavelkind. Gavelkind is found as a custom most commonly, but not exclusively, in Kent. (Litt. sect. 210, and Lord Coke's comment.) In that county, though the extent of the custom has been curtailed by 31 Hen. 8, c. 3, and other private Acts passed for the disgavelling of particular lands, all lands are still presumed to be gavel- kind until the contrary is shown. (Rob. Gav. 54.) The tendency of this rule is gradually to undo the effect of the disgavelling Acts, because lapse of time makes it difficult to prove that specified lands are in- cluded in a specified Act. It seems that the word gavelkind is not properly used (838) Digitized by Microsoft® TENURE OF THE COMMON LAW. 13 of lands affected by the custom outside Kent, such ex- Properly re- tended usage of the word having been introduced only fers only to by the disgavelling Acts of Hen. 8. (Rob. Gav. 8, note.) ^g^f^'"'**'™ "^ The custom of Kent must, at all events, from its impor- tance, be regarded as the normal standard of gavelkind, and all variations from it as being separate and pecu- liar customs. By this custom, the descent is among piowit affects all the sons equally, and in default of sons, to all the descent, daughters equally, and in default of children, to all the brothers equally, the issue of a deceased son, daugh- ter, or brother, who, if living, would have been entitled to partake, being also entitled per stirpes to the share of their deceased parent. (Ibid. 112, 115.) The custom affects lands subject to it in some other How it other- respects besides descent; namely, dower, curtesy, aliena- wise affects tion by infants, and escheat, together with other less l^°cls. important points, some of which are now obsolete; and the effect of the disgavelling Acts above referred to is con'lined to descent alone, so that the custom still ap- plies in all other respects. (Rob Gav. 96.) The pecu- liar advantage of gavelkind lands in respect to escheat, has disappeared with the general abolition of escheat upon attainder of felony by 33 & 34- Vict. c. 23. Borough-english is a custom chiefly found in connec- Eorough- tion with lands held by burgage tenure within certain english. ancient boroughs *(Litt. sect. 165), which species [*14] of socage does not seem to be affected by 12 Gar. 2; c. 24. (Harg. n. 1 on Co. Litt. 116 a.) The descent is here to the youngest son, to the exclusion of all the other children. (Litt. sect. 211.) Various species or modifications of the custom, including its extension to females, and also to collateral descents, are also found. The custom also obtains in certain manors. (Rob. Gav. 391, 393.) Customs affecting the descent of lands of freehold other pecu- tenure, such as those above mentioned, are found in liar customs considerable variety scattered about the kingdom. It °f descent in is said, for example, that in the borough of Wareham ''"'^^S^- in Dorsetshire, and in Taunton Dean in Somersetshire, lands descend by custom to both males and females by equal partition. (Rob. Gav. 45.) The same custom held good of lands within the city of Exeter, until, by a private (or rather, local) Act, 23 Eliz. c. 12, lands within that city were made inheritable as lands at the common law. (Ibid.) Lord Coke also mentions a manor in Berkshire, in which, if there be no son, the (8:59) Digitized by Microsoft® 14 ON TENURE. eldest daughter inherits, to the exclusiou of her sisters, if any (c). (Co. Litt. 140 b.) The tenure of freehold lands within such boroughs and manors may be re- garded as forming distinct species of socage, which have never acquired special names by reason of their rare occurrence; but it is the usual practice to regard such peculiarities of local custom as being modifica tions of gavelkind, if they are associated with a custom of equal partition, and as modifications of borough- english, if they are associated with a custom of descent ' to the youngest child. The above mentioned custom of the manor in Berkshire cannot be brought under How far such [*15] either denomination. *Customs like these, in- customs are eluding the custom to devise lands before the passing good. Qf ^j^g Statutes of Wills, which are in derogation from the common law, may be alleged to exist in counties, hundreds, cities, boroughs, honours, and manors, but not in less important places, such as hamlets and towns. (Co. Litt. 110 b, and Harg. n. 2 thereon.) This last remark does not apply to customs favoured by the law, such as a custom to make bye-laws for repair- ing a church, or for the well-ordering of common lands. (Ibid.) The restriction upon the legality of local cus- toms is founded upon the consideration that, if every trifling locality were indulged in the use of special cus- toms, the common law, which is only the general custom of the realm, would practically cease to exist. For an example of a custom (besides the custom of Kent) pe- culiar to a county, see the custom of the county of Gloucester, referred to in the statute De Proerogativd Regis, cited infra, p. 31. (c) Lord Coke's testimony as to the eldest daughter is clear. He then continues — "and if he [the deceased tenant] have no daughters, but sister, the eldest sister by the custome shall in- herit, and sometimes the youngest." These words are obscure. They probably mean, that in the same manor the eldest sister inherits, provided that there are no brothers ; and that in some other manors there is a similar custom in favour of the youngest daughter and the youngest sister, in default of sons and brothers respectively. The manor referred to by Lord Coke is no doubt the Manor of Bray ; see 2 Watk. Cop. 480. For a curious cus- tomary descent of copyholds within the manor of Sedgley in the county of Stafford, see BicUey v. Bickley, L. E. 4 Eq. 216. In this case the word- descent was held to signify a link in the pedi- gree, without reference to the question, whether it had, or had not, been the cause of an actual devolution by heirship. (840) Digitized by Microsoft® (15) *CHAPTER II. [*16] THE STATUTE OP QUIA EMPTOEES. By the common law, lands held in fee simple could be Effects of alienated, and upon alienation a tenure could, if the alienation parties chose, be created between the feoifor and feoffee. PP°J' n^'^^,-j. (2lQ8t. 05. ) Unless the alienation extended to the whole ^ ^' of the lands in the same tenure, the feoffee could not, by the mere act of the parties, be made to hold of the chief lord ; because the tenant had no right to divide the lord's seignory without his consent. (Co. Litt. 43 a.) The creation of a sub-tenure in lands held for a fee simple is commonly styled sub-infeudation ; and this was the form under which . alienation was usually effected during the early stages of the feudal polity. For several generations such alienations were common; and though some restriction was placed upon aliena- tion by Magna Carta, further referred to in the next following paragraph, it is evident from the complaints made by the superior lords, that the practice of creat- ing sub-tenancies and mesne lordships was not seriously checked. We gather from the preamble to the statute of Quia Emptores, 18 Edw. 1, that this alienation by the creation of a sub-tenure might deprive the chief lords of the " escheats, inarriages and tvardships of lands and tenements belonging to theu' fees." The explanation (d) of the lords' complaint is possibly as follows: — Though the lord might always at common law distrain upon the whole land for his services in arrear (2 Inst. 65), and also, under the Statutes of Gloucester and Westminster 2, might recover the lands by writ of cessavit, yet he would lose the benefit of escheats, mar- riages and wardships, if his own tenant, having infeoff- ed a sub- tenant, should simply disappear, so that the *happening of the occasions upon which those [*17] benefits arose would not be known ; or if, on occasion of the feoffment, no valuable services had been reserved, so that the wardship of the tenant was the unlucrative (d) Blaokstone says that the wardships, &c., fell into the hands of the mesne lords. (2 Bl. Com. 91.) There seems to be here some confusion. What the superior lord was entitled to was the wardship of his own tenant, the mesne lord, not of the mesne lord's tenant ; and the wardship of the mesne lord could not possibly fall into the mesne lord's hand. (841) Digitized by Microsoft® 16 ON TENUEE. ■wardship of a person entitled to nothing but a bare seignory. Remedy at- Notwithstanding the lord's right at common law to tempted by distrain for the services, the latest version of Magna Magna Carta. Carta, 9 Hen. 3, c. 32, provided an additional protection for him, by forbidding the tenant to alienate more than would leave enough to answer the services. This en- actment was probably due to the same motives which afterwards prompted the enactment of Quia Emptores. (2 Inst. 66.) The remedy afforded by a common law right of distress, under which chattels might be seized only upon a failure of heirs. If a corporation holding lands in fee simple is dissolved, there is no escheat to the lord, but a reverter to the donor. (10 Vin. Abr. l'B9:^Escheat, A, pi. 2, 3, 4; Co. Litt. 13 b. But see also Harg. n. 2 thereon.) The question is not at this day of much practical im- portance; because the only dissolutions of corporations which frequently occur, are due to the winding up of companies formed under the Companies' Acts, and in such cases the destination of their property is regulat- ed by the Acts. The reader will also remember that, upon the dissolution of the monasteries and clerical colleges in the reign of Henry VIII., their lands were vested in the crown by statute, where they had not previously been surrendered. Until 27th June, 1834, the date of the passing of 4 & 5 Will. 4, c. 23, lands held upon trust or mortgage would have escheated upon the attainder or death with- out heirs of a sole trustee or mortgagee seised in fee [*32] simple; and, according *to the better opinion, the lord coming in by escheat would not have been bound by the trust. ( 1 Prest. Abst. 147. ) This inconvenience was remedied by the last-men- tioned statute, which was repealed by the Trustee Act, 1850, 13 & 14 Vict. c. 60, s. 1; but re-enacted with variations by ss. 15, 46. Now, by virtue of sect. 80 of the Conveyancing Act (854) Digitized by Microsoft® ESCHEAT. 29 of 1881, lands, of whicli a trustee is solely seized in fee simple, upon his death, notwithstanding any testament- ary disposition, become vested in his personal repre- sentatives. ' Forfeiture for High Treason. Escheat must not be confused with forfeiture to the cistineuish- crown for high treason. Of lands held for any com- ed from es- mon law fee, such forfeiture was by the common law cheat. (3 Inst. 18, 19); and in the case of a conditional fee, after birth of issue of the kind prescribed in the limit- ation, the forfeiture was absolute and barred the lord of his reverter. The forfeiture related back to the time when the offence had been committed. {PiinVs Case, Serj. Moore's Kep. 190.) Forfeiture for high treason extended to gavelkind lands. (Hob. Gav. 293.) After the statute De Bonis, by which conditional fees were turned to fees tail, the forfeiture incurred by the high treason of a tenant in tail was only during the lifetime of the attainted traitor. Co. Litt. 392 b; 2 Bl. Com. 116.) The 26 Hen. 8, c. 13, s. 5, partly re- stored the rights possessed by the crown, before the statute De Bonis, in respect of lands held for a condi- tional fee, after the birth of issue of the kind pre- scribed in the limitation. Thereby it was enacted that every offender lawfully convicted of high treason should forfeit to the king all lands, tenements and heridita- ments, which such offender should have of any estate of inheritance in use or possession. It was held that the words in italics include fees tail; and that the crown took, by virtue of a statute, a base fee, which endured so long as any issue was in existence which might have inherited under the entail. Forfeiture for high treason was restricted to the lifetime of the attainted traitor, by 54 Geo. 3, c. 145, and was alto- gether abolished by 33 & 34 Vict. c. 23, s. 1. *The Relation of Escheat to Incorporeal Heredita- [33*] ments and Equitable Estates. An attempt has recently been made by statute, to ex- tend the application of the rules of escheat to incor- poral hereditaments and equitable estates. Some re- marks upon this enactment, which is expressed to refer only to persons dying inestate after 14th August, 1884, will be found below. Its meaning does not seem to be so clear, as to render surperfluous all statement of the previous law. (855) Digitized by Microsoft® 30 ON TENURE. Legal here- ditaments which are subjects of tenure. Equitable heredita- ments. Equities of redemption. 47 & 48 Vict. c. 71, s. 4. Hereditaments which may be held for a fee simple, but are not strictly subjects of tenure, such as fairs, markets, commons in gross, rents-charge, rents seek, and the like, do not escheat, but become extinct upon a failure of heirs of the tenant. (3 Inst. 21.) If a trustee is seised in fee simple upon trust for another person in fee simple, who dies intestate and without heirs, there is no escheat of the equitable estate, but the trustee holds the lands to his own use. {Burgess V. Wheats, 1 W. Bl. 123, 1 Eden, 177; Cox v. Parker, 22 Beav. 168; Johnstone \. Hamilton, 5 Giff. 30.) The rule is the same for copyholds as for freeholds. ( Taylor V. Hay garth, 14 Sim. 8.) Also for realty which is created by statute, such as New River shares. {Davall V. New River Co., 3 De G. & Sm. 394.) In the case of copyholds, if the trustee has not been admitted, a court of equity will not interfere to compel the lord to admit him. {Williams v. Lord Lonsdale, 3 Ves. 752.) But the trustee has a right to a mandamus at law ; and there is no equity to interfere with his legal right. {Rex v. Coggan, 6 East, 431 ; Gallard v. Hawkins, 27 Ch. D. 298.) In Gallard v. Hawkins, the deceased cestui que trust was entitled only for life; but the trusts subse- quent to the life estate were void under the Charitable Trusts Act, 9 Geo. 2, c. 36, and the deceased settlor had left no heir to take advantage of the resulting trust in his favour. [*34] *And similarly, upon a failure of heirs of a mortgagor who has parted with the fee simple by way of mortgage, the equity of redemption is extinguished in the legal estate for the benefit of the mortgagee; but subject to payment of the mortgagor's debts. {Beale V. Symonds, 16 Beav. 406.) The Intestates Estates Act, 1884, s. 4, which received the royal assent on 14th August, 1884, is as follows : — " From and after the passing of this Act, where a person dies without an heir and intestate in re- spect of any real estate consisting of any estate or interest whether legal or equitable in any in- corporeal hereditament, or of any equitable estate or interest in any corporeal hereditaments, whether devised or not devised to trustees by the will of such person, the law of escheat shall apply in the same manner as if the estate or interest above mentioned were a legal estate in corporeal hereditaments." (856) Digitized by Microsoft® ESCHEAT. 31 This enactment evidently assumes that a person may Remarks die intestate in respect to the real estate which is devised upon the to trustees by his will. This language is so remote from above-cited -,- , 1 ■ j_ ■l_^ T , -J enactment. ordinary usage as to make conjecture with regard to it somewhat hazardous. It was held, in the case of Onslow v. 'Wallis, 1 Mac. ■ & G. 508, that the trustees of a will, to whom an equi- table fee simple had been devised, had a right to call upon the existing trustee to convey the legal estate; and that the latter could not refuse to convey it, merely upon the ground that the trusts of the will were incap- able of being executed, and that the testator had left no heir. (Compare Sperling v. Rochfort, 16 Ch. D. 18.) It is possible that this decision may, to some ex- tent, account for the appearance of the words, " whether devised or not devised to trustees by the will of such person." These words have the air of a parenthetical addition to the section; and their intention may possi- bly have been to provide, that when any person shall die without an heir, not intestate, but having devised the hereditaments in question to trustees, upon trusts which do not admit of being executed, there shall be the same operation of escheat *as the section [*35] has attempted to describe in the case of an intestacy. But it would be difficult, if not impossible, to import this meaning into the words used. Apart from these words, the language of the enact- ment is obscure, and will, probably give rise to litiga- tion. A corporeal hereditament, when it is the subject of escheat, escheats to the lord of whom it is holden. But in relation to the incorporeal hereditaments con- templated by the enactment, there exists no such per- son ; and therefore the hereditaments in question can- not escheat to him. The law of escheat, therefore, cannot " apply in the same manner ; " and the question must arise, in what other manner, if any, it shall apply. In the case of incorporeal hereditaments, such as a rent- charge, which may issue out of lands holden of a mesne lord, a contest may not improbably arise between the mesne lord, if any, and the crown. The enactment seems to be founded upon a very superficial view of the law of escheat. (867) Digitized by Microsoft® (32) Part II. ON ESTATESIN GENERAL. [*36j *CHAPTEE VII. Division into lands, tene- ments and heredita- ments. OF THE SUBJECTS IN WHICH ESTATES MAY SUBSIST. The subjects in -which estates may subsist are commonly subdivided into lands, tenements, and hereditaments ; which is a cross division, of which the sub-classes are by no means mutually exclusive. Lauds are treated as a separate class, by reason of their prominent import- ance and peculiar physical characteristics. Tenements require special mention, because they alone are intaU- able. Hereditaments is a convenient class-name for uniting together everything which may be the subject of estates of inheritance. Land Land includes whatever is parcel of the terrestrial globe, or is permanently affixed to any such parcel. (Co. Litt. 4 a— 6 a.) This is the meaning of the word in ordinary legal speech, and in this sense propositions respecting lands are generally to be understood. (See Co. Litt. 4 a.) For the present purpose, which is only concerned with classification, and is only concerned with that in order to clearness, there is no need to inquire into the more extensive meanings which, in a deed or testament, the word may derive from the context (h). But it is to be observed that, by virtue of Lord Brougham's Act, 13 [*37] & 14 Vict c. 21, *s. 4, in Acts of Parliament the word "land" now includes " messuages, tenements, and hereditaments, houses and buildings, of any tenure, unless where there are words to exclude houses and buildings, or to restrict the meaning to tenements of (h) Evenin a will, the word "land" will not include an ad vow- son in gross. ( Westfaling v. IVeslfaling, 3 Atk. 460. ) And it is doubtful whether the word will include a manor, when the tes- tator has other lands, not parcel of the manor, which can pass hy the devise. {Easlexoood v. Pope, 3 P. Wms. 322.) But of course a testator may, by express declaration, or by the use of language which suggests a clear inference, import into the word "land," or into any other word, any meaning which he may think proper. (858) Digitized by Microsoft® OF THE SrBJECTS IN WHICH ESTATES MAY SUBSIST. S3 some particular tenure." Here the word hereditaments does not seem to include incorporeal hereditainents. (Dart, V. & P. 206, n. z.) Sundry curious meanings have also been affixed to the word "land" by special interpretation clauses contained in particular Acts ; but these meanings are confined to the particular Acts which they serve to illustrate or obscure. Estates in land, though not the only estates known to the law, were the earliest in origin, have always been i the most common, and have supplied the model for all the rest, which otherwise would never have existed. The tenure of the earliest incorporeal hereditaments, namely, baronies and seignories of manors, as distin- guished from seignories in gross, was for several gene- rations inseparably connected with the tenure of land. Tenement is properly defined to include whatever can Tenements. be the subject of common law tenure. ("Wherein a man hath any frank-tenement, and whereof he is siesed ut delibero tenemento." -Go. Litt. 6 a.) The meaning which the word actually bears is wider . than that strictly contained in this definition. (Co. Litt. 19 b, 20 a.) The definition would strictly include only lands, such incorporeal hereditaments (seignories, peerages and dignities held by grand serjeanty) as are undoubtedly subjects of common law tenure, advow- sons in gross (Co. Litt. 85 a), and perhaps chief rents. But the word " tenement " is in practice, with less ob- vious propriety, extended to include also rents-charge, commons in gross, estovers and other profits d. prendre, owing to their close connection with the land; also offi- ces annexed to or exerciseable within or over any lands or tenements, as the office of steward or bailiff of a manor, or ranger of a forest. It was also extended to include tithes in the hands of lay impropriators, see Rex v. Shingle, 1 Eag. & Y. 738, 1 Stra. 100; Rex v. Ellis, 3 Eag. & Y. 776, 3 Price, 323; though by the common law these could not be in the hands of a lay person. {Sherwood v. Winchcombe, Cro. Eliz. 293, and Wright V. Wright, 2 Eep. 43; Serj. Moore's Eep. 425.) And it is the general rule, that all hereditaments * which L*38] savour of the land or realty, are so far accounted tene- ments in law as to be intailable by virtue of the statute De Bonis. It is material to observe, that a thing may be a tene- ment for one purpose, and not a tenement for another purpose; for example, a rent-charge is undoubtedly a 3 (859) Digitized by Microsoft® 34 ON ESTATES IN GENERAL. A thing may tenement for the purpose of entail, but is not a tenement beatene- for the purpose of escheat. {Vide supra, -p. 33.) As ment for one j^q -vyhat are tenements within the meaning of 8 Hen. 6, not^or'an-" °- '^' relating to the qualification of county voters, see other. Dodds v. Thompson, L. R. 1 0. P. 133; Dawson v. Robins, 2 0. P. D. 38. Heredita- Hereditament includes whatever upon the death of ments. the owner passes (apart from testamentary disposition) to the heir by hereditary succession. (Co. Litt. 6 a.) The word hereditary excludes special occupancy. Land regarded as a hereditament stands in a pecu- liar position, because its existence is wholly independent of the manner in which estates in it are limited, while other hereditaments can only by a metaphor be said to have any existence apart from their limitation for estates of inheritance. The word hereditament, when used in relation to land, sometimes denotes the land itself as a physical object, and sometimes the estate in the land. The use of a single name to denote two such disparate ideas, is not without inconvenience; but the practice is now inveterate. Thus, with some degree of confusion, it is commonly said that land is both a tenement and a hereditament. Here it is evident that the word tenement is not used in exactly the same sense, as when a legal estate for life is styled a tenement; and that the word heredita- ment is not used in exactly the same sense, as when a rent-charge in fee simple is styled a hereditament. In the case of land, the estate contemplated is the legal fee simple; and since this exhausts the whole possible interests, by way of estate, in the land, and since, for most purposes, it matters little whether we speak of the land itself, or of the utmost possible interest in the land, some degree of obscurity is often permitted to exist as to which precisely of these two things is meant to be the subject of reference. The word has to some [*39] *extent, a double meaning. In other cases, in which the thing has no real existence apart from the estate in the thing, the words used have only a single meaning. It will easily be perceived that some tenements are not hereditaments, and that some hereditaments are not tenements. Division of Hereditaments are commonly divided (1) into real, heredita- mixed and personal ; and ( 2) into covporeal and incor- ments. poreal. (860) Digitized by Microsoft® OF THE SUBJECTS IN WHICH ESTATES MAY SUBSIST. 35 The phrase hereditaments real (or real heredita- ments) is commonly used to denote lands regarded as a physical object, and legal estates of inheritance in lands, whether in possession, remainder or reversion. The phrase hereditaments mixed (or mixed heredita- ments) includes all estates of inheritance which, as the phrase goes, savour of the realty, being — (1) Equitable (A;) estates of inheritance in land; with which may also be classed equities of re- demption of estates of inheritance, whether legal or equitable ; (2) Territorial baronies, or peerages titular of a place (Z); with which may also be classed seig- nories of manors and seignories in gross; (3) Estates of inheritance in offices (m) of trust or dignity to be exercised within or in relation to lands, such as the stewardship of a manor, or the rangership of a forest; *with which may [*40] also be classed advowsons in gross, when held for a fee, and certain royal franchises; (4) Estates of inheritance in certain other royal franchises, also rents charge, commons in gross, and profits d prendre, which imply some partici- pation in the land or its profits; (5) Tithes, which are made hereditaments by 32 Hen. 8, c. 7; (6) New River shares, seeDrybutterY. Bartholomew, 2 P. Wms. 127; River Avon shares, see Buck- eridge v. Ingram, 2 Ves. 652; and the shares in some other similar undertakings (w). [Tc) It is conceived that now, since the Judicature Acts, equi- table estates are hereditaments to all intents and purposes. Previously, they could not be called hereditaments at law. (1 Eep. 121 b ; see also 3 Eep. 2 b, 3 a.) The same remark seems also to apply to equities of redemption of estates in fee. Being hereditaments, they seem to savour of the realty. The equity of redemption of an estate of inheritance, whether legal or equitable, can be intailed. [I) "When the king created an earl of such a county or other place, to hold that dignity to him and his heires, this dignity is personal], and also concerrieth landsand tenements." (Co. Litt. 3 a.) And, therefore, such dignities may be intailed; though only by the act of the crown. (IMd. 20 a.) (m) It must not be assumed, because these kinds of ofiflces may exist, that therefore anybody can create them or transfer them when created, or that new kinds of a sort unlaiown to the law can" be invented at pleasure. "An ancient office must be granted, as it hath been accustomed." (4 Inst. 87; see also Co. Litt. 233 a et seq.) A steward of a manor may be appointed by parol. (Dy. 248 a, pi. 79.) (») The right to bring a writ of error upon a judgment in a (861) Digitized by Microsoft® 36 ON ESTATES IN GENERAL. The phrase hereditaments personal (or personal here- ditaments) includes certain inheritable rights, either haTing no connection with lands, such as a personal annuity granted for an estate of inheritance, see Turner v. Turner, Ambl. 776 ; or having a connection which implies no participation either in the land or its profits ; also annuities granted in fee by the crown out of the Barbados duties, see Earl of Stafford y. Buckley, 2 Ves. sen. 170; and certain other annuities charged upon public revenue, see Lady Holdernesse v. Marquis of Carmarthen, 1 Bro. C. C. 377 ; and the term also includes certain of&ces of dignity or trust which admit of being granted in inheritance, but are attached to the person of some superior dignitary, or are to be exercised only in respect to chattels, as a mastership of hounds (o). There is perhaps, some variety of usage in respect to the precise place where the line of subdivision is to be drawn between real and mixed hereditaments. But this gives rise to no' practical inconvenience ; because [*41] they are both intailable by *virtue of the statute De Bonis. The single word hereditaments, when used in its largest sense, includes the whole of the particu- lars enumerated under the three classes above described. Cornoreal Corporeal hereditaments are fixed as to their defini- and inoorpo- tion by the legal maxim, that at common law they lie real heredita- in livery, and not in grant. The phrase therefore in- ments. eludes only lands regarded as a physical object, and legal estates of inheritance in possession. The only conveyance in pais — that is, made between party and party, and not matter of record, as a fine or recovery — by which these could at common law be conveyed to a real action was a mixed hereditament. (Co. Litt. 20 a ; and see Bowlet's case, Dy. 188 a, there referred to, which incidentally ex- plains his meaning. ) The possibility of reverter upon a breach of a condition annexed to an estate of inheritance is a heredita- ment (3 Rep. 2 b); and must be mixed for the same reason as writs of error. It seems, also, that the right to kill game on land, if (we may presume) limited to a grantee and his heirs, is an incorporeal hereditament. (See Hooper v. Clark, L. R. 2 Q. B. 200 ; and compare Webber v. Lee, 9 Q. B. D. 315. ) This would seem to savour of the realty quite as much as some other things which have always been held to do so. But the idea of intailing a right of sporting, regarded as a tenement in gross, is somewhat startling to the imagination. (o) Villeins in gross were personal hereditaments. (Finch, Law, p. l.^O.) Also corrodies of oiSce. (Ibid. p. 161.) And see the grant of privilege by Edw. I., mentioned in Co. Litt. 1 b, 2 a. (862) Digitized by Microsoft® OF THE SUBJECTS IN WHICH ESTATES MAY SUBSIST. 37 stranger, was a feoffment, and the essence of a feoff- ment is the livery of the seisin. All other heredita- ments, to which applies the description, tangi non pos- sunt nee videri, are included tinder the term incorpo- real hereditaments. These are said at common law to lie in grant ; because they would pass by the mere de- livery of a deed purporting to convey them, and the word grant was the most appropriate (though not the only) word of conveyance for the purpose. The importance of the distinction between corporeal and incorporeal hereditaments has been diminished by 8 & 9 Vict. c. 106, s. 2 ; which enacts that after 1st October, 1845 ; all corporeal tenements and heredita- ments shall, as regards the conveyance of the imme- diate freehold thereof, be deemed to lie in grant as well as in livery. (863) Digitized by Microsoft® [*42] ON ESTATES IN 6ENEEAL. *CHAPTEE VIII. OF ESTATES AT COMMON LAW. The origin of '^^^ distinction between absolute dominion, or absolute estates. ownership, such as the law permits to be had in chat- tels, and an estate, to which the English law restricts the ownership of land, is no doubt referable to the universal existence in England of tenure. But the ex- istence of estates of inheritance was suggested, and made possible, by the indestructibility of their com- monest and earliest known subject. There are three ancient sources of lawful rights of property in England — (1) the common law ; (2) the statute law ; and (3) customs allowed by the law (p). To these must, for many practical purposes, be added — (4) the course of equity, as devised and consolidated by the Court of Chancery before the passing of the Judicature Acts. This last is the origin of equitable estates, which seem now to have a good claim to be also styled lawful. But the circumstances of their origin have impressed upon them some important characteristics, which they still in a great measure retain, by which they are distinguished from legal estates, commonly so called, and which make it im- proper to apply to them the epithet legal. All lawful estates must be traced to one or another, of these sources. The first is the source of common law estates ; the second is the source of entails ; the third is the source of copyhold and customary estates ; and the fourth, as already mentioned, is the soxirce of equitable estates. Fee simple. Estate for life. From the common law spring two primitive estates of freehold — (1) a fee simple, which is of inheritance and the largest estate known to the law; and (2) an [*43] estate for life, that is, for *the life of the tenant himself. From the fee simple, by its suffering certain modifications which the law permits to be imposed upon it, are derived determinable fees, conditional fees, and a peculiar kind of fee which may conveniently be (p) " Consmefudo is one of the maine triangles of the lawes of England ; those lawes heing divided into common law, statute law, and custome." (Co. Litt. 110 h.) (864) Digitized by Microsoft® OP BSTATESi AT COMMON LAW. 39 styled a qualified fee or qualified fee simple. The nature of these modifications, and of the estates to which they give rise, will presently be explained. From the estate for life is derived, by its being as- Estate jsar signed over to another person, the estate pur autre vie. autre vie. But this last-mentioned estate, though it probably arose from, or was suggested by, the assignment of an estate for life, does not necessarily arise by assign- ment, but admits of being created de novo by express limitation. The above-mentioned estates are the only estates No other es- known to the common law, and are therefore the only tates at corn- estates held by common law tenure and the only estates '^°'^ 1^^- of freehold. At the present day a conditional fee of lands or other tenements can exist only in the shape of a fee tail, or estate tail ; whiqh estate may be said to owe its existence to the common law, but to derive some of its most important characteristics from the statute De Bonis Conditionalibus, Stat. Westm. 2, or 13 Edw. 1, cap. 1. It is convenient, for some purposes of dis- cussion, to separate fees tail from the other estates above mentioned. The latter may conveniently be styled common law estates: and those which arie estates of inheritance, namely, a fee simple, a determinable fee, a conditional fee, and a qualified fee simple, may con- veniently be styled common law fees. The statute', De Donis restricted in some important Origin of respects the right of alienation incident to a condi- fees tail. tional fee at common law ; and a conditional fee thus modified has ever since been styled a fee tail, or (of late years more commonly, but less properly) an estate tail. The epithet refers to the cutting down of the quantum of the estate, by the restriction of the inherit- ance to a class of special heirs, in the place of the heirs general. The diminution of the quantum appears by the fact, that there could be no remainder or reversion, but only a possibility of *reverter, upon a con- [*44] ditional fee ; {q) while there is a remainder or rever- sion upon a fee tail. (Litt. sect. 10.) The statute uses only the word tenemAntum, which All tene- the English versions mistranslate land. Not only ments are in- lands, but all tenements, provided that they are also Mailable. hereditaments (without which there can of course be {q) Vide infra, p. 64. (865) Digitized by Microsoft® 40 ON ESTATES IN GENERAL. no inheritance of them) are intailable by force of the statute. Such hereditaments as are not tenements cannot be intailed. Origin of From the fee tail sprang the base fee commonly so base fees. called. Methods of barring the entail having been in- vented, some of them barred it only so far as the rights of the issue in tail were concerned, leaving unaffected the rights of the persons entitled in remainder or rever- sion. Hence arose an estate which, as will hereafter be shown more fully, was by construction of law an estate of inheritance descendible to the heirs general, and was determined as soon as the right of the remain- derman became a present right ; that is to say, upon ' default of issue inheritable under the entail. Other methods are, or in earlier times have been, known to the law, whereby the duration of an estate ■ in one man and his heirs might, by operation or con- struction of law, and not by mere conveyance or as- surance between the parties, be made to depend upon the continued existence of issue inheritable under an entail previously vested in another person. All such estates are commonly styled base fees. Vide infra -^^ estate conterminous with a base fee, as above de- p. 202 No'. 9. fined, may arise by express limitation, as well as by the conversion of a fee tail. When created by express limitation, it is a determinable fee. But there is this cardinal distinction between a base fee, as above de- lined, and a determinable fee of the like duration aris- ing under the ordinary rules of limitation ; namely, that there exists a remainder or reversion in fee simple [*45] upon a ^base fee, while no remainder or reversion can subsist upon a determinable fee arising by limita- tion only, Modificdfees ■^■'^ ieea, whether common law fees, fees tail, or base fees, except a fee simple, may conveniently be collected together under the term modified fees. How far Such hereditaments as are not tenements cannot be modified fees intailed; and words of limitation which, if applied to now exist. tenements, would create an entail, vrill, at the present day, if applied to them, create a conditional fee at common law. {Earl of Stafford v. Buckley, 2 Ves. sen. 1 70. ) The same remark, mutatis mutandis, applies also (866) Digitized by Microsoft® OP ESTATES AT COMMON LAW. 41 to copyholdB of manors in which there exists no custom to permit entail ; the estate being in this case a custom- ary fee, not a common law estate. (See the cases cited in the chapter on fees tail, infra.) The learning of conditional fees is, therefore, not wholly obsolete, even apart from its bearing upon the existing law of entail. Determinable fees are as valid in their limitation at the present day as they ever were; nor are they wholly obsolete in practice, for they sometimes occur by express limitation in settlements of realty. Qualified fees simple, as hereinafter defined, if indeed they can be said ever to have existed in practice, are now no longer found ; but there seems to be no reason to doubt the possibility of their existence. The division of fees above proposed is not verbally Remarks on identical with that given by Lord Coke, Co. Litt. 1 b, the dudsion 10 Eep. 97 b ; but the doctrines laid down are Lord °^ ^®^^- Coke's doctrines, and some difl'erence of language has been adopted only in order to express them more clearly. He sometimes uses the phrase conditional fee to include not only conditional fees as herein defined, but also fees limited upon or subject to a condition ; and also, in reference to the statute De Denis, to include fees tail. He also uses the phrase qualified or base fee to include all fees except fees simple and conditional fees ; and in this usage he is often followed by other authors. He some- times (10 Rep. 97 b) uses the phrase /ee simple deter- minable to include all fees except fees simple and base fees. But, with the exception of qualified fee *sim- [*46] pie which denotes an estate so seldom thought worthy of special mention that it can hardly be said to have acquired a special name, the proposed terms are here used in senses which they frequently bear in the most approved authorities. It has been a common custom for the same author at different times to use the same term in different senses, trusting to the context to show the sense on each particular occasion. The early law of England, that is to say, the com- The origin mon law, knew of no estate, or proprietary interest, lees and nature of than a freehold. The only other title to possession, in terms of the nature of a proprietary right, was a tenancy at will, y®*^^^- and there is much reason to believe that the division between estates of freehold and tenancies at will origi- nally corresponded with the division of the population into free and villein . The influence of custom and the growth of humane sentiment gave stability to the (867) Digitized by Microsoft® 42 ON ESTATES IN GENERAL. ancient tenancies at will, by turning them into the cus- tomary estates of the manor; while at the same time the strict legal idea of a tenancy at will, in fact as well as in name, remained applicable to tenancies at will created newly and by mere contract.. A term of years is an anomalous estate which grew up later than the feudal settlement upon which the estates of freehold were based; and it never acquired any definite place in the feudal system. In the opinion of some early jurists, terms of years, at all events for longer than forty years, were void, as being against the policy of the law. (Co. Li tt. 46 a.) This doctrine probably represents rather the tendency of public opinion than the state of the law; for it cannot be shown to have left any traces in the actual practice of any period, and it was undoubtedly obsolete in the time of Eichard II. {Ibid. Harg. n. 1.) But terms of years were by the common law liable to destruction at the will of the reversioner having the freehold. If the latter suffered judgment to go against him by default in a collusive action of recovery, a lease previously granted by him for years had no validity as against the recoveror, who claimed and obtained judg- ment upon a supposed title paramount to the title of of the reversioner; and this destruction of his estate could not be hindered by the termor, because, having [*47] no freehold, he had *no locus standi to intervene in an action of recovery. This hardship was partly remedied by the Statute of Gloucester, 6 Edw. 1, and completely remedied by the 21 Hen. 8, c. 15, which enabled termors -to falsify recoveries obtained on feigned titles. (2 Inst. 321, 322; Co. Litt. 46 a. Thev exist as ■^'^ estate which could not, by the common law, be legal estates defended at law, seems at common law to have been no only by estate. The foregoing considerations warrant the con- statute, elusion, that terms of years originally pushed them- selves into the rank of " legal estates," only by virtue of the statute 21, Hen. 8, c. 15. This statute has been repealed by the Statute Law Revision Act, 1868 ; but the previous abolition of common recoveries by the Pines and Recoveries Act, s. 2, and of real actions gen- erally by 8 & 4 Will. 4, c. 27, s. 36, will prevent the repeal from affecting the legal status of terms of years. This conclusion, as to the primitive legal status of terms of years, is confirmed by the fact, that the word seisin is used by the old writers synonymously with pos- session ; showing that they recognized no possession (868) Digitized by Microsoft® OP ESTATES AT COMMON LAW. 43 unaccompanied by an estate of freehold. The word seisin is still appropriated solely to describe the pos- session of freeholders. (Leach v. Jay, 9 Ch. D. 42); while the word possession is commonly used to denote the possession of termors for years, of tenants from year to year, or at will, and of other persons having chattel interests, or in possession under any right or title which is not founded upon an estate of freehold, (r) The cessation of an estate of freehold can only occur chattel inter- by the dropping of a life, or the failure of issue, or the ests in land failure of heirs, or the happening of some event, of other than which the happening is uncertain ; and it is often said, terms of that this affords a distinction between estates amount- y®^'®- ing to a freehold, and estates (meaning thereby, terms of years) less than a freehold. But it is to be observed that, partly by the common law and partly by virtue of divers Acts of Parliament, a chattel interest may under peculiar *circumstances arise in lands, which, [*48] though it is not a term of years, nevertheless endures for a time unascertained at its commencement : — (1) Under a devise to executors merely for the payment of debts; (2) tenancy by statute merchant; (3) tenancy by statute staple ; (4) tenancy by elegit ; (5) by the guardian in chivalry holding over for " single or double value," after the ward's marriage within the age of wardship; as to which penalties, see Co. Litt. 82 b. For some account of these chattel interests having an uncertain duration, see Co. Litt. 42 a; ibid. 43 b. The three first mentioned are now obsolete in practice, and the fifth was abolished with the abolition of tenure in chivalry by 12 Car. 2, c. 24. The only one now re- maining is tenancy- by elegit. These interests are not properly estates or proprietary rights, but rather tem- porary liens, subject to an obligation to apply the pro- fits in a specified manner. A devise of lands to a man and his executors for the payment of debts gives a chattel interest to the legatee. (1 Prest. Est. 508.) But if the devise had been to the man and his heirs, it would have created a determin- able fee. Vide infra, p. 205, Nos. 21—28.) (r) In his translation of Litt. sect. 177, Lord Coke nses the word seisin to denote the act of taking possession of cliattels. (869) Digitized by Microsoft® 44 ON ESTATES IN GENEKAL. [*49] *CHAPTEE IX. Distinctions relating to the succes- sion of es- tates. ON THE DEEIVATION AND SUCCESSION OF ESTATES. Prophietaey ownership, in the absence of any special incapacity, imports as a general characteristic the right of alienation, which right may be exercised either ab- solutely or partially, in accordance with the maxim, Cujus est dare,' ejus est disponere; partial alienation being made possible by the fact that estates differ one from another in quantum. It follows that, either by means of successive partial alienations, or by means of a single disposition creating several successive estates, several persons may at the same time be entitled, in different degrees of nearness and remoteness, to the possession of the same land, one (s) only being entitled (s) Tenants in common, coparceners, joint-tenants, and ten- ants by entireties, being for this purpose counted as one person, to the possession ai the present time. The idea of a partial, as distinguished from an abso- lute, alienation, opens the distinction between original estates and derivative estates. The fact that several successive estates may be simultaneously derived out of one original, whereby it comes to pass that a deriva- tive estate may be an estate not in possession, leads to the distinction between remainders and reversions. The fact that estates may be so limited as to take effect only upon the happening of a contingency, suggests the dis- tinction between vested estates and contingent estates; which last-mentioned estates can only be remainders, because estates in possession and reversion are neces- sarily vested. And the fact that the ingenuity of con- veyancers, operating upon the statutes of wills and the Statute of Uses, has devised other prospective possi- bilities, unknown to the common law, as interests to arise at a future time, which are not estates, but which will be estates when they arise, makes it necessary to distinguish executory interests from contingent remain- ders. [*50] *The distinctions above mentioned are the most important of those which need to be considered in treating of the relations inter se of estates in respect to the time of their enjoyment. (870) Digitized by Microsoft® ON THE DEKIVATION AND SUCCESSION OF ESTATES. 45 Original Estates and Derivative Estates The terms derivative and original, as applied to es- tates, scarcely need definition. When by the act of a grantor or settler, a less estate is (or several are) par- celled out from a greater, every such less estate is de- rivative in respect to the greater; which latter, in res- pect to all the less estates, is original. The word derivative is applied to estates not in refer- The same es- ence to any intrinsic quality in the estates themselves, tate may be but only to describe their relation to the original es- tiotli original tate. An estate which is derivative in respect to a j^j^^g larger estate, may itself be an original estate in respect to a less estate subsequently derived out of it. Every estate (greater than a tenancy at will) is capable of being an original estate. The opposite of the process by which one or more Merger, less estates may be derived out of a greater is the mer- ger of estates {t) ; by which one or more less estates may become blended with a greater, so as to be distinguish- able from it in the same sense, and to the same extent, as was the case before the less estates were derived out of the greater. Some remarks on this subject will be found in a subsequent chapter. From the difficulty of preserving strict consistency Estates can- when dealing with abstractions, and the confusion in- notbe created troduced by the practice of classing together physical de novo. objects and estates under the terms tenements and hereditaments, there have arisen several inaccurate phrases, which can be used only subject to a perpetual tacit correction. A lawful estate cannot, unless per- *haps by the express operation of an Act of Par- [*51] liament, be created de novo in any other sense than that of being derived de novo out of an existing estate in which it was previously included. Lands themselves cannot be settled, devised, or intailed, but only estates therein; and the nature of all dealing with the lands is in general circumscribed by the nature of the estate by which such dealing is made possible. [t] Styled the merger of estates, — i. e., the merger of one estate in another estate, — to distinguish it from the merger (more cor- rectly styled extinguishment) of incumbrances in the estate over which they subsist: a subject with which the merger of estates is sometimes confused. (871) Digitized by Microsoft® 46 ON ESTATES IS GENERAL. Derivative estates are destroyed by the destruc- tion of the original estate. Operation of powers. Modes of derivation. Estates which are derived out of any estate less than a fee simple, retain the characteristics of their restricted original. No settlor can emancipate the derivative es- tates from any restriction, or liability to determinarion, v^hich affects the original estate out of which they are derived. If the original estate is itself less in quan- tum than a fee, or is a determinable fee, or other deter- minable estate, or is an estate subject to a condition, then every event by which the original estate is to be, or may be, determined, is by construction of law an- nexed, as a determinable limitation, to each of the de- rivative estates; so that each of the latter will be ipso facto determined by the happening of any event which determines the original estate in accordance with the maxim, Cessante statu primitivo, cessat derivativus. (1 Prest. Est. 123; and see 8 Rep. 34 a.) The practical application of the maxim, Gujus est dare, ejus est disponere, is complicated by the existence of powers; whereby a separation may be effected be- tween the potestas dandi and the potestas disponendi, to such purpose that there is no necessary relation be- tween the estate (if any) of the person exercising the power, and the estates which may arise by its exercise. In such cases the proposition remains nevertheless true, that the estates which so arise are derived out of an original estate, though that estate may not be vested in the person by whom the power is exercised. And in applying the maxim, Cessante statu primitivo, cessat derivativus, to the exercise of powers, we must observe that the status primititms is not necessarily the estate of the donee of the power. In the case of powers con- tained in wills, or powers operating by virtue of the Statute of Uses, the original estate is the estate of the testator or settlor. In the case uf powers created by [*52] express statute, the original *estate is the fee simple, upon which, wheresoever it may be subsisting, the statutory power acts, by the direct authority of the law so far and to such an extent as may be necessary to give effect to the exercise of the statutory power. Thus the methods by which one estate may be de- rived out of another may be divided into three heads : — 1. When the original estate is vested in the person by whom the derivation is effected; and who has by the common law, the right to effect such de- rivation, as an incident attached to his owner- ship; (872) Digitized by Microsoft® ON THE DERIVATION AND SUCCESSION OE ESTATES. 47 2. When the derivation is effected by the exercise of a power, operating by means either of a devise or of the Statute of Uses ; and 3. When the derivation is effected by the exercise of a statutory povsrer, which operates directly upon the legal estate, without need for the interven- tion of the machinery of uses or devises. To these must be added certain cases in which it As to estates would seem that, by force of an express statute, an es- created de tate is truly created de novo, being made to arise in '""f ^y one person under circumstances which are inconsistent with the hypothesis that it arises by derivation out of an existing estate, or by the transfer of an existing estate from one owner to another. (1) By the Fines and Recoveries Act, s. 39, it is enacted that if a base fee in any lands, and the remainder or reversion in fee in the same lands, shall be united in the same person, without the intervention of any intermediate estate, the base fee shall not merge, but be ipso facto enlarged in manner therein mentioned. Here the declara- tion, that enlargement shall be substituted for merger, is equivalent to a declaration that the estate obtained by enlargement is created de novo : since the contrary hypothesis would re- quire a different declaration, namely, that, not- withstanding merger, the remainder or reversion should retain certain characteristics of the base fee. (2) The Conveyancing Act of 1881, s. 65, amended by the *Conveyancing Act, 1882, s. 11, [*53] enacts, that any of the persons interested in manner therein mentioned in a long term of the kind therein specified, may by deed declare that the term shall be enlarged into a fee simple; and that thereupon the term shall be enlarged accordingly. For reasons similar to those alleged in the previous case, the conclusion seems to fol- low, that the estate obtained by the enlarge- ment is created de novo, and is not obtained by a transfer of the pre-existing fee simple. A question may still remain, whether the pre- existing fee simple is destroyed, or whether it continues to exist in the shape of a reversion upon the fee simple obtained by the enlarge- ment; in which case the latter would exist as a base fee. {Vide infra, p. 271.) (873) Digitized by Microsoft® 48 ON ESTATES IN GENEKAL. The derivation of estates out of an original by the act of parties only, is substantially the same process, whether it is effected by direct assurance, or circuit- ously, by the exercise of a power created by a settlor. The limits to what can be effected by the direct process are the same as the limits to what can thus be effected by the circuitous process. But the operation of a statu- tory power is subject only to the limits imposed by the statute. The following observations will illustrate the different aspects of the derivation of estates. Estates de- 1. A fee tail is in the eye of the law a conditional rived out of a fee, though by the statute Be Bonis certain tee tail. rights are given to the issue in tail, to defeat alienations made at the common law by their an- cestor. That the tenant in tail has a fee, and that a fee tail does not consist of a mere succes- sion of estates for life taken by the successive tenants in tail, is shown by the fact that the alienation of tenant in tail, when it had not the peculiar efficacy of a fine or recovery, would Buf6.ee to create a base fee, which on the death of the tenant in tail creating it did not become absolutely void, but only liable to be avoided by the entry of the issue in tail. {Vide infra, p. 262. ) The same remark holds good of dispo- sitions at the present day made by the tenant in [*54] tail, which are insufSeient to *bar the entail by virtue of the Fines and Recoveries Act. In this sense a fee may be derived out of a fee tail ; but the fee so derived is made voidable by the statute Be Bonis. Leases made by tenents in tail under 32 Hen. 8, c. 28 (of which the term might not exceed twenty-one years, or three lives), were by that statute made effectual in law as against the issue in tail. Such terms seem to have been derived out of the estate tail. (See 8 Rep. 34 a. ) This statute was repealed, so far as tenants in tail are concerned, by 19 & 20 Vict. c. 120, s. 35. And since no right of entry can accrue to the issue in tail until the death of the preceding tenant in tail, it follows that, to the extent of an estate for the life of the tenant in tail, or a term of years determinable on the dropping of his life, estates may be effectually derived at com- mon law out of an estate tail. (874) Digitized by Microsoft® ON THE DERIVATION AND SUCCESSION OF ESTATES. 46 And even when a tenant in tail bars the entail and makes a new settlement, it would seem that the estates comprised in the settlement are de- rived out of his fee tail ; which, by the opera- tion of the Fines and Eecoveries Act, seems under such circumstances to be restored to the state of a conditional fee at common law, after the birth of issue inheritable, ( Vide infra, p. 211.) Estates subsisting by virtue of any convey- ance made by a tenant in tail in possession, in exercise of the powers conferred, as hereinafter mentioned, upon a tenant for life under a settle- ment by the Settled Land Act, 1882, which pow- ers are by sect. 58, sub-s. (1), (i), of that Act conferred upon a tenant in tail in possession, seem to take efPect in defeasance of the estate tail and not by derivation out of it. But the question was probably not foreseen when that Act was passed, and it cannot be confidently answered. 2. Out of an original estate for life of the grantor. Estates de- there can be derived only estates determinable rived out of upon the dropping of his life. These may be ^ estate for either estates for joint lives, one of the lives being the life of the grantor ; *or they [*55] may be terms of years determinable either upon the dropping of one of such joint lives, or upon the dropping of the grantor's life. The tenant of an estate for life which arises under a settlement, when his estate is vested in possession, being the person who is for the time being, under the settlement, beneficially entitled to the possession of the settled land for his life, is enabled, by the Settled Land Act, 1882, to ex- ercise the powers of sale, exchange, partition, leasing, and other powers conferred by that Act. (See sect. 2, sub-s. 5 of the Act.) Estates created by the exercise of these powers may be equal in quantum to the whole estate comprised in the settlement, which may, of course, be a fee simple. Such estates cannot be derived out of the estate for life of the donee of the powers, but arise by force of the statute. They seem to be derived out of the original estate of the set- tler, and to be, under the provisions of the Act, determinable with its determination. 4 (875) Digitized by Microsoft® rs ON ESTATES IN GENERAL. Estates de- rived out of an estate pur autre vie. Estates de- rived out of a term of years. 3. Out of an original estate pur autre vie, whether for life or lives, there can, in like manner, be derived only estates determinable upon the drop- ping of all, or some, of the original lives. Such estates may be estates for life, estates pur autre vief or terms of years. A tenant for the life of another, " not holding merely under a lease at a rent," — v^hich language perhaps implies that the contemplated tenancy must arise under a settlement, — has, when his estate is in possession, the powers of a tenant for life under the Settled Land Act, 1882. (Sect. 58, sub-s. 1, V.) 4. Out of a term of years there can be derived no estate, but a term of years, either expressed to be of less duration than the original term, or determinable (whether expressly or by opera- tion of law) with its determination. A tenant for years "determinable on life," — which seems to mean, "determinable on the dropping of a life or lives," — not " holding [*56] merely under a lease at a rent," *has, when his estate is in possession, the powers of a tenant for life under the Settled Land Act, 1882. (Sect. 58, subs. 1, iv.) On the Terms Vested, Contingent, and Executory. Vested es- ^^ ^^® divisions into vested and contingent and into tates defined, vested and executory, neither is exhaustive ; but the term vested estate is sometimes opposed to the term contingent estate, and is sometimes opposed to the term executory interest. An estate may be either vested in possession, or vested only in interest, phe actual possession, being in another. The phrase, vested in possession, needs no definition. An estate is said, though not vested in pos- session, to be vested in interest in a given person, when that person would be entitled, by virtue of it, to the actual possession of the lands, if the estate should be- come the estate in possession by the determination of all the precedent estates. In the words of Fearne : — True crite- "j^ {g ^ot the uncertainty of ever taking effect in pos- vested^and^'^ session that makes a remainder contingent ; for to that, contingent every remainder for life or in tail is and must be estates. liable ; as the remainderman may die, or die without (876' Digitized by Microsoft® ON THE DERIVATION AND SUCCESSION OF ESTATES. 51 issue, before the tenant for life. The present capacity of taking effect in possession, if the possession were to become vacant, and not the certainty that the posses- sion will become vacant before the estate limited in re- mainder determines, universally distinguishes a vested remainder from one that is contingent." (Fearne, Cont. Eem. 216.) But this language must be 'Accepted subject to the Eestriction observation, that a limitation in remainder to the heirs upon the , of a living person gives rise to a contingent remainder criterion. (vide infra, p. 103) ; although the heir apparent or presumptive for the time being is always ready, dur- ing the ancestor's lifetime, to step into the possession if it should become vacant. The above-cited language does not apply to the case of a person claiming as heir during his ancestor's lifetime, because his claim is liable to be defeated by his ceasing to be heir, either, if he is heir apparent, by his own *death in the [*57] ancestor's lifetime, or, if he is only heir presumptive, also by the birth of a prior heir. It is now clearly settled, after considerable doubt and Existence of hesitation, that the existence of a power of appoint- a prior power ment will not prevent estates limited to take effect in ^°^^ not pre- default of the exercise of the power from vesting, if ^^^ ^^ ™^' they are such as, apart from the existence of the power, would be vested estates. (Fearne, Cont. Rem. 226 et seq. ) Such estates are said to be vested, but liable to be devested by an exercise of the power. Contingent estates are capable of being limited under Contingent the rules of the common law; and their distinguishing estates. quality of contingency is conferred upon them by the terms of their limitation; either (1) by a provision that the specified person shall not take unless a contingency shall happen, or (2) that he shall not take until the happening of a future event, or (3) by reason that the limitation is in favour of a person not ascertained, or not yet in being. Of these three sub-divisions, the first comprises the first and second of Fearne's four classes; and the sec- ond and third correspond with his third and fourth classes respectively. Executory interests do- not admit of being limited Executory under the rules of the common law. They owe' their interests. whole existence partly to the statutes permitting de- (877) Digitized by Microsoft® 52 ON ESTATES IN GENERAL. vises of lands, and partly to the Statute of Uses. The limitations under which they arise are called executory limitations, which in a testament are executory devises, and in a deed are springing or shifting uses. Terms which properly refer to the mode of their limitation are in practice often confused, or used interchangeably with, terms which properly refer to the nature of the interest taken under such limitations. This usage is especially frequent with respect to executory devises; that is to say, an executory interest arising by execu- tory devise, is often briefly styled an executory devise. Distinction Since executory interests may be, though they are between con- not necessarily, limited to ariseupon a contingency, they tingent es- tates and ex- ecutory in- terests. are liable to- be confused with contingent remainders. [*58] The distinction between *them is given by the following propositions : — Every limitation which creates, in favour of a specified person, a possibility of the vesting of an estate in him at a future time, which is valid by the rules of the comm.on law, gives rise to a contingent remainder. And every such limitation which is valid in a will or in a conveyance to uses, but would not be valid as a limitation under the rules of the common law, gives rise to an executor interest. How far as- In the view of the common law, both contingent re- signable or mainders and executory interests were only possibilities transmissible ^^^^ ^^^ therefore were not assignable inter vivos (Case in C. B. cited in 4 Rep. at p. 66) ; though, as being (m) The word possibility lias been obscured by its confused usage. But three kinds can be distinguished: — (1) Possibilities coupled with an interest ; as contingent remain- ders and executory interests; which, so soon as the person in whom they will vest, if they do vest, is ascertained, are both descendible and deviseable. (2) Bare possibilities ; as the possibility of reverter on the breach of a condition, and the possibility of reverter upon a common law fee other than a fee simple ; these at com- mon law are descendible but not deviseable. (3) Absolutely bare possibilities, or mere expectations of possible benefits, not founded upon the dispositions or provisions of any operative assurance. These at common law are neither descendible nor deviseable ; though the succession of children by representation in heirship often did, so far as the expectations of heirs are concerned, amount prac- tically to the same thing. But, in strictness, they did not succeed to the expectation, but to the heirship upon which it was founded. Su£h possibilities of devisees, if children of the testator, are pracfieally made sometimes descendible by the Wills Act, 7 Will. 4 & 1 Vict. c. 26, s. 33. (878) Digitized by Microsoft® ON THE DERIVATION AND SUCCESSION OF ESTATES. "^3 not hare possibilities, but possibilities coupled with an interest, thej might be devised under the Statutes of Wills. (Roe V. Jones, 1 H. Bl. 30; S. C. in B. R. sub nom. Jones v. Roe, 3 T. E. 88.) They might also, at common law, be released {Lampefs case, 10 Rep. 46), and be bound by estoppel. ( Weale v. Lower, Pollexf. 54; Doe Y. Martyn, 8 B. & C. 497; Doe v. Oliver, 10 B. & C. 181. ) Contracts, and assurances relating to them, if made for valuable consideration, might generally be enforced in equity {Wright v. Wright, 1 Ves. sen. 409 ; Crpfts V. Middleton, 8 De G. M. & G. 192); which re- mark applies even to such absolutely bare possibilities as the expectations of heirs during the lives of their ancestors, and of devisees and legatees during the lives of their testators or possible *testators. (Beck- [*59] ley V. Newland, 2 Wms. 182.) Now, by 8 & 9 Vict. c. 106, s. 6, both contingent remainders and executory in- terests may be "disposed of" by deed. Remainders and Reversions. Remainder and reversion are both relative terms. Nature of the each depending upon the relation of an estate which is distinction posterior in point of time to an estate which is prior in between point of tim^e. The prior estate is in both cases styled the particular estate. The distinction between a re- mainder and a reversion lies in the difference in the relation borne by them respectively to the particular estate ; and this relation depends upon the circum- stances under which the particular estate became sepa- rated from the reversion or remainder. A remainder is constituted by the act, expressly directed to that end, of a grantor or settlor, who simul- taneously derives two (or more) estates out of his own estate, and limits them to different persons by way of succession, in such a way that the estates may succes- sively become the estate in possession, each of them, (except the first in order) giving a present title to the future possession. Of two estates so created, that which is posterior subsists as a remainder in expectancy upon that which is prior in the order of time and of limitation. A reversion, without any express act of the grantor or settlor, is left in him by the operation or construc- tion of law, when he merely parts vrith less than his whole estate, retaining in himself a residue which (879) Digitized by Microsoft® 54 ON ESTATES IN GENERAL. awaits the determination of that with which he has parted, before it can become the estate in possession. Every reversion is (or rather, once was) an original estate in respect to the particular estate, which latter, with respect to the reversion, is derivative. (1 Prest. Est. 123.) The relation between a remainder and the particular estate consists in their having both been simultaneously derived out of the same original ; and for many purposes the particular estate and all remain- ders upon it are in law regarded as making together but one estate. (Co. Litt. 49 b; ibid. 143 a.) Thus the priority in time of the particular estate [*60] over the *remainder is due to the intent, express ■ ed in the limitation, of the grantor or settlor ; but the priority in time of the particular estate over the rever- sion is due to the construction or operation of law. The following definitions, by which remainders are distinguished from reversions, will be found instruc- tive : — Remainder defined. Reversion defined. " A remainder is an estate limited to commence after the determination of a particular estate, previously limited by the same deed or instrument out of the same subject of property." (1 Prest. Est. 90.) Here deed must be taken to include any act in the law. By the common law, before the Statute of Frauds, a particular estate followed by a remainder might have been created by feoffment without any writing ; and a deed was first made necessary by the 8 &9 Vict. c. 106. It would also seem that the expression same deed must be taken to include several deeds delivered at the same time, upon the principle of the maxim, Quae inconti- nenti fiunt, inesse videntur. But Preston questions this ■ application of the principle. (1 Prest. Est. 90, note, q.) " ' Remainder ' in legall Latine is remanere, coming of the Latine worde remaneo : for that it is a remain- der or remnant of an estate in lands or tenements, ex- pectant upon a particular estate created together with the same at one time." (Co. Litt. 148 a.) " ' The remainder ' is a residue of an estate in land depending upon a particular estate, and created together with the same." (Co. Litt. 49 a.) " A reversion is where the residue of the estate always doth continue in him that made the particular estate, or where the particular estate is derived out of his estate." (Co. Litt. 22 b.) The second clause of this (880) Digitized by Microsoft® ON THE DERIVATION AND SUCCESSION OF ESTATES. 55 definition was not intended to give an alternative de- finition, but only to expand the meaning of the first clause. . The ambiguous nature of terms of years, gives an j>eyersions ambiguous meaning to reversions and remainders ex- and remain- pectant upon terms of *years. In so far as such [*61] ders upon a reversion, or remainder, does not give an immediate t^''™^ "^ title to the actual or physical possession of the lands, during the continuance of the term, it may be regarded as being in fact a reversion or remainder ; and in this sense such estates are commonly styled reversions and remainders. But for some purposes the question is not, who has an immediate title to the physical posses- sion, but, vrho has an immediate title to the feudal seisin ; and for these purposes, such a so-called reversion or remainder is not truly a reversion or remainder, but is itself the estate which confers the freehold during the continuance of the term, (vide infra, p. 77.) The remainder which may subsist upon a base fee Remainder ■ has in all essential characteristics the quality of a re,- upon a base mainder, and not of a reversion. In a certain sense, it ^^^• is an exception to the rule, that every remainder must be created by the same act or deed, and at the same time, as the particular estate; for it was not created along with the base fee, but with the fee tail, out of which the base fee subsequently arose. And in a like sense it constitutes an exception to the rule, that re- mainders are created by act of parties, and reversions by operation of law; for though the remainder upon the fee taU was created by act of parties, yet, when the fee tail is turned to a base fee, the remainder upon it may more properly be said to be created, and to subsist, by operation of law. Out of an estate in remainder, which is already in The same es- esse, other estates may be derived. With regard to tate may be such estates, the remainder itself will be a reversion; ^°^^ remain- but with regard to the estate out of which it was itself version. derived, it will be a remainder. Thus the same estate may, in different relations, be both a remainder and a reversion. (1 Prest. Est. 123.) Several fees may, at common law, be limited in the Alternative alternative by way of remainder upon the same particu- remainders lar estate, upon such contingencies that not more than ^^ ^'^^■ one of them can by possibility happen. Loddington v. Kime, 1 Salk. 224, 1 Ld. Eaym. 203; and see Fearne, (881) Digitized by Microsoft® 56 ON ESTATES IN GENERAL. Two invari- able rules relating to remainders. Cont. Rem. 373; Doe v. Burnsall, 0. T. E. 30; Re White and Hindle's Contract, 7 Ch. D. 201. ) Of such fees, [*62] *each is a remainder in regard to the particular estate, but none is a remainder in regard to any other of them. It is essentially characteristic of a remainder (1) to await the regular determination of, the precedent estate, and ( 2) to be limited to take efFect in possession imme- diately upon that determination. A remainder may neither be limited to take efEect upon the determination of the precedent estate by forfeiture for breach of a con- dition, nor to take effect upon the expiration of an in- terval of time after the regular determination of the precedent estate. These rules In both these respects remainders differ from execu- not applica- tory interests. An executory limitation may take effect We to execu- -^pQ^ ^j^q defeasance of an estate of freehold by entry ^ for the breach of a condition, and it may be limited to take effect at the expiration of an interval to elapse after the determination of a precedent estate. First Bide. Every re- mainder must await the regular determina- tion of the precedent estate. A distinction noted. 1. The first rule, that every remainder must await the regular determination of the precedent estate, follows from the rule of the common law, that no one may take advantage of a condition, except the person making it, or his privies in right and representation; that is — (1) the heirs, quoad estates descendible to them, ( 2) the executors or administrators, quoad estates transmissible to them, and (3) the successors of corporations sole. (Prest. Shep. T. 149. ) The statutory innovations upon the common law (32 Hen. 8, c. 34, 22 & 23 Vict. c. 35, 8. 4, and the Conveyancing Act of 1881, ss. 10, 12) which have in certain cases enabled grantees and assignees of reversions to take advantage of conditions annexed to particular estates, contain nothing to alter the coiamon law, so far as persons entitled in remainder upon a particular estate are concerned. But if a particular estate is at its limitation expressed to be defeasible upon breach of a condition, there is an important distinction between — (1) cases in which a remainder is limited to commence upon the defeasance of the particular estate, and (2) cases in which a re- mainder is limited, without any reference to the condi- tion, to commence upon the determination of the par- [*63] *ticular estate. In the former case, an entry made for breach of the condition will destroy the re- (882) Digitized by Microsoft® ON THE DERIVATION AND SUCCESSION OF ESTATES. 57 mainder; but in the latter case, the limitation of the remainder makes the condition itself void. (Fearne, Cont. Eem. 270; 1 Prest. Est. 91.) A determinable estate, which is liable to determine upon the happening of a future event, by virtue of a determinable (or collateral) limitation, is normally de- termined by the happening of that event; and a re- mainder may be as well limited over upon such a deter- minable estate, as upon the like estate when not deter- minable. Thus, a remainder may be limited after an estate to a woman durante viduitate, as well as after an estate to her for life simply. This doctrine is often, but not very felicitously, expressed by saying, that a stranger can take advantage of a conditional (that is, a determinable or collateral) limitation, but not of a condition. (Co. Litt. 214 b.) 2. The second rule, that no remainder may be limited Second Rule. to take effect upon the expiration of an interval of time And must after the determination of the precedent estate, follows !^^^ ^'^^J* from the rule of the common law, that the immediate JJ^^'^suchde- freehold may not, by any act of parties, be placed in termination. abeyance. ( Vide infra, p. 78. ) Possibility of Reverter. Reverter and reversion are synonymous terms, denot- ing an estate vested in interest though not in posses- sion; but the word reverter is sometimes loosely used to denote what is properly styled possibility of reverter. Possibility of reverter denotes no estate, but, as the name implies, only a possibility to have an estate at a future time. Of such possibilities there are several kinds; of which two are usually denoted by the term now un- der consideration: — (1) the possibility that a common law fee may return to the grantor by a breach of a con- dition subject to which it was granted, and (2) the pos- sibility that a common law fee, other than a fee simple, may revert to the grantor by the natural determination of the fee. Since every remainder and every reversion is a part only of the estate of the grantor or settlor, it follows that, by the *common law, no remainder can be [*64] limited in expectancy upon the determination of a fee, and that no reversion can remain in a grantor or settlor who parts with a fee. There cannot exist two common law fees in the same land. (Co. Litt. 18 a; Willion v. (883) Digitized by Microsoft® 58 ON ESTATES IN GENERAL. Two common Berkeley, Plowd. 223, at p. 248; and authorities cited law fees can- in the margins. ) In regard to a fee simple and a not exist in determinable fee, this' proposition has never been dis- thesameland .it j j. j-x- i j: td j. i. j. puted. In regard to a conditional fee, Preston treats it as being not indisputably certain, but as depending only upon a preponderance of authority. (2 Prest. Est. 318 ; ibid. 320, note. ) In more than one passage of his works something like a wavering of his own opinion may perhaps be detected. (See 2 Prest. Est. 299; ibid, 353; 1 Prest. Abst. 379.) This rule ap- ^^ ^^ conceived that no reason can be given, upon plies to con- principle, why conditional fees should be distinguished ditional fees, in this respect from other fees. The later authorities seem^ to concur with Lord Coke in the opinion, that no expectancy other than a possibility of reverter can exist upon a conditional fee. There is a somewhat obscure passage of Bracton, in which he seems to intimate an opinion that several successive conditional fees could by the common law be limited in remainder one after another(«<;). It is conceived that the clear and reiter- ated opinion of Lord Coke, which has the advantage of being manifestly in accordance with general princi- ple, is more than sufficient to outweigh the opinion of Bracton; especially as the latter does not seem to be aware that his opinion, if true, would be a remarkable anomaly. (Co. Litt. 22 a; ibid. 327 a; 2 Inst. 335; , ibid. 336; Marq. of Winchester's Case, 3 Eep. 1, at p. 3 b. See also his comment on Litt. sect. 11. ) It is an indisputable fact, that by the common law there did exist a formedon en reverter for the benefit of the donor as is expressly stated in the statute De [*6o] Donis; (x) while there did not *exist a /ormedow en remainder in respect of conditional fees {y): This [w] The passage is that cited by Preston (2 Prest. Est. 394) and others from Bracton, lib. 2, u. 6, fo. 18 b of edit. 1569; Vol. I. p. 146, of the Rolls Ed. 1878: — Item poterit pluribus fieri do- natio ^fr modum simul et successive, &c. Per modum = sub modo = conditionally; and the example given is of such limita- tions as would create conditional fees. The same passage is almost literally transcribed in Fleta, lib. 3, c. 9, ? 9; Selden's ed. p. 186; where JlHi is absurdly printed instead of ximul. {x) ''The writ whereby iJie giver shall recover, when issue fail- eih, is common enough in the Chancery." (1 Stat, Eev. p. 43.) And see 2 Inst. 336. In the same page, Lord Coke denies that a formedon en descenrler lay at common law, though in Co. Litt. 19 a, ihid. 30 a, he affirms the contrary. In note (5) on Co. Litt. 19 a, where the reference to 2 Inst, is incorrectly given, Hargrave endeavours to reconcile the discrepancy. (See also, Co. Litt. 60 b.) (j/) Several authorities mention that, in the opinion of some (884) Digitized by Microsoft® ON THE DEKrVATION AND SUCCESSION OF ESTATES. 59 seems to show that there could be no such remainder upon a conditional fee; and if there could be no re- mainder, it follows that there could be no reversion. The fact that a doubt at one time prevailed (Co. Litt. 22 b) whether there could exist a reversion upon a fee tail after the statute De Bonis, is a strong argu- ment to show that there could not previously have ex- isted a reversion upon a conditional fee at common law. The point was decided by Lord Hardwicke in JSarl of Stafford v. Buckley, 2 Yes. sen. 170. Preston shows some disposition to carp at this decision. (1 Prest. Abst. 379 ; see also 1 Prest. Est. 417, note.) Probably he meant only to correct Lord Hardwicke' s apparent assumption, that the point was beyond all possibility of doubt. The remarks cited by Preston from Watkins on Copy- holds, are really addressed to, the solution of another question : — the perhaps insoluble question, how there can possibly exist a custom to permit entails of copy- holds, seeing that all customs must, in the eye of the r^. ., - law, have been in existence before the first year of Kic. |gj,^ g^g ^j^^ 1, while the statute De Bonis was not passed until the chapter on thirteenth year of Edw. 1. Watkins seems to conclude fees tail, that, since this is in fact impossible, it cannot be trua'^-^^'J that entails of copyholds exist by virtue of a custom to intail as affected by the statute ; but that they exist solely by virtue of a custom to grant in customary fee simple as affected by the statute ; and that, by conse- quence, entails of copyholds may exist in all manors in which there is a custom to grant in fee simple. But it must be taken as settled by authority, that in such manors, where there exists no custom of entail, a gift in tail will create a conditional fee. people, the remainderman upon an estate for life might, after the death of the tenant for life, have had a formedon en remainder at common law. (Booth, Real Actions, p. 151; Litt. sect. 481, and Lord Coke thereon.) Booth doubts this, while Littleton and Lord Coke both deny it. The question is, at all events, foreign to the present purpose. (885) Digitized by Microsoft® 60 ON ESTATES IN GENEKAL. [*66] *CHAPTEE X MEEGEE. Deflnition. Meegee is the opposite of the process by which less estates are derived out of a greater, whereby one or more less estate may so become blended with a greater, as to be indistinguishable from it in the same sense, and to the same extent, as was the case before the less estates were derived out of the greater. Merger gen- erally takes place when two estates, either related inter se as derivative and original, or else being both derived out of the same original, and both being held in the same right, meet together in the same person ; the posterior estate — (1) being greater, or, at least, not less, in quantum than the prior estate ; and (2) follow- ing immediately after it in the order of succession, without the intervention of any intermediate estate. And if any number of successive estates, of which each successive pair fulfils the conditions above laid down, should meet together in the sanie person, all the prior estates will in general be merged in the estate which is last in the order of succession. It is immaterial whether an intermediate estate was created at the same time as, or subsequently to, both or either of two estates which it separates ; in either case, such intermediate estate will prevent merger. (3 Prest. Conv. 127.) Undivided -^°^ ^^ purposes of merger, an undivided share of shares. land is a separate tenement. When estates in undi- vided shares meet in the same person, merger does not ensue unless the contiguous estates both refer to the same undivided share : a question which commonly admits of being answered, upon properly deducing the titles to the several shares. If there is nothing what- ever to show whether they refer to the same or to dif- ferent shares, the presumption seems to be, that they refer to the same share. (3 Prest. Conv. 98, 99.) [*67] *For some reruarks upon the destruction of con- tingent remainders through merger, see p. 108, infra. Distinctions. Merger has a very close resemblance in its operation to surrender; and it is frequently confused with extin- Digitized by Microsoft® MEKGER. 61 guishment. It would also appear to have been some- times thought to resemble discontinuance and remitter. (3 Prest. Conv. 9 — 13. ) A few remarks, by way of dis- tinction, may therefore be here introduced. It is the general rule, that two estates will merge Surrender. when they meet in the same person, without the inter- vention of any intermediate estate, and are such that the prior estate might have been surrendered to the tenant of the posterior estate. (3 Prest. Conv. 152.) In this sense it may be said, that the scope of merger is identical with the scope of surrenler. But this re- semblance holds good only for the purpose of ascer- taining the relative quantum of the relevant estates. Merger is not due to the same cause as surrender; for it arises by operation of law, and as the mere result of the situation of the estates inter se at the time of the merger, without regard to the intention of the parties by or through whom they were placed in that situation. But surrender is due to the intention, and is the effect of the act of surrender, and not merely of the situ- ation in which the surrender places the two estates. (Prest. Shep. T. 801.) Under special circumstances. May differ the operation of merger and of surrender may be very from merger different. Thus, if there be an estate for life in one "^ operation. person, with the reversion in two other persons as joint tenants, then, if the tenant for life should surrender his estate to one of the joint tenants, it will be de- stroyed, since one joint tenant can accept a surrender as fully as if he were solely seised; whereby the estate of each joint tenant is accelerated. But if the tenant for life should grant his estate to one of the joint ten- ants, one moiety only would be merged in his moiety of the reversion, and the other moiety would remain on foot, and vested in the same joint tenant, as an estate pur autre vie, with reversion to the other joint tenant. (3 Prest. Conv. 24.) The merger would effect a sever- ance of the joint tenancy in the reversion. (Co. Litt. 183 a.) Extinguishment is properly used to denote the anni- Extinguish- hilation *of a collateral thing in the subject out [*68] meat. of which it is derived; as of a rent- charge, chief rent, common profit d, prendre, easement or seignory, in the land to which they respectively relate; or of an incum- brance, or an equitable estate, in the corresponding legal estate. It is necessary, in order that an extinguishment may (387) Digitized by Microsoft® 62 ON ESTATES IN GENERAL. Suspension. Discontinu- ance. take place, (1) that the right to the collateral thing and an estate in the land itself, shall come to the tame hands; and (2) that the estate in the land be not less, in point of quantum and duration, than the estate in, or right to, the collateral thing. If the estate in the land should be less than the other estate or right, or if it should be defeasable, the rent or other collateral thing will only be suspended during the continuance of the estate in the land, and it will be revived upon the lat- ter's determination or defeasance. (Co. Litt. 313 a, b.) A discontinuance, when that term is applied to estates in land, was the result of certain assurances which, by the common law, had a tortious operation, whereby, under certain circumstances, one person might wrongfully destroy the estate of another; or rather, inter- rupt and break off the right of possession, or right of entry, subsisting under that estate, without any assent or laches on the other's part. (See Littleton, Book 3, Chap. 11.) For example, a feoffment purporting to be made in fee simple by a tenant in tail actually seised in posession, destroyed (or rather, interrupted) both the estate tail itself, and all remainders, and the reversion, if any, expectant thereupon; and oblige the persons lawfully claiming by virtue of those estates respectively, if they desire to prosecute their rights, to have recourse to a real action. The word discontinuance properly denotes this turning of an estate to the right of action ; though it is sometimes used to include also the turning of an estate to a right of entry (Litt. sect. 470, and Co. Litt. 325 a), a change which could be effected much Inore easily, and which obviously did much less injury to the owner of the estate. The word devest is more properly used to denote the turning of an estate to a right of entry. While no feoffment would discontinue lawful estates, except the feoffment of a tenant in tail actually seised, the feoffment of any person lawfully in posses- r*69] sion, though *only as tenant at will, would suffice (at common law) to devest lawful estates. This capa- city of a tenant in tail in possession to effect a discon- tinuance, arose from the fact that,' at common law, he had a conditional fee; and that the rights of the issue in tail, given to them by the statute De Donis, and also the rights of remaindermen and reversioners, could be prosecuted only by a real action brought upon a writ of formedon (z). The destruction of an estate formerly (a) The writ was styled formedon en descender when brought by the issue, en remainder when brought by the remaindermen, Digitized by Microsoft® MERQER. 63 existing under a lawful title, and the simultaneous coming into existence of a fee simple existing only under a wrongful title, may be thought to have some • sort of resemblance to the operation of merger. The abolition of fines and recoveries, and of the tortious operation of feoffments, has deprived the subject of its application to practice; though there remains a possi- bility that the learning of the subject may be required ■in the investigation of old titles. The law of remitter is a very curious and entertain- Remitter." ing branch of learning ; but it probably has now no pra'ctical importance. Remitter might be defined as the opposite of discontinuance, being an act or operation of Jaw, whereby a right of entry, or a right of action, might be turned to an actual estate without the neces- sity for making an entry or bringing an action, in fact. *This occurred whenever the actual seisin, exist- [*70] ing under a tortious title, accrued to a person having also in himself a rightful title in the shape of a right of entry or a right of action, such person not being implicated in the tort under which the tortious seisin had arisen, or otherwise estopped from asserting and maintaining his rightful title, and not having assented to the vesting of the tortious seisin in himself. Remit- ter gave to the person who was said to be remitted his rightful estate, or rather, the estate under his rightful tijle, to the same extent as he might have gained it by and en reverter when brought by the reversioner. On actions of formedon, see Booth, Real Actions, 139 — 166. (1) As to formedon en descender, since at common law an estate tail was a conditional fee, and the alienation of the tenant of a conditional fee, even before issue had, bound the issue if borne subsequently, though it did not bar the reverter, it seems to follow that there could not possibly, for this purpose, have existed any such writ at common law, since the right which it was meant to enforce did not exist. Lord Coke perhaps thought that the writ lay at com- mon law under special circumstances. See Harg. n. 5 on Co. Lift. 19 a. (2) As to formedon en remainder, it seems that this certainly did not lie at common law in respect to conditional fees ; and probably not in respect to anj^thing else. Vide supra, p. 65, note. Booth's language is not quite consistent, for he begins by alleging the invention of the writ of entry in consimili casu, by virtue of Stat. Westm. 2, c. 24, as a reason for disbelieving altogether in the existence of formedon en remainder, in respect to remainders upon estates for life, and then suggests that this evidence perhaps only shows that the writ of formedon could not be had in the life- time of the tenant for life. (3) There was a possibility of reverter upon a conditional fee, and formedon en reverter was the proper remedy therefore at common law; as is expressly stated by the statute De Donia. Vide supra, p. 64, note. (889) Digitized by Microsoft® 64 ON ESTATES IN GENERAL. making an entry or bringing a real action, as the case might require. For example, if a tenant in tail in possession had by a (tortious) feoffment discontinued the estate tail, and had afterwards re-acquired the seisin by a disseisin of the feoffee, then, upon his death, if his heir in tail was also his heir general, the heir would have acquired by descent the seisin existing under the disseisin, and would also have inherited the mere right subsisting under the discontinued estate tail. The disseised feoffee might have defeated the seisin acquired under the disseisin, by bringing a writ of entry sur disseisin in the per against the heir; but since the heir had been no party to the discontinuance or to the disseisin, and the tortious seisin had descended upon him by inheritance without his assent, he was re- ^ mitted by operation of law to his earlier title under the entail, which was indefeasible so far as any proceedings under the disseisin were concerned. (Litt. sect. 659.) Therefore, under the ancient system of procedure, questions of remitter were often of great practical im- „, 1 ^ portance. At the present day, when no assurance can remitter is operate by tort, and real actions no longer exist, the now obsolete, law of remitter seems to have no practical interest, ex- cept what may be derived from its possible bearing upon old titles. It is true that such a thing as an actual disseisin is still possible (Leach v. Jay, 9 Ch. D. 42, at p. 44) ; and the effect of an actual disseisin is to turn the estate of the disseissee to a right of entry; which might seem to afford an opening for the learning of remitter. But there seems to be nothing in the modern rules of pleading to prevent the defendant in an action for the recovery of land from relying upon any title whatever which he may possess; and this seems to deprive the law of remitter of all importance [*71] in relation to *modern practice. Remitter may be said to resemble merger, in so far as it involves the disappearance of one estate upon the revival of another estate; but the two estates, in a case of remitter, arise under distinct titles, whereas it is essential to merger that the two estates shall both arise under the same original title. Estates en Autre droit. When estate -^^ ^^'^ estates, which would under the foregoing rules en autre droit be capable of merger, come into the hands of the same is not merged person by operation of law and not by act of parties, (890) Digitized by Microsoft® MEKGEK. 65 there will be no merger urJess both the estates are held ia the same right. For example, a term of years com- ing to a man as executor of the deceased termor, and therefore held by him en autre droit, will not merge in his own freehold. (Co. Litt. 338 b.) A term held by the heir as executor of his ancestor, will not merge in the inheritance descending upon him. (Vincent Lee's Case, 3 Leon. 110.) When the accession of the two estates is not by When estate operation of law but by act of parties, it is the better en autre droit opinion that at law, merger would ensue. (3 Prest. ^® merged. Conv. 285 ; Wms. Exors. 7th ed. 641, 642.) Mr. Justice Fry, in Chambers v. Kingham, 10 Ch. D. 743, at p. 746, seems obiter to have expressed a contrary opinion; but he does not seem to have been aware that the dis- tinction had ever been taken. There is a passage in Gage v. Acton^ 1 Salk. 325, at p. 326, in which Lord Holt seems obiter to have expressed a similar opinion, also without showing any consciousness of the exist- ence of any distinction. According to Lord Coke, though a man may have a Distinction freehold in his own right and a term of years en autre taken by droit, he cannot have a term of years in his own right ^o^^ Coke. and a freehold en autre droit. (Co. Litt. 338 b.) This distinction does not seem to be well grounded. (3 Prest. Conv. 278 ; Jones v. Davies, 7 H. & N. 507.) Yet it is clear that Lord Nottingham thought there would be a merger at law ; see 3 Swanst. at pp. 618, 619. It is not recognized in equity. (Thorn v. New- man, B Swanst. 608 ; Nurse v. Yerworth, 3 Swanst. 608, at p. 619.) *0f Estates Tail and Base Fees. [*72] There is no merger of the estate tail in a remainder, No merger in or the reversion, in fee simple, when they meet in the a fee simple, same person Without the intervention of any inter- mediate estate. (3 Prest. Conv. 341 ; Wiscot's Case, 2 Eep. 60, at p. 61 a.) One estate tail will not merge in another. An estate or in a suljse- in tail male may coexist with another estate in tail 1^6°* 'retail, female in remainder, both being vested, without the in- tervention of any intermediate estate, in the same per- son. (Litt. sect. 719, and Lord Coke's comment.) The rule is not confined to the particular kinds of estates 6 (891) Digitized by Microsoft® 66 ON ESTATES IN GENERAL. tail just mentioned. Several estates tail, limited in immediate succession, may co-exist in the same person by way of remainder, so long as the limitation is not made nugatory by the absolute inclusion of any of the posterior estates in any of the prior estates ; as for ex- ample, by the limitation of an estate in tail male or in special tail, in remainder upon an estate in tail general. (3 Prest. Oonv. 246.) If the posterior limitation is absolutely included in the prior limitation, the posterior limitation is void for absurdity. (Co. Litt. 28 b.) Base fees and '^^^ '"^^® vrhich protects estates tail from merger, the estate of holds good only so long as the estate is required to be tenant in in being for the purpose of securing to the issue in tail tail after ^j^g benefits designed for them by the statute De Bonis; and when that purpose cannot be served, there is no protection against merger. Accordingly, neither a base fee, nor the estate of tenant in tail after possibility of issue extinct, is at common law protected against mer- ger. (Co. Litt. 28 a ; 3 Prest. Con v. 345.) Enlargement The Fines and Recoveries Act, s. 39, provides, that of base fees whenever after 28 th August, 1833, a base fee in any in lieu of lands, and the remainder or reversion in fee in the same ^ ■ lands, shall be united in the same person, and there shall be no intermediate estate, the base fee shall not merge, but shall be ipso facto enlarged into as large an estate as the tenant in tail (which here, by virtue of s. 1, signifies the person who would have been tenant in tail if the estate tail had not been barred), with the consent of the protector, if any, might have created by any disposition under the Act, if such remainder or re- version had been vested in any other person. [*73] *The Modern Law of Merger, and Merger in Equity. 36 & 37 Vict. '^^® Judicature Act, 1873, s. 25, suh-s. (4), enacts c. 66. that after the commencement of the Act, there shall not Merger now be any merger by operation of law only of any estate, follows the the beneficial interest in which would not be deemed to rules of |3Q merged or extinguished in equity. By virtue of 37 ^ ^' & 38 Vict. c. 83, s. 2, this enactment takes effect as from Ist November, 1875. Merger not It has been said, " that mergers are odious in equity, favoured in and never allowed, unless for special reasons. (1 P. equity. Wms. at p. 41.) But this must not be understood to mean, that equity never suffered a merger at law to (892) Digitized by Microsoft® MERGER. 67 effect any practical alteration in the rights of parties; for such a proposition ■would be manifestly erroneous. Equity never hindered the destruction of contingent remainders by merger through collusion between the tenant for life and the vested remainderman; and even in cases where trustees to preserve contingent remain- ders were parties to the destruction, relief in equity could not always be given by preventing the merger, though the trustees would be ordered to make good the damage. (Vide infra, p. 115.) The following points are very material, in consider- ing the practical result of the assimilation of merger at law to merger in equity. 1. Since the common law courts could take no notice Trusts. of trusts, there might be a merger at law be- tween two estates held in the same right, although one of them was held upon a trust. (3 Prest. Conv. 285.) 2. The eldest son and heir apparent of a man who Fraud. was entitled to a long term of years, by collusion with the reversioner, and by misrepresentation and fraud practised on his father, induced the . father (apparently) to assent to certain convey- ances whereby the term of years became merged at law in the reversion, so that ultimately the heir at law might obtain the land discharged from the term, and the father be prevented from availing himself *of the term in order to [*74] provide portions for younger childrem. It was held that the fraud was a ground for relief in equity. (Danby v. Danby, Eep. temp. Pinch. 220.) 3. If the above-mentioned distinction taken by Lord Lord Coke's Coke as to estates en autre droit, ever was the distinction as rule at law, it is the rule no longer. ( Thorn v. ^'^ ^ "^''''"^ Newman, 3 Swanst. 603 ; and see Nurse v. Yer- '^'" " worth, 3 Swanst. 608, at p. 619.) 4. In Chambers Y.^Kingham, 10 Ch D. 743, at p. The distinc- 746, Mr. Justice Fry seems obiter to have ex- tion as to e» pressed the opinion, that even at law two estates "■'"■^^^ ''''<'*' ^s cannot merge when one is held en autre droit, parties^ ^d** although they both come to the hands of the act of law. same person by act of parties and not by opera- (893) Digitized by Microsoft® ON ESTATES IN GENERAL. Infants. 5. Extinguish- ment. [*75] Estoppel by acquiescence. Qusere as to intention. tion of law. In the same case he seems to have expressly decided, that at all events there is under such circumstances no merger in equity. This decision is not entirely satisfactory; be- cause there seems to have been little argument, and it appears that the court was imperfectly informed as to the authorities. But the decision is not intrinsically unreasonable, and it may not improbably be followed. There is a dictum of Lord Eldon in Lord Comp- ton V. Oxenden, 2 Ves. 261, at p. 264, which seems to imply that merger would be prevented in equity for the benefit of an infant. This remark is founded upon a case, Thomas v. Kemeys, 2 Vern. 348, which has nothing, to do with merger, but refers to the extinguishment of a daughter's portion in the inheritance descending upon her. The portion was secured by a term of years vested in trustees, so that merger was wholly out of the question. Here there is some likeness in principle between merger and extinguish- ment. See also Forbes v. Moffatt, 18 Ves. 384, where the question of the extinguishment of charges in the fee is treated as being a question of intention; and Toulmin v. Steere, 3 Mer. 210, as explained in Adams v. Angell, 5 Ch. D. 634, at p. 645, where note the words, " in the absence of any contemporaneous *expression of inten- tion." Cases of the type of Toulmin v. Steere seem to depend upon the question of the extin- guishment of charges in the fee, because the legal mortgagee may be said, by a release of the equity of redemption, to have obtained the fee in equity. The point actually decided in Brandon v. Bran- don, 31 L. J. Ch. 47, seems to have been, that the parties to an administration suit are estopped in equity from raising the question of merger between two estates, when, with the consent of all parties, the two estates have during a long series of years been treated by the court as being both in subsistence. The judgment contains dicta which would seem to go the length of lay- ing it down, that in equity merger depends wholly upon intention. (894) Digitized by Microsoft® (69) *CHAPTER XI. [*76] RULES OF LIMITATION AT COMMON LAW. It has been remarked above, that terms of years were unknown to the common law, which recognized no estate other than estates of freehold. ( Vide supra, p. 46.) Since these latter were the only known estates, it follows that, in the eye of the common law, the person having the first vested estate of freehold was necessar- ily the person who was, for the time being, entitled to the actual possession of the land. Here possession is synonymous with seisin, and it is perpetually used in this sense by the older writers on the law. In the case of writers who wrote before the statute 21 Hen. 8, c. 15, this usage is so obviously natural as to require no esplanation ; and later writers long retained the language which had become the customary exponent of the law's meaning. When the estate of the termor for years had been made practically indefeasible by statute, the old legal theory, that he had no seisin in him, but held the land only in right of the seisin of the rever- sioner, remained undisturbed. Seisin may therefore be defined to be a possession of Definition of land founded upon the title given by an estate known seisin. to the common law; or, which is the same thing, by an estate of freehold. (Co. Litt. 17 a.) As the origin and primitive status of terms of years fell into oblivion, the word possession gradually acquired a more extended meaning than the word seisin. It is now commonly used to mean any possession which is founded upon any title which the law, as now administered, will re- cognize and protect. When a number of successive vested estates of free- The actual hold are derived out of the same original estate, the seisin. tenants of all such estates, though only one of them can at one time be vested in possession, are said to be in of the same seisin. The first in order of the estates, which is vested in possession as well as in interest, is said to confer the right to the actual seisin or immediate freehold. (895) Digitized by Microsoft® 70 ON ESTATES IN GENERAL. Mere freehold [*77] *Any estate which, if vested in possession, distinguish- would give the right to the immediate freehold, but ed from m- which imports no inheritance, is styled an estate of en ance. ,jjg^g freehold. The only estates of this nature are estates for life (including tenancy in tail " after possi- bility " ) and estates pur autre vie. In what sense The seisin is quite independent of, and unaffected a remainder by, the existence of any term or terms of years, of freehold is Therefore, so far as the seisin is concerned, there can sist after a' ^xist no such thing as a remainder of freehold expectant term of years, upon a term of years. The existence of a prior term of years does not prevent the first vested estate of free- hold from being an estate of freehold in possession. (Boraston's Case, 3 Rep. 19; see what is said at p. 21a about the estate of the executors, and connect this with the fact, that judgment was given for the defendant. See also Litt. sect. 60, where the words, "If the ter mour in this case entreth before any livery of seisin made to him, then is the freehold and also the reversion in the lessor," skow the same thing.) During the con- tinuance of the term, the estate of freehold is properly described, not as being a remainder of freehold upon the term of years, but as being the freehold in pos- session subject to the term. But since the possession of the freeholder is in such a case subject to the rights of the termor, and since these rights may, and in practice usually do, deprive the freeholder of the immediate use and occupation of the lands during the term, the result is, for many practical purposes, much the same as if the freehold subsisted only as a veritable remainder. In this sense the word remainder is often applied to estates of freehold limited after a term of years. But when this language is used, the reader must bear in mind, (1) that a prior term of years does not prevent a subsequent vested estate of freehold from being an estate of freehold in possession ; and (2) that a prior term of years does not prevent a subse- quent contingent estate of freehold from being void in its inception, as being an attempt to create a free- hold in futuro. The seisin ^J *^® common law, the tenant of the immediate cannot be freehold was the only person against whom a writ could placed in [*78] be brought in a *real action, or from whom the ?!?fr?"?!3'I lord could demand the feudal services incident to the tenure; and in ancient times this was equivalent to say- ing that, during abeyance of the immediate freehold, (896) Digitized by Microsoft® act of parties. RULES OP LIMITATION AT COMMON LAW. 71 all rights, both public and private, in reference to the land, were in abeyance also. This sufficiently explains the common law rule, that every act of parties is void, by which, if it were taken to be valid, the immediate freehold would be placed in abeyance. The strictness of this rule is absolute; under no circumstances what- ever, by the commoq. law, can the immediate freehold be placed in abeyance by any act of parties. (1 Prest. Est. 216. ) Prom this rule some very important conse- quences are deduced, with regard to the limitation of estates at common law. But by unavoidable necessity, the immediate freehold sometimes might be placed in abeyance by operation of law. Ill placed in the cas^ of a corporation sole seised of lands, during abeyance by the interval between the death of one incumbent (or operation of other cause of a vacancy) and the accession of his suc- cessor, the immediate freehold is in abeyance. (Litt. sect. 647. ) And on the death of a tenant pur autre vie, whose estate was barely limited to him by name (with- out any mention of the heirs) during the life of cestui que vie the immediate freehold was, by the common law, in abeyance, unless or until some person had, or obtained, such a possession as caused the freehold to be cast upon him by the title of general occupancy. (Co. Litt. 342 b.) By the provisions of several statutes, the immediate The seisin freehold may, under certain circumstances, be placed in perhaps plac- abeyance. At common law a contingent remainder was ^'^ in abey- destroyed, unless it became vested in interest either g^'^^^J previously to, or eo instanti with, the determination of the precedent estate of freehold; because the immedi- ate freehold would otherwise have been in abeyance pending the contingency. The statutes above referred to provide that, subject to certain restrictions, contin- gent remainders may take effect, notwithstanding the determination, pending the contingency, of the prece- dent estate of freehold; but they omit to make any provision for the vesting of the freehold during the *interval. (For an account of the said statutes, [*79] and remarks upon their operation, see pp. 109, 111, 112, in fra.) The impossibility, at common law, of causing any abeyance of the immediate freehold by any act of par- ties is the foundation of several of the rules regulating the limitation of legal estates. These rules remain valid at the present day, except in so far as their ope- (897) Digitized by Microsoft® 72 ON ESTATES IN GENERAL. ration, in respect to the liabilty of contingent remain- ders to destruction, has been restricted by the statutes above referred to. Exemption But it must be borne in mind that the rules of limi- of executory tation which depend upon the necessity for a continu- limitations. ^^^g seisin do not necessarily apply either to assurances taking effect by the Statute of Uses, or to wills, be- cause limitations which, in a common law assurance, would place the freehold in abeyance, would not neces- sarily place it in abeyauce if contained in an assurance by way of use or in a will. In case of executory de- vises, the seisin may descend, during the unappropria- ted interval, to the testator's heir-at-law ; and in the case of springing and shifting uses, it may remain, during any such interval, in the grantees to uses. At the pres- ent day, assurances at the common law rarely occur in practice ; and it follows that the practical application of the rules in question is not of wide extent. Their application is probably restricted in practice to leases for lives, which, when granted by an absolute owner, whether an individual or a corporation, are commonly granted in the shape of common law leases (a), as dis- tinguished from leases which take effect by the Statute of Uses. Nevertheless, it is necessary that the rules relating to abeyance of the seisin should be not only known, but intimately known, to every conveyancer [*80] *who aspires to possess more than an empirical acquaintance with his art. The bearing Of the rules stated in this chapter, the first four de- of these rules pend upon the doctrine of abeyance of the seisin. The upon perpe- remaining two were designed to prevent the creation of what in modern times is styled " a perpetuity," by the limitation of remote estates to unborn persons as purchasers. The latter rules are the ancient counter- part at common law of the modern rule against perpe- (a) Even these leases are not, strictly speaking, common law assurances ; for they are in practice made by grant under 8 & 9 Vict. c. 106, s. 2, whereas at common law they would need liv- ery of seisin. But this point is not material to the present dis- tinction, lor such statutory grants seem to be amenable, in all other respects, to the rules which govern common law assur- ances. In the same sense, it might also be said that conveyan- ces in fee simple, expressed to be made "unto and to the use of" the grantee — which often occur in practice — are common law as- surances, since they do not take effect by the Statue of Uses. But the form of such assurances does not offend against the pres- ent rules. (898) Digitized by Microsoft® RULES OF LIMITATION AT COMMON LAW. 73 tuities ; and they fulfil a function, in respect to legal limitations, similar to that of the rule against perpetui- ties in respect to executory limitations. Lord Brougham pointed out, in Cole v. Sewell, 2 H. L. C. 186, at p. 232, that the rule forbidding abeyance of the seisin also directly tended to prevent the crea- tion of perpetuities, by preventing the existence of any interval between the determination of a particular es- tate and the commencement in possession of the re- mainder : " If it may be for one year after the life of A. terminates, it may be for a thousand years, and so it might end in a perpetuity." This observation is marked by the greatest acumen. But the rule was founded historically, long before any such reasons had been thought of, upon the above-mentioned grounds relating to feudal services and writs in real actions : matters which, at the time of the rule's origin, were of such immense practical importance, that nothing fur- ther is needed to explain its rigorous enforcement. Rule 1. — Any limitation by which an estate of freehold in corporeal hereditaments purports to be so granted as to commence, either upon the expiration of a fixed interval of time after the execution of tlie assurance, or upon tlie hap- pening of some future contingency other than the determination of a precedent estate of free- hold, is void in its inception. {BarwicTc's Case, 5 Rep. 93, at p. 94 b ; BucMer's Case, 2 Rep. 55 ; Boffg v. Cross, Cro. Eliz. 254 ; 10 Vin. Abr. 206 = iJstate, B. pi. 10 ; ibid. 208, pi. 26 ; Plowd-. 156 ; 2 Bl. Com. 165 ; 1 Prest. Est. 217.) An estate of freehold so limited is often styled a freehold in *futuro; and the above rule is often [*81] summarized by the statement, that the limitation of a freehold in futuro is void. There are three kinds of limitations, which come directly under the description of a freehold in futuro : — (1) A vested estate, not preceded by another estate. Three kinds limited to commence after the expiration of a 9^ freehold fixed interval, or upon the happening of a con- «™/«f«™- tingency; (2) A vested estate limited subsequently to another estate, but with an interval of time to elapse be- tween its commencement in possession and the determination of the precedent estate; and (899) Digitized by Microsoft® 7J: ON ESTATES IN GENERAL. (3) A contingent remainder not immediately pre- ceded by a vested estate of freehold. In the recent case of Boddington v. Robinson, L. E. 10 Exch. 270, the validity of the above- stated rule was expressly admitted; though, by a strained construction of the deed which was there in question, the legal con- sequences of the rule were avoided. But this admis- sion of the rule's validity is subject to the extraordi- nary suggestion, which seems to have been made argu- endo in that case as to the effect of 8 & 9 Vict. c. 106, s. 6, upon which the court pronounced no opinion. ( Vide infra, p. 86. ) Keasonofthe '^^^ existence of this rule is intimately connected rule's connec- with the view taken by the common law of the common tion with law assurances, and particularly of a feoffment. In common law ^j^g view of the common law, a feoffment necessarily devested the seisin, forthwith and during the whole time comprised in the estate or estates to which it re- ferred, out of the feoffor. Unless, therefore, the feoff- ment purported, forthwith and for the whole of that duration, to vest the seisin in the feoffee, it would fol- low that, during some unappropriated interval, the ac- tual seisin or immediate freehold would be placed in abeyance. Whether the supposed unappropriated interval had its existence at the beginning, or somewhere in the mid- dle, of the period for which the seisin was taken out of the feoffor by the feoffment, makes no difference to the ultimate result. In either case, supposing the limita- tion to take effect, the actual seisin would, sooner or [*82] later, be placed in abeyance. *Therefore, estates of freehold in futuro, unpreceded by any other estate, and remainders (as they may be called) in futuro sepa- rated by an interval of time from the precedent estate, are, at common law, both equally void in their inception. Application '^'^® °^^^ °^ ^ contingent remainder, provided that in of the rule to its inception it is preceded by an immediate estate of contingent freehold, differs from what is above styled a remainder remainders, ^-jj futuro; because, though such a contingent re- mainder might by possibility place the immedate free- hold in abeyance, the terms of its limitation do not ex- clude the possibility that it may take effect without causing any such abeyance. Therefore, while a re- mainder expressly limited in futuro is void in its incep- tion, the contingent remainder is (at common law) void only in case the possible mischief should actually arise; (900) Digitized by Microsoft® RULES OF LIMITATION AT COMMON LAW. 75 that is, in case the precedent estate of freehold shonld determine before the vesting of the contingent remainder by the happening of the contingency. ^ The rules of limitation which are derived from the The rule ap- rule against abeyance of the freehold, are not confined plies to all to assurances made by feoffment, though their origin is common law closely connected vpith the mode in v?hich a febfPment ^„ which a is supposed by the law to operate. They have always freehold can been held to apply also to all other assurances by be conveyed, which, at common law, estates of freehold may be limited or conveyed; namely, as regards corporeal here- ditaments, fines, recoveries, releases, and confirmations by way of enlargement ; and, as regards incorporeal hereditaments, to grants. The release in the old-fashioned assurance styled a "lease and release," is a release operating at common law by way of enlargement of the estate created by the lease. Therefore, any estate in futuro, purporting to be created by lease and release, is void, no less than such an estate purporting to be created by feoffment. (Roe V. Tranmarr, Willes, 682; 2 Wils. 75.) A covenant to stand seised to uses in consideration of blood or marriage, is not a common law assurance; and the present rule does not apply thereto. {Ibid.) Perkins (sect. 265) expressly declares, that the rule is Exchanges. not binding upon common law exchanges, in the sense that an *exchange may be made to take effect after [*83] the expiration of a definite interval of time. It is also laid down in Shep. T. 293, that an exchange may be made of a definite parcel of land for either of two others at the election of the other party; and that upon election being made, the exchange is good: which ap- proaches nearly to the doctrine of Perkins. Preston questions the truth of Perkins' doctrine, but does not expressly deny it (1 Prest. Est. 217, note d) ; and in his addition to the Touchstone, he appears to accept the doctrine there laid down. Common law exchanges seldom, if ever, occur in modern practice; and therefore the question is of little practical importance. But they seem upon principle, to come within the mischief which the rale was originally designed to prevent; for if the seisin might thus have been shifted at a future day, any writ brought by the demandant in a real ac- tion during the interval, might have abated to his pre- judice. (901) Digitized by Microsoft® 76 ON ESTATES IN GENERAL. The rule does not operate until the as- surance is perfected. From what day a lease commences. Statutory grants. A feoffment takes effect from the livery of the seisin, not from the execution of any accompanying deed or charter. Therefore, if the deed should purport to limit a freehold in futuro, but the livery of seisin should not in fact be made until after the preliminary interval has expired, the feoffment will be good ; because the estate conveyed commences from the feoffment, and does not under such circumstances commence in futuro. (1 Prest. Est. 222; 10 Vin. Abr. 205 = Estate, B. pi. 4; 13 Vin. Abr. IQB = Feoffment, T. 2, pi. 1.) Similarly, an assurance by deed, which needs no livery, takes effect from the delivery of the deed. Ac- cordingly, in an assurance by lease or release, or in a lease made by grant under 8 & 9 Vict. c. 106, of lands for life or lives, if the estate limited should purport to be a freehold Ml /Mi{M?'o, but the deed (though previously sealed) should not be delivered until after the expira- tion of the preliminary interval, the deed will be good and the estate will take effect. (1 Prest. Est. 222.) A lease made to a man habendum from the day of its date during specified lives does not include the day of the date, but commences from the following day. Such a lease, being for a freehold, could not take effect with- [*84] out livery of seisin previously *to the 8 & 9 Vict, c. 106. If the livery had been made on the day of the date, this would have been for a freehold to commence from the following day; and therefore it would have been void, under the above-stated rule. (10 Vin. Abr. 204: = Estate, B. pi. 1, 2.) And it is conceived that such a lease made at the present day, which by virtue of 8 & 9 Vict. c. 106, s. 2, will take effect by delivery of the deed without livery of seisin, if the deed should be delivered upon the day of the date, would be void as purporting to create a freehold in futuro. There can scarcely be a doubt (apart from the suggestion, shortly to be discussed, touching the effect of 8 & 9 Vict. c. 106, s. 6) that this is the law, though at this day the courts would be very reluctant to enforce it. Conveyances by way of grant are so far from enjoying any exemption from the rule, that, on the contrary, they are more obnoxious to its severity even than conveyances which take effect by way of livery. The grant of any estate in futuro, when it takes effect only by the grant, is necessarily and absolutely void ; whereas a charter of feoffment which purports to grant a freehold in futuro is not necessarily (902) Digitized by Microsoft® KULES OF LIMITATION AT COMMON LAW. 77 void, but will be good if the livery is deferred until after the expiration of the interval of abeyance. (10 Vin. Abr. 201 = Estate, B. pi. 21, 25.) But, as above mentioned, a deed of grant will be good, if the delivery, — that is, in effect, the execution, — be deferred until after the expiration of the forbidden interval. In Boddington v. Robinson a lease which purported jjgjQj^pijs to create a freehold in futuro, having been drawn by an upon the cose incompetent draftsman, happened to contain some oi Boddinifton absurd and superfluous expressions. The court, being ^- Sobinson, very desirous to escape from declaring the lease void, ^^^-^ 270 made use of these absurdities to impute to the deed a legal operation which, in respect to the time of the term's commencement, was manifestly not the inten- tion of the parties. In that case the material facts were as follows : — A. being tenant for his own life of a house, by a deed, dated, and presumed to be delivered, on the 10th No- vember, 1864, purported to grant, demise, and lease to B. his executors, administrators and assigns, the house in question, to have and to hold the same *fro'in [*85] the 13th of November [sic] for the term of the aforesaid A. for the term of his natural life. This lease there- fore purported to create, on the 10th November, 1864, an estate pur autre vie to commence from the 13th day of some undefined month of November ; but from cer- tain circumstances connected with the dealings with the house which had taken place, the court inferred that the intended year was the year 1874. The prin- cipal question was, whether this was void, as being a freehold in futuro purporting to be created by what is for this purpose a common law assurance. The court held that the words contained in the prem- isses were sufficient expressly to pass the whole estate of A., and that they were not cut down by the words contained in the habendum, importing the omission of the interval between the 10th November, 1864, and the 13th November, 1874. It followed that, in the opinion of the court, the freehold created by the deed was an immediate freehold and not a freehold in futuro. The reasoning upon which this conclusion was based seems to consist of two propositions. The first imports that an express estate contained in the premisses of a deed, and which is capable of taking effect by virtue of the deed without any such extraneous ceremony as livery of seisin is not liable to be abridged or avoided by anything, contained in the habendum a proposition (903) Digitized by Microsoft® 78 ON ESTATES IN GENERAL. which has for a very long time past been t ettled beyond question. ( Vide infra, p. 333. ) The second proposi- tion (which is much more dubious) imports, that the addition of the words, " his executors, administrators, and assigns," to the name of a grantee, will, when the grantor has an estate for his own life, expressly convey the whole estate of the grantor to the grantee. This second proposition seems to be a purely arbitrary pro- position, unsupported by any shadow of authority, which seems to have been invented expressly to suit the exigencies of the particular case. The only reason, or semblance of a reason, alleged in favour of the second proposition was, that the words, " his executors, administrators, and assigns," are " proper words of limitation " for granting the whole of the estate of the grantor in prcesenti. But this state- ment seems to be very arbitrary doctrine. There exists no authority to show that those words, unaccompanied [*86] by *the words, " during the life of the grantor," would have any such efPect. And the last-mentioned words would have that effect, without any need for the mention of executors, administrators, or assigns. This was, in fact, a material part of the grounds upon which general occupancy was permitted by the common law ; because the assignor or grantor, having parted with the whole estate during the life of cestui que vie, had him- self no better right to enter upon the lands, after the grantee's death, than anybody else had. Suggestion as It is to be regretted that the arguments of counsel to 8 &9 Vict, are not given in the above cited report. An extraor- c. 106, s. 6, dinary suggestion seems to have been made, in argu- dtinBoT"' ™ent, that 8 & 9 Vict. c. 106, s. 6, has in effect repealed dington v. the rule of law now under consideration, and that it Bobinson. authorizes the creation de novo of a freehold in futuro by a common law assurance. But it is conceived that the language of that enactment manifestly refers only to the conveyance of "future interests" which are already in esse, as subjects of limitation — that is, con tingent remainders and executory interests; and that it has no reference to the creation de novo of anything whatever. In the discussion of this subject the phrase, freehold in futuro, has acquired a peculiar significance, and the phrase, future interest, is never used in the same meaning. The suggestion above referred to seems, in fact, to be a mere inept playing upon words. The court in Boddington v. Robinson declined to con- sider this question, upon the ground that, in view of (904) Digitized by Microsoft® KULES OF LIMITATION AT COMMON LAW. 79 their opinion upon the other point, it was not material to the decision. The following reasons (if any be required in addition Reasons for to the apparent scope of the Acts language) for reject- rejecting the ing the suggested interpretation of 8 & 9 Vict. c. 106, above- 8. 6, seem to be conclusive. If that interpretation were ™«°t'oi^'^f^ correct, its effect could hardly be restricted to the par- ®"^^®^ ^°°' ticular case which happened to suit the convenience of the defendant in Boddington v. Robinson. The result would be that, independently of 40 & 41 Vict. c. 33, no reason would any longer exist, why a contingent re- mainder should be destroyed by the expiration of the precedent estate of freehold pending the contingency. But nobody has ever suggested *that the last [*87] cited statute is superfluous, so far as regards contingent remainders created by instruments coming into opera- tion after 1st October, 1845. In Brackenbury v. Gib- bons, 2 Ch. D. 417, which was decided more than thirty years after the passing of 8 & 9 Vict. c. 106, Vice- Chancellor Hall, who was probably the most learned judge of his day in respect to such matters, assumed that the common law rule was applicable to contingent remainders created by a will dated in 1854. In Ite Lechmere and Lloyd, 18 Ch. D. 524, the late Master of the KoUs, Sir G. Jessel, evidently made the same as- sumption, though he thought that, upon the wording of the instruments under consideration, the limitations in both cases gave rise to executory interests, and not to contingent remainders. ( See also Cunliffe v. Brancker, 3 Ch. D. 393.) Moreover, if such contingent remain- ders as are not within the protection of 40 & 41 Vict. c. 33, are by 8 & 9 Vict. c. 106 protected against de- struction by expiration of the precedent estate, then, since neither statute makes them liable to the rule against perpetuities, a curious opportunity might be opened to the ingenuity of conveyancers. Rule 2. — Any similar limitation of an estate of freehold derived out of a remainder or rever- sion, expectant upon a particular estate of free- hold, is likevsrise void in its inception. {Bar- wick^ s Case, 5 Rep. 93, at p. 94 b; BucMef s Case, 2 Rep. 55 ; Stopft v. Eyres, Cro. Car. 546 ; 10 Vin. Abr. 206 =^ Estate, B. pi. 9 ; 1 Prest. Est. 219.) (905) Digitized by Microsoft® 80 ON ESTATES IN GENERAL. 1 Such limitations are manifestily identical in princi- ple with limitations of a remainder in futuro, derived out of an estate in possession, leaving an unappropri- ated interval betvreen the determination of the prece- dent estate and the vesting in possession of the re- mainder. To them applies the same criticism, that they not only contemplate ab initio the possible abeyance of the freehold, but also (unlike contingent remainders) are such that they could not possibly take effect as estates in possession without the occurrence of such an interval of abeyance. Rule 3. — Any similar limitation of an estate of freehold in any incorporeal hereditament, [*88] already ''•in esse at the time of the limita- tion, is void in its inception. (1 Prest. Est. 217.) This rule points out the distinction between the creation de novo of incorporeal hereditaments, and sub- sequent dealings with them when they have been created. The grantor, who limits de novo a rent-charge in fee simple out of his lands, is not bound by the foregoing rule; but it binds the grantee, in regard to any conveyance, or settlement, which he may subse- quently make of the rent charge. In respect to some incorporeal hereditaments, such as a rent-charge, this rule seems rather to have been imposed by analogy, and in order to secure uniformity in the law, than from any direct reason; for it -is evi- dent that the abeyance of a rent charge has no tendency to put in abeyance the seisin of the land out of which it issues, and the terre-tenant would always be available for the purpose of bringing an action to recover the rent on the part of any person who conceived himself to have a claim thereto, and ivould be the proper person against whom to bring it. But in respect to certain other incorporeal hereditaments, such as an advowsom in gross, the analogy of the reason against abeyance of the seisin of the land holds good; for during an abey- ance of the seisin of the advowsom, the claimant would have no one against whom to bring his action. If a usurper had presented to the benefice, and his clerk had been admitted and instituted, the rightful patron would have been without remedy, so long as the abeyance, if permitted to exist, had continued. When an incoporeal hereditament, as a rent-charge, ia created de novo, it may be limited to commence at a (906) Digitized by Microsoft® KULES OP LIMITATION AT COMMON LAW. 81 future time; and such future time may either be a Limitations specified time, or it may be ascertainable by the hap- de novo not pening of a contingency. See Plowd. 156, where the "^it^in the authorities are collected in the margin, note c) ™'^^' Rule 4. — ISTo estate of freehold, whether in corporeal hereditaments, or in incorporeal here- ditaments already in esse, can be limited, or caused, to exist at intervals *only and not [*89J continually. {The Frince's Case, 8 Rep. 14, see p. 17 a ; Corbefs Case, 1 Rep. 83, see p. 87 a, b ; Prest. Shep. T. 127 ; 19 Vin. Abr. 494= t^taiute, A. 2, pi. 6 ; 4 Com. Dig. 5 ; 1 Prest. Est. 218.) It is in consequence of this rule that a determinable fee in lands, limited to a man and his heirs, being peers of the realm, is absolutely determined by any separa- tion occuring between the peerage and the heirship, and the estate will not revive in case the peerage and the heirship should subsequently become united in the same person. ( Vide infra, p. 201, No. 1. ) But an incorporeal hereditament, as a rent- charge, may, at its creation, be limited to arise and fall into abeyance or extinction by alternate intervals; just as, at its creation, it may be limited to arise after the ex- piration of a specified time. Of this type is the curious limitation mentioned by Lord Hale in note 6 on Co. Litt. 27 a : — " The hospital of Saint Katharine was founded by Queen Eleanor, wife of Hen. 3, reserving the patronage sihi et reginis Anglice pro tempore existentibus, et eo titulo regina Phillippa uxor E. 3, habet patronatum." Such limita- Desultory tions are sometimes styled desultory limitations. See limitations. the case of Atkins v. Mountague, 1 Ch. Ca. 214, in which this limitation was held to be good. It was from this case that Lord Hale derived the above cited note (b). The last cited case is supported by the authority of Remarks Lord Hale. Yet it has some features which prevent it ^P?5^ ^<^'"is from being regarded with unmixed satisfaction. Des- ^' "^^ "■' ultory limitations made upon the creation de novo of an incorporeal hereditament, are not unknown to the law; (J) The visitorship of a college is suspended during a tempor- ary union of the office with the headship of the college, and re- vives upon a severance. Bex v. Bishop of Chester, 2 Stra. 797. It seems to follow that a visitorship might be limited, upon its creation by way of desultory limitation. 6 (907) Digitized by Microsoft® 82 ON ESTATES IN GENERAL. Descent of peerage among co- parcners. Offices held in grand ser jeanty. but the other authorities: unlike Atkins v. Mountague, seem to assume that a limitation of this kind must be such that, if it had not been desultory, it would have been the limitation of a fee. In the present case, the limitation was in favour of a merely arbitrary series of persons who are capable, indeed, of being intelligibly described, but are not connected together in any of those ways which are requisite to the limitation of a fee. Though for some purposes the Queen Consort is in law a feme sole (Co. Litt. 3 a, ibid. 133 a), yet there seems to be no authority for saying that she is a cor- [*90] poration sole. Nor *could Lord Hale have sup- posed that the Queen Consort is a corporation sole; for he expressly laid it ^own, that such a desultory limita- tion of an advowson in esse would be bad; whereas, if the Queen Consort were a corporation sole, there could be no more harm in the limitation of an advowson to her and her successors, than in its limitation to a bishop and his successors. The successive Queens Consort, being neither the successors of a corporation sole nor the heirs of any specified person or persons, are not a proper subject for the limitation of a fee; and it would be difficult to defend the principle of the above cited decision, without maintaining that a similar desultory limitation might lawfully be made in favour of any arbitrary series of persons who are capable of being intelligibly described. In a similar manner, a peerage, if descendible to fe- males, will by act of law, fall into abeyance upon a de- scent among coparceners. The crown enjoys the un- doubted prerogative, to revive any such dormant peer- age in favour of any one of the persons among whom, for the time being, the right is distributed. (Co. Litt. 165 a, and Harg. notes 6, 7, thereon.) An office of honour, held by what, previously to 12 Car. 2, c. 24, was tenure in grand ser jeanty, does not fall into abeyance among coparceners; but how, upon such a descent, it should be exercised, has been a mat ter of doubt. Lord Coke held, that the husband of the eldest coparcener was entitled, as of right. But it seems now to be settled, that such office must be exercised by a deputy appointed by all the coparceners, such deputy not being below the degree of a knight, and being subject to the approval of the crown. (Harg. n. 8 on Co. Litt. 165 a. ) On the appointment of depu ties in lieu of persons for any cause disqualified, see Co. Litt. 107 b. (9081 Digitized by Microsoft® RULES OF LIMITATION AT COMMON LAW. 83 Rule 5 — If in a deed there are two limitations one to an unborn person and the other (by pur- chase) to any issue of such unborn person, the second limitation is void. And all limitations subsequent to such void limitation are also void. (2 Prest. Abst. 114, 115; Fearne, Cont. Rem. 502,and Hosth. Works, 215; Brudenell v. Elwes, 1 East, 412, at p. 453; Monypenny *v. [*91] Bering, 2 De G. M. & G. 145, at p. 170; Bay v. Uarl of Coventry, 3 T. R. 83, at p. 86.) If in a will there are two such limitations, the prior limitation (whether it be executed, or executory) may be construed as a limitation in tail, pro- vided that such a limitation would, if not barred, carry the estate by descent to the issue specified in the second limitation. (2 Prest. Abst. 166; -Butl. note on Fearne, Cont. Rem. 204; Parflit v. Bember, L. R. 4 Eq. 443; J^ors- hrook V. ForsbrooJc, L. R. 3 Ch. 93. It is clear from the above cited authorities, that a limitation, in a deed, to an unborn person for life is good ; and that a remainder may be limited upon such life estate, though not to the issue of such tenant for life. The construction of a prior life estate in a will as an Oy prh estate tail, is made in order to give effect to the appar- doctrine, ent intention of the testator, so far as the rules of law will permit ; and it is therefore commonly referred to as the cy pr^ doctrine. The quality of the estate tail is regulated by the quality of the issue who are the subjects of the second limitation. The doctrine is not likely to be extended. (Butl. ubi supra.) Rule 6. — The limitation of a remainder to a corporation not in esse, or to the right heirs, as purchasers, of a person not in esse, is void. (Cliolmley'' s Case, 2 Rep. 50, at p. 51 a, b ; 2 Bl. Com. 170.) The authorities declare that such a limitation is void in its inception, even though a corporation answering to the description should be created, during the con- tinuance of the precedent particular estate ; or though a person answering to the description should come into being, and leave an heir at the time when the estate to arise under the limitation would fall into possession : (909) Digitized by Microsoft® 84 ON ESTATES IN GENERAL. wherein it differs from the limitation of a contingent remainder to the heirs (though not yet in being) of a person in esse, or to the unborn son of a person in esse. ( Vide infra, p. 103. ) The rule is avowedly founded upon the maxim, that the law will not contemplate a double possibility, or a possibility upon a possibility. (Co. Litt. 25 b; ibid. [*92] 184 a; 1 Eep. 156 b; 10 *Ilep. 50 b.) This maxim has certainly been applied with very little con- sistency. Shortly before insisting upon it. Lord Coke states that a limitation in special tail to a married man and a married woman (other than his wife) is good, upon the ground that the wife of man might die in his lifetime, and the husband of the woman in her life- time, whereupon the marriage of the donees might ensue : though this hypothesis has mightily the aspect of a triple (not to say a quadruple) possibility. (See Co. Litt. 25 b.) The maxim against double possibilities has been questioned by Lord Nottingham. (Duke of NorfoWs Case, 3 Ch. Ca. 1, at p. 29. ) It does not clearly ap- pear whether he meant to question the maxim al- together, or only the particular application of it (by Popham) above cited, at 1 Eep. 156 b. His remarks, at all events, only go to show, not that the instances alleged by Lord Coke are wrong, but that the maxim probably means something different every time it is cited. Though the maxim may be of such vague im- port, that it could not safely be relied upon for any new inference, yet there is not much reason to doubt that the above-stated rule would be enforced, if the oc- casion should arise ; seeing that it only affirms the natural tendency of the courts, which leans strongly against the validity of remote and unusual limitations. The maxim against double possibilities, when rightly viewed, is nothing worse than a somewhat clumsy re- striction upon the remoteness of legal limitations ; and some of the criticisms which have been passed upon it are much more foolish than the maxim itself. (910) Digitized by Microsoft® (85) *CHAPTEE XII. [*93] CONTINGENT REMAINDERS. The particular estate preceding a vested remainder of jjQgt i,e gup- freehold may be a term of years; and in that case the ported byes- seisin, during the continuance of the term, is vested in tate of free- the remainderman. ( Vide supra, p. 61. ) But the ^°^^ ™ *^®"' particular estate preceding a contingent remainder of "^'^^P '-°^' freehold may not be a term of years ; because in such case the seisin would not be vested, but would be in abeyance during the continuance of the contingency. (Goodright v. Cornish, 1 Salk. 226.) Such a contingent remainder would be void in its inception, for want (as the common phrase goes) of a sufficient estate of free- hold to support it. It is conceived that this is still the law. But such a limitation, though void as a remainder at Executory common law, and therefore necessarily void if contained limitations in an assurance which takes effect only by the common ^^^'^ °° law, may be good as an executory limitation, if con- ^'^ tained in an assurance which takes effect under the Statute of Uses, or in a will. In the former case it will be a springing use, and in the latter case it will be an executory devise. For the same reason, every contingent remainder of Must also, by freehold must, by the common law, be supported by an the common estate of freehold, not only in its inception, but also ^^ ? ^^^^ throughout the pending of the contingency; because, if f^„ the con- any interval had been permitted to exist between the tingency. determination of the precedent estate and the vesting of the remainder, the immediate freehold wotdd have been in abeyance during such interval. Unless the re- mainder, by the happening of the contingency, becomes vested, either previously to, or at the same instant with, the determination of the precedent particular estate, it is (by the common law) destroyed. But this liability to destruction has been greatly modified by recent leg- islation, as hereinafter mentioned. *Any determination of the precedent particular [*94] estate pending the contingency would at common law (911) Digitized by Microsoft® 80 ON ESTATES IN GENERAL. Various have destroyed the remainder, whether such determina- modes of tion were due to the natural expiration, or to the for- their destruc- f giture, sun-ender, or merger of the precedent estate. But in order that a merger of the precedent estate in a subequent vested remainder of inheritance, might de- stroy the contigent remainder, it was necessary that the merger should take place subsequently to the creation of the precedent estate. ( Vide infra, p. 108.) The word failure is in this connection more strictly proper to be used than the word destruction, but the use of the latter word is common and convenient. The effect of the destruction or failure of a contingent re- mainder is to accelerate the next vested estate. {Good- right V. Cornish, 1 Salk. 226.) How far a de- Determination of the precedent estate by natural vested estate expiration, or by forfeiture, surrender, or merger, is an would sup- absolute determination of such precedent estate. A contingent remainder was also destroyed at common law, if the precedent estate, instead of being abso- lutely determined, was so far devested as to be turned to a right of action, which required a real action to restore its existence as an estate. If the precedent estate was devested only so far as to be turned to a right of entry, it was deemed to be still sufficiently in existence for the purpose of supporting contingent remainders. (Fearne, Oont. Eem. 287.) Thus, the disseisin of the tenant of the precedent estate would not alone have sufficed to destroy any subsequent con- tingent remainders; but if, by a descent cast, the right of entry of the disseisee had been tolled whereby his right became a right of action, the subsequent contin- gent remainders would have been destroyed. Hence it is commonly said, that a right of entry was sufficient, at common law, to support a contingent remainder, but that a right of action was not. port a contin- gent remain- der. The liability to destruc- tion is inde- pendent of the mode in which the re- mainder The above stated rules, that every contingent re- mainder of freehold must in its inception be supported by a precedent estate of freehold, and must vest at a time not later than the determination of the precedent estate, are equally applicable to all contingent re- mainders, whether they be created by limitations [*95] *taking effect by the common law, or by limita- tions which take effect under the Statute of Uses. (Fearne, Cont. Rem. 284; ibid. 324.) And also if the limitation is by devise. (Mansell v. Mansell, 2 P. Wms. 678 : see p. 682. ) It was assumed in the last (912) Digitized by Microsoft® CONTINGENT REMAINDERS. 87 cited case, that contingent remainders created by devise are liable to destruction, the question being, whether trustees who had concurred to destroy them were guilty of a breach of trust. Their liability to destruction has never been questioned. (Cunliffe v. Brancker, 3 Oh. D. 393.) The last preceding paragraph is not inconsistent with the above stated proposition, that a limitation which would be void in its inception as a contingent remainder, may be good as an executory limitation if contained in an assurance by way of use or in a testament. The words in italics are emphatic. If the limitation is, in its inception, capable of taking effect as a remainder, it will be construed as a remainder, under whatever kind of assurance it may arise. ( Vide infra, p. 96. ) And if it has once taken effect as a remainder, it cannot afterwards be construed as an executory limitation, in order to preserve it from a subsequent liability to de- struction. The foregoing rules were not applicable to contin- Equitable gent remainders limited out of an equitable fee, when contingent the legal fee was conveyed to trustees by the same in- ^ot'iirble'to strument. (Fearne, Cont. Eem. 304, 305; ibid. 321 ; ,iestruction. Berry v. Berry, 7 Ch. D. 657; Abbiss v. Burney, 17 Ch. D. 211, at p. 229; Marshall v. Gingell, 21 Ch. D. 790. ) Nor were they applicable to contingent remainders limited out of an equity of redemption, the legal estate being in a mortgagee. (Astley v. Micklethwait, 15 Ch. D. 59.) In all such cases, neither a premature determination of the precedent estate, nor its natural expiration, before the vesting of the contingent remainder, would have hindered the latter from subsequently vesting. It is conceived that the principle of the last cited case ex- tends also to contingent remainders limited out of an equitable fee not created by the same instrument : a case which seems never to have been expressly decided. In the case of copyholds, it is well settled that a pre- Copyholds, mature determination, otherwise than by natural expi- ' ration, of the *precedent estate, would not have [*96] hindered a contingent remainder from subsequently vesting. (Fearne, Cont. Eem. 319, 320; Doe v. Martin, 4 T. E. 39, at p. 64; Roe v. Briggs, 16 East, 406, at p. 413. ) But in the above cited passage of Fearne, it is laid down, that if the precedent estate had determined by regular expiration pending the contingency, the con- (913) Digitized by Microsoft® struction still exists. (50 ON ESTATES IN GENERAL. tingent remainder would at common law have been de- stroyed. Effect of the If a particular estate and any remainder or remain- enfranchise- ders be subsisting in copyholds, and the copyholds are mentor copy- enfranchised by a conveyance, purporting to be in fee simple, from the lord to the tenant of the particular estate, the enfranchisement will enure to the benefit of the remaindermen, whose estates will thenceforward become freehold. But their estates, if contingent re- mainders, will lose the protection from destruction which they enjoyed so long as the freehold was in the lord. {Roe v. Briggs, 16 East, 406.) For some further discussion of the particular circum- stances, under which a contingent remainder of free- hold is liable to destruction at common law, vide infra, How far lia- p- 107. The liability to destruction by reason of the bility to de- forfeiture, surrender, or merger, of the precedent estate, or by reason of its being turned to a mere right, has been, either directly or indirectly, abolished by statute. For a long time before its express abolition, it had been to a great extent practically counteracted, by the intro- duction of trustees to preserve contingent remainders into settlements. The liability to destruction by reason of the natural expiration of the precedent estate pend- ipg the contingency has been greatly mitigated; but it still affects contingent remainders created by instru- ments executed on or before the 2nd August, 1877, and contingent remainders which do not conform to the rules regulating the limitation of executory interests. ( Vide infra, p 112.) No limitation In construing all instruments under which executory is construed interests may arise, whether wills or conveyances to "*^h'^h'^"*°'^^ uses, it has long been the settled rule, that no limita- take eifect as ^io'^ which is capable of taking effect at the common a remainder. [*97] law shall be construed to take effect *a8 an execu- tory limitation; and therefore, that no limitation shall be construed as an executory limitation which would be good in its inception as a remainder. (2 Prest. Abst. 153, 154.) The fact that a limitation may, in the com- mon course of things, possibly, or even probably, fail, if construed as a remainder, under the rules regulating the vesting of contingent remainders, will not exempt it from this rule of construction. (Fearne, Cont. Rem. 395; see also ihid 386; Smith on Executory Interests, p. 71, and cases there cited.) (914) Digitized by Microsoft® CONTINGENT REMAINDERS, 89 But a legal remainder cannot be subsequent to an All limita- executory limitation. (Fearne, Cont. Rem. 503, v. ) tions subse- This seems to be obvious. A remainder, being a legal 1"^°* *» ^"^ limitation, could not possibly, by the rules of law, sub- i^i^tion sist as a remainder in expectancy upon a limitation are execu-' which itself violates the rules of legal limitations. But toiy. nothing hinders an executory limitation from being subsequent to a legal remainder. If the limitation is in favour of a class, as to some Application of whom it will be good in its inception if construed as of the rule to a contingent remainder, while as to others it fails in ^ <^^^s- its inception if construed as a contingent remainder, and can take effect, if at all, only as an executory limi- tation, this will not generally suffice to exempt the limitation from the above-stated rule ; and the limita- tion will take effect as a contingent remainder in favour of those members of the class as to whom it is good in its inception, and will fail as to the others. (Festmg v. Allen, 12 M. & W. 279, at p. 301; Rhodes v. Whitehead, 2 Dr. &Sm. 532; Brackenbury\. Gibbom, 2 Ch. D. 417.) But in a will, if it is the clearly expressed intpntion of Qualification the testator that the whole of the members of the class "f the rule, shall take, this will enable the limitation to be constru- ^^ *** ^ *^^'^®- ed as an executory devise, in order to let in those members of the class as to whom it would have necessarily failed in its inception if construed as a contingent remainder. (Re Lechmere mid Lloyd, 18 Ch. D. 524 ; Hallett to Mar- tin, 24 Ch. D. 624.) The importance of this distinc- tion is much lessened by the recent legislation, whereby the common law liability of contingent remainders to be destroyed has, in a great measure, been removed. *In Re Lechmere and Lloyd, Jesse], M. R., ex- [*98] pressed the opinion, that the case in Brackenbury v. Gibbons ought to have been distinguished from the case in Rhodes v. Whitehead, and that it did not, when pro- perly considered, come within their principle, but rather within the principle laid down by himself in Re Lech- mere and Lloyd. But he did not impugn the principle of Rhodes v. Whitehead, in respect to the cases to which it is applicable. All contingent remainders have this common char- General char- acteristic,, that they depend for their vesting upon the acteristics. happening of some event, which is such that by pos- sibility it may happen neither during the continuance of the precedent estate nor eo instanti with the latter's determination. (Butl. note g, at Fearne, Cont. Rem. 9.) (915) Digitized by Microsoft® 90 ON KSTATES IN GENERAL. For a succinct statement of the true criterion between contingent estates and vested estates, see p. 56, supra. Classification From certain motives of convenience, contingent re- adopted by mainders have been divided by Fearne, for the purpose Fearne. of discussion, into the four follovring classes : — 1. Where the contingent event is the deter- mination of the precedent estate in one, or some only, out of several possible veays ; 2. Where the contingent event is an event which may by possibility never happen at all ; 3. Where the contingent event is such that it must happen at some time, but possibly not until after the determination of the precedent estate ; 4. Where the contingent event is the coming into being of a person not yet in esse, or the as- certainment of a person not yet ascertained. First Class of Contingent Remainders. Definition. A contingent remainder is of the first class, when " the remainder depends entirely on a contingent deter- mination of the preceding estate itself" (Fearne, Cont. [*99| Eem. 5); that is to *say, when the precedent particular estate is capable of being determined in more than one way ; but the remainder is so limited as to become vested only in case the determination shall take place in one specified way, or in some only out of sev- eral specified ways. Example. ^'^^ example, A. makes a feoffment to the use of B. till C. returns from Rome, and after such return of C. to the use of D. and his heirs. (See 3 Rep. 20 a.) By this limitation B. takes by implication an estate for his own life, which is by the limitation made determinable upon the return of C. This estate may, therefore, de- termine in either of two ways : either by the deafii of B. or by the return of C. But is only in the event of the latter determination that the remainder of D. is limited to take effect. This remainder, pending C.'s return, is contingent ; because if B.'s estate should be determined by B.'s death before the return of C, D. would not be duly qualified by virtue of the remainder to enter upon the possession. In this class of contingent retnainders, the remainder can never become vested during the continuance of the (916) Digitized by Microsoft® CONTINGENT REMAINDERS. 9l particular estate, because the event •which is to vest the remainder vyill also determine the particular estate. The remainder can only become vested, if at all, eo in- stanti with the determination of the particular estate. Contingent remainders of the other three classes ad- mit of becoming vested during the continuance of the particular estate ; except certain limitations to the heirs of a living person, coming under the fourth class, where such person takes an immediately precedent estate for his own life. The definition above given is not, as it stands, en- q,]^ flefini- tirely satisfactory. Its terms, if taken literally, seem tion requires to include the estate of trustees to preserve contingent modification, remainders ; which, both upon principle and authority, seeins more properly to be included among vested estates than among contingent estates This subject s further considered infra, pp. 115 — 117. *Second Class of Contingent Remainders. [*100] A contingent remainder is of the second class, when Definition, the happening^of an uncertain event, which has no con- nection with the determination of the precedent par- ticular estate, and is such that it may by possibility never happen at all, is by the nature of the limitation to precede the vesting of the remainder. (Fearne, Cont. Rem. 6.) For example, if- lands be limited to the use of A. for Examples, life, remainder to use of B. for life, and if B. shall die in the lifetime of A. then remainder to the use of C. for life, or in tail, or fee simple. Here the remainder to C. is not to take effect unless B. shall die in the life- time of A. ; and accordingly, so long as B. is living, C. is not duly qualified to enter upon the lands by virtue of his remainder, and the remainder is therefore con- tingent. If A. should die in the lifetime of B., the prescribed event would thereby be made impossible ever to happen, and the remainder to 0. would never be capable of taking effect. As a second example, sup- pose lands to be limited to the use of A. for life or in tail, and if B. should come to Westminster Hall on a speci- fied day, then to the use of C. in tail or in fee simple. Here also, unless and until B. shall have to come to Westminster Hall on the specified day, C. is not duly qualified to enter upon the lands by virtue of his re- (917) Digitized by Microsoft® 92 ON ESTATES IN GENERAL. mainder, and the remainder is therefore contingent. (Fearne, Cont. Eem. 7, 8.) Definition. Examples. Third Class of Contingent Remainders. A contingent remainder is of the third class when it is limited to take effect after the happening of an event, which is such that it must necessarily happen at some time, though it may by possibilty not happen during the continuance of the precedent particular estate. (Fearne, Cont. Eem. 8.) For example, if lands be limited to the use of A. for life, and after the death of B. to the use of C. in tail, or [*101] in fee simple. *Here, if A. should die in 'the lifetime of B., C. would not be duly qualified to enter upon the lands by virtue of his remainder, and the re- mainder is therefore contingent. This class may be said to differ from the second class in two respects ; namely, ( 1 ) the uncertain event is not an event which may by possibility never happen at all; and consequently, it does not admit of becoming im- possible to happen during the continuance of the pre- cedent estate; (2) the remainder is contingent only by reason of the rule of law which defeats a remainder upon the occurrence of any interval of time between the determination of the precedent estate and the vest- ing of the remainder; whereas, in the second class, the happening of the tmcertain event is expressly made a sort of condition precedent to the vesting of the re- mainder. Distinguish- ing charac- teristic. What limita- tions come within the exception. Exception from the Third Class. There is a certain class of limitations which, though in terms coming within the definition of the third class of contingent remainders, have been decided to be vested remainders. Such remainders, being vested, do not need to be supported by a precedent estate of free- hold, but may be preceded by a chattel interest. This is, in fact, their distinguishing characteristic. A limitation to A. for twenty- one years, if B. should so long live, and after the death of B. to C. in tail, or in fee simple, would be an example of a contingent re- mainder preceded by a chattel interest. This remainder (918) Digitized by Microsoft® CONTINGENT REMAINDEES. 93 is of the third class, being limited to take effect after an event which, though it must happen at some time, may by possibility not happen during the continuance of the precedent estate; because B. might be living at the expiration of the tvsrenty-one years. Such a limita-; tion, if contained in an assurance at the commoa law, would therefore be void in its inception, as purporting to create a freehold in futuro. But if, instead of being a term only of twenty-one years, the precedent term is so long that there is no probability, or even no possi- bility, that B. will be living at the time of its expira- tion, it is not strictly true that the uncertain event, after *the happening of which the remainder is [*102J to take effect, may by possibility not happen during the continuance of the precedent estate. It has accordingly been decided that limitations in the above form, when the term of years is so long as to give rise to a vehe- ment presumption, or a certainty, that it will not expire during a life then in being, are vested remainders. (Fearne, Oont. Eem. 21.) A term of eighty years, or upwards, will suffice to give this quality to the remain- der. Such a remainder, though preceded only by a chattel interest, is therefore good, even in an assurance at the common law. In wills and assurances by way of use, such limitations may be good qu&cunque vid, either as re- mainders or as executory limitations. Cases might occur in which it would be material to The case of consider the application of this doctrine, although, by Beverley v. reason that the limitation is contained in a will, there ™^'^ ^^' may be no question as to its validity; since it would be valid as an executory devise, if void in its inception as a remainder. In Beverley v. Beverly, 2 Vern. 131, a testator devised lands to his eldest son for the term of sixty years, if the son should so long live, and after the son's decease to a grandson in tail male. The soh and grandson, after the testator's death, suffered a common recovery. . Here there was no question as to the validity of the limitation to the grandson, but it was urged that the recovery was bad for want of a tenant to the praecipe the freehold during the life of the son being (as they are reported to have said) in abeyance. This was a strange contention, the very ground upon which such executory devises are held good being, that they do not place the freehold in abeyance, but leave it to descend in the meantime to the heir at law. However, it appears that in this case, which is very badly reported, the legal estate was outstanding, and all the limitations (919) Digitized by Microsoft® 94 ON ESTATES IN GENERAL. were therefore equitable ; so that the court had no diffi- culty in holding the recovery to be good as an equitable recovery. But the court seems to have thought that a term of sixty years v^ould not be long enough to vest a subsequent contingent remainder. If such a limitation should occur in a will at the present day, it might be material to inquire whether the estate tail arising under it should take effect as a [*103] remainder or as an executory *limitation, because upon the answer to this question would depend the whereabouts of the immediate freehold during the in- terval before the coming into possession of the estate tail. If the estate tail should be a remainder, it must necessarily be a vested remainder ; and the immediate freehold during the precedent term of years would be vested in the tenant in tail. But if the limitation should be executory, it would seem that the freehold would in the meantime descend to the testator's heir general, who would not necessarily be the same person as the tenant in tail. And since, by virtue of the Fines and Recoveries Act, s. 22, an estate by way of resulting use or trust to or for the settlor, is deemed to be an estate under the settlement within the meaning of that section, for the purpose of constituting the protector of the settlement, it might for some purposes be mate- rial to inquire in which of these two persons the inter- mediate freehold is vested. Fourth Class of Contingent Remainders. Definition. A. contingent remainder is of the fourth class when it is limited to a person not ascertained, or not in being, at the date of the limitation, but there is a possibility that a person to satisfy the description may be ascer- tained, or may come into being, during the continuance of the precedent particular estate. (Fearne, Cont. ■ Eem. 9.) Examples. For example, if lands be limited to the use of A. for life, remainder to the use of the right heirs of J. S. who is at that time living; or, remainder to the use of the first son of J. S. who at that time has no son; or remainder to the use of the last survivor of several living persons. In all these cases it is evident that the remain- der cannot vest until the ascertainment, or coming into being, of a person to satisfy the description in the limi- tation; and in the case of limitations to the heirs of a (920) Digitized by Microsoft® CONTINGENT REMAINDERS. 95 living person, such ascertainment can only take place eo instanti with his death; because, Nemo est heres viventis. It might at first sight be thought that the remainder is vested in the heir presumptive or heir apparent; but as the heir is, by *the limitation, to take as [*104] a purchaser, and as the purchaser is to be the person who in fact comes within the description of heir, it is clear that the remainder cannot vest in the heir pre- sumptive or apparent so long as his heirship remains only presumptive or apparent, because such a person may not, in fact, ever be the true heir at all, and there- fore may never be qualified, under the terms of the limitation, to take the estate at all. Exceptions from the Fourth Glass. In certain cases, a limitation of a remainder to the rr-, „„ -.»,.. ^ . , jneir aa neirs ot a living person, as purchasers, occuring in a persona will, has been held to be a limitation, not to the heir of designata. that person strictly according to the legal definition of an heir, but to his then living heir apparent, or heir pre- sumptive. If the limitation had been to the heir, strictly so called, of the living person, such limitation would have created a contingent remainder, upon the principle of the maxim. Nemo est heres viventis. But in the cases under consideration, the word has been held to indicate a persona designata then in being; which person is accordingly capable of taking a vested estate. In the case of Burchett v. Durdant, 2 Vent. 311, Carth. 154, sub nom. James v. Richardson, 2 Lev. 232, the limitation of a remainder " to the heirs male of the body of B. nmv living," was held to give aWested re- mainder to the then heir apparent of B. The words in italics obviously supply the grounds of this decision. In the case of Darbison v. Beaumont, 1 P. Wms. 229, there was a limitation in a will, not immediately preceded by a vested estate of freehold, to the heirs male of the body of the testator's aunt, who was living, and had three sons all living, at the date both of the will and of the testator's death; and the testator gave a pecuniary legacy to his said aunt, and to each of her sons, thereby taking notice of the fact that they were all living. This remainder, if construed as a contin- (921) Digitized by Microsoft® 96 ON ESTATES IN GENERAL. Remarks upon Darhi- son V. Beau- moni and Ooodrifjhl V. While gent remainder, to the heirs male in the strict sense of the words, being preceded by no vested estate of free- hold, would have been void in its inception ; and, [*105] *even if not void in its inception, it would have been void in the events which happened. But the Court of Exchequer held that, under the circumstances, the words must be construed to give a vested estate in tail male to the eldest son of the testator's aunt. This judgment, having been reversed in the Exchequer, Chamber, was afterwards restored and affirmed in the House of Lords. (3 Bro. P. C. 60.) It is material to observe, that in the last cited case the limitation, if construed as a contingent remainder, would have been void in its inception, and not only in the events which happened; which is a sufficient reason for holding that it was an executory devise ; nor does there seem to be any obstacle in the way of its validity as an executory devise. The result seems to be, that the question really at issue was not whether the limitation should be construed as a contingent or as a vested re mainder, but whether the limitation should enure to the benefit of a. persona designata, or whether it should wait for the death of the aunt to ascertain the person entitled to the benefit of it. This circumstance does not seem to have been sufficiently considered. It has a very important bearing upon the inference to be drawn from the case. If the validity of the limitation had depended upon its being construed as a vested re mainder, this might have afforded a strong argument in favour of such construction. But since the limita tion seems to be good quacunque vi&, as an executory devise if not as a vested remainder, this argument in favour of the construction adopted seems not to have existed. The same remark seems also to apply to the case of Goodnght v. White, 2 W. Bl. 1010, which is cited in this connection by Fearne. (Fearne, Cont. Eem. 212.) In that case the limitation which was construed as a vested remainder in the heir apparent of the testator's daughter during her lifetime, would have been void in its inception if construed as a contingent remainder, and was therefore capable of being construed as an ex ecutory devise. Fearne appears to have adverted to the distinction above taken, in the following words: — ""We may ob- serve, however, that there was not one of the last noticed [*106] cases, in which the *ancestor took the legal estate of freehold. Those cases only operated by way (922) Digitized by Microsoft® CONTINGENT REMAINDERS. 97 of exception to the rule, nemo est hmres viventis ; and con- sequently made that a vested limitation, which other- wise would, according to the maxim, have been con- tingent." (Fearne, Cont. Eem. 212. ) It may certainly be doubted, whether the point attracted as much atten- tion as it perhaps deserved. The language of the judges strongly suggests the conclusion, that they thought themselves obliged to choose between holding the limitation to be vested, and holding it to be void. Fearne also treats all limitations to heirs, or heirs of Fearne's sug- the body, coming within the rule in Shelley's Case, as gestion as to being exceptions from the fourth class of contingent ^^g^™fj^ remainders. That rule embraces ail limitations, in- cluded in the same instrument, of an estate of freehold to an ancestor, followed by a subsequent limitation to his heirs, whether general or special. It is the settled rule of law that, under these circumstances, the heirs, except under special circumstances, take no estate at all, but the limitation apparently made to them coalesces with the freehold previously taken by the ancestor, in such a way as to give him the inheritance ; such in- heritance being an estate tail, or a fee simple, accord- ingly as the limitation to the heirs is in tail or in fee simple. In such limitations, as the phrase goes, the word heirs is used only as a word of limitation, not as a word of purchase. Since the heirs do not, under these limitations, take any estate at all, it seems to be not very appropriate to treat the limitation to them as being exceptions from a class of contingent remainders. The last words seem more properly to denote a species of remainders which, seeming to be contingent, are in fact vested. It there- fore seems to be the more appropriate course, to in- dicate the bearing of the rule in Shelley's Case upon the forms of liinitation appropriate to the fourth class of contingent remainders, and to reserve that subject, which is sufficiently complex, for a separate statement. *Further Remarks on the Liability to Destruction. [*107 J The causes, or methods, of the destruction of con- Division of tingent remainders at common law, may conveniently the subject, be divided into the following heads ; 1. Forfeiture ; 2. Surrender ; 3. Merger ; 7 (923) Digitized by Microsoft® 98 ON ESTATES IN GENERAL. 4. Tortious alienation ; 5. Turning to a right of g,ction ; and 6. Natural expiration of the precedent estate. Of these, the first five have been, either directly or indirectly, wholly abolished by statute; but a knowledge of them is required in order to understand questions which may arise during the examination of old titles. The sixth division is still a matter of practical impor- tance. 1, 'Forfeiture. By the common law, a tenant for life incurred a for- feiture of his estate by making any alienation which devested the remainders and reversion thereupon, or by doing anything in any matter of record which amounted to the assertion of a right in himself to the inheritance, or to an admission of a like right in a stranger. The various methods by which a forfeiture might be thus incurred are enumerated and explained in Lord Coke's comment on Litt. sect. 416. Such a forfeiture gener- ally gave an immediate right of entry to the next re mainderman having a vested estate. If such a forfeiture had been incurred by the tenant of the precedent estate, an entry made by the next vested remainderman would at common law have destroyed all intermediate contin gent remainders. (Fearne, Cont. Eem. 323.) But since an estate of freehold cannot be defeated without an entry made by the person entitled to take advantage of the forfeiture, the forfeited estate would, until entry, continue to subsist and to support the subsequent con ■ tingent remainders. 2. Surrender. If the tenant of the precedent estate had surrendered his estate to the next vested remainderman, such re- L*108J mainderman *having an estate of at least as , great in quantum as the surrendered estate, the prece dent estate would have been destroyed by the surrender, and all intervening contingent remainders would at common law have been destroyed with it. (Fearne, Cont. Kem. 318; and Butl. note/, at page, 321.) Un- less the subsequent estate was an estate of inheritance, little would be gained by the destruction of the inter vening contingent remainders. But if the subsequent estate was of inheritance, the destruction of the inter vening contingent estates would liberate the inheritance from all liability to be postponed to them, in case they should ever become vested; and thus the tenant for life and next vested remainderman could, by collusion, abso (924) Digitized by Microsoft® CONTINGENT REMAINDERS. 99 lutely dispose of the inheritance pending the con- tingency. These are probably the cases referred to by the word surrender in the statute 8 & 9 Vict. c. 106, s. 8, hereinafter cited. The cases there referred to by the word merger are probably those discussed in the next following paragraph. Upon the distinction between surrender and merger, see p. 67, supra. If either by conveyance, or by descent, the next vested 3 jj;gj,2er estate of inheritance came to the tenant of the prece- dent estate, the precedent estate was destroyed by mer- ger, and all intervening contingent remainders were destroyed. (Fearne, Cont. Eem. 317; ibid. 343 — 345.) But this is subject to the observations contained in the next following paragraph. The inheritance cannot, properly speaking, be con- j^ .^y^^^ ^^^^ veyed to the tenant of the precedent estate, as such, merger effect- unless the precedent estate is already in being as a ed no de- separate estate; so that in all cases in which merger stouction. takes place by the conveyance of the inheritance to the tenant of the precedent estate, such merger is neces- sarily subsequent to the creation of the precedent estate. But it is possible, either by descent, or by the operation of the rule in Shelley's Case, for the precedent estate and the next vested estate of inheritance to meet in the same person simultaneously with the creation of the precedent estate. If a testator seised in fee simple should devise lands to his eldest son for life, with re- mainder in tail male to the successive sons of the eld est son, and the will should contain no further limita- tions; then the *e3tate for life and the next [*109] vested estate of inheritance (the reversion in fee simple upon the limitations contained in the will) would simultaneously be vested in the eldest son, the former by the will and the latter by descent. And if a settlor should in a settlement insert limitations similar to those above supposed, and should further insert a limitation in fee simple to the eldest son's right heirs, the eldest son would, by the operation of the rule in Shelley's Case, simultaneously take an estate for life and the next vested estate of inheritance. And if the limita- tions in tail to the successive sons should, at the testa tor's death, or at the execution of the conveyance, be contingent, — either by reason of there being no such son yet in esse, or by reason of the limitations to them being postponed until they should attain the age of twenty-one years, they being in esse but below that age, (925) Digitized by Microsoft® 100 ON ESTATES IN GENERAL. — all such contingent remainders, if the law of merger were suifered to apply strictly, would have been de stroyed at the moment at which the settlement first came into operation; thus to a great extent making the settlement nugatory in its inception. In order to pre- vent his hardship, a modification was introduced into the law of merger. In any such case, when a merger takes place eo instanti with the creation of the prece- dent estate, it is not for all purposes an absolute mer- ger; and it did not, even at common law, destroy any intermediate contingent remainders limited by the same instrument; but the estates united by the merger re- mained, as the phrase goes, liable to open and let in the contingent remainders, provided that they became vested during what would have been the subsistence of the precedent estate if it had not been merged. (Feame, Cont. Eem. 36, V. 6; ibid. 341—345; 3 Prest. Conv- 161; ibid. 374 et seq.; Lewis Bowlegs Case, 11 Eep. 79; Harg. n. 8 on Co. Litt. 28a.) Deistruction The 8 & 9 Vict. c. 106, s. 8, enacts, that a contingent through for- remainder existing at any time after 31st December, 1844, feitm-e, sur- gjjall be, and, if created before the passing of the Act, merger now shall be deemed to have been, capable of taking effect, prevented by notwithstanding the determination, by forfeiture, sur statute. render or merger, of any preceding estate of freehold, in the same manner in all respects as if such determi nation had not happened. [*110] *This enactment was in substitution for 7 & 8 Vict. c. 76, s. 8; which was repealed, as from its com- mencement, by 8 & 9 Vict. c. 106, s. 1. 4, Tortious alienation of precedent estate. Certain assurances, namely, a feoffment, a fine, and a recovery, were capable at common law of what is called a tortious operation; that is to say, they could convey to the feoffee, conusee, or recoveror, a greater estate than was rightfully possessed by the feoffor, conusor, or re- coveree. The estate so conveyed was not, either wholly or in part, the estate of the person making the assur- ance, but a totally new estate, and the old estate of the person making the assurance (c) was absolutely de- stroyed. If the precedent estate upon which any contin- gent remainder depended was destroyed by this means, (c) But not the estate of the person entitled, upon the expii-a- tion of his estate, as the remainderman upon an estate for life, or becoming entitled as issue in tail upon his death. (926) Digitized by Microsoft® CONTINGENT REMAINDERS. 101 the contingent remainder was destroyed likewise. Archer's Case, 1 Eep. 66; and cases cited in margin, Fearne, Cont. Eem. 317.) The tortious operation of feoffments made after 1st is now no October, 1845, is prevented by 8 & 9 Vict. c. 106, s. 4; longer pos- and fines and recoveries were abolished by the Fines ^i^^^- and Recoveries Act, s. 2. Thus this cause of the de- struction of contingent remainders has been indirectly removed by statute. The methods hitherto considered, by which contin- ^ Turning; ot gent remainders may be destroyed, depend upon the precedent es- destruction of the precedent estate, in such a sense tate to a mere that, after its destruction, it no longer has any exis- "S^^- tence, even as a right of action requiring a real action for its recovery. But a contingent remainder might equally be destroyed if the precedent estate, instead of ceasing absolutely to exist, was merely devested, in such a sense as to be turned to a right of action. Thus, if the precedent estate had first been turned to a right of entry by the disseisin of the tenant, and this right of entry had been subsequently tolled, or turned to a right of action, by a descent cast on the part of the disseisor, then, if the latter *event took place [*111] pending the contingency, any contingent remainders which depended for their existence upon the precedent estate, would have been destroyed. This is commonly expressed by saying, that a right of action is not suffi- cient to support a contingent remainder. (Fearne, Cont. Eem. 286.) The subject contains some rather intricate learning, upon which, in the present state of the law, it is not necessary to enlarge. For the purpose of taking by descent, a child en g Natural ventre sa mhre has always been regarded as standing in expiration of the position of a child in esse: and it seems tbat in precedent es- devises of lands under a special custom, before tlie *^*J^^P^°^^f S Statutes of Wills, a devise of an immediate freehold to gency. an infant en ventre sa mire was good. (3 Swanst. at p. 617.) But, by devises made under the Statutes of Wills, it is doubtful whether the infant could take, ex cept by way of remainder; and it is the better opinion The principle that a child en ventre sa mire could not, at common extends at law, have taken by virtue of a contingent remainder, if common Jaw the precedent estate of freehold had expired before his ^^f^f^^'^,^^, birth. The law was so laid down by the Courts of King's Bench and Common Pleas, in the case of Reeve (927) Digitized by Microsoft® 102 ON ESTATES IN GENERAL. Statute in re- lief of pos- thumous children. V. Long, 1 Salk. 227, 3 Lev. 408, 4 Mod. 282; and though this judgment was afterwards reversed by the House of Lords, that decision, which was contrary to the unanimous opinion of the judges, was regarded with so much dissatisfaction, that the statute mentioned in the next following paragraph was not long afterwards passed in order to remove all doubt. The statute commonly cited as 10 & 11 Will. 3, c. 16, but in the Statutes Eevised, vol. 2, p. 85, given as 10 Will. 3, c. 20, enacts, in effect, that where any estate then already was or should thereafter, by any marriage or other settlement, be limited in remainder, either in favour of the first or other son or sons of the body of any person lawfully begotten, or in favour of a daughter or daughters lawfully begotten, with any remainder over, than any child lawfully begotten, but posthu- mously born, should, by virtue of such settlement, take such estate in the same manner as if such child had been born in the father's lifetime. [*112] *In Reeve v. Long, the limitations occurred in a will, and this fact may have been relied upon by the House of Lords as aifording ground for a distinction. It is said that the language of the above-cited statute, which seems to point towards settlements efPected by deed, was due to their reluctance to admit into it any- thing which might seem to throw doubt upon their decision in Reeve v. Long. 7 & 8 Vict ■^'^ abortive attempt to remedy the hardship fre- c. 76, s. 8. quently vrrought by the destruction of contingent re- mainders through the natural expiration of the pre- cedent estate pending the contingency, was made by the statute 7 & 8 Vict. c. 76, s. 8. This section was repealed, as from its commencement and taking effect, by 8 & 9 Vict. c. 106, s. 1. Statutory The statute 40 & 41 Vict. c. 33, enacts, that every protection of contingent remainder created by any instrument exe- cuted after 2nd August, 1877, or by any will or codicil revived or republished by any will or codicil executed after that date, in tenements or hereditaments of any tenure, which would have been valid as a springing or shifting use, or executory devise, or other limitation, had it not had a sufficient estate to support it as a con- tingent remainder, shall, in the event of the particular estate determining before the contingent remainder (928) certain con- tingent re- mainders. Digitized by Microsoft® CONTINGENT REMAINDERS. 103 rests, be capable of taking effect ia all respects as if the contingent remainder had originally been created as a springing or shifting use, or ' executory devise, or other executory limitation. This Act is generally believed to have been passed in consequence of the observations made by the judges in the case of Cunliffe v. Brancker, 3 Ch. D. 393. It -will be seen that the common law doctrine of the -vyjiat contin- destruction of contingent remainders by the natural gent remain- expiration of the precedent estate pending the contin ders are still gency, is by no means obsolete; since it still applies (1) liable to de- to all contingent remainders created by any deed exe- ^ ^^° ^"^^ cuted on or before 2nd August, 1877, or by any will executed before that date and not subsequently revived or republished; and (2) to all contingent remainders *whenever created, which do not conform to [*113] the rules regulating the creation of executory interests. Legal contingent remainders which are protected immunity from destruction by 40 & 41 Yict. c. 33, must therefore from destruc- conform to the rule against perpetuities. And this *'°° implies , , . ,. , , ■= X- J. -J 1 • T. subiection to doctrine applies also to contingent remainders which j,^|g against are protected from destruction by reason that the legal perpetuities, estate is outstanding in trustees and mortgages. (Ab- biss v. Burney, 17 Ch. J). 211.) As to the immunity from destruction of the last mentioned contingent re- mainders, see p. 95, supra. Trustees to preserve Contingent Remainders. The liability of contingent remainders to be de- Their origin stroyed by the premature determination of the prece- and nature. dent estate, — that is, by its determination otherwise than by natural expiration,' — ^led to the invention of trustees to preserve contingent remainders. An estate was interposed between the precedent estate and the contingent remainders, intended to take effect in case the precedent estate should be determined by any means in the lifetime of the tenant thereof, and in such case to subsist in possession during the contin- uance of the residue of his life. These limitations were introduced into practice in the seventeenth cen- tury. The common form of them, as stated by Butler (Fearne, Cont. Kem. 6, note d) is to the following effect: — (929) Digitized by Microsoft® 104 , ON ESTATES IN GENERAL. After the determination of the precedent estate, by forfeiture or otherwise, in the lifetime of the tenant. To the use of the trustees and their heirs during the life of such tenant, in trast for him and to preserve the contingent remainders. The precedent estate contemplated by these limita- tions was always an estate for life ; because, though it might by possibility be an estate tail, in such a case no precautions could have prevented the destruction of any subsequent estates, whether contingent or vested, at the will of the tenant in tail in possession. It was not necessary that the limitation should expressly refer [*114] *to the possibility of the destruction of the estate of the tenant for life, by forfeiture or otherwise, in his lifetime ; and if the limitation was merely in the form of a remainder to the trustees and their heirs during the life of the precedent tenant, the possibility that such a premature determination might occur was sufficient, without express reference to it. This was, in fact, the actual form of the limitation in the great case of Dormer v. Parkhurst, hereinafter cited. In that case, moreover, the precedent estate was not an estate for life, but a term of years determinable upon the dropping of a life : a further development of the de- vice for preserving contingent remainders, upon which some remarks will be made shortly. It has even been suggested by an eminent convey- ancer, that the insertion of the words "in his lifetime" is improper, and that, instead of aiding the intention of the limitation, they rather raise a doubt whether it gives rise to a vested estate. (Sweet, 9 Jarm. Byth. 156, note h.) The limitation there referred to is a limitation to the dower trustee in the uses to bar dower, which was identical in its general design with the limitation to trustees to preserve contingent re- mainders. The reasons given are ingenious ; and the proposed form gives great force to the argument to show that the estate, at all events if limited in that form, is a vested estate. But the suggested form was not then, as Mr. Sweet admits, commonly used in prac- tice ; and the suggestion does not appear to have been generally adopted. The following form is given in Davidson, 4 Free. Conv. 2nd ed. 333, as being suitable for insertion in a will, in any case in which, notwith- standing the provisions of 8 & 9 Vict. c. 106, s. 8, the conveyancer might wish to insert such a limitation : — (930) Digitized by Microsoft® CONTINGENT REMAINDEBS. 105 From and after the determination of that estate by any means in his lifetime, To the use of [trus- tees] and their heirs during the life of the tenant for life whose estate shall so determine, In trust for him and by the usual ways and means to pre- serve the contingent remainders expectant or de- pendent thereon. Upon the construction of such limitations, when the Limitations restriction, " during the life of the tenant for life," was to the trus- omitted, so *that the limitation was to the [*115] tees and their trustees and their heirs simply, thus assuming the ^^"^^ ^^^^ ^' form of a limitation in fee simple instead of a limita- tion pur autre vie, see Lewis v. Rees, 3 Kay & J. 132, and the cases there cited. Such an omission of course could occur through carelessness, not by design. Under such a limitation as the foregoing, the trustees How these would evidently take an estate pw?" autre vie; and the limitations question, whether such estate is vested or contingent, preserved the is the only question that could arise. Then, if it be '^®°^^™ ^'^^• granted that this estate is a vested estate, it will be seen that the tenant of the precedent estate could not, by the methods above enumerated, destroy the contin- gent remainders (because they were not the immediate remainders upon his own estate) without the concur- rence of the trustees ; and the courts of equity treated such concurrence on the part of the trustees as being generally a breach of trust. (Fearne, Cont. Kem. 326 — 328. By consequence, trustees so concurring were personally liable for any damage which might accrue from the breach; and any person taking the lands, either as a volunteer, or as a purchaser for value with notice of the breach, was himself bound by the trust. (See Mansell v. Mansell, 2 P. Wms. 678, at p. 681.) But under special circumstances, the court would permit, or even order, the trustees to concur in destroying con- tingent remainders. (Bassett v. Glapham, 1 P. Wms. 6th ed. 358, and cases there cited in notes. ) The question whether the trustees took a vested The estate of estate, was obviously, before 8 & 9 Vict. c. 106, a ques- the trustees tion of the utmost practical importance; because, if was a vested they had taken a contingent estate, their estate would ^■'^t^*^- have been nothing but one more contingent remainder, which would have been equally liable to destruction with all the rest. This question has led to some differ- ence of opinion. But it was for all practical purposes (931) Digitized by Microsoft® 106 ON ESTATES IN GENERAL. set at rest for ever by the decision of the House of Lords in the case of Smith d. Dormer v. Packhurst or Parkhurst, commonly cited as Dormer v. Parkhurst, or Dormer v. Fortescue, 3 Atk. 135, 6 Bro. P. C. 351, Willes, 327, 18 Vin. Abr. 413, pi. 8, in which case the estate was decided to be a vested remainder. Fearne [*116j *approved of this decision; Butler expresses no dissatisfaction with it; but Mr. Josiah Smith plainly intimates his opinion, that it was directly opposed to the principles of the law, and that it can be justified only by the pressing necessity not to overturn all the settle ments then in existence. (Smith on Executory Inter- ests p. 116 et seq.) Review of the It is conceived that, in this controversy, each side is controversy, partly in the right and partly in the wrong. The truth seems to be, that the definition of the first class of con- tingent remainders, as given by Fearne, is somewhat incomplete; and that, by reason of this incompleteness, it contains within its terms the estate of trustees to preserve contingent remainders; and that in this sense, and to this extent, those who have contended that the estate in question is a contingent remainder, are right; but that the definition admits of being rectified so as to exclude this estate, without at the same time excluding any other estate which it was designed to include; and that, when examined by the proper tests for distinguish- ing vested estates in general from contingent estates in general, the estate of the trustees seems much more properly to come within the conception of a vested estate than of a contingent estate. This is equivalent to saying that the decision in Dormer v. Parkhurst seems to be substantially right in principle. In the definition given of the first class of contin gent remainders (at p. 98, supra) the words between inverted commas are taken literally from Fearne, and ' the explanatory clause which follows them is adapted from the words of Butler, in a note upon the passage. The estate of the trustees does seem to come within the words both of Fearne and of Butler, if they are taken strictly. It is the fact that in this case "the remainder depends entirely upon a contingent determination of the preceding estate itself "; and that, while the prece dent estate is capable of being determined in several ways, the estate of the trustees is so limited as to take effect only in case the determination shall take place in some of those ways. But the examples given by Fearne show his meaning. In those examples the contingent (932) Digitized by Microsoft® CONTINGENT REMAINDERS. 107 remainder is capable of being destroyed, if the prece- dent estate should determine in what may be called the ■wrong way, and *this quality of contingent [*117] remainders supplied the principal motive which induced him to write his treatise. This distinguishing charac- teristic is not possessed by the estate of the trustees, because, if the precedent estate should determine in the wrong way, that is, by the death of the tenant for life, the estate of the trustees will not be destroyed, but will simultaneously determine by its own natural expi- ration. Nothing is more evident than that Fearne's treatise was not written to illustrate the nature of estates of this description; and if by inadvertence he has included any of them in his definition, the most reasonable course seems to be, to amend the definition so as to exclude these extraneous specimens, and not to take advantage of the words of the definition in order to include within it something to which it was not meant to apply. The estate of the trustees is such that it either must actually take effect in possession or else must deter mine by natural expiration eo instanti with the deter- mination of the precedent estate. But no words could be more appropriate to describe a vested estate. Every vested estate which is capable of a natural expiration, may by possibility fail to become an estate in posses- sion, by reason of its determination during the continu- ance of, or eo instanti with, the precedent estate. The peculiar feature of contingent remainders, and the only feature which makes it necessary to bestow upon them special consideration, is their liability to fail to become estates in possession by reason of something else than their own natural expiration. It accordingly seems to be expedient that the follow- pj-oriosecl ing proviso should be added to the definition above modification given (p. 98) of the first class of contingent remain of Fearne's ders : — Provided always, that the precedent estate be definition. capable of determination in at least one way, which will neither vest the remainder nor cause it to determine by its own natural expiration. When the idea of limiting an estate of this kind to cases in trustees to preserve contingent remainders had become wliich the an established device of conveyancers, a further de first estate velopment, or modification, of the same .idea was in- was a term of troduced. In lieu of an estate for life to the person who was intended to take the first beneficial estate, (933) Digitized by Microsoft® 108 ON ESTATES IN GENERAL. [*118] *a term of years was limited to him determinable upon the dropping of his own life, followed by an estate to the trustees in the usual form to preserve contingent remainders. This was the form of the limitations of the settlement in the above-cited case of Dormer v . Park- hurst. In such cases the estate of the trustees, being pur autre vie., was of freehold ; and since it was a vested estate, the actual seisin, during the continuance of the term of years, was in the trustees. The object of the limitation to the trustees was not, strictly speaking, to prevent the tenant of the precedent estate from destroy- ing the contingent remainders, which he could not ef- fectually have done, since he had only a term of years; but its object was, having first deprived the tenant of the precedent estate of all power of destruction, to provide a sufficient estate of freehold to support the contingent remainders. In other words, the support- ing estate having been taken away from the tenant for life, by turning him into a tenant for years, it became neces sary to vest the supporting estate in somebody else ; which was efiFected by vesting it in the trustees. The only method by which the tenant of a precedent estate for years could have attempted to affect the contingent re- mainders, was by making a tortious feoffment ; bat by this means he would have gained nothing, for the right of entry of the trustees would have preserved the con tingent remainders until the trustees could revest their freehold by making an actual entry upon the feoffee; so that the tenant of the precedent estate would have incurred a forfeiture to no purpose. It was suggested in the 2nd edition of Davidson's Precedents in Conveyancing (vol. 3, p. 208, and see also vol. 2, p. 331, note d) that the word forfeiture in 8 & 9 Vict. c. 106, s. 8, is not well adapted to include the case of a forfeiture incurred by any act or default of the tenant for life which, instead of taking place by mere operation of law, is effected by an express proviso for cesser contained in the settlement, as, for example, under an ordinary "name and arms clause"; and that in such cases a limitation to trustees to preserve eon tingent remainders might prudently be inserted in the settlement, notwithstanding the provisions of the last [*119] cited enactment. But no remainder, *properly so called, can take effect upon the determination of a precedent estate by a forfeiture in this sense of the word. ( Vide supra, p. 62. ) It would therefore seem that the forfeitures above referred to were such that the (934) Digitized by Microsoft® CONTINGENT EEMAINDEKS. 109 subsequent limitations need no trustees to preserve contingent remainders, either by reason of the statute, or else by reason of the intrinsic nature of the subse- quent limitations themselves. The subsequent estates, if valid, could take efPect only as executory interests, which did not require trustees to preserve them from destruction. In the 3rd edition of the same work (vol. 3, p. 322) it is said that the practice of omitting such limitations had then (1873) become well established; though it was mentioned that writers of authority re- commended adherence to the old practice, with a view to the interference of the trustees for checking waste on the part of the tenant for life, if necessary, or to the convenience of their being entrusted with the protector- ship of the settlement in the event of the extinguish- ment of the life estate. (See Lewin on Trusts, ch. viii. s. 1, § 18; ch. xvi. § 12.) The trustees above described are very much in the nature of a device of conveyancers, designed to inter- cept the operation of a rule of law, and not intended under ordinary circumstances, to exercise any active function. They bear in this respect a very close resem- blance to the dower trustees in the old-fashioned limi- tations of uses to bar dower. These were designed, by the interposition of an estate, which, by the rule recognized in Dormer v. Parkhurst, was a vested estate of freehold, but which generally conferred no positive privilege or active duty, to prevent the merger of an estate for life in the subsequently limited inheritance. It is probable that trustees to preserve contingent remainders such as those above described, are the only trustees refer- red to under the phrase " bare trustee " in the Fines and Kecoveries Act, ss. 27, 31. But under certain circum- Another kind stances trustees to preserve contingent remainders were of trustees to needed in a settlement, who differ in function and re- Pjeserve^ con- quire to be distinguished from the bare trustees above mamders. described. When contingent remainders were limited to the sons or other issue, of a living a person, who did not himself take a prior life estate, it was necessary to limit a prior estate to trustees, during the life *of [*120] such person, to preserve contingent remainders, least the remainders in favour of issue born subsequently to the determination of all the prior estates should be defeated. The difference in function between these trustees and the previously described bare trustees is obvious: their function was to guard against a destruction of the con- tingent remainders, by reason of the natural expiration (935) Digitized by Microsoft® 110 ON ESTATES IN GENERAL. of the precedent estate pending the contingency. The present writer has met with an example of the inser- tion of trustees of the lastly described kind, in a will, dated in 1880, by which very extensive and valuable estates were settled. It would therefore appear that some conveyancers are unwilling to rely, for this pur- pose, upon the provisions of 40 & 41 Vict c. 33. Resemblance The object of the insertion of a limitation to the dower to the estate trustees, in the uses to bar dower, according to the com • of dower ^^^^ practice before the Dower Act, 3 & 4 Will. 4, c. 105, is to effect the formal interposition of a vested estate between a life estate and a remainder of inheritance; though in this case the remainder was always a vested fee simple; not a contingent remainder. This limitation therefore bears, in its general design, a close resemblance to the limitation to trustees to preserve contingent re- mainders; and the form of limitation in common use was identical with the form used to create trustees to preserve contingent remainders. Whethersuch There are some grounds for doubting whether, sub- limitations sequently to the coming into operation of 8 & 9 Vict, arenowvalid. g JQO, the limitations now under discussion have any longer had any meaning, and whether they are not therefore now void for absurdity, if they follow upon an estate of freehold. So far as the preservation of contingent remainders is concerned, this question is of no practical importance. So far as dower trustees are concerned, it will remain a question of practical impor- tance as long as any husbands are in existence, whose wives are still living, and who were married on or before 1st January, 1834, the date of the coming into operation of the Dower Act, 3 & 4 Will. 4, c. 105. To such husbands it is still necessary to make the convey- ance of a legal estate in fee simple under the form of a [*121] conveyance *to uses to bar dower, in order to prevent the wife's dower from attaching. At the pres ent day (1884) sucli a person could hardly be below seventy years of age; and the class must, therefore, be now a small one, and rapidly tending towards ex- tinction. The reasons for doubting the validity of the limita tion are as follows: — Forfeiture can no longer be in- curred, either by making a tortious feoffment, since 8 & 9 Vict. c. ] 06, s. 4, by which the tortious operation of feoffments made after Ist October, 1845, is prevented; (936) Digitized by Microsoft® CONTINGENT KEMAINDERS. Ill or by levying a fine, or suffering a common recovery, now that those assurances have been abolished by the Fines and Recoveries Act, s. 2; or by joining the mise on the mere right, or otherwise compromising the title of the remainderman in a real action, now that the only real actions in which those offences could practically be committed have been abolished by 3 & 4 Will. 4, c. 27, s. 36. Whether a forfeiture by operation of law, as distinguished from the operation of an express con- dition of forfeiture contained in the settlement, can now be incurred by a tenant for life in any way what- ever, is now, to say the least, exceedingly doubtful. With respect to surrender and merger, the aspect of the question is curious. Taking merger to refer to cases in which the next vested remainder of inheritance is conveyed to the tenant for life, any such conveyance would, of course, be impossible upon the hypothesis that the estate of the trustees is an actually existing estate; because, if the estate exists, it is undoubtedly a vested estate; and this, being interposed between the estate for life and the remainder, would make all such merger" as that above supposed impossible, so that the hypothesis which would make the estate of the trustees a vested estate, also deprives the law of merger of all meaning in relation to the question, and therefore (so far) destroys the reasons for supposing that the estate is in fact a vested estate. Similarly, with regard to surrender, the interposition of the estate of the trustees, if it exists, would prevent a surrender to any remain- derman whose interest is subsequent to the contingent remainders. And a surrender cannot be made by a tenant for his own life to a tenant pur autre vie, so that no surrender to the trustees themselves is possible. (Shep. T. 305; 3 Prest. Conv. 225.) *These objections are discussed with some [*122] minuteness in an acute and learned note contained in the third edition of Davidson's Precedents, vol. 3, p. 323, note (w), in which the opinion is expressed, that such limitations are still valid; but it is suggested that there can, at all events, be no question as to their validity, when they follow upon a term of years deter- minable with the life of the tenant for life, instead of following upon an estate of freehold for his life. It does not appear to have been thought necessary to adopt this suggestion in practice. (937) Digitized by Microsoft® 112 ON ESTATES IN GENERAL. [*123] *CHAPTEE XIII. THE RULE IN SHELLEY'S CASE. The title at the head of this chapter commonly refers to the statement of the circumstances under which ver- bally distinct limitations contained in the same instru- ment, one limitation being to a given person, and the other being to his heirs, either general or special, will not give any distinct estate to the heir, but will give an estate of inheritance to the ancestor. The statement of the cases under which such limita- tions to the heirs take effect, not in the heirs them- selves, but in the ancestor whose heirs they are, is com- monly styled the Rule in Shelley's Case, from the re- ported case of that name. (1 Eep. 93 ; Serj. Moore's Eep. 136; 1 Anders. 69; Dy. 373 b, pi. 15; Jenk. cent. 6, c. 40. ) It will be convenient, before discussing that case, to draw some general outline of the rule of law in question. In the limitations now under consideration, there occurs always an estate of freehold limited to a specified The word heirs is in these limita- person, and a subsequent limitation, whether immediate of'umtt^ion °^ remote, expressed to be miade to the heirs, or to not a word of some class of the heirs, of the same person. The prior purchase. estate and the subsequent limitation must both arise under or by virtue of the same instrument. Gram- matically, the construction of the second limitation might be, to give a remainder by purchase to the speci- fied heirs. And since the person whose heirs they are, or rather, are to be, is living at the date of the limita- tion, such a remainder, if taken by the heirs as pur- chasers, would be a contingent remainder of Pearne's fourth class, being a limitation in remainder to a person not yet ascertained or not yet in being. ( Vide supra, p. 103. ) But the law puts upon the limitation to the heirs a different construction, not giving to them any estate at all by purchase, but taking account of the mention of the heirs only for the purpose of giving a corresponding [*124] estate to the specified ancestor. Therefore, *it is commonly said, that in limitations coming within the (938) Digitized by Microsoft® THE RULE IN SHELLEY'S CASE. 113 rule in Shelley's Case, the word heirs is not a word of purchase but a word of limitation. We have therefore the following essential features in these limitations: — (1) a prior estate of freehold; (2) a subsequent limitation, contained in the same instru- ment, expressed to be to the heirs, whether general or special, of the same person. In all such cases the gen- eral rule is, that no estate is taken by the heirs; but an estate of inheritance, corresponding in quantum to the class of heirs specified, is taken by the specified ances- tor. Thus, the mention of the heirs general will give him a fee simple, of the heirs of his body will give him an estate in tail general; the mention of the heirs male of his body will give him an estate in tail male; and the mention of the heirs female of his body will give him an estate in tail female. If the subsequent limitation to the heirs follows im- The ancestor mediately without the interposition of any mesne may take estate, upon the prior freehold, the freehold is merged ^'^^}^<^^ °°^ ,\ • T -x J ii -^1 J. 1 estate, or two in the inheritance, and the specified person takes an estates estate of inheritance in possession. If any estate suf- ficient to prevent merger is interposed, or if, by reason of any other circumstance, merger is prevented from taking place, he takes two distinct estates, a free- hold in possession and an inheritance in remainder. The last preceding paragraph assumes that the prior limitation of the freehold is a limitation of a freehold in possession. If the prior freehold is itself a freehold in remainder, the merger of it in the inheritance will of course not give rise to an inheritance in possession, but to an inheritance in remainder, which occupies the place, in the order of limitation, which would have been occupied by the freehold if it had not been merged. As Shelley'' s Case is one of the most important in the Shelley's Case books, and as its true bearing does not seem to be a stated and matter of universal knowledge, some account of it may discussed. be not unacceptable to the reader. A consideration of the subjoined pedigree will materially contribute to a right understanding of the case. It *is stated [*125] by Lord Coke, that the case was in ejectione flrmce ; and according to more modern usage it would be styled Nicholas Wolfe d. Richard Shelley v. Henry Shelley. (939) Digitized by Microsoft® 114 ON ESTATES IN GENERAL. SJielley'sCcm. ' EDWARD SHELLEY M. JOAN. Tenants in special tail general, with remainder . to Edward Shelley in fee simple. The wife died in the husband's lifetime, thus leaving him sole tenant in tail. i I HENEY SHELLEY. RICHARD SHELLEY. Who died in his father's life- Under whom the plaintiff time leaving a daughter, claimed by demise. Mary, living, and a son, Henry, the younger, en venire sa mere. MARY SHELLEY. HENRY SHELLEY, The defendant. Edward Shelley and his wife Joan were tenants in special tail general, that is, to them and the heirs of their two bodies begotten, with remainder to Edward Shelley in fee simple, of the manor of Barhamville, in the county of Sussex, of which the lands in question were parcel, The wife died in the husband's lifetime, thus leaving him sole tenant in tail. Hehry Shelley, the elder, afterwards died in his father's lifetime, leav- ing a daughter, Mary Shelly, living, and leaving his wife enceinte of a posthumous child, afterwards Henry Shelley, the younger, the defendant in the case. Be- fore the birth of the posthumous child, Edward Shelley, being sole tenant in tail, suffered a common recovery of the said manor, pursuant to a covenant in that be- half, in which he had covenanted that the said recovery should be to the use of himself for tJie term of his life without impeachment of waste; and after his decease, to the use of certain persons for twenty- four years; and after the said twenty- four years ended, then to the use of the heirs male of the body of himself laivfully begotten, and of the heirs male of the body of such heirs m,ale lawfully begotten; with remainder over. This recovery was actually suffered, and judgment therein was given, and a writ of habere facias seisinam awarded for the purpose of executing the seisin ac [*126] cording to the recovery, upon *the 9th October, the day on which Edward Shelley died ; and these pro- ceedings took place some hours subsequently to his death which occurred between the hours of five and six in the morning. On the 19th October the writ was executed; and on the 4th December the posthumous child was born. . (940) Digitized by Microsoft® THE RULE IN SHELLEY'S CASE. 115 The first question which arises upon this statement Shelley's Case. of the facts is, obviously, the question, whether the recovery, having been executed as aforesaid after the death of the recoveree, was valid. It is convenient to state, at the outset, that this question was decided in the affirmative. The distinction between the capacity of a posthu- mous child to take by descent, and (according to the better opinion, which had not then been questioned) his incapacity to take by purchase has been above re- ferred to. {Vide supra, p. 111.) It would seem (as the present writer understands the case) that Richard Shelley, the uncle, conceiving that the limitation to the use of the heirs male of Edward Shelley was a limita- tion to the heir male by purchase in tail male, and that his posthumous nephew was disqualified to take by pur- chase, by reason that he was en ventre sa mire at the time when the limitation became vested, assumed himself to be tenant in tail male of the manor. He accordingly entered, and made a lease of the lands in question, being parcel of the manor, to Nicholas Wolfe, upon whom Henry Shelley, the nephew, after- wards entered. Thereupon Nicholas Wolfe brought the present action of ejectment against Henry Shelley, the nephew; and at the assizes for the county of Sus- ses a special verdict was returned, upon which the matter of law was afterwards argued in the Court of King's Bench. The case being very important, both from the nicety of the points of law involved in it and from the mag- nitude of the interests at stake, it attracted much atten- tion and was argued at great length. Before the Court of King's Bench had arrived at any decision. Queen Elizabeth with a view to prevent, if possible, the ruin of both parties through protracted litigation, directed the Lord Chancellor, Sir Thomas Bromley, to assemble all the judges in conference, that they might come to some resolution. Several meetings of the judges were accordingly held, and afterwards, in accordance with their almost unanimous *opinion, judg- [*127] ment was given in the Coui-t of King's Bench in favour of the defendant, Henry Shelley, the posthiunous child. The points principally debated are. stated by Lord Coke to have been four. Of these, the first question related to the validity of the recovery, which, as above- mentioned, was decided in the af&rmative by the opinion. of "the better and greater part of all the justices and (941) Digitized by Microsoft® 116 ON ESTATES IN GENERAL. Shelley^ sCase. barons." (1 Eep. 106. a.) The second question arose upon the fact that, at the time of the recovery suffered, there was in existence a lease for years of the manor. The question here was, whether, under such circum- stances, a recovery is executed by the judgment of re- covery, before execution thereof by the writ of habere facias. This question was unanimously answered in the negative. (1 Eep. 106 b. ) It is not material to the present purpose. The third and fourth questions, in the words of Lord Coke, were as foUows: — The third point. The fourth point. The fourth point dis- cussed. 3. If tenant in tail having issue two sons, and the elder dies in the lifetime of his father, his wife privement enseint with a son, and then tenant in tail suffers a common recovery to the use of him- self for term of his life, and after his death to the use of A. and C. for twenty-four years, and after to the use of the heirs males of his body lawfully begotten, and of the heirs males of the body of such heirs males lawfully begotten, and presently after judgment an habere facias seisi- nam is awarded, and before the execution, that is to say, between five and six in the morning of the same day in which the recovery was suf- fered, tenant in tail dies, and after his death, and before the birth of the son of the elder son, the recovery is executed, by force whereof Eich- ard, the uncle, enters, and after the son of the elder son is born, if his [the posthumous son's] entry upon the uncle be lawful or not. 4. If the uncle in this case may take as a purchaser, for as much as the elder son had a daughter which was heir general and right heir of Edward Shelley, at the time of the execution of the re- covery. It will be observed that the third question merely states the whole of the facts, and then asks which party [*128] was in the right. *If this can be regarded as the "statement of a point" in the case, such statements would present very little difficulty. And it is manifest, that every case can contain only one such point as this. The reader will notice, without surprise, that this point is styled " the great doubt of the case." (1 Eep. 94 b.) It will be convenient first to dispose of the fourth point, upon which no opinion was expressed by the judges. This point refers to a distinction laid down by Lord Coke, with respect to the interpretation of the (942) Digitized by Microsoft® THE RULE IN SHELLEY's CASE. 117 word "heir"; firstly, as a word of limitation, and sMley's Case. secondly, as a word of purchase. AccoMing to this rule, in limitations to special heirs, where they do not take by purchase, but only supply the measure of an , estate tail to the ancestor, and therefore take, if at all, by descent, the special heir may inherit, although he is not the heir general. But in limitations to heirs as purchasers, no heir can take by purchase except the heir general; and therefore the special heir cannot take as purchaser, unless he also unites in himself the char- acter of heir general. In the words of Lord Coke: — " When a man giveth lands to a man and the heires females of his body, and dyeth [referring, apparently, to the death of the last-mentioned person], having issue a son and a daughter, the daughter shall inherit. . . But in case of a purchase it is othenvise : for if A. have issue a sonne and a daughter, and a lease for life be made, the remainder to the heires females of the bodie of A. A. dieth, the heir female can take nothing, because she is not heire; for she must be both heire and heire female, which she is not because the brother is heire." (Co. Litt. 24 b.) This distinction was a well recognised rule of law in Lord Coke's day; but it has been shaken by some recent decisions. (See Wills v. Palmer, 2 W. Bl. 687, 5 Burr. 2615; Goodtitle v. Burtenshaw, Tearne,. Cont. Rem. App. I. ) In Shelley'' s Case, the heir gen- eral of Edward Shelley, at the time of his death, was Mary Shelley, the daughter of Richard Shelley's elder brother ; so that, by the above-stated rule of law, Richard Shelley, though the heir male of Edward Shelley, was incapable of taking under a limitation to the heira male as purchasers, since he did not also unite in himself the character of heir general. This conten- tion would have been fatal to Richard Shelley's claim, who was constrained to claim by purchase; since, if the estate tail was *executed in Edward Shelley, so [*129] that Richard could claim only by descent, the subsequent birth of the posthumous son of his elder brother would have defeated his claim. It is unnecessary further to consider this objection against the plaintiff's claim; because, in the view taken by the judges of the third point, there was no need to come to any decision upon the fourth. The Lord Chancellor, and all the judges but one, held that under the rule of law named after the present case, the estate tail was executed in Edward Shelley, and consequently that Richard could take, if at all, only by descent; and that the posthumously born nephew had the prior right. (943) Digitized by Microsoft® 118 ON ESTATES IJJ GENERAL. Shelley^ sCrise. An attentive consideration of the arguments and Two relevant judgment seems to show, that the decision went upon, points de- and clearly established, these two distinct propostions, cided in the J^ relation to the rule now under consideration : — case. 1. When the ancestor by any assurance takes an estate of freehold, and by the same assurance an estate is limited, either mediately or immedi- ately, to his heirs in fee or in tail, always in such cases the heirs are words of limitation, and not of purchase. (1 Kep. 104 a.) 2. The further addition of words of limitation to "the heirs," makes no difference: provided that the further limitation is to heirs of the same quality. The argu- ment for the plaintiff. The plaintiff's counsel began by admitting that the recovery, after the death of the recoveree, could be ex- ecuted as against the issue in tail; but they took the distinction, that when so executed, it operated only as from the time of the execution; whence they inferred, that no use, and therefore no estate, coiUd have been executed in Edward Shelley; and that his heirs male must necessarily take, under the limitation to them, by purchase. This last point was afterwards decided against them; upon the ground that the execution, when perfected, related back to the time when the re- covery was suffered. (1 Esp. 106 b. ) They proceeded to argue that, even though the recovery had been exe- cuted in the life of Edward Shelley, Richard must nevertheless have taken by purchase; for that the rule [*130] now *under consideration did not apply to the above stated limitation. "For they said, that the man- ner of the limitation of the uses is to be observed in this case, which is, first to Edward Shelley for the term of his life, and after his death to the use of others for the term of twenty-four years, and after the twenty- four years ended, then to the use of the heirs males of the body of the said Edward Shelley lawfully begotten, and of the heirs males of the body of the said heirs males lawfully begotten; in which case they said, that if the heirs males of the body of Edward Shelley should be words of limitation, then the subsequent words, viz., of the heirs males of the body of the said heirs males lawfully begotten, would be void: for words of limita- tion cannot be added and joined to words of limitation, but to words of purchase." (1 Rep. 95 a, b.) (944) Digitized by Microsoft® THE RULE IN SHELLEY "S CASE. 119 The defendant's counsel began by arguing that the Shelley's Case. recovery was altogether void, for that execution could The argu- not be sued against the issue in tail after the death of ment for the the recoveree. (1 Eep. 96 a.) It will be observed that defendant, the defendant, Henry Shelley the younger, being both heir general and heir male to Edward Shelley, had a double title; and was equally entitled to succeed, whether the court held the recovery to be void, or whether they held that an estate in tail male was vested by the recovery in Edward Shelley. This first point, as to the validity of the recovery, was decided against them, as above mentioned. We may omit the argument on the second point, which has no connection with the rule in Shelley's Case, and proceed at once to the part of the argument upon the third point, which bears im- mediately upon that rule, and especially upon the above-cited argument of the plaintiff's counsel. "And as to what hath been objected, that, forasmuch as the limitation was to the heirs males of the body of Edward Shelley, and of the heirs males of the body of the heirs males lawfully begotten, that the heirs males of the body of Edward Shelley should be purchasers, for otherwise the subsequent words would be void; the de- f endent's counsel answered. That it is a rule in law, when the ancestor by any gift or conveyance takes an estate of freehold, and in the same gift or conveyance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, that always in such cases *{the [*131] heirs) are words of limitation of the estate, and not words of purchase And, if it should be admit- ted, ihat in regard of the said subsequent words, the right heirs males should have by purchase to them and the heirs males of their bodies, then a violence would be offered as well to the words as to the meaning of the party; for if the heir male of the body of Edward Shelley should take as purchaser, then all the other issue males of the body of Edward Shelley would be excluded to take anything by the limitation .... for by that means the plural number will be reduced to the singular number, that is to say, to one heir male of the body of Edward Shelley only." (1 Eep. 104 a, b.) It is to be regretted that the third point, "the great The judg- doubt in the case," is stated in such wide terms ; be- i^ieiil^- cause the reader gathers few details from the summary information " That upon the third question the law was for the defendant, and therefore the defendant's entry upon the uncle was lawful." (1 Eep. 106 a.) This (945) Digitized by Microsoft® 120 ON ESTATES IN GENERAt. Shelley's Case, defect is partly supplied by the statement of reasons given in the King's Bench by the Lord Chief Justice, Sir Christopher Wray, at the request of the counsel on both sides. He gave the following reasons as being the chief grounds for holding, upon the third point, that the uncle could have no claim except in the nature of a descent: — "First, because the original act, viz., the recovery, out of which all the uses and estates had their essence, was had in the life of Edward Shelley, to which the execution after had a retrospect. Secondly, because the use and possession might have vested in Edward Shelley, if execution had been sued in his life. Thirdly, the recoverors by their entry, nor the sheriff by doing of execution, could not make whom they pleased The rule is inherit. Fourthly, because the uncle claimed the use expresslylaid by force of the recovery, and of the indentures, by down in the i^ords of limitation and not of purchase. These were, ju gmen . ^^ ^j^^ Chief Justice said, the principal reasons of their judgment." (1 Eep. 106 b.) The writer leaves to the judgment of his readers the question, whether the considerations above stated justify the conclusion above drawn touching the true bearing [*132] and import of Shelley^s *Case. He has been thus particular in stating the grounds of this conclu- sion, in view of the following strange remark by But- ler : — "It is generally called the rule in Shelley's case, reported 1 Co. 93, and by contemporary reporters. In that case, it was not a subject for the determination of the court, or even a subject of discussion; but it is ex- pressed in the arguments in clear terms, as an acknow- ledged rule of law, and has thence received its appella- tion." (Butl. note on Fearne, Cont. Rem. 28.) If Butler's reputation were less securely established, this remark might almost suggest a suspicion, that the practice of talking about Shelley's Case without having read it, is not wholly confined to the present genera- tion (d). (d) It is possible that Butler may have been misled by a mo- mentary confusion between Shelley's Case and Taltnrum's Case; and that what was in his mind was the foct, that Taltarum's Case is often cited as the authority upon which depends the validity of common recoveries, as assurances by tenant in tail, though it contains no decision to any such purpose. When a man like Butler makes a slip, he is likely to find others to follow him. With the remark above cited from Butler, compare the following passage from a later author : — " Although termed the rule in Shelley's Case, the rule is of much greater an- tiquity than that case, where, it will be observed, no question (946) Digitized by Microsoft® THE RULE IN SHELLEY'S CASE. 121 The statement of the Rule. The following propositions -will, under all ordinary circumstances, suffice to determine the question of the rule's application to a particular case. It is to be ob- served that a great part of the subtleties with which this subject is congested, arose out of ill-constructed lim- itations, which can be of no service to the conveyancer, unless as warnings what to avoid. (1.) The prior estate must be of freehold. (Co. Litt. 319 b ; ibid 376 b ; 1 Eep. 104 a ; Fearne, Cont. Eem. 28 ; 1 Pres. Est. 266 ; ibid, 309.) Such fi-eehold is not necessarily for the life of the ancestor, but may be *determinable [*133] in his lifetime ; as an estate to a woman durante viduitate. (Fearne, Cont. Eem. 30, v. 1.) (2.) The subsequent limitation may be either to the heirs general or special. (Fearne, Oont. Eem. 28; 1 Prest. Est. 263—266.) (3.) Both estates must arise under the same instru- ment. (Fearne, Cont. Eem. 71, v. 13; 1 Prest. Est. 309.) (4) An estate taken by the ancestor by way of re- sulting use, is, for this purpose, an estate aris- ing under the same instrument. (Fearne, Cont. Eem. 41, v. 8; 1 Prest. Est. 809.) In such cases, the ancestor must himself be the settlor. • (5.) An estate limited under a subsequent exercise of a power contained in the instrument, is, for this purpose, an estate arising under the same instrument. (Fearne, Cont. Eem. 74, v. 14 ; Venables v. Morris, 7 T. E. 342, at p. 348.) (6.) The interposition of one or more intermediate estates does not prevent the application of the rule. (1 Prest. Est. 266, 267.) But, as above mentioned, accordingly as such estates are, or arose upon it for the decision of the Court ; but it is only stated in the arguments, but in such precise and clear terms, that it has de- rived its name from the case." (Tudor, Lead. Cas. on E. P. 3rd ed. 599.) Fearne and Preston both treat Shelley's Case as being an express decision in favour of the rule. (Fearne, Cont. Eem. 181, 182 ; 1 Prest. Est. 347). (947) Digitized by Microsoft® 122 ON ESTATES IN GENERAL. are not, interposed, the inheritance executed in the ancestor is remote or immediate. ( Vide supra, p. 124.) (7.) The subsequent limitation may be contingent. (Pearne, Cont. Rem. 34, v. 2; 1 Prest. Est. 267; ibid. 318, 319.) (8.) In a devise, the word issue has, for this purpose, the same effect as the word heirs; unless it ap- pears to have been intended as a designation of particular individuals. (Smith on Executory Interests, p. 248, Chapter XIII. ; where the learning on this point, which opens an obvious door to doubt and conf usign, is ably collected. ) [*134] *(9. ) The further addition to the word heirs of words of limitation to their heirs, does not prevent the application of the rule, if the latter heirs are of the same description as the former heirs. (Shelley's Case, 1 Rep. 93 ; Fearne, Cont. Rem. 181, v. 26; 1 Prest. Est. 347.) (10. ) The rule applies to equitable as well as to legal limitations; but the prior and the subsequent limitation must both be of the same quality in this respect. (Fearne, Cont. Rem. 52, v. 9; ibid. 57, v. 10.) Where the prior limitation is in form equit- able, while the subsequent limitation is in form legal, the rule will apply, if all the limitations are made in fact equitable, by reason that the whole legal estate happens to bo outstanding. {Re White andHindle's Contract, 1 Gh. D. 201.) (11.) The rule applies to limitations of copyholds, as well as to limitations of freeholds. (Fearne, Cont. Rem. 60, v. 11.) (12.) The rule does not apply where the subsequent limitation is an executory limitation. ( Fearne, Cont. Rem. 276; 1 Prest. Est. 323.) This includes cases in which the prior limitation is executory ; because in such cases the subsequent -limitation is necessarily also executory. {Vide supra, p. 97.) In Re White and Hindle's Contract, 7 Ch. D. 201, at p. 203, Sir Richard Malins, V.-C, stated (948) Digitized by Microsoft® THE RULE IN SHELLEY's CASE. 123 obiter, that he " should be slow to admit " this proposition, if the question should come before him. It is conceived that he is not very likely to be followed in this doubt. The coalescence of an estate which is executory with an estate which is executed, is a mixture impossible to be figured by a well- disciplined imagination. Moreover, the modern tendency of the courts does not seem to lean towards unnecessarily extending the scope of the rule. The question as to the origin, or true grounds, of the q,^^^ of the rule in Shelley's Case, has given rise to much specula- rule, tion, into-^which it *i3 not desirable to enter at [*135] length. Considering that, at the time when the rule arose, tenure was the mainstay of our political consti- tution, and that the preservation of the fruits of tenure was notoriously a principal aim of the law, and that settlements giving an estate for life to the ancestor with a remainder to his heir, if they had been permit- ted to take effect by way of remainder, would have en- abled a family to enjoy all the advantages of a descent, while evading the feudal burdens by which a descent was accompanied : the opinion seems to be more than plausible, that the true origin of the rule is to be found in the policy of feudalism. (See 1 Prest. Est. . 295 — 309, and Jackson on Guardian and Ward, (Penna.) page 107.) (949) Digitized by Microsoft® 124 ON ESTATES IN GENERAL. [*136] *CHAPTEE XIV. EXECUTOEY LIMITATIONS. Their orifiin ^°^ ^ ^°^S t™® previously to the Statute of Uses, 27 Hen. 8, c. 10, while uses existed only in the shape of what are now known as trusts, the Court of Chancery had been accustomed to give effect to devises of the use of lands; whereby for many practical purposes, lands may be regarded as having been then deviseable, although the common law (except by the special custom of certain localities) permitted no devise of the legal estate. "When by the operation of the Statute of Uses, uses had been converted into legal estates, this general privilege of devise was lost; and since the statute was expressly extended to uses in being at the time of its enactment, this deprivation had, in a certain sense, a retrospective operation. The power to practically de- vise lands, by means of the creation of uses, would subsequently have been recovered through that con- struction of the statute which afterwards gave rise to the modern system of trusts. But the loss of a privi- lege to which people had long been accustomed was felt to be so great a hardship, that the government found itself in a manner compelled, without waiting for this indirect remedy, which was probably not at all foreseen, to restore by express enactment, what it had, perhaps only by inadvertence, taken away. Within a few years after the passing of the Statute of Uses, the Statutes of Wills permitted the devise of all lands held in socage for a fee simple, and of two equal third parts of lands held by knight- service for a fee simple (e). Thus, within a short space of time there were introduced into our legal system two separate methods, both un- known to the common law, by which legal estates in lands might be created and conveyed. [*137] *The language of the Statutes of Wills is exceed- ingly wide, permitting devises to be made by the owner " at his free will and pleasure;" and there existed this rea- (e) It was probably due to a fear lest the language of 32 Hen. 8, 0. 1, might he held to extend to lands in tail, that it was ex- pressly restricted to lands in fee simple by 34 & 35 Hen. 8, c. 5. (As to these statutes, see p. 175, infra. ) (950) Digitized by Microsoft® EXECUTORY LIMITATIONS. 125 son for relaxing ,in repect to devises, the severity of the common law rules relating to abeyance of the seisin, namely, that, in case the seisin was not completely dis- posed of by the devise, there was nothing in the theory of the law to compel the conclusion, that during any unappropriated interval the seisin must be in abeyance. A devise, upon becoming operative, necessarily followed upon the death of the testator; and therefore the seisin, during the unappropriated interval, might be suiiered to descend upon his heir-at-law, who would have taken the whole estate in the absence of the devise. This view was ultimately adopted, though not without oppo- sition, and of course not immediately upon the passing of the statutes. Some time was required before such important changes in the theory and practice of con- veyancing could be first thought of, then thought out, then generally accepted as plausible, and lastly adopted into the common practice. The remarks in the foregoing paragraph only suffice to explain the emancipation of executory devises from the common law rules regulating to abeyance of the seisin; and this accounts for only a part of the distinc- tion between common law limitations and executory limitations. The latter are untrammelled, not only by the rules relating to abeyance of the seisin, but also by the rule which makes it impossible at common law to limit a fee simple upon the determination, or in defeasance, of another fee simple. {Vide supra, p. 64) The introduction of this second element is explained by the operation of the the Statute of Uses. Before the statute, when uses existed only as trusts, the Court of Chancery, in prescribing rules for the limitation of uses, did not confine them within either of the above- mentioned restrictions, which were applied by the com- mon law courts to the limitation of legal estates. The Court of Chancery did not insist upon the analogy of the law being followed either (1) as regards the impos- sibility of limiting a future interest, to take effect after or in defeasance of a fee ; or (2) as regards the neces- sity for guarding against abeyance of the freehold. Limitations of uses were allowed which, if they had been limitations of legal estates at the common law, would have been violated either or *both of the [*138] above-mentioned rules. When the Statute of Usss con- verted uses generally into legal estates, the question arose, whether uses thus limited in contravention of the rules of the common law should be allowed to take effect as legal estates by virtue of the statute. (951) Digitized by Microsoft® 126 ON ESTATES IN GENERAL. The ultimate decision of the courts was, after some hesitation, in favour of their validity. By this means executory limitations were introduced into the law. It is possible that, if executory devises had stood alone, they would never have acquired their freedom from the common law rule forbidding the creation of a fee upon a fee; and this quality of them seems to be satisfactorily explained only by analogy to executory limitations contained in a deed, and taking effect under the Statute of Uses. But some doubt is thrown upon this explanation, regarded- in the light of a positive historical fact, by the circumstance that limi- tations of a fee upon a fee seem to have been permitted in executory devises, at least as soon as, or even earlier than, in executory limitations made by deed. In 1 Eq. Ca. Ab. 186, pi. 3, Lord Nottingham is said to have stated, that the case of Hinde and Lyon, 3 Leon. 64, which was decided in the nineteenth year of Elizabeth, was the first case in which an executory devise over upon the defeasance of a fee was held to be good. It may be doubted whether any earlier example of a sim- ilar executory limitation contained in a deed can be found in the books. Whatever may be the historical connection, in these respects, between executory devises and executory limi ■ tations contained in a deed, it is certain that the most marked characteristic of both species is their freedom from both of the common law restrictions above men- tioned; and that it has never been authoritatively sug- gested that in either respect, so far as regards dealings with the freehold and inJieritance of lands, there is any difference between executory devises and executory lim- itations contained in a deed. Distinction ^^^ ^^ respect to dealings with chattel interests, there as regards is an important distinction between executory devises chattels real, and other executory limitations. There may be an executory devise of a chattel real, or term of years, whereby the legal estate in the term may be given to one for life, with a quasi-remainder over to another [*189] *person, which, when it becomes executed in pos- session by the determination of the precedent life estate, will carry with it the legal estate for the residue of the term. Matthew Manning's Case, 8 Rep. 94; Lampet's Case, 10 Rep. 46; Fearne, Gont. Rem. 401, iv.) Such a limitation of the legal estate in a term is not possible in a deed; because such limitations in a deed can be (952) Digitized by Microsoft® EXECUTORY LIMITATIONS. 127 effected only by the medium of the Statute of Uses, and no use of a chattel interest in esse, as distinguished from a chattel interest to be carved de novo out of a freehold, can be executed into a legal estate by the statute. Such a use of a chattel interest in esse, if declared in a deed, not being executed by the statute, can take effect only as a use apart from the statute; that is to say, as a trust. Accordingly, settlements of chattel interests, when effected by deed, are necessarily effected by settling the trust of them. Executory devises, or rather bequest, are even possi- ble, within certain limits, of personal chattels, so long as these are not things qiicB ipso usu consumuntur. But such bequests lie outside the scope of the present work. Hence we arrive at the following general definition : General — An executory limitation is a limitation of a future es- definitions, tate in lands, or of a future interest in chattels, or chattels real, which would be invalid, if made in an as- surance at the common law, but which, so far as regards the freehold and inheritance of lands, is valid either in a will or in a conveyance to uses, and, so far as regards chattels or chattels real, is valid in a will or testament. In the definition above given, it is essential that the No remainder limitation, though valid in a will or conveyance to uses, can be ex- shall not be such as would be valid in a conveyance at ^cutoy. the common law. In construing all instruments under which executory interests may arise, whether testa- ments or conveyances to uses, it is the settled rule, that no limitation which is capable of taking effect at the common law shall be construed to take effect as anexe- cutory limitation. Vide supra, p. 96. ) In other words, since a remainder is the only future estate which can take effect at the common law, no estate shall be con- strued as an executory interest which is capable of be- ing construed as a remainder. *Two classes of executory limitations may [*140] Xwo classes. therefore be distinguished, corresponding to two re- spects in which they differ from remainders at the com- mon law : — (1.) Devises and limitations of uses whereby a pre- -^ ixxaii^'- ' cedent fee, devised or limited by the same instru- tions of a fee ment, is followed by subsequent limitations, upon a fee. The subsequent limitations must be to arise upon (953) Digitized by Microsoft® 1 28 ON ESTATES IN GENERAL. the happening of a contingency (/). They may either defeat the precedent fee upon the happening of the contingency; or, if the prece- dent fee is a determinable fee, and is so limited as to determine upon the happening of the same contingency, and this contingency is such that, if it happens at all, it must happen within the time prescribed by the rule against perpetuities, they may follow upon the regular determina- tion of the fee. ^ J. .. (2. ) Devises and limitations of uses, not less in quan- tions of a ^'"™ than a freehold, which are limited to take freehold in effect either upon a contingency or after the ex- futuro. piration of a fixed period, and which are such that, if they had been legal limitations arising at the common law, they would have been void as tending to create a freehold in futuro. These two classes will be found to agree with a divi- sion proposed by Fearne, Cont. Kem. 3e9, 400. Fearne's language, which is confined to devises, is as follows : — The first sort [of executory devises] is, where the de- visor departs with his whole fee simple, but upon some contingency qualifies that disposi- tion, and limits an estate on that contingency. The second sort of executory devises is, where the devisor, without departing with the immediate feie, gives a future estate to arise either upon a contingency, or at a period certain, unpreceded by, or not having the requisite connection with, any immediate freehold to give it efPect as a re- mainder. Division into [*141] *This partly corresponds with the division of shifting and executory limitations, accordingly as they do or do not apnngxng defeat an estate previously limited by the same instru- ment; which is eminently convenient for many pur- poses of practical discussion. Those which defeat the estate are distinguished by the epithet shifting: those which do not, are distinguished by the epithet spring- ing. When these epithets are used, the additional epi- thet, executory, may conveniently be omitted. Shifting limitations are styled shifting uses, when (/) Because it is impossible for a fee to be so limited as to be determinable at a fixed period. {Vide infra, pp. 197, 198.) (954) Digitized by Microsoft® EXECUTORY LIMITATIONS. 129 they occur in assurances made by way of use, and shift- ing devises when they occur in wills. Springing limitations are similarly divided into springing uses and springing devises. The distinction between contingent remainders and executory limitations has been so repeatedly pointed out and insisted upon, in the course of the foregoing pages, that the attentive reader will be in no danger of confusing shifting and springing limitations, which are to arise upon a contingency, with contingent remain- ders. The following examples will illustrate the dis- tinction between the two classes of executory limitations above noted, — (1) those -^hich defeat a previously lim- ited estate, and (2) those which do not. 1. In strict settlements of real estate, made by a set- tlor in contemplation of his marriage, the limita- tions regularly begin with a limitation to the use of the settlor and his heirs until the solemni- zation of the intended marriage; and afterwards to certain other specified uses. These subsequent uses are executor limitations, for they are void as remainders at the common law, since they are limited after a determinable fee. (See p. 202, infra, No. 10 of the list there given. ) Here the precedent fee is a determinable fee, which, if it should determine at all, must (deter- mine within the time prescribed by the rule against perpetuities; and the subsequent execu- tory limitations are not in defeasance of the fee, but await its regular determination. If the pre- cedent fee had been a fee simple, any subsequent *limitation must necessarily (if valid) [*142] have been in defeasance of it. 2. " One devises lands to his wife, till his son came to the age of twenty-one years, and then that his said son should have the lands to him and his heirs; and if he dies without issue before his said age, then to his [the testator's] daughter and her heirs. This is a good contingent or executory devise to the daughter." (1 Eq. Ca. Ab. 188, pi. 8). With regard to the devise of •the fee to the son, it is to be observed, that the case occurred bfeforethe Descent Act, 3 & 4 WilJ. 4, c. 106; and that the fee simple to the son (which, by the rule in Boraston's Case, 3 Eep. 9 (955) Digitized by Microsoft® 130 ON ESTATES IN GENERAL. Executory interests are descendible and devise- able. 19, is a vested estate) therefore passed to him by descent and not by purchase. But now, by sect. 3 of the last cited Act, the heir to whom a devise is made, is deemed to take as devisee, that is, as a purchaser, and not by descent. ( Vide infra, p. 185. ) Therefore, at the time ■when the case was decided, the executory devise to the daughter came under the class of spring- ing limitations, because it was not subsequent to, or in defeasance of, an estate limited by the same instrument. But as the law now stands, the fee to the son would pass by the will, and not by descent; and therefore the executory de- vise to the daughter would now come under the class of shifting limitations. The benefit of an executory limitation, which purports to create a future interest of the quantum of a fee, is descendible in a regular course of descent, if or so soon as the person is ascertained in whom it would vest if it should then become vested. (Watk. Desc. 13.) And all executory interests, not determinable by the death of the party, have been held to be deviseable, since the case of Roe v. Jones, 1 H. Bl. 30; affirmed in B. R. sub nam. Jones v. Roe, 3 T. E. 88. They are ex- pressly made deviseable by the Wills Act, 7 Will. 4 & 1 Vict. c. 26, s. 3. . At common law executory interests, as being, in the aWe^Sr"" ^^^ °^ ^^^ ^^^' ^°* estates, but only possibilities to mms at [*143] have an estate at a *future time, were not assign- common law. able by act inter vivos. ( 16 Vin. Abr. 'i62=Possibility, B, pi. 5. ) As above mentioned, they might be released to the person entitled subject to them; and they might be bound by estoppel of the party entitled to the ben- efit of them. Also, in equity they might be assigned, and contracts relating to them might be entered into, for valuable consideration. (Vide supra, p. 58.) Now made The Act to amend the Law of Eeal Property, 8 & 9 assignable by Vict. c. 106, s. 6, enacts, that after 1st October, 1845, a statute. contingent, an executory, and a future interest, and a possibility coupled with an interest, in any tenements or hereditaments of any tenure, whether the object of the gift or limitation of such interest or possibility be or be not ascertained, may be disposed of by deed. For some remarks upon a suggested interpretation of this enactment, see p. 86, supra. The words above (956) Digitized by Microsoft® EXECUTORY LIMITATIONS. 131 cited are equally applicable both to contingent remain- ders and to executory interests. The words permitting assignment before the ascertainment of the object of the limitation, do not, of course, refer to such objects as are not yet in being, as in limitations to the children of an unmarried person ; but to such objects as heirs apparent, or heirs presumptive; or the survivor of sev- eral specified persons. By the introduction of executory limitations, and the How far consequent emancipation of the limitation of legal es- executory tates from the rules of the common law, the obstacles limitations, opposed by the common law to the creation of what are g^ent to es- somewhat vaguely styled perpetuities, were made nuga tat« tail, are tory in practice. Moreover, the machinery of common indefeasible, recoveries, laboriously built up by the courts to pro- mote fa'eedom of alienation in fraud of the statute De Donis, was found to have lost part of its efficacy. For, though it was never doubted that an executory limita- tion in defeasance of a fee tail might be barred by a common recovery, it was held by three judges of the Court of King's Bench, against the opinion of Dode- ridge, that an executory limitation in defeasance of a fee simple could not be so barred without the con- currence of the person entitled to the benefit of execu- tory limitation. {Pells v. Brown, Cro. Jac. 590.) If such person *had been vouched, and had en [*144] tered into the warranty, it was agreed that the execu- tory limitation would be barred ; but this proceeding would merely have effected by matter of record what might equally well have been effected by release be- tween the parties. The same doctrine is also applica- ble to estates pur autre vie. The opinion was ex- pressed by Preston, that an executory limitation an- nexed to an estate pur autre vie, limited to a grantee and his heirs general, cannot be barred by the first taker ; and this has recently been affirmed by judi- cial decision. (1 Brest. Abst. 438 ; Ee Barber's Settled Estates, 18 Ch. D. 624.) Thus it will be seen, that by means of executory limitations, there emerged into practice a new method of interposing an obstacle to the alienation of property. A claim arising under such an executory interest How barred was as much within the language of the Statutes of by fine. Pines as any other kind of claim ; and therefore it could equally be bound by non-claim on a fine levied with proclamations under those statutes. (1 Cruise, (957) Digitized by Microsoft® 132 ON ESTATES IN GENERAL. Pines & Eec. 313.) But for this purpose it was neces- sary that there should be a non-claim of iive years' duration after the claim under the executory limitation had become enforceable, that is had vested in posses- sion ; and thus the practical effect of a fine, in this re- spect, was merely to shorten the ordinary period for the limitation of actions to five years. This restricted power of barring executory limitations, other than ex- ecutory limitations subsequent to an estate tail, was lost upon the abolition of lines by the Fines and Recov- eries Act. It requires carefully to be distinguished from methods of barring executory limitations subse- quent to an estate tail, or to a quasi-estate tail carved out of an estate pur autre vie. These took effect im- mediately, and without the expiration of any period of limitation. Certain The Conveyancing Act, 1882, s. 10, enacts that, executory where there is a person entitled to land for an estate limitations j^ f gg^ q^ for a term of years absolute or determinable cScum-^ ^™ ^^ ■''^®' °'' ^°^ term of life, with an executory limitation stances made over, contained in any instrument coming into opera- void by tion after 31st December, 1882, on default or failure of statute. a,ll or any of his issue, whether vrithin or at any speci- fied period or time or not, that executory limitation [*145] shall be *or become void and incapable of tak- ing effect, if and as soon as there is living any issue who has attained the age of twenty one years, of the class on default or failure whereof the limitation was to take effect. Remarks upon the above-cited enactment. It was probably the aim of this enactment to as- similate these executory limitations, in respect to the period of time during which they are secured against destruction, to executory limitations subsequent to an estate tail, contained in a settlement upon a tenant for life, with remainder to his sons successively in tail. Such executory limitations, as well as the estate tail it- self, can be, and in practice usually are, barred as soon as any son of the tenant for life has attained the age of twenty-one years. It is not clear that the provisions of this enactment apply to executory limitations in defeasance of an equit- able fee simple. It is still less clear that they apply to executory limitations of a trust of a term of years. The Conveyancing Act of 1881 contains a definition of the word "land," which would undoubtedly include an equitable fee simple; but the Act of 1882 contains no (958) Digitized by Microsoft® EXECUTORY LIMITATIONS. 133 provision for incorporating the definitions of words contained in the Act of 1881 ; and hy separately defin- ing, in almost the same language as the Act of 1881, the words "property" and "purchaser," it seems even to show a design to exclude the definitions of the earlier Act. And in any case, the definition of "land" in the Act of 1881 contains nothing which could include a trust of a term of years. Executory limitations of such trusts are clearly not within the language of the above- cited enactment; and it must not be assumed that they will be held to come within its intention, because the possible existence of executory devises of the legal estate in a term of years gives a sufficient meaning to all the language used. The obstacles opposed by the common law to the creation of perpetuities having thus been rendered nugatory in practice, it became necessary, either to acquiesce in the creation of limitations by which pro- perty might be " tied up " for indefinite periods of time, or else to devise some new restrictions for preventing this result, which should be applicable to the newly introduced limitations. This was effected by the in- troduction *of the rule which is now commonly [*146] known as the "rule against perpetuities;" and as this is the principal, if not the only, restriction now placed by the law upon the creation of executory limitations, it will require a somewhat detailed statement. It will be observed that the Conveyancing Act, 1882, s. 10, though it affects the possible duration of certain ex- ecutory limitations, does not interfere with their crea- tion. The Rule against Perpetuities. The rule against perpetuities fixes certain limits of General re- time, within which every executory limitation, not being marks upoa a limitation subsequent to an estate tail, must neces- *^® '^^^■ sarily vest, if it vests at all, on pain of being otherwise void. The rule has never been considered to be bind- ing upon limitations subsequent to estates tail, because such limitations have at all times since the invention of executory limitations been liable to destruction, either by means of a common recovery or by the method provided by the Fines and Recoveries Act. Such limitations are therefore not obnoxious to the mischief which the rule was designed to prevent. (See (959) Digitized by Microsoft® 134 ON ESTATES IN GENERAL. Nicolls V. Sheffield, 2 Bro. C. C. 215; Heasman v. Pearse, L. E. 7 Ch.- 275.) The terms of the rule do not import that the limita- tion must necessarily vest within the specified time, but only that it must necessarily vest within that time, if it vests at all. The vesting may depend upon a contin- gency which is such that, by possibility, it may never happen at all; but it must be such that, if it does hap- pen at all, its happening must necessarily fall within the specified limits. Though it may be such that it either may, or may not, happen within the limits of the specified time, it must be such that it cannot pos- sibly happen outside those limits. Much elaborate efPort has been expended upon at- tempts to define a " perpetuity," and to found the rea- son of the rule now under consideration upon the de- finition. These labours seem to be superfluous. With- out any definition of a perpetuity, the proposition is easily intelligible, that all future interests or claims in, to, or upon any specified property, whether real or [*147] *personal, which do not arise under, or take effect by virtue of, the rules of the common law, and are not subsequent to an estate tail, must (with a few exceptions requiring specific mention) vest absolutely within certain specified limits of time ; and the mischief which would result from the absence of any such re- striction, is too obvious to need any proof. Stages in the The period of vesting (as it may be called) prescribed rule's de- by the rule against perpetuities, since it is in the nature velopment. qJ ^ remedy gradually devised by the discretion of the judges, to meet a new mischief arising out of the rais- ing of legal estates by means of uses and devises, could not, from the circumstances of its origin, be clearly as- certained from the commencement. It will be sufiicient to note the following points : — (1) It was settled by the Duke of Norfolk's Case, 3 Ch. Ca. 1, PoUexf. 223, that an executory limita- tion, which must necessarily vest (if at all) dur- ing the life or lives of a specified person or per- sons in esse, is good. In that case Lord Nottingham, while expressing the opinion that an executory limitation in defeasance of a fee simple (which he used as an example of executory limitations generally) to take effect during a life or lives in being, was indisputably good, further observed (9G0) Digitized by Microsoft® EXECUTORY LIMITATIONS. 135 that "the uUimum quod sit, or the utmost [executory] limitation of a fee upon a fee," was not then plainly- determined; but that it would soon be found out, if men should set their wits to contrive that which the law had so long laboured against. (3 Ch. Ca. at p. 36. ) The next following paragraph records the fulfilment of this prediction. (2) It is clearly settled that a term of twenty-one years in gross, that is limited simply, as a space of time and not with reference to the infancy of any person interested, is allowed in addition to the life or lives in esse. {Lloyd v. Carew, 1 Show. P. C. 137; Cadell v. Palmer, 1 01. & F. 372.) This is now regarded as an axiom. In Cole V. Sewell, 2 H. L. cT 186, at p. 233, Lord Brougham, *while hinting some disap- [*148] proval, and intimating that this rule had been established by oversight, admitted that it was settled law. (3) It would have been a very reasonable restriction, if some connection had been established between the person or persons in question and the prop- erty ; for example, if no life had been thought admissible for the purpose, except the life of a person having a prior life interest in the prop- erty, or the life of the parent of a person taking a subsequent interest. But no such restriction seems ever to have been authoritatively suggest- ed. In Thellusson v. Woodford, 11 Ves. 112, at pp 145, 146, Lord Eldon plainly lays it down that a number of the lives, being lives simulta- neously running, may be unlimited, and that the persons may have no connection with the prop- erty; provided only that the circumstances make it possible to ascertain as a fact the dropping of the life of the last survivor of them. (4) It was first settled in Long v. Blackall, 7 T. E. 100, that, for the purposes of the rule, a life in being may be the life of a person en ventre sa- mhre at the date of the limitation. (5) There was never any doubt that an executory limitation might, 'at the expiration of the period allowed by the rule, vest in a person en ventre sa mhfe; and thus a second period of gestation is (961) Digitized by Microsoft® 136 ON ESTATES IN GENERAL. allowed, at the end of the prescribed period, if circumstances should require it. (6) But the periods of gestation above referred to, since they arise only by reason of the doctrine that a person en ventre sa mbre is, for the present purpose, a person in esse, must both of them be periods of actual gestation : that is to say, if there is no person actually en ventre sa m&re in the case, no extension of time is allowed upon the ground that there might possibly have been such a person. (Cadell v. Palmer, 1 CI. & F. 372.) [ *149] *ExpresBions have sometimes been used, which might seem to imply, that a period equal to the term of gestation may, as a term in gross, be added to the per- mitted term of twenty- one years. Such dicta seem to be erroneous. Thus the effect of the rule may be summed up by specifying the longest period, commencing with the coming into operation of the instrument under which the interests arise, during which the vesting of limita- tions coming within the scope of the rule, may be post- poned, as follows : — Statement of atj; ^ e ^• • ^ • jt the period of ^ "t®) ^1' any number oi lives, m being — the vesting ai- life of a person en ventre sa mire being consid- lo^ed by ered for this purpose a life in being- -and twenty- one years after the dropping of the life, if only one, or after the dropping of the last surviv- ing life, if there be more than one. And at the expiration of the aforesaid period, the executory interest may vest in a person ea ventre sa mire. Not only must the title become vested within the prescribed period, but the shares in which different per- sons are to take the property must also then be ascer- tained; otherwise the gift will be void for remoteness. (Curtis V. Lukin, 5 Beav. 147; Blight v. Hartnoll, 19 Ch. D. 294.) siibiecte the ^^ '^ unnecessary to cite particular cases, to show rule applies, that executory devises, springing and shifting uses, and trusts executed, are bound by the rule against perpetui- ties. That proposition is now an undisputed axiom of law. The rule also applies to trusts executory. [Duke (962) Digitized by Microsoft® EXECUTORY LIMITATIONS. 137 of Marlborough v. Earl Godolphin, 1 Eden, 404.) The rule also applies to nondescript equities, not amounting either to equitable estates or to express trusts, but being in the nature of claims upon specific property, arising out of covenants and other contracts for the assurance, at some future time and upon specified terms, of a pro- prietary interest. {London and South Western Bail- way Co. V. Gomm, 20 Ch. D. 562.) In the last-cited case, the case of Birmingham Canal Co. v. Cartwright, 11 Ch. D. 421, was expressly overruled; together with several earlier cases in which it had been doubted or denied that *nondescript equities arising upon [*150] contracts are within the scope of the rule. But it is necessary that the equity should give a Collateral specific claim to some specific property. A general covenants. claim to damages, upon the breach of a personal cove- nant, stands out of all relation to the rule. (London and South Western Railway Co. v. Gomm, 20 Ch. D. 562, at p. 580. See the judgments delivered in the House of Lords in the case of Witham v. Vane, Appen- dix, infra, Perhaps the distinction referred to in the last preced- Remarks ing paragraph may serve as an explanation of Lord upon Keppell Brougham's remarks in Keppell v. Bailey, 2 My. & K. v. Bailey. 517, at p. 527, to the effect that the covenant in that, ease did not tend to a perpetuity. The covenant bound the covenantors +o procure all limestone used upon cer- tain works from a specified quarry. There was no pro- viso for re-entry upon a breach of the covenant; and it would be absurd to say that such a covenant, standing by itself, gives rise to a specific claim upon the quarry, which could in the future mature into a proprietary in- terest. But in so far as the remarks of Lord Broug- ham were grounded upon the fact, that the coventee could at any time release the covenant, they seem to be erroneous; because the same argument would suffice to prove, that no executory limitation can be void for re- moteness, provided that it is capable of being released * by the person, or persons, entitled to the benefit of it. This doctrine was the foundation of the erroneous de- cision (now overruled, as above mentioned) in Birming- ham Canal Co. v. Cartwright 11 Ch. D. 421; see p. 433. It is worthy of observation that, although the gen- eral principle laid down by Lord Brougham in Keppell V. Bailey, namely, that the covenants which do not run with the land at law ought not to be enforced in equity (963) Digitized by Microsoft® 138 GN ESTATES IN GENERAL. against a purchaser taking with notice of them, has been completely discredited by Tulk v. Moxhay, 2 Ph. 774, and the subsequent cases, yet the decision itself in Keppell V. Bailey was clearly right, in accordance with the distinction laid down by the Court of Appeal in Haywood v. Brunswick Permanent Benefit Building Society, 8 Q. B. D. 403; namely, that the principle of [ *15 1] Tulk V. Moxhay does not apply to affirmative *cov- enants, but only to prohibitive covenants. In Tulk V. Moxhay the covenant was partly affirmative and partly prohibitive; but the decree dealt only with the prohibitive part : a remarkable circumstance, which seems to have slept unnoticed during the interval be- tween the decision of that case and the case of Hay- wood V. Brunswick &o. Society above cited. But the whole principle of Tulk v. Moxhay rests upon dubious grounds of equity, and it seems, in the courts below, to have been carried to some absurd lengths. It has never been considered by the House of Lords; and it is not improbably destined, like the doctrine of the consolida- tion of mortgages, to have its wings clipped whenever it shall come before that august tribunal. Exceptions The main exceptions out of the operation of the rule, out of the seem to be as follows: — rule. (1) Conditions in defeasance of a term of years. It has never been suggested that such condi- tions are within the scope of the rule, unless (which hardly seems to be the case) a loose re- mark thrown out obiter by Mr. Justice Buller, in Roe V. Galliers, 2 T. R. 133, at p. 140, amounts to such a suggestion. Since such conditions have come almost daily before the courts dur- ing some centuries, there could hardly be a stronger proof that their validity is not open to question. As to conditions in defeasance of an estate of freehold, some remarks will be found at p. 152, infra. (2) Covenants for the renewal, whether perpetually, or for certain turns only, of leases. {London & South Western Railway Co. v. Gomm, 20 Ch. D. 562, at p. 579.) There is perhaps some difficulty, upon princi- ple, in explaining this exception ; but its exist- ence is beyond all doubt, and has repeatedly (964) Digitized by Microsoft® EXECUTORY LIMITATIONS. 139 been recognized by the House of Lords. [Earl of Ross V. Worsop, 1 Bro. P. C. 281; Pendred V. Griffith, ibid. 314; Sweet v. Anderson, 2 Bro. P. C 256.) When the covenant is for a per- petual renewal, it is probably regarded by the law as being only an indirect mode of alienating the whole beneficial interest in the fee, under cover of a succession of terms of years. *(3) Negative covenants which are contained [*152] in conveyances of the fee, and, upon the prin- ciple of Tulk V. Moxhay, 2 Ph. 774, "run with the land " in equity though not at law. {London & South Western Railway v. Gonim, 20 Oh. D. 562, at p. 583.) The question, whether a common law condition in Whether the defeasance of an estate of freehold, is within the rule rule applies against perpetuities, in the sense that it is void if it *° common may defeat the estate at a time more remote than is i?^ condi- allowed by the rule, may perhaps, in view of the pres- feasance of a ent disposition of the courts, which leans strongly in freehold, favour of the rule, be a question requiring to be treated with some degree of caution. The afiirmative reply is open to the obvious objection, that the rules relating to common law conditions had been settled for some centuries before the rule against perpetuities had been thought of, and that there is no trace to be found, in the old common law authorities, of any disposition to apply what may be called a "time test" to common law conditions. In the old common law authorities, down to and in- cluding Lord Coke, there are innunierable references to conditions in defeasance of a freehold, expressed simpliciter without any hint of a restriction within any period whatever; and such references invariably assume that the validity of such conditions had never yet been called in question upon this ground. At a subsequent time it became necessary to devise a novel restriction to be applied to novel forms of limiting, or otherwise conferring, an estate or interest unknown to the com- mon law. Upon what principle can it be said, that the emergence of novel matter into the law had simultane- ously introduced into the common law a new rule of construction, newly made applicable to matters with which the common law was familiar, but previously unknown to the common law ? The prescription upon (965) Digitized by Microsoft® 140 ON ESTATES IN GENERAL. Suggestion as to assign- ments and devises. ■which the common law depends, is of much greater an- tiquity than the reign of Henry VIII. No court, except the High Court of Parliament, has any jurisdiction or authority to alter the common law. (Co. Litt. 115 b. ) When any part of the common law is found to require amendment, the legislature alone [*153] is competent to apply the *remedy. {Cunliffe V. Brancker, 3 Ch. D. 393, at p. 410.) In imposing the rule against perpetuities upon the novel limitations and interests to which, by universal acknowledgement, it is applicable, the inferior courts did not alter the common law, but merely laid down certain terms upon which they would interpret certain statutes in relation to the creation of legal estates, and upon which they would give legal effect to equitable interests of a cer- tain type. Much more than this is needed, in order to bring matters previously settled by the common law within the scope of the new rule. Upon these grounds it is conceived, that there can- not exist any jurisdiction in the courts of law to hold that the rule against perpetuities is, in the sense above mentioned, applicable to common law conditions. But this conclusion refers only to conditions as they exist strictly at the common law, whereby, upon a breach of the condition, a right of entry accrues solely to the grantor of the estate to which the condition is annexed, or his heirs, and cannot be reserved to a stranger. (Litt. sect. 347, and Lord Coke's comment.) The pos- sibility of reverter upon such a condition can neither, at common law, be assigned inter vivos nor devised. (Prest. Shep. T. 120.) And it might plausibly be maintained, that 8 & 9 Vict. c. 106, s. 6, and the Wills Act, s. 3, by which such possibilities are made assignable and deviseable, tacitly and by implication impose upon assignments and devises of them, though not upon the conditions them- selves, the liability to the rule against perpetuities. There exists no judicial decision, so far as the pre sent writer is aware, that a strictly common law condi- tion is subject to the rule against perpetuities. In Flower v. Hartopp, 6 Beav. 476, it was assumed that such a condition was valid in perpetuity in a crown grant ; though it was held that the condition had subse- quently been destroyed by the act of the crown. In Re Macleay, L. R. 20 Eq. 186, the condition which was in dispute seems to have been a common law con- dition ; and Sir George Jessel, M. K., by the way in which he remarked that, since it was confined to a life in being, it could not be open to any objection upon the (966) Digitized by Microsoft® EXECUTOKY LIMITATIONS. 141 ground of remoteness, may be thought to have given an intimation of his opinion. But the mere surmise that he may have intended *to deliver an obiter [*154] dictum, is a slender foundation upon which to build an important conclusion of law. The expressions of the same learned judge in London and South- Western Rail- way V. Gomm, 20 Ch. D. 562, at p. 582, afford no in- dication of his opinion. He evidently thought that " a limitation to A. in fee, with a proviso that whenever a notice in vmting is sent and lOOZ. paid by B. or his heiss to A. or his heirs, the estate shall vest in B. and his heirs," would be within the rule against perpetui- ties. But, in the words immediately preceding those cited, he styled the limitation, or form of words, to which he meant to refer, a " conditional limitation" ; and in all the many meanings of that much-abused phrase, it has at least been always carefully distinguish- ed from a common law condition. In one of its mean- ings, the phrase " conditional limitation " is used to denote an executory limitation, which is to take effect in defeasance of a prior estate of freehold, upon the happening of a contingency which is in the nature of the performance of a condition. This meaning fits ex- ceedingly well into the words above cited ; and no doubt exists that such conditional limitations are sub- ject to the rule against perpetuities. But this proves nothing about common law conditions. In Dunn v. Flood, 25 Ch. D. 629, the opinion ex- pressed by Mr. Justice North was obiter dictum. Not only is it not material to the decision, but it makes against the decision, so far as it goes. It may, however, be surmised with some confidence, that at the present day the courts would not acquiesce in the conclusion above drawn without great reluct- ance. Therefore no conveyancer could be advised, in the absence of express judicial* decision, to rely in practice upon the conclusion, that common law condi- tions are not within the rale against perpetuities. But (granting that no reference to a "time test" can be found in the old common law authorities) every argu- ment that can be derived from history and general principle seems to be in its favour. The decision in Dunn v. Flood has been afifirmed on appeal, W. N. 1885, p. 9; but it does not appear that any countenance was given to the opinion of Mr. Justice North referred to in the text. (967) Digitized by Microsoft® 143 ON ESTATES IN GENERAL. the event. Remoteness The question as to the validity of 'a particular limita- does not tion is to be decided at the time when tha instrument depend npon un(Jer which it arises comes into operation ; and the answer to the question is quite independent of what happens to be the course of subsequent events. If it is possible, in the nature of things, that the limita- [*155] *tion may not vest until after the expiration of the period specified by the rule, it is void for remote- ness; and the subsequent happening of any event whereby if held to be valid, it would in fact have vested within the specified period, will not make it valid. Unless at the It has been held, that the fact that a specified person, commence- a married woman, was, at the date of the coming into ment, there IS operation of the instrument creating a power, past the presumption ^S® °^ child-bearing, will suffice to take out of the rule as to the a case which, upon the hypothesis that she might sub- event, sequently have had children, would have been within its scope. {Cooper v. Laroche, 17 Oh. D. 398. ) Limitations ^^ ^^® limitation is in favour of the whole of a class, to a class of as to some of whom it would be good, but as to others objects. it is void for remoteness, the limitation fails as to the whole. (Pearks v. Moseley, 5 App. Cas. 714.) But this rule seems to be founded, so far as regards wills, upon the intention of the testator to benefit the whole class and not a part only, and, so far as regards deeds, upon the fact that, by the terms of the instru- ment, the limitation is in favour of the whole class and not of a part only. It is therefore possible, by the use of apt expressions, to construct a limitation in favour of such members only of a class as, with reference to the rule against perpetuities, shall be capable of taking under it. • Failure of limitation does not accelerate subsequent interests. When a limitation is void for remoteness, any subse- quent limitation to take efFect after it is not accelerated, but is also void, (1 Jarm. Wills, 4th ed. -283, 284, and cases there cited.) I A subsequent limitation must, of course, be distin- guished from an alternative limitation. In the case of alternative limitations, one of which, standing alone, would be good, while the other, standing alone, would be void for remoteness, the limitation will fail or take effect according to the course of events. {Ibid. 285. ) (968) Digitized by Microsoft® EXECUTORY LIMITATIONS. 143 Where a testator by his will first makes an absolute But a void gift of chattels, and by a subsequent clause cuts this restriction gift down to a life interest followed by a limitation over "I""? ^^ . . which is void for remoteness, the absolute gift takes ?g merelv^ ' effect, unaffected by the attempted Restriction. [*156] inoperative. (Ring v. Hardwick, 2 Beav. 352; Taylor v. Frobisher, 5 De G. & Sm. 181; Goodier v. Johnson, 18 Ck. D. 441.) There seems to be nothing to make this principle less applicable to real estate than to chattels, or to deeds than to wills. But while limitations in the form above supposed are com^mon in wills, they rarely occur in deeds. If the right to a fund, or share to a fund, vests gimijariv as within the time limited by the rule, but the will contains to a void ' a direction, that the fund shall not be paid over until a direction as time which, if it were the time of vesting, would make ^^ payment the gift void for remoteness, this direction is itself in- Sj^fi^^^ ^ operative [Greet v. Greet, 5 Beav. 123), and the fund becomes payable as soon as the person in whom it vests is qualified to give a discharge for it. (Josselyn v. Josselyn, 9 Sim. 63; Saunders v. Vautier, 4 Beav. 115; S. C. 1 Cr. & Ph. 240; and see Curtis v. Lukin, 5 Beav. 147, at pp. 155, 156.) When an executory limitation arises under the exer- g_p„£„i cise of a special power of appointment, the time from powers are which the period prescribed by the rule begins to run, witliin the is the date of the coming into operation of the original ^^ile. instrument creating the power, not that of the instru- ment by which the power is exercised. Therefore noth- ing can be done in exercise of the power, which might not have been done in the original instrument. (Chance on Powers, sects. 1230, 1387; Re Broivn and Sibly's Contract, 3 Ch. D. 156.) This rule does not apply to general powers, because in their nature they are incap- able of operating as a restraint upon alienation. And a special power is not void in its inception, merely by reason that its expressions are sufficiently wide to extend to a possible exercise of it which, if made, would be void for remoteness; but, in general, the validity of the exer- cise of the power will depend upon the question, whether the exercise does in fact exceed the limits prescribed by the rule against perpetuities; not upon the question, whether it might, under the terms of the power, have exceeded those limits; and if the attempt to exercise the power is primd facie in part good and in part bad, the appointment will be upheld, so far as it keeps within (969) Digitized by Microsoft® 144 ON ESTATES IN GENERAL. Powers of sale and exchange. Charitable uses. f*157] the limits of the rule. {Slark v. Dakyns, L. E. *10 Ch. 35. See also, Re Teague's Settlement, L. R. 10 Bq. 564; Re Cunynghame' s Settlement, L. E. 11 Eq. 324.) Doubts have sometimes been expressed, whether the common powers pf sale and exchange usually found in strict settlements might not be void, if appearing to be exerciseable indefinitely; and Fearne, and other emi- nent conveyancers, sometimes expressly restricted the exercise of such powers within the period of lives in being and twenty-one years afterwards. (2 Prest. Abst. 159.) Since the avowed object of the rule is to prevent whatever unduly restrains alienation, the objec- tion perhaps sounds oddly, that a power to effect alien- ation might be made void by the rule. It has been de- cided that unlimited collateral powers of sale, which, so far as they are exerciseable at a time later than the terms of the rule would permit, are subsequent to an estate tail, and are therefore liable to be defeated by a bar of the entail, are valid. {Waring v. Coventry, 1 My. & K. 249; Wallis v. Freestone, 10 Sim. 225.) The subject is now deprived of much of its importance, by the provisions of the Settled Land Act, 1882, by which the powers commonly given to trustees of strict settle- ments, have in a great measure been superseded in practice. It is certain that the common powers of sale and exchange have not, in general practice, been ex- pressly restricted, as to their exercise, within the limits of time imposed by the rule. This amounts to indis- putable proof, that such express restriction is not, at all events, necessarjf to give validity to an exercise of the power which in fact takes place within those limits. It is sometimes said, that gifts to charitable uses are exceptions from the rule against perpetuities. ( Yeap Cheah Neo v. Ong Cheng Neo, L. E. 6 P. C. 381, see p. 394. See also Thomson v. Shakespear, 1 De Gr. F. & J. 399, at p. 407.) But in this language there are plain traces of confusion between "a perpetuity," as used somewhat vaguely to denote some kind of per- petual ownership not sanctioned by the law, and " the time within which executory limitations must vest in interest." There is no reason to suppose that a gift made to charitable uses bjr way of executory limitation, if it be such as might by possibility not vest in interest [*158] within the specified time, is not void, *like any other executory limitation. The above- cited proposition seems only to mean, that gifts to charitable uses are (970) Digitized by Microsoft® EXECUTORY- LIMITATIONS. 145 valid, notwithstanding that the charitable use may ex- haust the whole fee simple or absolute interest in the thing given. Somewhat in a similar spirit it seems to have been said, or intended to be said, that a claim of user which would be bad simpUciter, may be made good by the fact that the hereditament, out of which the use arises, is law- fully vested in a corporation by way of mortmain. (Ooodman v. Mayor of Saltash, 1 App. Cas. 633, at p. 669.) Such points as these have nothing to do with the "rule against perpetuities," in the sense in which it is relevant to the present discussion. They are only noticed for the purpose of anticipating and preventing confusion. The rule against perpetuities was fixed by reference origin of the to what might by possibility happen as the result of rule in its legal limitations. At commoa law, there could be no existing remainder of inheritance except a remainder in fee simple; and such a remainder could subsist in expect- ancy only upon an estate for life or pur autre vie. After the statute De Denis, a remainder of inheritance became possible in the shape of a fee tail. The rules of the common law, which forbade any remainder to be given to the unborn issue of an unborn tenant for life, and which forbade the limitation of .an estate of inheritance to the heirs of An unborn person, were designed to in- troduce into legal limitations some restriction analo- gous to that applied by the rule against perpetuities to executory limitations. ( Vide supra, pp. 90 — 92. ) Under the legal rule, the strictest allowable settlement was effected by giving an estate for life to a person in esse, followed by remainders in tail to his unborn issue as purchasers. Under such a limitation it might possi- bly happen that the tenant for life would die, leaving an infant son. The tenant for life and the vested remain- derman or reversioner in fee simple could not (after the invention of trustees to preserve contingent remain- ders) make a good title during the existence of the re- mainder in fee tail to the unborn issue of the tenant for life; and after the birth of such issue, he, as tenant in tail, could not make, or concur in making, any alien- ation during his infancy. Thus, the fee simple of the property might be so settled as, by *possibility, [*159] to be incapable of alienation during a life in being and the infancy (which might amount to twenty- one years) of his issue. This accounts by analogy for the " life 10 (971) Digitized by Microsoft® 146 ON ESTATES IN GENERAL. in being and twenty-one years afterwards " of the rule against perpetuities. With regard to the further al- lowance, by the latter rule, of a period of gestation, both at the beginning and at the end of the time, this seems to be due to the strong disposition of equity to regard a, child en ventre sa inhre as being in esse for all purposes. But this was an extension beyond the ut- most limits of the time during which, under the strict rules of law, the property could by any possibility have been tied up against alienation; for it is the better opinion that, before the statute 10 & 11 "Will. 3, c. 16, if the tenant for life had died leaving a child en ventre sa mbre, a remainder in fee tail limited in favour of such child would have been destroyed. (Vide supra, p. 111.) Thus it will be seen that the doctrine of executory limi- tations, though restrained by the rule against perpetui- ties, reduces to a certainty what by the rules of law can happen only by chance. It permits a restraint on alienation to be imposed always, and as a matter of sure calculation, during the longest period that is possible, under the legal rules, by the happiest concurrence of all contributory accidents. The rule' Whether the rule against perpetuities applies (apart floes not from express statutory enactment) to legal limitations apply to the made by way of remainder, is one of those questions ]eeal"remain- '^^'icl' ought never to have arisen. It implies an an- ders. achronism which may be said to trench upon absurdity. The argument from history and principle against the affirmative doctrine may not intrinsically be stronger than the argument against the application of the rule to common law conditions. But if not intrinsically stronger, it is even more obvious. Legal limitations had flourished for four or five hundred years, and the rules applicable to them had, during that time, been dis- cussed with the greatest assiduity, before the rule against perpetuities had ever been heard of. Moreover, all the authorities concur in the tradition, that the rule against perpetuities was framed upon the analogy of the ascertained effect of the rules applicable to legal limitations by way of remainder. And, though the [*160] rule against *perpetuities was framed with reference to the possible effect of legal limitations, yet the rule itself, regarded as a proposition, is repugnant to the spirit of the rules applicable to legal limitations. And since estates have always been much more com- mon than estates upon condition, the absolute failure of the old common law authorities, down to and in- (972) Digitized by Microsoft® EXECUTORY LIMITATIONS. 147 eluding Lord Coke, to give any hint of any such doctrine, applies with increased significance to the present case. It is incredible, that if any such doctrine had existed, no hint of its existence would have emerged into the records of the law. And in this instance, the claims of reason are aided by some strong expressions of opinion. One of the greatest real property lawyers since Lord Coke has thus expressed his sentiments : — " As to the question of remoteness, at this time of Opinion of day, I was very much surprised to hear it pressed upon Sir Edward the court, because it is now perfectly settled, that where a Sugden. limitation is to take effect as a remainder, remoteness is out of the question ; for the given limitation is either a vested remainder, and then it matters not whether it ever vest in possession, because the previous estate may subsist for centuries or for all time; or it is a contin- gent remainder, and then, by the rule of law, unless the event upon which the contingency depends happen so that the remainder may vest eo instanti [that] the preceding limitation determines, it can never take effect at all. There was a great difficulty in the old law, because the rule as to perpetuity, which is a com- paratively modern rule (I mean of recent introduction, when speaking of the laws of this country), was not known; so that, while contingent remainders were the only species of executory estate then known, and uses and springing and shifting limitations were not invented, the law [in the current language of the lawyers] did speak of remoteness and mere possibilities as an objec- tion to a remainder, and endeavoured to avoid remote possibilities; but since the establishment of the rule as to perpetuities, this [kind of language in reference to legal limitations] has long ceased, and no question now ever arises with reference to remoteness; for if a limita- tion is to take effect as a springing, shifting, or second- ary use, not depending on an estate tail, and if it is so limited that it may go beyond a life or lives *in [*161] being, and twenty- one years, and a few months equal to gestation, then it is absolutely void; but if, on the other hand, it is a remainder, it must take effect, if at all, upon the determination of the preceding estate. In the latter case, the event [upon the happening of which the contingent remainder is to vest] may or may not happen before or at the instant [that] the preceding es- tate is determined, and the limitation will fail, or not, according to that event. It may thus be prevented from taking effect, but it can never lead to remoteness. (973) Digitized by Microsoft® 148 ON ESTATES IN GENERAL. That objection, therefore, cannot be sustained against the validity of a contingent remainder." (Sir Edward Sugden, in Cole v. Sewell, 4 Dr. & W. 1, at p. 28.) The judgment of Sir Edward Sugden in that case was after- wards affirmed in the House of Lords, when Lord Brougham very forcibly expressed the same view. (2 H. L. C. at pp. 230, 231. In truth, any objection against the validity of a con- tingent remainder grounded upon the rule against per petuities, is not so much an objection against the time of the vesting of the remainder, as an objection against the duration of the precedent estate. Contingent It is in accordance with the view above advocated, that remainders the statute 40 & 41 Vict. c. 33, which exempts subse- protected by quently-created contingent remainders in general from comnlv wlUi ^^^^^ liability, at common law, to be destroyed by the the rule. determination of the precedent estate pending the con- tingency, extends this exemption only to such contin- gent remainders as comply vrith the rule against perpe- tuities. {Vide supra, p. 112.) A solitary In Cattlin v. Brown, 11 Ha. 372, at p. 374, Sir Wil- dictum to the liam Page-Wood, V.-C, is reported to have said : — "I contrary. apprehend, however, that a contingent remainder can- not be limited as depending on the termination of a particular estate, whose determination will not neces- sarily take place within the period allowed by law" ; by which he appears to have meant, the period prescribed by law for the vesting of executory limitations. This observation seems strongly to support what was said [*162] above, that *objections of this kind are really objections against the duration of the precedent estate, not against the vesting of the remainder. The opinion seems to be a solitary obiter dictum and hardly suffi- cient to counterbalance the weight of previous authority; especially as it is manifestly repugnant to principle. The year 1853, as Sir George Jessel, M. R., observed (on another point) in Be Macleay, L. R. 20 Bq. 186, at p. 191, was rather a modern time at which to alter the law of real property. (974) Digitized by Microsoft® EXECUTORY LIMITATIONS. 149 Restrictions upon Trusts, or Directions, for Accumula- tion of Income. {The Thellusson Act, 39 & 40 Geo. 3, c. 98. ) No distinction was drawn by the rule against perpe- jj^^ ^^^ ^_ tuities, between the right to suspend the vesting of an cumulation estate or interest, and the right to dispose of the inter- is allowed, mediate income before its vesting; and therefore, in- indepen- dependently of statute, the law permitted a settlor to j^^ ^ ° "^ direct accumulation to be made during the whole of the period for which he was permitted to suspend the vest- ing of an executory interest. Taking advantage of this rule, Mr. Thellusson fixed on the lives of all his sons ^elluason. and grandsons born in his lifetime or living at his death, including any then en ventre sa mhre, — for such seems to be the construction of his will, — as the period 'dur- ing which his property (amounting, it is said, to 5,000Z.) per annum in land, with personal estate to the value of 600,0002. ) should accumulate for the benefit of those branches of the respective families of his sons, who, at the end of that period, should answer to the descrip- tion of the heirs male of the respective bodies of those sons; thus dividing the property into three parts, and giving one third part to the family of each son. It was calculated at the time that the accumulation would probably endure for about seventy or eighty years; and this period might possibly have been further prolonged by the infancy of the persons in whom, under the limitations, the property would ultimately vest. Ac- cording to the common mode of calculating the rate of increase, property would be miultiplied more than a *hundredfold in the course of a century of un- [*163] intermitted accumulation. This rate would give, in the present instance, a sum approaching to one hundred millions as the amount finally to be divided. It will indeed be observed that Mr. Thellnsson's directions kept well within what is the acknowledged limit in- dependently of statute; for he might, without infring- ing upon the rule against perpetuities, have substituted, for the contingent addition arising from possible in- fancy, a further fixed period of twenty-one years. Mr. Thellusson succeeded in his object, and his will was established by a decree of Lord Loughborough, Thellusson v. Woodford, 4 Ves. 227, afterwards affirmed ^o^™^**' in Dom. Proc. 11 Ves. 112. In consequence of this restricted by decision, the statute 39 & 40 Geo. 3, c. 98, commonly statute. (975) Digitized by Microsoft® 150 ON ESTATES IN GENERAL. called the Thellusson Act, was passed to prevent such abuses of the letter of the law for the future. This Act does not at all affect the rule against perpetuities, but deals only with the period during which an accu- mulation of the income may be directed in a settlement. This period which, independently of statute, is the whole period during which the vesting of the corpus out of which the income is to arise may be suspended, must now by virtue of the Act, with certain exceptions to be presently noticed, be confined within some one of the following limits: — (1.) During the life or lives of the settlor or settlors; (2. ) During the term of twenty-one years from the death of the settlor; (3. ) During the minority, or respective minorities, of any person or persons living, or en ventre sa mire, at the time of the settlor's death; or (4.) During the minority, or respective minorities, of any person or persons who under the settle- ment would, for the time being, if of full age, be entitled to the income directed to be accumu- lated. The Act applies equally to settlements of real and of personal property. The settlor may adopt any one, or more, of these [*16l] periods. *The distinction between the third and the fourth is, that in the fourth case, the minors, during whose lives accumulation is permitted, may be persons neither born, nor respectively en ventre as m^re, at the time of the settlor's death. But this lati- tude of selection is compensated by the condition, that in the fourth case the minors must be prospectively en- titled to the income. If an interval is directed between the testator's death and the commencement of the accumulations, this will iiot enable the process of accumulation to be con- tinued after twenty- one yearb have elapsed from the testator's death. ( Webb v. Webb, 2 Beav. 493.) How far ■'•* i^ '^^^ settled that any provisioQ which exceeds trusts for ac- these limits, without transcending the limits allowed cumulation previously to the Act, is not void in toto, but is good are void for ^^j. g^jij ^ period of accumulation as might lawfully have been directed, being void only for the residue. (Griffiths v. Vere, 9 Ves. 127; Longdon v. Simson, 12 Ves. 295; Haley v. Bannister, 4 Madd. 275.) (976) Digitized by Microsoft® excess. EXECUTORY LIMITATIONS. 151 But if the period prescribed for accumulation should exceed the limits allowed previously to the Act, that is, should extend beyond the time prescribed for the vest- ing of executory interests by the rule against perpetui- ties, the direction for accumulation v?ill be void in toto. {Lord Southampton v. Marquis of Hertford, 2 Ves. & B. 54; and see Leake v. Robinson, 2 Mer. 363, at p. 389; Marshall v. Holloway, 2 Swanst. 432.) With regard to such part of the accumulations, What directed to be made by vrill, as may be void under the 'becomes of Act, there is an intestacy, 'unless the property from surplus ac- which the accumulations arise is absolutely vested, subject only to the direction for accumulation. {Weath- erall v. Thornburgh, 8 Ch. D. 261.) So far as such surplus accumulations are derived from real property, they will go to the heir, and, so far as from personal property, to the next of kin. In the case of a settle- ment made by deed, there will, upon the same principle, be a resulting trust of all such void accumulations to the settlor. If there is a residuary bequest of the per- sonal estate, the surplus accumulations will fall into this residue. (Haley v. Bannister, 4 Madd. 275; O'Niell V. Lucas, *2 Keen, 313; Attorney -Gen- [*165] eral v. Poulden, 3 Ha. 555; Jones v. Maggs, 9 Ha. 605.) If the residue is settled by way of succession, the sur- plus accumulations form part of the corpus. (Crawley V. Crawley, 7 Sim. 427. ) If there is a residuary devise, the sui'plus accumulations of residue, in the absence of evidence of a contrary intention in the will, go to the residuary devisee, by virtue of the Wills Act, 7 Will. 4 & 1 Vict. c. 26, s. 25. The excepted cases, to which the Act's restrictions Exceptions do not extend, are as follows : — from the Act's re- (1.) The Act does not extend to any provision for payment of debts, whether of the settlor or of gxception. any other person. (Sect. 2.) (2.) The Act does not extend to any provision for second raising portions for any children of the settlor, exception. or for any children of any person taking any interest under the settlement. (Sect. 2. See on this subject, Morgan v. Morgan, 4 De G. & Sm. 164, at pp. 171—174.) If this second exception should be construed literally, (977) Digitized by Microsoft® 152 ON ESTATES IN GENERAL. Third exception. Ireland and Scotland. it would seem to open a tolerably -wide door to evasion. The following suggestion has been made upon this point: — "It is conceived that the word interest, as used in the second of the above exceptions, refers to a free- hold interest, or at least to a long term for years, in the property, the income of which is directed to be ac- cumulated, or to an interest in the funds accumulated, considered as a certain corpus, analogous to a corporeal hereditament; and that it does not refer to a mere right to something issuing out of or collateral to such property or accumulated funds. Indeed, if it were otheiTvise, the exception would open so wide a door to provisions for accumulation, as virtually to repeal the Act." (Smith on Executory Interests, p. 422.) But this suggestion seems to savour rather of reconstruc- tion than of interpretation. There is nothing (as the learned author in eifect admits) to suggest a freehold interest rather than a term of years; and there is noth- ing in the Act's language to suggest a long term of years rather than a short one. [*166] *(3. ) The Act does not extend to any direction touching the produce of timber or wood upon any lands or hereditaments. (Sect. 2.) The Thellusson Act, having been passed before the union of the British and Irish legislatures, does not extend to Ireland; and by sect. 3, its application to heritable property in Scotland was expressly prevented. But now, by 11 & 12 Vict. c. 36, s. 41, its provisions are extended to heritable property in Scotland. Eng- lish leaseholds, and of course, d, fortiori, English free- holds, are bound by the Act, irrespectively of the tes- tator's domicil. {Freke v. Lord Garbery, L. R. 16 Eq. 461.) (978) Digitized by Microsoft® (153) Part III THE NATURE AND QUANTUM OF ESTATES. *OHAPTEE XV. [*167] OF A FEE SIMPLE In the language of the English law, the word fee sig- nifies an estate of inheritance as distinguished from a fess estate ; (g) not, as in the language of the feudists, a subject of tenure as distinguished from an allodium. Allodium being wholly unknown to English law, the latter distinction would in fact have no meaning. A fee simple is the most extensive in quantum,, and its quantum the most absolute inrespect to the rights which it confers, and inci- of all estates known to the law. It confers, and since the y. 290 a.) determinable 25. William, Earl of Bath, in 6 Jac. levies a fine with ^^®^' proclamations, and " declares the uses of this fine to William, Earl of Bath, and to his heirs, until he otherwise should or did dispose of the same." (Earl of Bath's Case, Carter, 96. See also Clere's Case, 6 Rep. 17.) If this limitation had occurred in an assurance made at the com- mon law instead of under the Statute of Uses, it is conceived that the addition of the words in italics would have had no more effect than the common, but superfluous and nugatory, addition of the words, and assigns, to a limitation in fee simple. 26. "One devised land in London to the prior and con- vent of B. ita quod reddant annuatim decano et capitulo Sancti Pauli 14 marks ; and if they fail of payment, that their estate *shall cease, [*206] and that the said dean and chapter and their successors shall have it." (1 Eq. Ca. Ab. 186, pi. 3. ) The gift over was held to be void, on the ground that the first devise carried a fee and left nothing to be disposed of; and the above- cited account remarks, that executory devises had not yet been recognized by the Courts. But even if executory devises had then been recog- nized, this gift over seems clearly to be void for remoteness. When the future event which if it should happen The distlno- will determine the estate, is an act to be done by the ^^°° between grantee, or depends upon the will of the grantee, as his 11^1(^1™= ^ marriage, the doing of the act under such circumstances and limita- bears a close resemblance to the breach of a condition tions upon that the grantee shall not do the act. These cases of condition, determinable limitation are therefore liable to be con- fused with limitations upon or subject to a condition, giving a right of entry upon a breach by the grantee; from which they nevertheless difPer very widely. (1) In the limitation of a determinable fee, the doing by the grantee of the act which is to determine the estate, is made a part of the limitation itself, and the doing of the act will ipso facto determine the estate without any entry or claim on the part of the person entitled to the possibility of reverter. (Plowd. 242.) But where an estate is limited in fee simple, and the limitation con- (1015) Digitized by Microsoft® 190 THE NATURE AND QUANTUM OF ESTATES. determinable limitations and limita- tions upon condition. The distiuc- tains no qualification, biit, externally to the limitation, tion between though in the same deed, or in another deed delivered at the same time, is contained a? condition by a breach of which the fee simple is liable to be defeated : a breach does not ipso facto avoid the estate, but only makes it liable to be avoided by the entry of the person entitled to the possibility of reverter. No estate of freehold can be made to cease, without entry, upon the breach of a condition. (Co. Litt. 214 b.) (2) Condi- tions which are annexed to or are in defeasance of a fee simple, are subject to the common law, and are gov- erned by the learning of common law conditions; be- cause the statutes by which the common law learning applicable to conditions annexed to estates has been modified, are restricted to conditions annexed to estates [*207] which are less than a fee. (See *32 Hen. 8, c. 34, s. 1; 22 & 23 Vict. c. 35, s. 3; the Conveyancing Act of 1881, ss. 10, 12.) The rule against perpetuities forms no part of the common law; and the opinion which has been held by some text writers, that such conditions are within the rule, does not seem to be well founded. (Vide supra, p. 152.) A modern In Re Machu, 21 Ch. D. 838, the question seems to doubt. have been thought not entirely free from doubt, whether a determinable fee could be limited to A. and his heirs until A. shall be declared a bankrupt. The learned judge expressly declined to give an opinion upon the question ; and at p. 843, he seems not to have distin guished the particular question of this particular limitation, from the general question "whether an es- tate in fee simple can be subject to a conditional limita- tion, or not;" by which he seems to have meant, whether the limitation of a determinable fee is valid. He did not advert to the circumstance, that in all strict settle / ments of real estate the validity of such limitations is assumed. The authorities above cited seem to be sufS cient to remove all doubt as to their validity.. The limitation in Re Machu, upon which the discus- sion arose, was held to be a limitation subject to a con ■ dition, and not a conditional (or determinable) limita- tion; and the condition, being in absolute restraint of the alienation of a fee simple, was held to be void, as being repugnant to the nature of the estate. determinable ^^^ modified fees confer upon the tenant the same fees. absolute right of user, and to commit unrestrained and (1016) Digitized by Microsoft® DETERMINABLE FEES. 191 unlimited waste, as a fee simple. They do not neces- Alienation of sarily confer the same right of alienation and devise, determinable The power of the tenant of a determinable fee to *'^*^- alienate or devise cannot, properly speaking, be said to be in any way restricted; but his alienation will not create a greater estate than he himself has. He may aliene at pleasure, and the assign or devisee takes a like estate of inheritance, determinable upon the happening of the event which would have determined it in the hands of the donee or his heirs. *There seems to be nothing in the Settled [*208] Land Act, 1882, to modify in any way the right of alienation incident at common law to the estate of the tenant of a determinable fee. It is not improbable that, in sect. 58, sub-s. (1), (vi), of that Act, the words "conditional limitation" mean a determinable limitation at common law, such as has formed the sub- ject of this chapter; but those words are there ex- pressly confined to determinable limitations of estates for life, estates pur autre vie, and terms of years " de- terminable on life." (1017^ Digitized by Microsoft® (193) [*209] *CHAPTEE XVIII. CONDITIONAL FEES. tion. The law relating to conditional fees whicli can now subsist only in hereditaments other than tenements, and (by analogy) in copyholds of manors in which there is no custom' of entail, is a very obscure subject of re- search. The most eminent authorities are sometimes at variance, and the living tradition of modern practice is almost entirely wanting. But of the questions which have been raised some, even before the statute De Bonis, were probably matters of more curiosity than practical importance ; and others rather illustrate the difficulty of reconciling the rules governing these estates with general principles, than throw any doubt upon the rules themselves. Definition, A conditional fee may be defined in limine as a and mode of species of estate limited upon or subject to (that is, de- their limita- feasible upon breach of, or to be confirmed, or enlarged, upon performance of) a condition; the nature of the estate, and the nature of the condition, being reserved for subsequent remark. But this definition is subject to the observation, that the rules governing these fees rest upon a special basis of their own, and are not in accordance with the general law applicable to estates upon condition. The conditions admissible for the purpose of creat- ing a conditional fee are restricted to a single type, which always takes the form of a limitation expressed to be to the heirs of the body of the donee or donees, either generally, or to a special class of such heirs. The word heirs limits a fee, or estate of inheritance ; while the imposed restriction prevents the fee from being a fee simple in the proper sense of the term. The different forms assumed by this kind of limitation, which require to be noticed as illustrating the law of entail, are as follows : — (1) To the heirs of the body; (2) To the heirs male of the body ; (3) To the heirs female of the body ; [*210] *( 4 ) To the heirs of the body of the donee by a particular wife (or husband) : the person desig- (1018) Digitized by Microsoft® CONDITIONAL FEES. 193 nated as wife (or husband) not necessarily being married to the donee at the time of the gift, but being by possibility capable of such marriage ; (5) To the heirs male of the body of the donee by a particular wife (or husband) ; (6) To the heirs female of the body of the donee by a partic- ular wife (or husband) ; (7) To the heirs of the bodies o/fwo persons lawfully married, or by possibility capable of lawful mar- riage, the two persons being both named as donees in the gift ; (8) To the heirs male of the bodies of two such persons as aforesaid ; and (9) To the heirs female of the bodies of two such persons as aforesaid. The phrase heir male imports not only that the heir Nature of must be a male, but also that he must be able to de- ^^"'^ special. duce his descent solely through males. And similarly of heir female. (Litt. sect. 24, and Lord Coke's com- ment.) Any similar restriction to a single sex, if attempted, '^^^ special in a deed or on a feoffment, to be imposed upon the j|gjj! S"the heirs, as by limitation to the heirs male, is void, and the body, grantee takes a fee simple. (Litt. sect. 31.) The law arrives at this construction, by rejecting the word male, upon the principle, ut res magis valeat quam pereat. (Co. Litt: 27 a, b.) And upon the same principle, if gavelkind lands be limited to A. and'his eldest heirs, or if common law lands be limited, in a deed or on a feoffment, to A. and the eldest heirs female of his body, the word eldest will be rejected, to give effect to the limitation. But in a will, a limitation to A. and his heirs male will create an estate in tail male : the words, "of his body," being supplied by construction of law. (Co. Litt. 27 a ; Baker v. Wall, 1 Ld. Raym. 185.) This is there- fore no exception to the rule, that restrictions in point of sex cannot be imposed upon heirs general. The restricted nature of this limitation was, at a In what sense period so early as to be almost beyond the reach of |:?^ limita- history, construed by the courts as being in the nature ditional. of a condition ; and the limitation as being therefore in thenatureof a limitation upon condition. *And [*211] they seem to have regarded the condition as to some extent uniting in itself contradictory characteristics : being partly in the nature of a condition which by its performance would confirm, or enlarge, the estate, and 13 (1019) Digitized by Microsoft® 194 THE NATURE AND QUANTUM OF ESTATES. The descent of a condi- tional fee. partly in the nature of a condition always remaining liable, by a breach, to defeat the estate. For — (1°) As soon as an heir of the ijreacribed class was born (post prolem suscitatam) this was held to be for some purposes a performance of the condition, so as for some purposes to enlarge the conditional fee into a fee simple; namely, so far as to enable the donee (1) to aliene the lands for an estate of fee simple absolute; (2) to forfeit, including under that word escheat by attainder of felony besides forfeiture for treason; (3) to charge with incumbrances which were as indefeasible as if created by a tenant in fee simple. (Co. Litt. 19 a.) And (4), in the case of a gift either to a donee and his or her issue by a particular wife or husband, or to two donees and their joint issue, birth of the prescribed issue had the efFect of enlarging the possible course of descent, so as to make it include issue of the donee, or of the survivor of two donees, by another wife or hus- band; as will presently be explained more at large. If the donee of the conditional fee aliened before such issue born, his alienation would bar his own issue, if born afterwards, giving the assign an estate which endured so long as such issue should exist; but such alienation would not bar the donor of his possibility of reverter on failure of such issue. (Go. Litt. 19 a.) But this fulfilment of the condition, by having issue of the prescribed class, waS not an absolute fulfilment once and for all: the estate was not thereby converted into a fee simple for all purposes, and the condition for some purposes still remained on foot; for — (2°) If the donee, afterbirth of the prescribed issue, did not aliene, but suffered the estate to descend, it followed the prescribed course of descent, and none but heirs of the prescribed class could take; but these could take to the exclusion of the heir general, in case he (or she) happened not to be of the prescribed class. (Co. [*212] Litt. 19 a; and Harg. n. 4 thereon.) *That is to say, the special heir per forman doni is not neces- sarily identical with the heir general. This proposi- tion involves an anomaly, seeing that by this means the course of descent by common law could be diverted into a different channel. For example, if a man should die leaving two sons ; and afterwards the elder son should die leaving only a daughter, in this case the daughter is the heir general of the first mentioned person ; but the heir male is the younger son, or (after his death) his male issue; and under a limitation to the first men- (1020) Digitized by Microsoft® CONDITIONAL FEES. 195 tioned person and the heirs male of his body, the younger son and his male issue would inherit, to the exclusion of the heir general. Similarly, if a man should die leaving a son and daughter, the son, whether elder or younger than the daughter, is the heir general; but, under a limitation to the first mentioned person and the heirs female of his body, the daughter, whether elder or younger than the son, would inherit; in this case also to the exclusion of the heir general. This doctrine of descent probably admits of no dis- pute in regard to conditional fees; and it undoubtedly admits of no dispute so far as fees tail are concerned. ( Li tt. 'sects. 21—25.) The heir (of the prescribed class) coming in by de- scent, had, whether he had issue or not, exactly the same power or capacity to alienate, forfeit, and charge, as the original donee had after birth of the prescribed issue. If the succession of the special heirs came to an end without any alienation having been made, the donor's possibility of reverter became an interest in possession. As has been briefly mentioned, a conditional fee lim- The possible ited to the heirs (wkether general or special) of the course of body of a donee by a particular wife or husband, or to ^i^ier for a the heirs of the bodies of two persons lawfully married, conclitional or capable of lawful marriage, had a remarkable char lee than for a acteristic, particularly referred to in the preamble to ^^^ *^^^' the statute De Bonis by which conditional fees were converted into fees tail; namely, that, after issue of the prescribed kind had been born, the estate might, in de- fault of such issue, descend to the issue of the donee, or of the survivor of the two donees, by another wife, or husband, as the case might require. That is *to say, the birth of issue of the prescribed [*213] class would practically convert what might be styled a gift in special tail at common laiv into a gift in general tail at common law. This proposition is deduced by Lord Coke as a conclusion from the doctrine, ( 1 ) that, the survivor being the wife, her second husband, after birth of issue by her, should be tenant by the curtesy (2 Inst. 336; the 4th resolution in Paine' s Case, 8 Rep. 34, at p. 35 b); and (2) that, the survivor being the husband, his second wife should have dower. {Ibid. at p. 36 a. ) According to Lord Hale, this peculiar characteristic did not apply to conditional fees created by gift in frankmarriage. (Co. Litt. 19 a, n. 3.) By the statute De Bonis, conditional fees were deprived of (1021) Digitized by Microsoft® 196 THE NATURE AND QUANTUM OF ESTATES. this peculiar quality; and the descent of such condi- tional fees, which were transmuted by the statute into what are now styled estates in special tail, was thence- forth restricted solely to the issue of the donee or do- nees. Certain fees With conditional fees as above defined and discussed, limited upon Preston has also classed limitations made to a man and classed by ^^^ heirs generally, if he shall have heirs of his body. Preston with ( 2 Prest. Est. 292. ) In a series of eight elaborately- conditional constructed propositions, in which he defines and sums ^^' up the principal characteristics of conditional fees, he carefully provides for the -inclusion of limitations of this type. {Ibid. 320, 321.) This usage is not peculiar to Preston; for distinct traces of itmay be foundin Lord Coke and other authors. He is however, more systematic and elaborate in his adoption of it, and in his treatment of conditional fees as being only one class of fees limited upon con- dition. But he expressly lays it down, that conditional fees of this latter type " are governed by the general rules of law, as distinguished from the law applicable to conditional fees properly so denominated." ( 2 Prest. Est. 292.) From this passage it appears, both that these limitations are more properly styled limitations subject to a condition, and are, in fact, governed by the common- law learning applicable to estates upon condi- tion, and also that Preston fully admitted the difPerence between them and conditional fees properly so called. The condition, annexed to this kind of limitation, is an [*214] express *condition properly so called; and (un- like the quasi condition supposed to be implied in the limitation of a conditional fee proper) it is fulfilled, once for all, and to all intents and purposes, by birth of the prescribed issue, whereby the estate becomes ipso facto a fee simple absolute. Since these limitations differ so widely from condi- " tional fees properly so called, it does not seem to be ex- pedient to class them together. It is superfluous to say that these limitations do not occur in practice. (1022) Digitized by Microsoft® (197) *CHAPTBE XIX. [*215] QUALIFIED FEES SIMPLE. There remains another kind of limitation allowed by the common law, in the nature of an express modifica- tion of a fee simple, and giving rise to an estate of in- heritance, which, since, in the opinion of Preston, it is undoubtedly valid, requires to be mentioned ; and tile recent case of Blake v. Hynes, which is discussed at the end of this chapter, shows that its possible occurrence in practice is a matter which needs to be considered by the conveyancer. It may conveniently be styled a qualified fee simple. It clearly appears from Litt. sect. 354, as explained Their nature by Lord Coke's comment, that, by the common law, a ^.'^'1. "^o*^^ °^ fee may be expressly limited to a man and the heirs of "^ * *°°" any ancestor, in the paternal line, whose heir he is. Littleton declares that a limitation must be made in this form by a feoilee who is seised in fee simple subject to a condition to re-infeoif "many men " — Plusors homes — jointly m fee simple, in case all of them should die before any feoffment has been made pursuant to the condition. Under such circumstances he lays it down, that the feoffment should be made to the heir of the last survivor, habendum to him and the heirs of the aforesaid survivor. The simplest example of this kind of limitation would occur if the heir of the last survivor should be his son; in which case, by following Littleton's direc- tions, we should arrive at a limitation to a man and his heirs ex parte paternQ, so as to exclude altogether from the succession the heirs ex parte paternO, ; who, if he had taken a fee simple absolute, since he would have taken it by purchase and not by descent, would have been entitled to succeed on a failure of the heirs ex parte paterna. The fact that, by the common law, a seisin in fee simple, which had been acquired by descent from a father who had *eome to the estate by way of [*216] purchase, excluded the heirs of the son ex parte m,atern(i, supplies the motive which induced Littleton to prescribe the adoption of this limitation under the (1023) Digitized by Microsoft® 198 THE NATURE AND QUANTUM OF ESTATES. above mentioned circumstances. To state the case more generally, a seisin in fee simple acquired by descent from any ancestor who had come to the estate by purchase, excluded all heirs of the descendant who were not of the blood of the ancestor. The change of the law of descent effected by the Descent Act, 3 & 4 Will. 4, c. 106, s. 2, does not seem to have made any difference, so far as regards the method prescribed by Littleton for attaining the object which he had in view. Under the same circumstances as those supposed by him, it would still be necessary to make tho same limitation in order to fulfil the condition which he supposes to have been imposed. The substitution by the Descent Act of the last purchaser as a root of descent, in the place of the person who last had seisin in deed of the lands, confines the inheritable blood to the blood of the last purchaser quite as strictly as the rule of the common law. And though the latter enactment, 22 & 23 Yi3t. c. 35, s. 19, has now introduced a possibility that, under peculiar circumstances, persons might inherit who are not of the blood, this contingency contains nothing to affect Littleton's directions. If that contingency should happen, its effect will be precisely the same in what ever way the limitation is made. There seems to be no sufficient reason to suppose that the Descent Act has in any way affected the va lidity of these limitations at common law. And it will presently be shown, by what are conceived to be irre- fragable arguments, that this statute has expressly pro- vided a new method of limitation, by which precisely such a fee as that described by Littleton can at this day be limited ; so that, if the statute has, in this respect, any effect at all, its effects are, at all events, restricted to prescribing a new method of limitation, without affecting the validity of the estate. The course of Here the course of descent does not differ, so long the descent, as the estate endures, from the course of descent which would have been taken by a fee simple absolute, upon the hypothesis that it had actually descended from [*217] the specified ancestor; but in a *certain sense (o) it may be said that the quantum of the estate differs. (o) In the sense, at all events, in which an estate pur autre vie is said to be less in quantum than the estate of a tenant for his own life. But Preston thought that the distinction in quantum was of a much more serious nature. For some remarks upon his doctrine, see p. 223, m/ra. (1024) Digitized by Microsoft® QUALIFIED FEES SIMPLE. 199 the descent being restricted to one class only of the heirs, and the estate determining with the exhaustion of this class. Here the word class is used to denote those heirs of the descendant who are also among the heirs of the specified ancestor. Where the descendant is the son, such heirs are frequently classed together as the heirs ex parte paternA ;hut in the case of more re- mote descendants, such classes of ancestors less often require to be mentioned, and have not acquired special names. It will appear, however, from some subsequent remarks, that this language about restriction of the descent to a class of heirs, is somewhat confusing and misleading. The simplest point of view is to regard one person as being substituted for another as the root of descent. When we say that the descent is restricted to the heirs ex parte paternA, we only mean that the de- scent is to be traced from the father, subject to the hypothesis that he has had at least one son. Preston has treated limitations of this kind with con- siderable detail in the first volume of his Treatise on Estates, pp. 449 — 475. He makes it quite plain that he intended to mark off this estate into a separate class, not merely to classify it among the other fees usually collected under the terms qualified fee, or qualified or base fee; which terms, as above mentioned, are commonly used to include all fees, except fees simple (absolute) and conditional fees. He remarks, that a passage of Blackstone, 2 Bl. Com. 222, may seem to throw doubt upon the existence of this species of estate; but ex- presses the opinion, "That the authority of Littleton, and of Lord Coke, establish in the most decisive man- ner the certainty of its existence." (1 Prest. Est. 469.) The present writer formerly entertained some suspicion that this peculiar estate owes its existence to Littleton's ' ingenuity in suggesting a hypothetical case. But the case of Blake v. Hynes rather suggests the conclusion, that Littleton's observations may have arisen from the tradition of an ingenious device actually *used [*218] to extricate a client from an awkward position, which would at first sight seem to leave open no course by which he could precisely fulfil the condition imposed upon him. From Lord Coke's language it is clear that Littleton's meaning needed interpretation, and had in fact been misunderstood. This shows that the device in question could not have been common. (1025) Digitized by Microsoft® 200 THE NATURE AND QUANTUM OF ESTATES other fees. Distin- The rare occurrence of this species of estate, if it ever guished from has actually occurred, has prevented it from receiving „4-T,„- i'„.„ mucii notice. The present writer is not aware of any authorities other than those above cited, (p) who have made it the subject of express discussion ; and this re- mark is meant to be exclusive of Blackstone, as will presently be shown mere at large. Though it has no great practical importance,' the mode of its limitation is too remarkable to be passed over in silence; and it requires to be separately classed. It differs in a marked manner from a determinable fee, (q) since it is limited by restriction to a particular class of the heirs, and not by reference to the happening of a future event. It still more evidently differs from a conditional fee, be cause, so long as it endures, the powers of the tenant are neither enlarged nor abridged by anything in the nature of the performance of a condition. It is mani- festly quite distinct from a fee tail, because (among other reasons) the issue had never any claim against the alienation, by whatever assurance it might be ef- fected, of the ancestor; whereas even at the present day, not all assurances of the ancestor will bar the issue in tail. And it differs from a base fee, as defined in these pages, too obviously for the difference to re- quire particular mention. [*219] *The passage of Blackstone above referred to, as seeming to throw any doubt upon the validity of qualified fees simple, is in reality foreign to the pur- pose. Blackstone is endeavoring to account, upon principles of archaic feudalism, for the rule of the Supposed objection derived from Blockstone. (p) Preston cites Fleta, lib. 3, c. 3, as giving a definition of these fees. (1 Prest. Est. 449, note g.) There is, however, noth- ing about them in that chapter ; — a fact which will surprise no one who is familiar with the inaccuracy of the references in Pres- ton's works. Those deeply-learned treatises seem to have been issued from the press uncared for except by the printer's devil. There is probably something about these qualified fees somewhere in Fleta; but the present writer, in the course of a somewhat cursory inspection of what seemed to be the most probable places, has not been able to find any reference to them. An exhaus- tive search would hardly have repaid the trouble. Fleta's defini- tion, in Preston's version of it, is couched in wide and somewhat vague terms; and it appears to go beyond what is laid down by Littleton and Lord Coke. In so far as Fleta concurs rith Little- ton and Lord Coke, his authority seems to be superflous ; in so far as he goes beyond them, he does not seem to be entitled to ex- traordinary veneration. (5) Preston, though he thought that, for purposes of aliena- tion, this kind of fee has the quality of a determinable fee, nevertheless recognizes a material difference between them. (1 Prest. Est. 468.) (1026) Digitized by Microsoft® QUALIFIED FEES SlilPLE. 201 common law, that though heirship under a fee simple was deduced from the person last seised, and though heirship, in respect to a fee simple, included collateral heirship, yet no one might inherit who was not of the blood of the original purchaser. It is evident that under certain circumstances,' this rule might restrict what would have otherwise been the descent, if the rule had merely prescribed that descent should be traced from the person last seised. If a man had acquired a fee simple by purchase, and this had descended upon his son as heir-at-law, and the son had subsequently died intestate, leaving no (known) heir ex parte paternd, then the lands would escheat to the lord sooner than, pass to the heirs ea; parte maternd. (Litt. sect. 4.) These last- mentioned heirs are among the heirs of the person last seised, but they do not fulfil the other prescribed condition, that they must be of the blood of the first pur- chaser. Blackstone remarks that this feature of the law of descent was entirely unknown to the Jews, Greeks and Romans, and that it is almost (he might probably have omitted this last word with perfect safety) peculiar to our own laws and those of a similar origi- nal. (2 Bl. Com. 220.) In endeavoring to account for the above-mentioned rule, Blackstone begins by considering the question of the admission of collateral heirs. He adduces much learning of a highly questionable character; andhis doc- trine is not perfectly intelligible and consistent with itself. He lays it down that, when feuds first began to be heredit- ary (and it is difficult to- guess within several centuries what epoch is here referred to) no one could inherit ex- cept the issue of the purchaser; but that, at some subse- quent period, "in process of time, when the feudal rigour was in part abated," it became the custom, in the grant of a fued which was in fact feudum novum (by which Blackstone means, a feud acquired by piir- chase) to express that it should be held ut feudum anti- quum,\h.a,i is to say (as Blackstone understands the phrase) with all the qualities which it would have had, if it had in fact descended from the grantee's ancestors. *He supposes that by this device the collateral [*220] heirs, of any degree of remoteness, acquired their right of succession; because, even under the strictest rigours of feudum novum, after a descent once cast, some collateral heirs of the person last seised were let into the succes- sion; and the longer the descent was continued, the more extensive was the admission of the collateral heirs; so that, if by a feigned supposition it was im- (1027) Digitized by Microsoft® 202 THE NATURE AND QUANTUM OF ESTATES. ported into the original grant to the purchaser, that he should take upon the same terms as if the fued had in fact descended upon him from his ancestors indefinitely, without specifying any one in particular, collateral an- cestors of any degree of remoteness might be brought into the succession. Blackstone sums this up as follows — " Of this na- ture are all the grants of fee-simple estates of this kingdom; for there is now in the law of England no such thing as a grant of a feudum novum, to be held ut novum unless in the case of a fee-tail, and there we see that this rule is strictly observed, and none but the lineal descendants of the first donee (or purchaser) are admitted; but every grant of lands in fee-simple is with us a feudum novum to be held ut antiquum, as a fued whose antiquity is indefinite: and therefore the collat- eral kindred of the grantee, or descendants from any of his lineal ancestors, by whom the lands might possibly have been purchaser, are capable of being called to the inheritance." (2 Bl. Com. 222.) There is no need to pursue the further refinements by which the learned author, having accounted after a fashion for the admission of collaterals, proceeds to give some semblance of a reason for the exclusion of all who are not of the blood of the first purchaser. These speculations, though their ingenuity may amuse, would scarcely at the present day be gravely proposed as resting upon a historical basis. And it is evident, that Blackstone had not in his eye any such limitation as is now being considered, and that his remarks, whether well or ill-grounded, contain nothing which is opposed to its validity. The question is not, to adopt Blaokstone's phraseology, whether a fee can now (inde- pendently of the statute De Bonis) be limited ut feudum novum but whether, granting that every fee must be limited ut feudum antiquum, the precise degree of the an- tiquity may lawfully be specified. Blackstone's conten- [*221] tion, that where no *precise degree is specified, the degree is, for certain purposes, taken to be indefi- nite, would not prove that the degree may not, for cer- tain purposes, and in a certain sense, be precisely de- fined. But the strongest objection against founding any argument against the validity of qualified fees simple upon these remarks, is to be found in the nature of the remarks themselves. Whether it was judicious in a lawyer, when writing a treatise for purposes of practice, to enter upon vague specalation's (for which no sufficient (1028) Digitized by Microsoft® QUALIFIED FEES SIMPLE. ' 203 materials at that time existed) into the primeval origin of the laws, instead of confining his attention to matters less remote, may be an open question. But there can hardly be any question, that it would be absurd to treat these loose and obscure generalisations, chiefly relating to foreign feudal notions, as indicating the ex- istence of any settled opinion in Blackstone's mind, upon a minute and highly technical point of English real property law. There is nothing to show that Blackstone ever at any time directly entertained in his mind the question of the validity of these limitations. But there seems to be, in the above- cited remarks themselves, abundant evidence that when he was writ- ing them nothing was further from his thoughts than the validity of qualified fees simple. The question is not whether Blackstone has individually pronounced against their validity, about which he was manifestly not. thinking at all', but whether his fanciful perquisi- tions into feudal antiquities, if they seem to make against the validity of qualified fees simple, can ration- ally be regarded as having any weight for such a pur- pose. This question seems to answer itself. A more serious objection against the validity of these Second objec- limitations is perhaps to be found in the following pas- tion; derived sage of Lord Coke: — "If a man giveth lands to a man, Jl5'°™ ^°^^ to have and to hold to him and his heires on the part of his mother, yet the heires of the part of the father shall inherit, for no man can institute a new kind of inheritance not allowed by the law, and the words (of the part of his mother) are voide." (Co. Lift. 13 a.) This language seems to import that if, in a case re- sembling that above supposed by Littlt^ton, the persons to whom the *re-feofiPment must be made should [*222] include a woman, who should happen to be the last survivor and to die leaving a son, then the feoffment could not be made in the prescribed form ; since that would imply a limitation to the son, habendum to him and his heirs ex parte maternd. Preston understands Lord Coke in this sense; and expresses the opinion, that in the case last supposed, the limitation should be made to the son and his heirs simply, that is, for a fee simple absolute. (1 Brest. Est. 474, 475.) He remarks that, since in this case the law does not permit the limitation to be made in the special form, no breach of the condition will be incurred by making it in the general form. (1029) Digitized by Microsoft® 204 THE NATURE AND QUANTU3I OF ESTATES. But the question does not arise upon the case as it is stated by Littleton. His words are, " upon condition, that the feoffee shall re-infeoff many men — plusors homes;" and there is nothing to show that he and Lord Coke did not intend the word to exclude women. The language of Lord Coke seems to imply, throughout his remarks, that he contemplated only cases in which a man is the survivor; and the notice which he takes of the use by Littleton of the word re-foeffment, in- stead of feoffment simply, shows that he attached weight to the verbal niceties of language. Preston distinguishes between the case of a man and a woman, regarded as the survivor; and remarks that, " in Littleton's case, the course of descent prescribed by the limitation does not vary the course of descent prescribed by the general rules of laiv. The course is bounded only, and not diverted or turned out of its proper channel." (1 Prest. Est. 474.) The meaning of this distinction may be explained as follows: In the limitation of a qualified fee simple two persons are, in different senses, regarded as pur chasers, the person to whom the limitation is made and the specified ancestor through whom the descent is to be deduced. If the ancestor is in the male line, the commencement of the descent, according to the terms of the limitation, will not differ from what would have been the commencement of the descent upon the hypothe- sis that the person to whom the limitationis made is for all purposes the purchaser. But if, in specifying the ancestor, any divergence from the male line were permitted, the commencement of the descent according [*223] *to the terms of the limitation would be differ- ent from what it would have been if the person to whom the limitation is made had been the purchaser. Thus there would be a discrepancy, or discordance, at the cominencement of the descent, which does not exist when the specified ancestor is in the male line. Alienation of Another question remains which would be of the qualifled fee greatest practical importance if these limitations were more frequently met with. There is nothing to suggest that the grantee, or the inheritor, of a qualified fee simple is subject to any restraint upon his power to alienate the estate. But the question has been raised, what estate is taken by the person to whom, upon an alienation, the estate is conveyed, and whether in his hands the estate becomes a fee simple absolute. (1030) Digitized by Microsoft® QUALIFIED FEES SIMPLE. 205 Preston has repeatedly expressed the opinion, that Preston's the grantee, or the inheritor, of a qualified fee simple opinion, has, for the purpose of alienation, only a determinable ;fee ; that he cannot convey a fee simple ; and that the estate, in the hands of an assignee, will determine, if and ichen the j^articular class of the heirs of the grantee, to whom it was originally limited, should come to an end. He also holds that, upon the determination of the estate, there is no escheat to the lord (which is peculiar to fees simple absolute) but a reverter to the heirs of the person by whom the re feoffment was made. (1 Prest. Est. 471 ; see also, pp. 420, 466, 468, and 469.) The propositions are so startling that, in spite of the Examination authority of Preston, some hesitation in accepting them of Preston's is perhaps not wholly inexcusable. opinion. Lord Coke, as we have seen, informs us, that Little- ton's design in prescribing this form of limitation under the above-mentioned circumstances, was to pre- vent the inheritance from descending upon any persona who would not have been inheritable if the re-feoffment had been made strictly according to the condition. But the condition expressly imported, that the re-feoffment should be made for a fee simple absolute — "to have and to hold to them and to their heirs for ever." (Litt. sect. 354.) And it is difficult to believe that Littleton would *have recommended this device, if he had [*224] thought that its adoption would cause a much more serious breach of the condition — by substituting, for all purposes of subsequent alienation, a determinable fee for a fee simple absolute — than the breach which it was designed to avoid. This seems to show, that Littleton and Lord Coke would not, upon this point, have concurred in opinion with Preston. On a descent cast, from a father as a purchaser in fee simple absolute, to his son as heir-at-law, the heirs ex parte maternd of the son would be excluded from the succession, both by the common law and under the Descent Act, 3 & 4 Will. 4, c. 106. A fee simple absolute is, in this respect, placed in the same position as a qualified fee simple, by the mere fact of a descent having taken place. But it has, of course, never been suggested by any one that the heir, succeeding by in- heritance to a fee simple absolute, cannot alienate for a fee simple absolute. The account given by Lord Coke of Littleton's motive makes it very difficult to doubt that, when he prescribed or invented the limita- (1031) Digitized by Microsoft® 206 THE NATURE AND QUANTUM OF ESTATES. tion of qualified fees simple, he thought that his device would place the grantee in every respect — in respect to the quantum of the estate, as well as in respect to the persons who might succeed to it — in the same position as if the re-feoffment had been actually made during the lifetime of one or more ofih&plasors homes specified io the condition. Moreover, it is difiioult to see how, unless by the legal fiction which deems an estate pur autre vie to be less in quantum than an estate for the life of the tenant, a qualified fee simple is generally less in quantum than a fee simple absolute. It is true that only some, not all, heirs of the grantee are inheritable ; but it is not therefore generally true, that fewer persons are by pos- sibility inheritable to a qualified fee simple than to a fee simple absolute. The persons to inherit are the heirs of the specified ancestor ; and there is no reason why these should be less numerous than the heirs of the grantee. Unless a pedigree is accidentally cut short by bastardy, or (before the abolition of corrup- tion of blood) by attainder, the heirs general of any specified person whatever are, for all practical purposes, indefinite in number. And if a pedigree should acci- dentally be cut short in this way, it would be cut short for [*225] the purposes of a limitation in fee simple *ab- solute, precisely in the same way and to the same ex- tent as for the purposes of the limitation of a qualified fee simple. There is no question that, for purposes of limitation, the heirs general of a bastard stand in the same position as the heirs general of any other person, and that a limitation to a bastard and his heirs gives rise to a fee simple absolute. {Vide supra, p. 171.) This seems also to be a reason for concluding that Preston's doctrine of the determinable quality, for pur poses of alienation, of a qualified fee simple, even though it were admitted, would be practically nugatory. For the case of a claim by virtue of a supposed reverter, is not at all analogous to the case of an escheat, in which the mere non-appearance of the heir, leaving thereby a vacancy of the freehold, is suificient to justify the entry of the lord. Even granting that there is a possibility of reverter upon a qualified fee simple, the burden of showing whether the event has happened which brings the reverter into operation, must lie upon the person who claims by virtue of the reverter, not upon the person who claims to retain the estate as against the reverter. In general, this would evidently be impossible, and it follows that the grantee of the (1032) Digitized by Microsoft® QUALIFIED FEES SIMPLE. 207 fee would, for all practical purposes, be generally in exactly the same position as the grantee of a fee simple absolute. For the foregoing reasons, the present writer humbly Conclusion conceives that Preston's doctrine upon this point can- against Pres- not safely be relied upon; and that if it could possibly ton'sopinion. become a question of practical importance, it might not improbably be overruled. There also seems to be no sufficient reason to suppose Littleton's that, if the form of limitation prescribed by Littleton form of limi- 18 valid by the common law, its validity is affected by ^^^jo'^ seems the Descent Act, 3 & 4 Will. 4, c. 106, or by 22 & 23 a^ecteTby Vict. c. 35, s. 19. It is true that sect. 2 of 3 & 4 Will, the Descent 4, c. 106, enacts that in every case descent shall be Act. traced from the purchaser; and that by sect. 1, "the purchaser" is defined to mean, "the person who last acquired the land otherwise than by descent, or than by any escheat, partition, or enclosure, by' the effect of which the land shall have become part of or descendi- ble in the same manner as other land acquired by de- scent.'' But the language of the *re8t of the [*226] Act, and in particular, of the rest of sect. 2, suggests the inference, that this part of the Act was not designed to affect special limitations, but only to deal with those limitations which are made to the heir simply; and that the effects of the Act, so far as qualified fees simple are concerned, is only to regulate the way in which the de- scent is to be traced from the ancestor specified in the limitation. It is difficult to suppose- that the general language of the Act was designed to deprive convey- ancers of the legal means to fulfil a lawfully imposed obligation, which had been provided by the common law. Moreover, it seems to be impossible to contend, that the above cited language was intended to apply to qualified fees simple, in such a sense as to forbid the descent to be traced from the specified ancestor, with- out at the same time admitting that it has the like effect upon the well known and universally recognized limitations in fee tail, to the man and the .heirs of the body of a specified ancestor. (Vide infra, p. 241.) And it is exceedingly difficult to suppose that the Act was designed, by the use of general language which admits of a different interpretation, to effect a partial repeal of the statute De Bonis. (1033) Digitized by Microsoft® 208 THE NATURE AND QUANTUM OF ESTATES. Here the reader may remark that Blackstone, in the passage cited at p. 220, supra, says that, in the case of fees tail, "the rule is strictly observed, and none but the lineal descendants of the first donee are admitted." It is impossible that Blackstone can have intended to deny the validity of a limitation to a man and the heirs of the body of his father; and the argument seems to be conclusive, that when he wrote the passage these peculiar limitations, whether in fee tail or in fee simple, were entirely ,absent from his thoughts. Analogous In settlements, especially when made by will, an hrirs a^s^^ur-" "lt™a,te limitation is not un frequently found, to the chasers. right heirs of a specified person who does not, by the same instrument, take any precedent estate of freehold. The absence of a precedent estate of freehold prevents the rule in Shelley's case from applying; and the limi- tation will therefore give an estate of inheritance to the heirs as purchasers. What is the exact quantum of this estate, at common law, ia a question that perhaps [*227] admits of *doubt. Fearne seems to have thought that the estate is, at common law, a fee sim- ple absolute; and that it is taken by the person in whom it first vests, and descends from him in the same manner as a fee simple limited to a purchaser by name. (Fearne, Cont. Bem. 192.) Preston admits this to be the opinion generally entertained. (1 Prest.Est. 453.) But he seems to have thought that, in respect to its descent, the estate is in the nature of a qualified fee simple; that is, that the descent must be traced upon the hypothesis that the ancestor, not the heir who takes by purchase, was the purchaser. But he admits that, for the purpose of alienation, the estate is a fee simple absolute. (1 Brest Est. 458.) At most, the Under such limitations, when they arise by virtue of Descent Act ^^^^ executed after 31st December, 1833, or the scribesanovel "wiH of any testator dying after that date, the descent, form of limi- by the Descent Act, 3 & 4 Will. 4, c. 106, s. 4. will "be tation with- traced as if the ancestor named in such limitation had the ^msx^ ^^^^ ^^^ purchaser of such land." It seems to follow, of the estate. D-ot only that qualified fees simple are not now un- known to the law, but that they exist by virtue of an express statute. The whole question must in future be a mere question as to the proper form of limitation to be used for creating them. If the precise form o| lim- itation prescribed by Littleton has been invalidated by the Descent Act, precisely the same result might never- (1034) Digitized by Microsoft® QUALIFIED FEES SIMPLE. 209 theless be effected by conveying the lands to a stranger, habendum to the stranger and his heirs To the use of the heirs of the last survivor. This consideration, that the effect of the Descent Act is at any rate restricted to modifying the appropriate limitation under which a qualified fee simple will arise, is very material to the contention of the respondent in the case of Blake v. Hynes, mentioned in the next following paragraph. In the earlier editions of this work some doubt was Remarks expressed whether the species of limitation now under upen the discussion had ever occurred or would ever occur in '^^^^"f ^^<**^* practice. In May, 1884, the question of its validity for "'■ -^^"^'• the first time was raised, in a case before the House of Lords on appeal from Ireland, Blake v. Hynes, reported before the Irish Courts in L. E. (Ir.) 11 Eq. 417, 11 L. E. Ir. 284. *The material circumstances in the case of (*228) Blake v. Blake v. Hynes were as follows : Columbus O'Plana- Hynes. gan died in 1857, leaving a will which was duly proved; and his real and personal estate was subsequently ad- ministered in the Irish Court of Chancery. His co- heirs at law were two nieces named Eliza Dowell and Jane Dowell. In the course of the administration pro- ceedings an Order was made by consent of all parties, dated 20th May, 1859; by which it was ordered {inter alia) that notwithstanding the probate, which was de- clared valid, of the testator's will, the right of his coheirs as to certain lands thereby devised should be the same as if he had died intestate as to the said lands. Jane Dowell, who was a lunatic at the time of the testator's death, died insane and intestate as to her moiety in the said lands. The proceedings out of which the appeal to the House of Lords arose were instituted in 1873, under the Lunacy (Ireland) Eegulation Act, 1871, s. 55, for the administration of her real and personal estate. At the time of her death her heirs at law were Edward Blake and Thomas Hynes, claiming respectively under two deceased aunts of the lunatic, who, if they had been living, would have been her co-heirs; and at the same time the heir at law of the original testator Co- lumbus O'Flanagan was Eoderick O'Connor. Among other questions the question arose, whether Jane Dowell had taken her moiety, to which she was entitled under the terms of the Order of 20th May, 1859, to all in- tents and purposes as a purchaser; in which case, upon her death intestate, it would have descended to her heirs at law; or whether, by virtue of the said Order, 14 (1035) Digitized by Microsoft® 210 THE NATURE AND QUANTUM OF ESTATES. BiaJce V. the lands must be held to descend as though the origi- Hynes. ^g^j testator, Columbus O'Flanagan, had been the last purchaser; in which case the moiety in dispute would pass to Eoderick O'Connor as being his heir at law at the time of Jane Dowell's death. The Master of the Eolls in Ireland held that Jane Dowell had taken as a purchaser, and that her moiety accordingly descended to her co-heirs at law. This de- cision was unanimously reversed by the Court of Ap- peal in Ireland, consisting of the Lord Chancellor, the Chief Justice of the Common Pleas, and the Lords Justices Deasy and Fitzgibbon, who held that the moiety in dispute passed to Roderick O'Connor as the heir at law of Columbus O'Flanagan. [*229] *Hitherto the question as to the validity at common law of a limitation in the form above styled a qualified fee simple, was not explicitly raised; but the Lord Justice Fitzgibbon, in the course of his judgment, made the following remark, which bears very closely upon it : — " If conveyances had been settled [with a view to carry into efPect the directions of the Order of 20th May, 1859, as to the rights of Eliza and Jane Dowell in respect to the said lands] it would have been the duty of those carrying out the arrangement to see that the descent of the lunatic's [moiety in the] lands was not altered from that which was stipulated for; namely, the descent of lands taken by her as co- heiress of Columbus O'Flanagan under an intestacy." Edward Blake, one of the co-heirs of Jane Dowell, appealed to the House of Lords from the decision of the Court of Appeal ; and upon this occasion the ques- tion of the validity of the limitations under discussion was explicitly raised. The question was argued before the House, and the respondent's counsel rested their ar- gument in favour of its validity upon the authority of Littleton, Lord Coke, and Preston. At the conclusion of the arguments, the House reserved its judgment; and the appeal was subsequently compromised before any judgment had been delivered. (1036) Digitized by Microsoft® (211) *CHAPTEE XX. [*230] FEES TAIL, OE ESTATES TAIL. A TEE TAIL is simply a conditional fee at the common Definition law, modified in certain respects by the statute De Donis Condition-alibus, or Stat. West. 2, 13 Edw. 1, cap. 1. The list given above, of limitations applica- ble to a conditional fee, does not contain every limita- tion which is theoretically applicable to the limitation of a fee tail; but it includes every form which occurs, or ought to occur, in practice, in the express limitation of a fee tail to a donee, or donees. It also includes some which, in all probability, have never been actually used. No motive can be imagined which would be likely to induce anyone to limit a fee tail to heirs fe- male (r), though nothing is more common than the limitation of a fee tail to heirs male. The former kind of limitation was probably suggested by the latter ; and it probably exists only in the logical imagination of text writers. But there is no reasonable doubt as to its legal validity; which, indeed, is expressly recognized by the Conveyancing Act of 1881, s. 51. The modifications introduced by the statute into a On the opera- conditional fee, refer chiefly to the power of the ^i°° "^ ^^'^ donee, or tenant in tail for the time being, by aliena-^^*^*® "^'^ tion to bar the succession of his issue and the reverter of the donor. It was observed above, that at common law the issue could be so barred even before their birth, but that the donor's reverter could not be barred until (r) See Harg. n. 1 on Co. Litt. 25 a, where he makes mention of an attempt to prove in argument that limitations in tail fe- male are invalid. In Goodtitle v. Burtenshau; Fearne, Cont. Eem. App. No. I. a limitation occurred to the heirs female, and in Chambers v. Taylor, 2 My. & Cr. 376, a limitation occurred to the heir female, hut in both cases as purchasers. From some remarks made by Lord Coke (Co. Litt. 377 a) it may perhaps be inferred that limitations in tail female, in remainder upon a lim- itation in tail male, may actually have occurred, as the work of ■ short-sighted conveyancers, who mistook their effect. Lord Coke points out the danger of such limitations, and shows that the proper limitation to effect the probable intention, is a limita- tion in tail general, in remainder upon a limitation in tail male. (See also Co. Litt. 25 b.) (1037) Digitized by Microsoft® 212 THE NATURE AND QUANTUM OF ESTATES. [*231] after the *birth of inheritable issue. The statute De Bonis enacted that in future no such aliena- tion should be a bar either to the succession of the issue or to the reverter of the donor. In other respects, a fee tail not only resembles, but actually is, a condi- tional fee. In the language of Butler, "this statute did not create any new estate, but, by disafiSrming the supposed performance of the condition, preserved the fee to the issue, v?hile there was issue to take it, and the reversion to the donor when the issue failed." (Butl. n. 2 on Co. Litt 327 a.) It is a fact to be borne in mind, that a simple repeal of the statute De Bonis wo aid instantly and ipso facto transform all fees tail, even those already in existence, into conditional fees at the common law. To the above-stated effect of the statute, in restrain- ing alienation, m ast further be added its effect in pre- venting the descent of the fee to persons not included in the original form of the gift, which, under certain circumstances, was permitted by the common law; and also its effect in permitting the limitation of remainders over in expectancy, which the common lawdid not per- mit. The precise nature of these several points of difference will appear from the following short examination. The statute, having particularly mentioned in its preamble three examples of conditional fees, which ex- amples are mentioned by way of specifying the whole class and not by way of confining the operation of the Act to those examples (2 Inst. 334), and having recited that the construction put by the common law upon such gifts, being directly repugnant to the form of the gift, was a grievance calling for remedy, enacts as fol- lows : — Form of the "That the will of the girer, according to the form in the deed statute. Qf gjfj manifestly expressed, shall be from henceforth observed; so that they to whom the land {tenementum) was given under snch condition, shall have no power to alienethe land {tenementum) so given, but that it shall remain unto the issue of them to whom it was given after their death, or shall revert to the giver or his heirs if issue fail [either by an absolute default of issue, or, after the birth of issue, by its subsequent extinction (s)]. (s) Per hoc, quod nullus sit c.ritus omnino, vel si aliquis exitus fuerit, per mortem, deficiet, herede hujusmo diexitHs defieiente. The English version (1 Stat. Eev. p. 42) is here unintelligible. (1038) Digitized by Microsoft® FEES TAIL, OR ESTATES TAIL. 213~ *" Neither shall the second husband of any such wo- [*232] man" (i. e. a female donee in special tail) "from henceforth have anything in the land (in tenemento) so given upon condition, after the death of his wife, by the law of England, nor the issue of the second husband and wife shall succeed in the inheritance, but immediately after the death of the husband and wife, to whom the land {tenemeatmn) was so given, it shall come to their issue, or return unto the giver, or his heir, as before is said." The eifeot of the first paragraph is to destroy the threefold capacity which the tenant of a conditional fee acquired by having issue of the prescribed class, to alienate, to forfeit by attainder (t), and to charge with incumbrances. The effect of the second paragraph is that, if a gift Tenant in is made either to a donee and his (or her) issue by a tail after particular wife (or husband), or to two persons and their possibility, issue, then, on the death of the wife (or husband) of the donee, where there is a single donee, or, if there be two donees, upon the death of either of them, without leaving issue of the prescribed kind, there is no longer under any circumstances any possibility of the birth of issue inheritable under the entail, even though such issue has been in existence at some previous time; whereas, before the statute there was under such circumstances still a possibility that issue might be born capable of inheriting a conditional fee limited in like manner. (Vide supra, p. 212.) The surviver is, therefore, now styled tenant in tail after possibility of issue extinct; or sometimes, for hievitj, tenant iti tail after possibility. The statute also, after prescribing a form for the new kinds of writ of formedon, which were needed to give effect to its provisions, continues as follows: — And if a fine be levied hereafter upon such lands (super liujus- modi tenemenii), it shall be void in the law; neither shall the heirs, or such as the reversion belongeth unto, though they be of full age, within England, and out of prison, need to make their claim. It will hereafter be seen that this last enactment was deemed to be repealed, or superseded, by 4 Hen. 7, c. 24; and it was expressly superseded by 32 Hen. 8, c. 36. (Vide infra, p. 248.) (t) As above mentioned, forfeiture by attainder of high trea- son was restored by statute, and finally abolished by 33 & 34 Vict. c. 23, s. 1. (1039) Digitized by Microsoft® 214 THE NATURE AND QUANTUM OF ESTATES. [*233] * Classification of Estates Tail. It will appear, upon viewing the limitations which are applicable to the creation of conditional fees(sMpra p. 209) that there exists a twofold division of fees tail, one founded upon the fact that the descent might be restricted to one sex, the other founded upon the fact that the gift might be made to the issue of more than one body. Tail male and tail female. Special tail. Suggestion as to the epithets general and special. The restriction of the line of descent to a single sex, is indicated by the addition of the epithets male or female respectively, and the absence of such addition indicates the absence of restriction. When the gift is to a single donee and his (or her) issue by a particular wife (or husband), or is to two donees and their joint issue, the restricted character of the gift, and of the issue inheritable under the gift, is indicated by the epithet special. The absence of such restriction is sometimes indicated by the addition of the epithet general, but more commonly by the absence of any epithet. Lord Coke, in his translation of Littleton, indifFer- ently uses the phrases general tail and tail general, and the phrases special tail and tail special. (See Litt. sects. 14, 16. ) It would be a very convenient practice to use the phrase general tail to denote the opposite to special tail, and the phrase tail general to denote the opposite to tail male and tail female. This usage will be adopted in the following pages. o Xi -s Thus we have the following divisions of fees tail : — Tail General ; when the heir per for- mam doni is designated as the heir of the body simply, and therefore coincides with the heir general in the direct line of descent. Tail Special, or tail male and tail female ; when the heir per formam doni is re- stricted to the heir male, or the heir fe- male, and therefore does not necessarily coincide with the heir general in the direct line. "m E .2 o g s-i ^ 8 s CI g (D '1-1 sL m O (1040) Digitized by Microsoft® FEES TAIL, OR ESTATES TAIL. 215 S o '3 . ) But the undivided shares of tenants in common are, for all purposes except physical possession, separ- ate tenements, of which they respectively are solely seised; and therefore dower may be claimed of such undivided shares. Although the husband was allowed equitable curtesy of equitable estates, the wife was not allowed equitable dower. (Godwin v. Winsmore, 2 Atk. 525.) Wife of mort- For some time after that the right of the mortgagor gagee now to redeem a mortgage in fee simple had been establish - not_^entitled g^ jjj equity, it was considered that, when the mort- after redemp- gagee's estate had become absolute at law by default of tion. payment on the stipulated day, the mortgagor could not, by redeeming, defeat the right of the wife of the mortgagee to dower ; because her right had attached at law immediately upon her husband's estate becom ing absolute at law. This was one reason of the in- troduction of mortgages for long terms of years instead of in fee simple. (Butl. n. 1 on Co. Litt. 205 a.) It is now regarded as an axiom in equity, that redemption defeats the claim of the mortgagee's wife to dower. When the husband's fee, by virtue of which the wife claims dower, is liable to be defeated by the exercise of a power vested in the husband, such an exercise of the power will defeat the wife's right to dower. (Say V. Pung, 5 Madd. 310, 5 B. & Aid. 561.) The dower of all women married after 1st January, 3 &'4Will °I t*281J 1834, is *now regulated by the Dower Act, 3 & c 105 ' ' ^ Will. 4, c. 105, which gives the wife, in addition to her common law dower, aright to dower out of equitable estates of inheritance in possession (sect. 2), and also out of estates as to which the husband had only a right of action (sect. 3). But it makes the wife's claim to dower subject to all partial estates and interests, and all charges created by any disposition or will of her husband, and all debts, incumbrances, contracts, and engagements to which his land is subject or liable (sect. 5); and subject also to any conditions, restrictions, and directions contained in his will (sect. 8); and it enables the husband wholly to defeat her right to dower, whether at common law or by virtue of the statute, by any of the following means : — 1. By absolutely disposing of the lands in his life- time. (Sect. 4.) (1086) Digitized by Microsoft® AN ESTATE FOR THE LIFE OF THE TENANT. 261 2. Or absolutely disposing of the lands by his wilL [Ibid.) 3. By a declaration contained in the deed by which the land was conveyed to him, that his wife shall not be entitled to dower out of such land. (Sect. 6.) 4 By a like declaration contained in any deed exe- cuted by him. (Ibid. ) 5. By a like declaration contained in his will. (Sect. 7-) 6. By devising to or for the benefit of his widow, any land, or any estate or interest therein, out of which she would otherwise be entitled to dower. (Sect. 9.) But a gift of personal estate, or of land not subject to dower, does not prejudice her right. (Sect. 10.) The provisions of this Act do not extend to copy- holds. {Powdrell v. Jones, 2 Sm. & Giff. 407; Smith v. Adams, 5 De G. M. & G. 712.) Tenant in dower is perhaps the only " limited own- er " upon whom no powers are conferred by the Settled Land Act, 1882. Statutory Powers. Certain powers of leasing are conferred upon a ten- Settled Es- ant for life, beneficially entitled to possession or receipt tates Act, of rents and profits, by the Settled Estates Act, 1877, 'i-^'^'^- s. 46; but it is not probable *that these powers [*282] will in future be used in practice. Larger powers of leasing are conferred by the Settled Land Act, 1882, ss. 6 — 12; and the latter powers are now, by the Settled Land Act, 1884, s. 5, in a very great measure freed from the inconvenience attending the provisions respecting the giving of notices, contained in the Settled Land Act, 1882, s. 45. There seems now to be no motive for resorting to the powers conferred by the Settled Estates Act, 1877, in preference to those conferred by the Settled Land Act, 1882. The following powers are, by the Settled Land Act, Settled Land 1882, conferred upon, or madeexerciseableby, a variety Act, 1882. of persons, or classes of persons, described or enum- erated in sect. 2, sub-s. (5), sect. 58, subs. (1), and (1087) Digitized by Microsoft® 262 THE NATURE AND QUANTUM OF ESTATES. Release of services and enfranchise- ment. sects. 60—63, (e) of that Act. The typical donee of these powers is " the person who is for the time being, under a settlement, beneficially entitled to possession of settled land, for his life." (Sect. 2, sub-s. 5.) Sale. (1) A power to sell the settled land, or any part thereof, or any easement, right or privilege of any kind, over or in relation to the same. (Sect. 3, subs, i.) But the principal mansion house, and the lands usually occupied therewith, cannot be sold with- out the consent of the trustees or an order of the court. (Sect. 15.) (2) A power, where the settlement comprises a manor, to sell the seignory of any freehold land within the manor, or the freehold and inherit- ance of any copyhold or customary land, parcel of the manor, with or without the minerals and mining rights, so as, in every such case, to effect an enfranchisement. (Sect. 3, sub-s. ii. ) This seems to mean, that he may enfranchise copy- holds, parcel of the manor, and release the ten- ure (thereby extinguishing the services) of free- holds, held of the manor. An enfranchisement may be made with or without a re-grant of any right of common or [*283 ] other right, easement *or privilege there- Settled Land fore enjoyed with the land enfranchised. (Sect. Act, 1882. 4^ sub-s. 7.) Rights of common in the wastes of the manor are extinguished at law by enfran- chisement, unless specially preserved by the use of terms equivalent to a re-grant of the common. (1 Watk. Cop. 451. ) They are not extinguished in equity. (Styant v. Staker, 2 Vern. 250.) Nor will an enfranchisement effected under 4 & 5 Vict. c. 35 (see s. 81), and 15 & 16 Vict. c. 51 (see B. 45), deprive the tenant of any commonable right to which he may be entitled. Exchange. (3.) A power to make an exchange of the settled land, or any part thereof, for other land, includ- ing an exchange in consideration of money paid for equality of exchange. (Sect. 3, sub s. iii.) Settled land in England cannot be given in exchange for land out of England. (Sect. 4, Bub-s. 8.) (e) The provisions of sect. 63 are amended hy the Settled Land Act, 1884, ss. 6, 7. These provisions do not refer to a tenant for life in the ordinary meaning of the phrase. (1088) Digitized by Microsoft® AN ESTATE FOR THE LIFE OF THE TENANT. 263 (4. ) A power, where the settlement comprises an un- Partition . divided share in land, or, under the settlement, the settled land has come to be held in undivided shares, to concur in making partition of the en- tirety, including a partition in consideration of money paid for equality of partition. (Sect. 3, sub-s. iv. ) Money required for enfranchisement, or for equality of exchange or partition, may be raised by mortgage of the settled land or any part thereof. (Sect 18.) (5.) A power, with the consent of the incumbrancer, shifting of to charge an incumbrance ailecting land sold, incum- or given in exchange or on partition, or any other tirances. part of the settled land, whether already charged therewith or not, in exoneration of the part sold, or so given. (Sect. 5.) (6. ) A power to lease the settled land, or any part Leasing, thereof, or any easement, right, or privilege of any kind, over or in relation to the same, for any purpose whatever, whether involving waste or not, on building lease for any term not ex- ceeding ninety-nine years; on mining lease, for any term not exceeding sixty years; and on any other kind of lease, for any term not exceeding twenty-one years. (Sect. 6.) With permission of the court, to be given under special *circumstance8, a building [*284] Settled Land or mining lease may be made for any term, or Act, 1882. may be granted in perpetuity. (Sect. 10.) But the principal mansion house, and the lands usually occupied therewith, cannot be leased without the consent of the trustees or an order of the court. (Sect. 15.) Leases made under this power must comply with the following conditions (sect. 7): — (i.)» Every lease must be made by deed, to , take effect in possession not later than twelve months after its date; (ii.) And must be at the best rent, regard be- ing had to any line taken and other circumstances ; (iii.) The lessee must covenant to pay the rent, with a condition of re-entry upon default for a time not exceeding thirty days; (iv.) A counterpart must be executed by the lessee. (1089) Digitized by Microsoft® 264 THE NATURE AND QUANTUM OF ESTATES. Confirmation of contracts. Accepting surrenders. Licenses to lease copy- holds. Appropria- tion of streets, &o. Cutting timber. (7.) A power (sect. 12):— (i.) To give effect to a contract for a lease entered into by any of his predecessors in title, where such lease, if made by the predecessor, would have bound the successors in title; (ii.) To give effect to a covenant for renewal, performance whereof could be enforced against the owner for the time being of the settled land; (iii.) To confirm, " as far as may be, a previous lease, being void or voidable; but so that every lease, as and when confirmed, shall be such a lease as might at the date of the original lease have been lawfully granted under the Act or other wise, as the case may require." (8.) A power to accept, with or without considera tion, a surrender of any lease, whether made under the Act or not; and such surrender may relate to the whole, or any part, of the land com prised in the lease. On a partial surrender, the rent may be apportioned; and on the grant of a new lease, the value of the lessee's interest under the surrendered lease may be taken into account in fixing the rent. (Sect 13.) [*285] *(9. ) A power to license copyholders of any manor comprised in the settlement, to make any such leases of their copyhold lands as the ten- ant for life is by the Act empowered to make of freehold land. ( Sect. 14. ) It seems that the leasing powers of the tenant for life extend to copyholds only so far as their exercise accords -with the custom of the manor. (10.) A power, in connection with a sale or lease for building purposes, to cause to be appropriated and laid out, for the general benefit of the resi- dents on the settled land, any parts thereof for streets, gardens, or other open spaces, with drains, fencing, paving, or other works neces- sary or proper in connection therewith; and also to make arrangements for their continued repair and maintenance. (Sect. 16.) (11.) A power, if impeachable for waste in respect of timber, on obtaining the consent of the trus- tees or an order of the court, to cut and sell timber ripe and fit for cutting. (Sect. 35.) (1090) Digitized by Microsoft® AN ESTATE FOR THE LIEE OF THE TENANT. 265 (12.) A power to make, vary, or rescind, with or Contracts, without consideration, and accept surrenders of, contracts for carrying into effect any of the pur- poses of the Act. (Sect. 31.) (13.) A power, where personal chattels are settled Sale of quasi- on trust to devolve with land so as ultimately to heirlooms, vest in some person attaining an estate of in- heritance therein, to sell such chattels on ob- taining an order of the court. (Sect. 37.) It is the general effect of the foregoing powers, to liberate the settled land, so far as the exercise of any particular power extends, from the limitations and trusts of the settlement, and to transfer their opera- tion to the money, investments, lands, or other net pro- ceeds, obtained by exercising the power. Thus the Act does not in general destroy the settlement, but only alters the subject upon which it operates. (1091) Digitized by Microsoft® 266 THE NATURE AND QUANTUM OF ESTATES. [*286] *CHAPTER XXIV. , ESTATES PUR AUTRE VIE. Methods tiy which the estate may arise. So far as regards its quantum, an estate pur autre vie may be limited to endure (1) during the life of a sin- gle person; or (2) during the joint lives of several per- sons; or (3) during the life of the longest liver of sev- eral persons. In the following remarks the word life will, for brevity, be used to include lives. Every tenant pur autre vie has, by common law, the same right to estovers as a tenant for his own life. (Co. Litt. 41 b.) By the common law, a tenant pur autre vie holding under a settlement has no rights of user, or power to deal with the land, other than those possessed by a lessee pur autre vie holding merely under a lease at a rent. But by the Settled Land Act, 1882, s. 58, subs. (1), (v.), a tenant pur autre vie, not holding merely under a lease at a rent, has, when his estate is in pos- session, the powers conferred by that Act upon a ten- ant for life under a settlement. So far as regards its origin, an estate pur autre vie' may arise in any of three several ways: — (1) By express limitation, which is either to a gran- tee simply, diiring the life of cestui que vie, or to a grantee and his heirs, during such life. When the Statute of Frauds had cast the es- tate, in default of a devisee or special occupant, upon the executors or administrators of a de- ceased tenant pur autre vie, a practice sprang up of limiting the estate to the executors or admin- istrators instead of to the heirs. (2) By the assignment to another person of an ex- isting estate for life, which latter estate may have arisen either by act of parties, or by opera- tion of law, as curtesy or dower; and the as- signment is, like the express limitation, either to the grantee simply, or to him and his heirs, dur- ing the life of cestui que vie. [*287] *(3) By operation of law, when before the abolition of forfeiture by 33 & 34 Vict. c. 60, an estate for the term of the life of an attainted (3 092) Digitized by Microsoft® ESTATES PUK AUTRE VIE. 267 traitor, who was entitled to an estate for his own life, was by forfeiture cast upon the king ; or when, before the practical abolition of general occupancy by the Statute of Frauds, an estate for the term of the life of another person was, upon the death of a tenantpitr autre vie, cast upon the general occu- pant in manner hereinafter mentioned ; or, since that statute, upon the executor or administrator of the deceased tenant pur autre vie. For the purpose of creating an estate pur autre vie by assignment, the estate of tenant in tail after possi- bility of issue extinct does not differ from an estate for life. (3 Prest. Conv. 171, 172.) The assign is pun- ishable for waste. (Co. Litt. 28 a; 2 Inst. 302.) When an estate pur autre vie arises de novo by express jjgjj-s ^s limitation, or by the assignment of an existing estate special oo^ for life, the omission to specify the heirs in the grant cupants. has still an important influence upon the transmission of the estate upon the death of the tenant in the life- time of cestui que vie. It will be observed that, in external form, the lim- itation to a grantee and his heirs, during the life of cestui que vie, resembles the limitation of a determina- ble fee. But because the event which is to determine the estate is not such as may by possibility never happen, no fee arises. In a determinable limitation, the deter- mining clause must not be radically inconsistent with the preceding limitation, which is subject to it; that is to say, the determination must be only possible, not certain, so that by possibility the preceding limitation may endure throughout its whole possible extent. It follows, that the word heirs when used in this sense is not properly a word of limitation. By virtue of the grant, the beir of the tenant pur autre vie has, on the death of his ancestor in the lifetime of cestui que vie, a right of entry; but the right does not descend to him as heir. It devolves upon him by the peculiar title styled occupancy ; which in the case of the heir is styled special occupancy, to distinguish it from the general occupancy *which formerly existed upon [*288] the death of a tenant pur autre vie, leaving no special occupant. This title accrues to the heir by reason of his being named in the grant, and not by any title of inheritance. And similarly, when an estate pur autre vie is made the subject of a quasi-entail, purporting to be limited to one and the heirs of his body, such special heirs do not take by descent, and the words are not (■1093) Digitized by Microsoft® 268 THE NATDRE AND QUANTUM OF ESTATES. properly words of limitation, but only words nominat- ing a succession of special occupants. (Low v. Burron, 3 P. Wms. 262.) Until the Statute of Frauds made the estate in the hands of the heir as special occupant, assets to the same extent as a fee simple, no action lay against the heir upon his ancestor's bond specifying the heirs (/). General But when the heir is not named in the grant, he has occupancy, no better title by occupancy than any one else; and, by the common law, if the possession was vacant at the death of the tenant pur autre vie, any stranger who first entered gained the freehold for the residue of the life of cestui que vie by the title of general occupayicy and he was styled the general occupant (g). (Co. Litt. 41 b.) If the possession was not vacant, the law cast the freehold, with the like title and style, upon the person in possession (1 Prest. Est. 259); such as the tenant for years, or at will, of the tenant pur autre vie. There was no general occupancy of copyholds, because the seisin of them is in the lord. (Zouch v. Forse, 7 East, 186.) Who may be Though the heir took as special occupant by the nom- Bpecial DC- ination of the grantor and not by inheritance, it seems cupants. ^Q j-,g ^]^g better opinion that the heir alone, and not [*289] the executor or administrator, *could be named as special occupant in the grant. (Harg. n. 4 on Co. Litt. 41. b; Com. Dig. tit. Estates, P. 1; Lord Eedes- dale in Campbell v. Sandys, 1 Sch. & Lef . 281, at p. 289. See, however, 1 Sugd. Pow. 7th ed. p. 233, note. ) If the heir and the executor are both named in the grant, (/) "Such estates certainly are not estates of inheritance. They have been sometimes called, though improperly, descendible freeholds. Strictly speaking, they are not descendible freeholds, because the heir-at-law does not take by descent. If an action at common law had been brought against the heir on the bond of his ancestor, he might have pleaded riens per descent; for these estates were not liable to the debts of the ancestor before the Statute of Frauds." Lord Kenyon, in Doe v. Luxton, 6 T. E. 289, at p. 291. In Seymor's Case, 10 Rep. 95, at p. 98 a, they are said to be descendible, but not of inheritance. (g) "He that can first hap it, shall enjoy out the term." Finch, Law, p. 115. But the possession of land held pur autre vie is not more likely to be left vacant by the tenant, than the possession of the land held by any other estate ; and the cases in which any one could " hap it " and acquire a, title subsequently to the death of the tenant pur autre vie, must have been ex- tremely rare. The object of sect. 12 of the Statute of Frauds was to make the lands assets for the payment of debts, not, as has often (but absui-dly) been said, to prevent " scrambling for the lands. ' ' (1094) Digitized by Microsoft® ESTATES PUR AUTRE VIE. 269 the heir has the special occupancy. {Atkinson v. Baker, 4T. E. 229.) The heirs of the body may be named as special occu- Effect of pants ; and the naming of them affects the quantum of naming the the estate, which is less than the quantum of a similar ^^"^ "^ *^^ estate limited to the heirs general. Thus, if a tenant gpeaal^oc- for his own life makes a lease to the immediate rever- cupants. sioner and the heirs of his body during the life of the tenant for life, this will be no surrender. (3 Prest. Conv. 22. ) The possibility that there may be a failure of the heirs of the reversioner's body, by his death without issue during the lifetime of a tenant for life, gives to the latter a reversion upon his own grant, so that the last-mentioned grant is only the grant of an under-lease, which is therefore incapable of merger in the reversioner's estate. After the Statute of Frauds, as hereinafter mentioned, Whether per- the question, whether the executor or administrator sonal repre- might be named as special occupant, had no practical sentatives importance so far as freehold lands are concerned; be- dai occu-^ " cause, if there was no special occupant, he would take pants. the estate by force of the statute. And he would take it as an estate of freehold. {Oldham v. Pickering, 2 Salk. 404 ; this point is stated more fully in Garth. 376.) Before the case of Ripley v. Waterworth, 7 Ves. 425, the opinion that personal representatives might be named as special occupants seems to have appeared only by way of casual surmise. (See 2 Vern. 719; 3 Atk. 466.) In the last-mentioned case Lord Eldon seems to have inclined towards the same opinion. But since the question did not call for decision, this opinion was obiter dictum ; and the question had so long been deprived of nearly all its practical importance by the Statute of Frauds, that the principles upon which its solution depends seem to have fallen into complete ob- livion. The question is now purely a question of his- torical criticism. Any reader who has any knowledge *of the political and social condition of England [*290] before the Wars of the Roses, or, indeed, at any time before the reign of Henry VII., and also of the status of executors and administrators in our early legal sys- tem, will probably find it impossible to believe that, while the doctrines of tenure retained their importance, the intrusion of an executor into the immediate free- hold would have been tolerated; especially as the lord had no means of compelling him either to take out (1095) Digitized by Microsoft® 270 THE NATURE AND QUANTUM OF ESTATES. probate or to disclaim the estate; so that, if he had de- layed probate, the freehold might thereby have been kept in abeyance. The objection is even more obvious, in the case of an administrator, than in the case of an executor. Made devise able by statute, Occupancy of Of things which at common law lie in grant, and of incorporeal which therefore no possession could be taken, there heredita- was no general occupancy. (Co Litt. 41 b.) But of such things there might at common law (and still may) be special occupancy. (Litt. sect. 739, and Lord Coke's comment, where the word occupant evidently means general occupant; 16 Vin. Abr. 71 = Occupant, D.) An administrator could not be special occupant of a rent. (Salter v. Butler, or Salter's Case, Oro. Eliz. 901, Yelv.9.) Assignable at The tenant pur autre vie had, at common law, an common law. absolute right of alienation inter vivos, whether his heir was entitled as special occupant or not; and in the latter case, the estate of the assign was not affected by the death of the assignor. Estates pur autre vie were not made deviseable by the Statutes of Wills, 32 Hen. 8, c. 1, and 34 & 35 Hen. 8, c. 5. By the Statute of Frauds, 29 Car. 2, c. 3, s. 12, it is enacted that any estate pit?' autre vie shall be devise- able; and, if no devise be made, shall be chargeable in the hands of the heir, if it shall come to him by reason of a special occupancy, as assets by descent, as in case of lands in fee simple; and in case there be no special occupant thereof, it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant, and shall be assets in their hands. It is commonly said, that this enactment made ten- ancy by general occupancy for the future impossible. (Harg. n. 5 on Co. Litt. 41 b. ) But Preston has sug [*291] gested that general occupancy *might still be possible, during the interval between the death intestate of a tenant jpur autre vie and the grant of administra- tion. (1 Prest. Conv. 44.) In Oldham v. Pickering, 2 Salk. 464, Carth, 376, it was decided that the estate in the executor's hands was assets only for the payment of debts, and that, these being satisfied, the executor, being "as it were the occupant," could not be compelled to make any dis- tribution. In consequence of this decision, it was enacted by 14 Geo. 2, o. 20, s. 9, that (if there be no (1096) and distrib- utable as assets. Digitized by Microsoft® ESTATES PUE AUTRE VIE. ' 271 special occupant) estates pur autre vie, so far as not devised, should be applied and distributed in the same manner as the personal estate. The Statute of Frauds, s. 12, and the 14 Geo. 2, c. 20, s. 9, are repealed by the WUls Act, 7 Will. 4 & 1 Vict. c. 26, s. 2; but they are substantially re-enacted and extended to copyholds and incorporeal heredita- ments by sects. 3 and 6. This kind of estate, though a tenement, is not in- Quasi-entails tailable by virtue of the statute De Bonis, not being a of estates yur hereditament. ( Grey v. Mannock, 2 Eden, 339. ) But ««*''« '^'''■ it is susceptible of limitations in the nature of a quasi- entail, which, if they are not destroyed by some act of the quasi-tenant in tail, will give rise to a quasi -descent resembling the descent of an estate tail; that is to say, an estate pitr autre vie does not, as a mere chattel or chat- tel interest does, vest absolutely in a tenant in tail by pur- chase. (For a remarkable example, see Mogg v. Mogg, 1 Mer. 654, where see note at p. 688.) If the estate pur autre vie is conveyed subject to limitations which would create an entail in an inheritable tenement, any person entitled as quasi-tenant in tail in possession can, without barring the quasi -entail, convey the whole estate by any assurance which would pass as an es- tate pur autre vie. (Fearne, Cont. Eem. 10th ed. 496, and cases there cited in margin.) It seems to have been thought by Lords Northington and Kenyon, that, since these estates have been made deviseable, quasi-entails of them might be barred by will. (See Doe V. Luxton, 6 T. E. 289, at p. 293.) But quasi-re- mainders limited over upon the quasi-estate tail cannot be barred by will. (Dillon v. Dillon, 1 Ball & B, 77; Camvbell v. Sandys, 1 Sch. & Lef. 281; Allen y. Allen, 2 Dr. & War 307.) And a *quasi-tenant in [*292] tail in remainder cannot, by conveyance inter vivos, bar the quasi-remainders over, without the concurrence of the person entitled in possession. (Allen v. Allen, ubi supra.) If the estate is suffered to descend, it will de- scend according to the form of the quasi-entail; and any quasi-remainders which may be limited over will take effect, if they become interests in possession dur- ing the life of cestui que vie, unless previously dis- placed by any such conveyance as aforesaid. (1097) Digitized by Microsoft® 273 THE NATURE ^.ND QUANTUM OF ESTATES. [*293] *CHAPTEE XXV. OF CONCURRENT OWNERSHIP. An estate, whether in possession or in remainder, admits of being so limited that several distinct individuals may be entitled to concurrent and simultaneous interests. Moreover, several persons may take the same estate concurrently by descent ; either at common law, in the case of a descent to several sisters, or the representa- tives of several sisters ; or by a descent in gavelkind among several brothers, or their representatives; or by other special custom, among several brothers and sisters, or their representatives. The several individuals so en- titled will, according to the nature of the relation sub- sisting between their interests, be (1) joint tenants, (2) tenants in common, (3) parceners, also styled copar- ceners, or (4) tenants by entireties. This arrangement is the most convenient for pur- poses of discussion, though it is not the most logical. According to the degree of the intimacy uniting the interests of the concurrent owners, the order of arrange- ment should be as follows : tenants by entireties, joint tenants, coparceners, and tenants in common. But joint tenancy and tenancy in common are of frequent occurrence in practice. Assurances are always made to trustees as joint tenants, in order that the survivor or survivors may retain the whole estates; and assurances, especially devises, are frequently made to beneficial own- ers as tenants in common. Coparceny is not common, be- cause the descent of lands is not common; and in the ma- jority of the cases which happen, the descent is not among coparceners. Tenancy by entireties, from the circum- stances under which it arose, was always rare ; and recent legislation may perhaps have made it for the future impossible. Some remarks upon cross remainders are added to the remarks made upon tenancy in common, by reason of the intimate practical connection between the two subjects. (1098) Digitized by Microsoft® OF CONCURRENT OWNERSHIP. 273 *(1.) Joint Tenancy. [*294] Littleton's definition of joint tenancy is founded upon Definition the mode in which an estate is limited to joint tenants, and mode of If lands are limited to several persons by name, haben- limitation. dmn to them for life, or lives, those persons are joint tenants during that life or those lives. (Litt. sect. 277.) They have an estate pwr autre vie in joint ten- ancy. Similarly, if lands are limited to several persons by name, habendum, to them and their heirs, those per- sons are joint tenants in fee simple. By virtue of the provisions of the Conveyancing Act of 1881, s. 51, a joint tenancy in fee simple may be created by employing the words, " in fee simple," in lieu of the words, " and their heirs," in the last-men- tioned limitation. (Vide supra, p. 171.) Joint tenancy is equally applicable to fees (except fees in general tail, as mentioned in the next following paragraph), to estates of mere freehold, and to chattel interests. (Litt. sect. 281.) An estate in general tail cannot be limited in joint Estates tail, tenancy, because (except under the circumstances which would make the estate an estate in special tail) there cannot be a single heir of the bodies of the donees; and the right of the several heirs in tail of the several donees to inherit secundum formam doni, which is ex- pressly conferred upon heirs in tail by the statute De Donis, would be repugnant to the right of the surviving joint tenants, upon the death of one, to enjoy the whole estate, which is the most prominent characteristic of joint tenancy. A limitation to several persons and the heirs of their bodies, other than a limitation to two persons capable of lawful marriage and the heirs of their bodies, gives them a joint life estate, followed by remainders to them severally, in general tail, as tenants in common. (Litt. sect. 283, and Lord Coke's com- ment. ) An estate in special tail, if limited to a man and a woman not married but capable of lawful marriage, and the heirs of their two bodies, will be an estate in joint tenancy. If the *parties had been mar- [*295] ried at the time when the limitation took effect, they would, at common law, be tenants by entireties. As hereinafter mentioned, it is uncertain what is the opera- tion, in this respect, of the Married Women's Property Act, 1882. 18 (1099) Digitized by Microsoft® 274 THE NATURE AND QUANTUM OF ESTATES. Jua accre secndi. Does not necessarily confer equal advantage upon all. The distinguisliing characteristic of joint tenancy is styled jus accrescendi or the right by survivorship. Upon the death of one out of several joint tenants, the sur- vivors hold the whole estate, and nothing passes to the representatives in title (vehether real or personal) of the deceased tenant. (Litt. sect. 280. But the practical advantage of the jms accrescendi is not necessarily equal for each of the joint tenants; for two men may have a joint estate for the life of one of them; in which case, if that one who is ce-stui-que-vie should die in the lifetime of the other, the estate is de- termined, whereas, if the other should die in the life- time of cestui-que-vie, the latter has the whole estate, and becomes thenceforward sole tenant for his own life. (Co. Litt. 181 b.) It still remains true, that each upon the death of the other takes the whole estate; but in the one case, the whole estate which he takes is reduced to nothing. The right by survivorship is liable to be defeated by any act which severs the joint tenancy and turns it to a tenancy in common. Identity of Joint tenants must claim an equal interest by the their .interest game title and in the same right. (Co. Litt. 189 a; ibid. 299 b. ) Therefore they can only take by purchase. And under limitations at the common law, they must all take simultaneously. But in limitations by way of use, if the use is declared jointly to several persons, some of whom are not yet ascertained or not yet in being, such last-mentioned persons, if and when they are ascertained or come into being, will be joint tenants with the others; and the same rule holds good, when the interests arise by devise. (Co. Litt. 188 a, and Harg. n. 13 thereon; 2 Prest. Abst. 56.) The identity of the interest and title of joint tenants is commonly analysed into the " fourfold unity " of interest, title, time, and possession. (2 -Bl. Com. 180 — 184.) This analysis has perhaps attracted attention rather by [*296] reason of its captivating *appearance of sym metry and exactness, than by reason of its practical utility. It means only, that each joint tenant stands, in all respects, in exactly the same position as each of the others; and that anything which creates a distinc tion either severs the joint tenancy or prevents it from arising. Blackstone seems not to have adverted to the fact, that the "unity of time" is not, under the learn- ing of uses and devises, an indispensable requisite. and title. (UOO) Digitized by Microsoft® OF CONCURRENT OWNERSHIP. 275 Joint tenants are said to be seised per my et per tout; For purposes ■which espression properly refers to tivo only, two being of alienation, taken as a type or pattern for two or more. In one ^^f^^ inter- sense each has nothing, and in another sense each has separate the whole, nihil per se separatim et totum conjunctim. (Co. Litt. 186 a.) In another sense, each has an equal aliquot share; namely, for purposes of alienation, whether total or partial, and for purposes of forfeiture. (Ibid.) Each can alienate to an extent not exceeding his aliquot share, and can either, by a total alienation, sever the joint tenancy and turn it to a tenancy in com- mon, or, by a partial alienation, suspend the joint ten- ancy during the continuance of the interesit conveyed by such partial alienation. Herein joint tenants differ from tenants by entireties, who are seised per tout only, and not per my; and of whom, accordingly, neither can, by alienation or forfeiture, prejudice the right by survivorship of the other to succeed to the whole in severalty. (2 Bl. Com. 182.) At the present day, there does not seem to exist any means whereby a for- feiture properly so called, as distinguished from a re- verter or a cesser of interest under a condition or ex- ecutory limitation, can be incurred; and the foregoing .remarks must be restricted to alienation. The following point is practically important. When Effect of two or more persons are joint tenants for their lives, severance on whether by express limitation or by implication of law, y ■'^^^^ ^'^^ and although the limitation be expressly to the survivor of them, then, on a severance of the joint tenancy, the share of each will afterwards be held for his own life only. (Co. Litt. 191 a; 2 Prest. Abst. 63.) This is because the words in italics are mere surplusage, which express nothing which the law would not without them have implied *Hence it appears, observes [*297] Lord Coke, that a severance of the joint tenancy of a lease for lives is beneficial to the lessor. In the limitation of a fee simf)]e in joint tenancy, the words above placed in italics, instead of erring from mere superfluity, are highly pernicious. They turn the ■ limitation to a joint freehold for lives, with a contin- gent remainder in fee simple to the survivor. (Butl. n. 1 on Co. -Litt. 191 a.) At common law, one or more joint tenants could not Partition, be compelled by the other or others to make partition. (Litt. sect. 290.) Voluijtary partition between them can be made only by deed. (Co. Litt. 169 a; ibid. 187 a.) By the statutes 31 Hen. 8, c. 1, and 32 Hen. 8, c. 82, the same right of partition as appertained at com- (1101) Digitized by Microsoft® 276 THE NATURE AND QUANTUM OF ESTATES. mon law to coparceners, is given both to joint tenants and to tenants in common. By the Partition Act, 1868, 81 & 32 Vict. c. 40, and the Partition Act, 1876, 39 & 40 Vict. c. 17, the Court is empowered, subject to cer- tain conditions, to substitute a sale for an actual par- tition. Is a sole ownership. How it may arise. (2.) Tenancy in Common. A tenancy in common, though it is an ownership only of an undivided share, is, for all practical pur- poses, a sole and several tenancy to ownership ; and each tenant in common stands, towards his own undi- vided share, in the same relation that, if he were sole owner of the whole, he would bear towards the whole. And accordingly, one tenant in common must convey his share to another, by some assurance which is proper to convey an undivided hereditament; and he cannot so convey by release. (2 Prest. Abst. 77.) A title by tenancy in common may be claimed by pre- scription. (Litt. sect. 310. ) This proves the severalty of the interest. A man who, in his official capacity, is a corporation sole, as a bishop, may be tenant in common with him ■ self, in respect of his two capacities, as an individual and a corporation. (Co. Litt. 190 a.) [*298] *Tenancy in common may arise in any of the following ways: — (1) By express limitation. At common law a gift or limitation contained in the premises of a deed, which standing by itself would have created a joint tenancy, might be turned to a tenancy in common by express words in the habendum ; such as, habendum, the one moiety to the one and the other moiety to the other of them. (Co. Litt. 183 b.) In modern assurances, which are commonly made under the Statute of Uses, tenancy in common is limited in the habendum, by declar ■ ing the use " as to one equal undivided moiety,'' or other fractional part, to one of the persons, with similar declarations in favour of the others respectively. (2.) By the severance of a joint tenancy. (Litt. sect. 292.) (1102) Digitized by Microsoft® OF CONCURRENT OWNERSHIP. 277 (3.) Similarly, by severance, through alienation, with- out partition, of the interests of coparceners. (Litt. sect. 309.) (4.) By construction of law. (i.) If a (contingent) remainder be limited to the heirs of two living persons, not being husband and wife, which remainder must therefore vest in interest at different times, the respective heirs will take as tenants in common. (Windham's Case, 5 Eep. 7, at p. 8 a, resolution 3; Roe v. Quarley, 1 T. K. 630.) (ii.) Under a limitation, in the form of an estate tail, to persons neither married nor capable of lawful marriage, or to three or more persons, they will take in common. {Windham's Case, ubi supra, resolution 4.) Other instances might be specified; but in the present state of the law, they are not material in practice. There is nothing in the nature or origin of tenancy The shares in common to import any necessity that the shares may be taken by the different tenants must be equal; because unequal, they hold by several, *or different, titles, not [*299] by a joint title. (Litt. sect. 292.) Their shares will, accordingly, be unequal, whenever the circumstances under which their titles arose were such as to institute any diversity between them. On an express limitation, unequal shares may be expressly limited; and then the shares will be unequal from the. commencement of the severance of the shares. When the origin of the ten- ancy in common is by the severance of a joint tenancy, or by a change in the title of coparceners, the shares will in their inception be equal; but inequality may be subsequently introduced, by more than one of such equal shares becoming united in the same hands. The subject of cross remainders is intimately con Cross re- nected with tenancy in common; because the cross re- mainders: mainders are necessarily, and the particular estates """^ fl°° •+>, upon which they are limited may be, and frequently tenancy in are, limited by way of tenancy in common. common. The following remarks will be confined to particular estates tail, followed by cross remainders in tail; which is the only form in which cross remainders are material to be considered in practice. (1103) Digitized by Microsoft® shares. 218 THE NATURE AND QUANTUM OF ESTATES. In separate The particular estates upon which the cross remain- l)arce]s, or in ders depend may either be estates tail in separate undivided parcels of land, or may be estates tail in several undi- vided shares of the same parcel of land. In other words, a man having several distinct farms, or other parcels, may limit them separately in tail to separate persons, with cross remainders between them; or hav- ing one parcel only, may limit that parcel in tail to several persons as tenants in common, with cross re- mainders between them of their several undivided shares. When cross remainders are limited in respect of un- divided shares of the same parcel, these shares are in practice always equal, and the limitation of the remain- ders is also in equal shares. The following remarks will be contned to equal cross remainders between equal undivided shares of the same parcel. To two Cross remainders between two persons only present persons. no difficulty to the imagination. Lands are limited as [*300] to one *undivided moiety to A. in tail, with re mainder to B. in tail; and as to the other undivided moiety to B. in tail, with remainder to A. in tail. To more than The general result of a similar limitation, when made two persons, to more than two persons, expressed in somewhat col- loquial language, is, that upon the failure of each stock, its share is divided equally among the other stocks; and so often as another failure of a stock occurs, the share held by that stock, whether original or accrued, is divided equally among the still subsisting stocks; so that, when the stocks have been reduced to two, each will have obtained a moiety; and finally,, the last subsisting stock will get the whole. This process of accruer is, of course, liable at any stage to be interrupted in respect to each stock, by such stock barring the entail in its share. Preston's The more formal definition given by Preston is as definition. follows: — " Cross remainders, as between three or more persons, are several remainders limited to each of the three or more persons, in lands, or in the parts of lands, previously limited to each of them, and operating by way of successive accumulated remainders on the several aliquot parts, which each takes in the shares of the others; so that, in the first place, or by way of imme- diate estate, each person is to have a parcel of land, or a part of a parcel of land, and the others, as tenants in common, are to have an estate in remainder in the lands or part of this person; and the persons taking (1104) Digitized by Microsoft® OF CONCURRENT OWNERSHIP. 279 each part under each successive gift of remainders, are to have remainders, in like manner, in the part limited to each other, till every subdivided part is divisible between two persons only; and then each of these persons is to have a remainder in the share of the other; so that, ultimately, by small undivided parts, the entirety of the lands may centre in one person." (1 Prest. Est. 98.) Each person under the original limitation will have a vested estate in the whole of the lands, made up of separate estates in separate fractions. The first estate will be an estate in possession in his own aliquot un- divided share; and the others will be remainders, of successively increasing degrees of remoteness, in frac- tions of the other aliquot shares. ' . *It is settled law, that in a deed cross remain -[*301] Cross re- ders cannot arise by implication, but only by espress iiia"\tlers by •/ •/ J. 1 TlTnllCJltlOTl words. (Cole v. Levingston, 1 Vent. 224; Doe v. Dorvell, 5 T. E. 518. ) In a will cross remainders may arise by implication ; but a stronger ground of presiimption, or evidence of the testator's intention, is required when the limitation is to three or more persons, than when it is to two only. (See notes to Cook v. Gerrard, 1 Wms. Saund. 170, at p. 185 ; Powell • v. Howells, L. E. 3 Q. B. 654; Re Ridge's Trusts, L. E. 7 Ch. 605 ; Hannaford V. Hannaford, L. E. 7 Q. B. 116; Hudson v. Hudson j 20 Ch. D. 406.) On the question, whether cross remain- ders should be inserted among the limitations of an executory settlement, see Surtees v. Surtees, L. E. 12 Eq. 400. (3. ) Parceny or Coparceny. Parceners, or coparceners, are where several persons DeflAition together constitute a single heir ; as the daughters, and general where there is no heir male, in respect to common law character- lands, and the sons, in respect to gavelkind lands. (Litt. sects. 241, 265. As to gavelkind, see more at large Eob. Gav. 138 et seq. ) The same rule holds of sisters, aunts, and other groups of female kinsmen in the same degree, there being no prior heir male. (Litt. sect. 242.) But with respect to gavelkind lands, it is to be observed that, though by the custom of Kent the rule of coparceny extends to collateral descents (Eob. Gav. 115), this is not necessarily true of gavelkind lands situated elsewhere ; and a custom to that effect must be proved as a special custom. (Co. Litt. 140 a, b. ) (1105) Digitized by Microsoft® 280 THE NATURE AND QUANTUM OF ESTATES. The rule of representation holds good in descents in parceny; so that the issue of a person who, if living at the time of the descent, would have been a parcener, will take in parceny along with the other like persons. But such issue, as respects the amount of their share, take per stirpes and not per capita. (Co. Litt. 164 b. ) Parceners hold a position intermediate between joint tenants and tenants in common. Like joint tenants, they have among them only one single freehold, so long as no partition is made. Like tenants in common, they have among themselves no jus accrescendi; but upon the death of one parcener, a descent takes place of her aliquot share. And one parcener may at com- [*302] mon *law convey to another by an assurance proper to convey a several estate, as a feoifment. (Co. Litt. 164 a. ) But 'such conveyance might also be made by release. (Co. Litt. 9 b.) A female who, having no sisters, stands in the posi- tion of heir, is of course styled the heir and not a par- cener. (Litt. sect. 242.) To sum up the foregoing points, it will be observed that for some purposes parceners constitute a single person and have but one single estate between them, while for other purposes they are regarded as being several persons and as having several estates. 1. They make together but one heir to their ances- tor. Yet they were separate persons for the purpose of escheat by attainder. If a man had died, leaving no sons but two daughters living, one of whom had been attainted of felony, one moiety would have escheated. (Co. Litt. 163 b. ) 2. They can convey inter se either by assurances proper to convey several estates, or by release. 3. They pass (at common law) their whole aliquot share to their descendants, per stirpes, whether the descent occurs before or after the death of their common ancestor. This rule is not altered by the Descent Act. Partition. ^^^ parcener was, even at common law, entitled as against the others to a compulsory partition. (Litt. sect. 241.) The intrinsic union between the shares of parceners is shown by the fact that, on a partition, nothing was held to pass from one parcener to another, and therefore a partition between them was no pur- chase to make an alteration in the course of the descent. (2 Brest. Abst. 471; ibid. 431.) This rule extends even (1106) Digitized by Microsoft® OF CONCURRENT OWNERSHIP. 281 to partitions made between some of the parceners and the assignees of the others, so far as the shares taken by the parceners are concerned. {Doe v. Dixon, 5 Ad. & E. 834.) A rentcharge granted for equality of parti- tion is descendible in the same manner as the land. (Co. Litt. 169 b.) Voluntary partition might be made between parceners by mere parol agreement, or by drawing lots, or by reference to the award of arbitrators agreed upun be- forehand by all the *parties. (Litt. sect. 243, [*303] 244, 246. ) Lands which had been given in frank-mar- riage to one daughter must be brought by her and her husband into hotchpot. (Litt. sects. 266, 267.) By 8 & 9 Vict. c. 106, s. 3, a partition made after 1st October, 1845, is void at law unless made by deed. After judgment upon a vrrit of partition at common law, a writ was directed to the sheriff, ordering him to m^ake the partition by the oath of twelve lawful men of the county. (Litt. sect. 248.) But the men of this in- quest must be chosen from the neighbourhood of the lands. (Co. Litt. 168 b.) The Court of Chancery from very early times exer- cised jurisdiction in respect to partition, vchen land holden of the King in capite descended upon parceners, one or more of them being under age. (Fitzh. N. B. 256 F; ibid. 260 B.) This jurisdiction, being incident to the tenure, and a consequence only of the necessity for livery of the lands out of the King's hand, was practically abolished by 12 Car. 2, c. 24. Suitt for partition were also frequently instituted and entertained under the court's equitable jurisdiction, when this had grown into general recognition; and under this juris- diction a decree for partition was regarded as a matter of right, upon proof of title. (2 Com. Dig. 762.) At common law, upon the death of one parcener, her Descent. whole share descended to her issue. (Co. Litt. 164 a.) This rule is not altered by the Descent Act. {Cooper v. France, 19 L. J. Ch. 313; Paterson v. Mills, 19 L. J. Ch. 310.) (4.) Tenancy by Entireties. Tenancy by entireties occurs, at common law, when Definition a gift or conveyance, which, if made to two strangers, and mode of would create a joint tenancy, is made to a husband and limitation, wife during the coverture. (Litt. sect. 291, and Lord (1107) Digitized by Microsoft® 282 THE NATURE AND QUANTUM OF ESTATES. [*304] Coke's comment; (h) 2 Prest. *Abst. 39. See Co. Litt. 326 a : — " Where the husband and wife are jointly seised to them and their heires of an estate made during the coverture") The peculiarities of this kind of tenancy arise out of the identity which the common law imagines to exist between husband and wife. (Litt. sect. 291.) It is equally applicable to estates in fee simple, in fee tail, for the lives of the parties, and pur autre vie. (2 Prest. Abst. 39. ) Distin- It constitutes the most intimate union of ownership guished from known to the law. A husband, being tenant by entire- ly™* ties of freeholds with his wife, cannot by any alienation bar her right by survivorship in any part. (Co. Litt. 3'26 a; Doe v. Parratt, 5 T. R. 652,"at p. 654) They are accordingly said to hold per tout et nan per my. (2 Bl. Com. 182. ) The same rule formerly applied also to forfeiture. (Co. Litt. 187 a.) As to chattels Preston affirms that this kind of tenancy is applica- real. ble to a term of years. (2. Prest. Abst. 39.) But he also states that, unless the term is a provision for the wife under some ante-nuptial agreement, the husband alone can assign the term. {Ibid. 43, 57.) If this doctrine is correct, it is difficult to see in what a ten- ancy by entireties of a term of years differs from a joint tenancy. The case of Grute v. Locroft, Cro. Eliz. 287, cited by him as an authority in support of this doctrine, is by no means conclusive, for it is distinctly stated that there the tenancy was a joint tenancy. Equities of The case of Martin v. Mowlin, 2 Burr. 969, seems to redemption show, that in a tenancy by entireties of an equity of re- T'^t'T'^'"''^^ demption, the husband in his wife's lifetime can convey the whole. As regards money and personal chattels, the husband alone can give a good discharge therefor, and can alienate after reduction into possession; and the wife has no equity to a settlement thereout. (Ward V. Ward, 14 Ch. D. 506; Godfrey v. Bryan, ibid. 516.) But it would seem that, if the court gets hold of the property, it will practically prevent the husband from exercising his right of alienation, by retaining the fund (A) Lord Coke does not use the phrase "hy entireties." He spealfs of cases in Avliich "the husband and A^-ife slinl! linre no moieties." That is to say, he regards tenaiioy by entireties as being a species of .joint tenancy, with the distinguishing charac- teristic that it confers no power of severance. This accords with the definition above given. (1108) Digitized by Microsoft® OF CONCURRENT OWNERSHIP. 283 in court; thus preserving to the wife her chance of taking the corpus by survivorship. (Atcheson v. Atcheson, 11 Beav. 485.) *Husband and wife might be tenants by entire [*305] ties, as between themselves, of an undivided share; and might, as regards the owners of the other undivided shares, be either tenants in common or joint tenants. It is difficult to say what is the effect, upon tenancy The Married by entireties, of the Married Women's Property Act, Women's 1882, 45 & 46 Vict. c. 75. This is one of the questions, ^^^^yl^ which seem to have escaped the attention of the legis- ' lature when that statute was enacted. In Mander v. Harris, 24 (Jh. D. 222, Mr. Justice Chitty seems to have thought that the effect of the Act is to destroy the status of coverture, so far as this status affects mutual rights, or incapacities, in respect to the ownership of property. His judgment was afterwards reversed upon appeal; but upon special grounds which do not affect the above stated opinion. (32 W. E. 941.) Preston was of opinion that, by express words, a husband and wife might, at common law, be made tenants in common under a gift to them during the coverture. (2 Prest. Abst. 41.) This would seem to imply that, in his opinion, the creation of this tenancy was a question of intention; though, in the absence of an expressed intention to the contrary, the law pre- sumed the intention to be in favour of the tenancy by entireties. If this view is correct, it would seem that the effect, in this respect, of the Married Women's Property Act, 1882, is simply to reverse the rule, or im- plication, of law. Where, at common law, an express intention was required to prevent tenancy by entireties from arising, an express intention will now be required in order that it may arise. Though the Act enables certain things to be done, which could not be done at common law, it does not seem to disable the parties from doing anything which was formerly lawful. If, on the other hand, the origin of the tenancy at com- mon law was not due to intention, but was due solely to the incidents of what may be called the proprietary status of coverture, and if Mr. Justice Chitty was right in thinking that this status has no longer any exis- tence, then it would follow that this tenancy can no longer be created. The former seems to be the more plausible view. (1109) Digitized by Microsoft® 284 THE NATURE AND QUANTUM OF ESTATES. Part IV. ON ASSURANCES. [*306] *CHAPTER XXVI. ASSURANCES IN GENERAL. General re- Assurances (other than wills and testaments) are corn- marks on the monly divided into assurances operating by the common influence of ]g^^ ^nd assurances operating by the Statute of Uses. ^surancel!°° But it must be remembered that many of the latter as- surances derive part of their operation from the com- mon law. It must also be remembered that the Statute of Uses, though its influence upon assurances in gen- eral is greater than that of any other statute, is not the only statute upon which certain kinds of assurances depend for their operation or validity. The following examples are worthy of notice. (1.) Modern disentailing assurances and assurances by married women and their husbands derive their operation partly from the, Fines and Re- coveries Act. And because that statute, for the purpose of barring an entail, only superadds in- rollment to the assurances otherwise appropriate to the conveyance of a fee simple, it follows that disentailing assurances may also derive part of their operation from the common law and from the Statute of Uses. (2.) It has been remarked by Butler, and is indeed obvious, that in the old-fashioned assurance styled "by lease and release," the lease alone derived its operation from the Statute of Uses: the bar- gainee for a year under the lease, so soon as his possession was executed by the statute, being capable at. common law of taking a release of the reversion. The conveyance could be made without the help of the Statute of Uses, by making a lease to take efPect as a common law [*307] lease, instead of as a bargain and *sale for a year, and causing the lessee to take actual possession under it, instead of relying upon a constructive possession executed by the statute; a method which was sometimes employed in (1110) Digitized by Microsoft® ASSURANCES IN GENERAL. 285 conveyances by corporations, who, not being seised to a use, could not, by means of a bar- gain and sale, raise a use capable of being exe- j cuted by the statute. For the same reason, corporations not unfrequently conveyed free- holds in possession by feoffment, appointing an attorney under their common seal to give livery of the seisin. The 4 & 5 Vict. c. 21, s. 1, ena-j bled an assurance to be made by a single deed, ' having the same operation as the two deeds for- ' merly used in assurances by lease and release. I It superseded the need for the preliminary lease, ' by giving to the release alone, if expressed to be made in pursuance of the Act, a purely stat- 1 utory operation as a conveyance of estates of freehold in possession. This Act was in force from 15th May, 1841, till 7th, August, 1874, hav- ing been repealed by the Statute Law Revision Act, 1874 (No. 2). But it was seldom used in practice, after the coming into operation of 8 | & 9 Vict. c. 106, on 1st October, 1845. The wri- ter has met with an example of its use in a deed dated August, 1852. (3.) During the time that 7 & 8 Vict. c. 76, remained in force — from 31st December, 1844, to 1st October, 1845 — another statutory method ex- isted of conveying estates of freehold in posses- sion. This was not confined to a release, and was not expressed to be made in pursuance of the Act. (4.) The last-mentioned Act was repealed by 8 & 9 Vict. c. 106, which, without repealing 4 & 5 Vict. c. 21, practically superseded it by provid- ing a more convenient form of assurance. Sect. 2 enacts that after 1st October, 1845, all cor- poreal tenements and hereditaments shall, as re- gards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery. All modern assurances of estates of free- hold in possession, except a feoffment and a bargain and sale inroUed, depend for their validity upon this statute. *Oonveyances of estates of freehold in posses [*308J sion, taking effect by virtue of any of the above-men- tioned statutes, 4 & 5 Vict. c. 21, 7 & 8 Vict. c. 76, or 8 & 9 Vict. c. 106, owe all their efficacy to the partic- ular statute and at common law would be wholly in- operative ; unless by reason of peculiar circumstances (1111) Digitized by Microsoft® 286 THE NATURE AND QUANTUM OF ESTATES. they can be construed to take effect by some means foreign to their purport. (See the notes to Chester y. Willan, 2 Wms. Saund. 283.) Sect. 49 of the Conveyancing Act of 1881 declares, that the use of the word grant is not necessary in order to convey tenements or hereditaments, corporeal or in- corporeal. Since no substitute is mentioned, it is not clear what would have been the effect of this enactment, if the word grant had been otherwise necessary to pass things lying in grant. Until the coming into operation of 8 & 9 Vict. c. 106, the word grant was neither neces - sary nor appropriate to pass corporeal hereditaments. Since that date, corporeal hereditaments (which phrase includes corporeal tenements) have been numbered among things lying in grant ; and the word grant has been appropriate to pass them, but not necessary. {Shove V. Pincke, 5 T. R. 124 ; Haggerston v. Handbunj, 5 B. & C. 101.) It is probable that the word convey, which occurs frequently in the Conveyancing Act of 1881, will in future be often used; though it would be dif- ficult to give any reason for preferring this substitute. Before the coming into operation of 8 & 9 Vict. c. 106, remainders and reversions were capable, at com- mon law, of being conveyed by grant ; but that mode of assurance was not commonly used in practice, be- cause it was essential to the validity of the assurance that the existence of the particular estate should be proved. For this reason it was the common practice to convey remainders and reversions eitjier by lease and release or by bargain and sale inrolled. (2 Prest. Abst. 85.) (5.) Sect. 65 of the Conveyancing Act of 1881, amended by sect. 11 of the Conveyancing Act of 1882, enacts that, under certain circumstances and subject to certain restrictions, the unexpired residue of a long term of years may be enlarged into a fee simple, by some one or other of sundry persons entitled in right of the term. Such en- largement is in no way dependent upon the con- currence of any person entitled in reversion. [*309] *(6.) Sect._l5 of Lord Cranworth's Act, 23 & 24 Vict. c. 145, enables the person exercising the power of sale conferred by the Act upon mort- gages, to vest in the purchaser all the estate and interest which the mortgagor had power to dis- pose of; but, in the case of copyholds, only the beneficial interest. This enactment was repealed by the Conveyancing Act of 1881. It created a (1112) Digitized by Microsoft® ■ ASSURANCES IN GENERAL. 287 statutory power, by which mortgagees were some- times enabled to convey a greater estate than was vested in them. The above-mentioned enactments, and also all enact- ments creating statutory powers, which give to the deeds to which they relate an effect or modus operandi which could not have been given to them by the mere act of the parties, do not stand upon the same footing as 8 & 9 Yiet. cc. 119, 124; Lord Cranworth's Act, with the exception of sect. 15 above mentioned; or sects. 6, 7, 18, 19, 34, and 63 of the Conveyancing Act of 1881, and similar enactments: which merely aim at dis- pensing, either wholly or partially, with the actual ex- pression by the parties of something which they were competent to effect without any legislative assistance. Excepting only the capacity of being executed into General re- legal estates, uses were in all respects the same before marks on the the statute as afterwards. Our early jurists regarded nature of the legal estate in fee simple, and the conterminous ^^^^' use, as being two separable things, commonly found together, and priin& facie presumed to be united in the legal tenant; but capable of separation, and having definite characteristics when separated. When such separation took place, the use conferred the right, both to take the profits of the lands, and also to call upon the person having the legal estate to make such con- veyances thereof as the person having the use should think fit. The following propositions were clearly established from early times: — (1.) Regarded as a descendible entity, the descent of the use followed the descent of the thing of which it was the use. So that, (i) the use of lands which were subject to no peculiar local custom, held for an interest analogoxis *to [*310] a common law fee simple, descended to the heir geceral; (ii) the use of gavelkind lands de- scended according to the custom of gavelkind; and (iii) of borough-english lands, according to the custom of borough-english; (iv) other pecu- liar local customs affecting common law lands, when good in law, had the like effect upon the descent of the use of them; and (v) the use of ■ copyholds descended according to the custom of the manor. (1113) Digitized by Microsoft® 288 ON ASSURANCES. And it was as impossible to change the course of descent of the use as to change that of the legal estate. (1 Prest. Est. 448; Rob. Gav. 98, 99. ) So far as the law permitted new estates to be created and taken by way of purchase, the use (like the legal estate) could of course be made to go to any person whatsoever; but by purchase only, not by descent, unless such per- son was the next in the order of descent pre- scribed by the law. (2.) The person entitled to the use {cestui que use) might alienate the use, by conveyance inter vivos. (3.) So also he might devise the use, before the Statutes of Wills, although the use was of lands which were not themselves deviseable. (4.) By the statute 1 Eic. 3, c. 1 (which was not positively repealed until 1863, when it had for ages been quite obsolete), cestui que use was en abled to make conveyances inter vivos of the lands themselves, which were good, not only as against cestui que use to convey the use, but also as against his feoffee to uses, so as to convey the legal est^e. This statute never had any extensive operation. For an instance of its use in practice, see Dy. 283 a, pi. 30. In all essential characteristics these uses resemble what we now call equitable estates, diiSering from them mainly by reason of the greater complexity of limita- tion to which the ingenuity of conveyancers has grad ually subjected the latter. This greater complexity has [*311] proceeded par* passtt with the increasing *com- plexity in the limitation of legal estates; and both these developments are due, in a great measure, to the influence of the statute 27 Hen. 8, c. 10, commonly called the statute for transferring uses into possession, or, more briefly, the Statute of Uses. General efifect It seems strange that the legislature, when it enacted ofthe Statute that uses should be transformed into legal estates, of Uses. should not have foreseen that, unless at the same time •people were forbidden to raise or declare uses, they would soon take to raising and declaring uses as a method of creating and conveying legal estates. (1114) Digitized by Microsoft® ASSURANCES IN GENERAL. 289 The result has beea that the easy plasticity which the Court of Chancery from early times permitted to the declaration of uses has been, in a great measure, imported into the methods of creating legal estates. Instead of the land stifling the activity of uses, the latter have imparted their mercurial properties to the land {i). Moreover, since it was decided soon after the pass- Origin of ing of the statute, that no use could be limited upon a modern xiae (Bacon, Uses, 43 ; 2 Bl. Com. 335), it was only *™^*«- necessary to interpose a second seisee to uses between the feoffee or grantee and the cestui que use, in order to restore the old system of equitable estates or trusts : a device which gave occasion to Lord Hardwicke's cele- brated remark, that " a statute made upon great consid- eration, introduced in a solemn and pompous manner, by this strict construction, has had no other effect than to add at most three words to a conveyance." (1 Atk. 591.) But this lively rhetoric must not be taken quite seriously; nor is it quite clear whether he wished that equity had refused to enforce the trust, or that the law had consented to execute the seisin. The above mentioned decision, which only imports, when it is rightly understood, that a use is not a here- ditament vs'ithin the meaning of the statute, has been subjected to much petulant, if npt ignorant censure. In the opinion of the present writer, it has been well defended by Eowe, in his edition of Bacon on Uses, note 74, p. 134. *The question, whether the Statute of Uses [*312] Whether the applies to will has given rise to much difference of rjses annlies opinion. The objection (Butl. n. 1 on Co. Litt. 272 a, to wills. VIII. .1) that the Statute of Uses was passed before the first Statute of Wills, 32 Hen. 8, c. 1, seems to be intrinsically futile; and at the present day it might lead to the awkward inference that grants of freeholds in possession, made by virtue of 8 & 9 Vict. c. 106, s. 2, are also not within the statute. But since it is the unquestioned fact that the intention of the testator itself avails to convey the legal estate, and that this intention may be made effectual by any language which is clearly intelligible, it follows that the machinery of the Statute of Uses cannot be necessary to carry into effect the intention of a testator; that he might dispense (i) "And because uses were so subtle and ungovernable, as hath be4n said, they have with an indissoluble knot coupled and married them to the land, which of all the elements is the most ponderous and immovable." 1 Rep. 124 a. 19 (1115) Digitized by Microsoft® 290 ON ASSURANCES. with it if he thought fit to declare such an intention: and that, in so far as the machinery of the statute has practically been applied to the interpretation of wills, this has been done only because their language gave rise to the inference that the testator intended to follow the analogy of the statute. This analogy has been applied when the limitations in the will, by follow- ing in detail those which would be appropriate in a deed, suggest a corresponding intention. In particular, it is clearly settled that the doctrine of a use limited upon a use applies to wills, and that, where such a double use occurs, the legal estate is fixed in the per- son who takes the first use, though he be only a trustee without any active duties to perform. (2 Jarm. Wills, • 4th ed. 290.) But in general, and apart from Ihe indi- cation of intention supplied by the existence of a use upon a use (that is, a use followed by a trust), the estate taken by trustees is generally restricted in wills to what is required for the fulfilment of their trust. This doctrine of cutting down the estate taken by trustees has no application to the settlements effected by deed. {Cooper v. Kynoch, L. B. 7 Ch. 398.), The first and most important section of the Statute of Uses, abbreviated by the omission of what is not necessary to the consecutive construction, is as follows : — The form of ' ' That where any person or persons . . at any time here- sec(. 1 of the after shall . . . be seised, of and in any . . . hereditaments, to statute. the use confidence or trust of any other person or persons or ot any body politic, by . . any . . means whatsoever, ... in every such case all and every such person and persons and bodies [*313] *politic that . . shall have any such use confidence or trust . . shall . . be . . deemed and adjudged in lawful seisin estate and possession of and in the same .' . . hereditaments, ... to all intents constructions and purposes in the law, of and in such like estates as they had or shall have in use trust or con- fidence of or in the same. ' ' Principal The statute is expressly made applicable both to uses points. then in existence and to those subsequently created. The following propositions respecting the uses which are contemplated by it, follow naturally from its lan- guage, and have always been taken as indisputable ; un- less the case of Holland v. Boins or Bonis, 2 Leon. 121, at p. 122, 3 Leon. 175, at p. 176, be thought to cast any doubt upon the 2nd : — 1. A person must be seised to the use. 2. Here person does not include hody politic; as is shown by the repeated omission of body politic when speaking of the person seised and the re (1116) Digitized by Microsoft® ASSURANCES IN GENERAL. 291 peated mention of body politic when speaking of cestui que use. A. corporation cannot be seised to a use. (Bacon, Uses, 42, .57; and Rowe, note 113, p. 178, see p. 184; 1 Eep. 122a, 127 a; Ful- merston v. Steward, Plowd. 102, at p. 103; and see at p. 538; Shep. T. 508; 2 Prest. Con v. 255, 256; 2 Sand. Uses, 27, note.) But a natural person may be seised to the use of a corporation. And a natural person, who is also a corporation sole, as a bishop, may be seised in his natural capacity to the use of himself and his succes- sors in their corporate capacity. (Bacon, Uses, 64.) 3. Sincje he is seised, his estate must be of freehold. 4. But the quantum of the interest contained in the use is not necessarily equal to a freehold. 5. The person seised cannot in general be identical with the person entitled to the sole. The com- mon forms, habendum unto and to the use of the grantee do not take eilect by the Statute of Uses, but by the common law. - But such a declaration of a use to the grantee himself, though it is not a use which is capable of being executed by the statute, and though it has no effect upon the seisin which would be in the grantee by the common law without it, never- theless avails to make any subsequent use limited upon it, incapable of being executed by the *statute. Such a subsequent use would [*314] be a " use limited upon a use," and would take effect, if otherwise valid, as a trust. And in certain cases, in which it is held that there is " a direct impossibility or impertineney for the use to take effect by the common law," the seisee to uses may himself take by the statute. (Bacon, Uses, 63.) Bacon goes on to enumerate the following examples, which are thus summed up by Sanders (1 Sand. Uses, 92) : — (1.) Where the use is limited to the feoffee (or other seisee to uses) in tail out of his own seisin in fee simple, and the remainder over to another ; (2). Where the whole seisin in fee simple is conveyed to the feoffee, and many estates in the use are carved out of such seisin, one of which estates the feoffee takes; (3.) If the feoffee be seised to the use of himself and another jointly; (4.) If a feoffment be made to a bishop and his heirs to the use of himself and his successors. This, (1117) Digitized by Microsoft® 292 ON ASSURANCES. Assurances operating under the statute. if a case in point, is not precisely on a level with the other instances, because the use is here en autre droit. The uses above specified are executed by the statute. But if A. be infeoffed to the use of B. for life, and af- terwards to the use of himself and his heirs, the latter use is not executed by the statute; but A. is in by the common law retaining the residue of his original estate; and therefore he takes by way of reversion and not of remainder. (Bacon, Uses, 64.) Preston, in summing up his statement of the case of Goodhill V. Brigham, 1 Bros. & P. 192, treats it as hav- ing decided that " a person cannot be seised to his own use, when there is not any other purpose to be served." (3 Prest. Conv. 269.) This proposition seems well to express the general rule, subject to the above-stated ex- ceptions. It results from the foregoing considerations, that the main question, upon which depends the theory of the raising of estates by way of use, is as follows : — Under what circumstances, and by what methods, can a use be so connected ivith a seisin, that the person having the. L*315] seisin can be said to be seised to the use within *the meaning of the Statute of Uses; so that the use ivill be executed into a legal estate by the statute ? The outline of the reply to this question is contained in the following propositions : — (1°) Any person capable of transferring by convey- ance a seisin vested in himself to another, may, upon the making of such conveyance, declare any use or uses upon the seisin in the transferee, to or in favour of any person or persons other than the transferee : which uses, if valid as uses, will' be executed by the statute. The proviso, if valid as uses, imports that the de- claration of uses is subject to restriction. Any use which contravenes the rule against perpetuities is void. Moreover, no estate can be raised by way of use except such as, in point of quantum, might be conveyed at the common law; and no course of devolution except that prescribed by the law can be prescribed by way of use. (2°) Under certain circumstances, a person having the seisin in himself may raise' or declare uses upon that seisin while remaining in himself, which uses are capable of being executed by the statute. (1118) Digitized by Microsoft® ASSURANCES IN" GENERAL. 293 These propositiona explain the meaning of the com- mon dictum, that conveyances which take effect under the statute operate sometimes with transmutation of the possession, and sometimes without transmutation of the possession. The following is a list of the principal assurances by Assurances which a seisin may be, or might formerly have been, with trans- conveyed to another person within the meaning of the ™'^t8-ti9° ° » , \, ., . . ^ ... ° possession, first of the foregoing propositions : — 1. A fine ; and 2. A recovery ; until these assurances were abolished by the Fines and Recoveries Act. 3. A feoffment. 4 A release of the reversion on an estate, less than a freehold, to the person having the less estate. The above-mentioned assurances convey the seisin by the common law. From the fourth, by engrafting upon it a bargain and sale for a year, taking its effect by the *statute, was de- [*816] rived the old assurance by lease and release. 5. Since the 8 & 9 Vict. c. 106, a grant of the seisin: which is the method now almost universally used. The seisin being conveyed by any of the aforesaid methods, the uses declared thereupon, if otherwise valid, are within the statute. The assurances which may take effect by the statute Assurances without transmutation of the possession, — that is to without aay, by which, under peculiar circumstances, a person ^yansmuta^ may raise or declare a use, capable of being executed possession. by the statute, upon a seisin vested in himself, — are as follows : — 1. A bargain and sale. 2. A covenant to stand seised to uses, in considera- tion of blood or marriage ; commonly styled, for brevity, a covenant to stand seised. (1119) Digitized by IVIicrosoft® 294 ON ASSURANCES. [*317] *CHAPTEE XXVII. OP FINES AND EECOVEEIES. Since fines and recoveries now not only are obsolete, but do not exist, it is unnecessary to add much to the remarks above roade upon the operation of these assur- ances when levied, or suffered, by tenant in tail. (See Chapter XXL, supra. ) These assurances were reckoned among the " common assurances of the realm; " and the use of them was by no means confined to their operation to bar estates tail. The effect of -^7 reason of the statutory title gained against strangers non-claim on to the fine under the 4 Hen. 7, c. 24, and 32 Hen. 8, c. a fine. 36^ by a non-claim of five years' duration, fines were extensively used to strengthen doubtful titles; and even, by a species of fraud, to manufacture fictitious titles which, by a non-claim of five years' duration, became indefeasible as against all persons who might have made" their claim at the time when the fine was levied. From this point of view it may be said that a fine operated to abridge to five years the period allowed by the Statutes of Limitation for the prosecution of an adverse claim. A fine had also the further advantage, that it gave an actual title ; whereas the Statutes of Limitation previous to the 3 & 4 Will. 4, c. 27, gave no title, but only barred the remedy of the claimant. fines. Three rules The operation of a fine, levied with proclamations by governing force of the statutes 4 Hen. 7, c. 24, and 32 Hen. 8, c. 36, was regulated by these cardinal principles: — (1°) Since strangers might, at common law, avoid a fine upon a plea partes ^nis nihil habuerunt, which right was saved by the last mentioned statutes, it was necessary to the validity of the fine that one of the parties should be en- titled to an estate of freehold in the lands. Biit any estate, whether in possession, remain- der or reversion, would support a fine; and, generally, even though it had been gained by disseisin or tort. [*818] *(!fi°) A fine would not bar any estate which was not so far devested as to be turned to a (1120) Digitized by Microsoft® OP FINES AND RECOVERIES. 295 right of entry. If it were so far devested as to be discontinued, that is turned to a right of action, such discontinuance would, a fortiori, suffice. The devestment or discontinuance might be •effected either previously to the fine or by force of the fine itself. (See Butl. n. 1 on Co. Litt. 332 b; 2 Prest. Abst. 306; 3 ibid. 135.) (3°) When several distinct rights, under several distinct titles, accrued to the same person at different times, he had several and distinct periods of five years allowed to him, com- mencing respectively, from the respective times of accruer, within which to prosecute them respectively. (Cruise, 1 Fines & Kec. 237.) It follows from these principles, that any person hav- tt. ^ ing any such possession of land as would qualify him barred dor- to make a feoffment, though a tortious feoffment (fc), mant titles. could simultaneously convey a sufficient estate to sup- ' port a fine against the plea partes finis nihil habuerunt, and also sufficiently devest the estates rightfully sub- sisting under tha former seisin, which was displaced by the feoffment. A fine so levied would therefore bar all those estates (so far as regards persons not under disability) upon the expiration of five years after the completion of the fine. The bar would not be complete, as against persons under disability, until the expira- tion of five years from the cessation of the disability. If the feoffment were made by a tenant for life or years, the remainderman or reversioner would, after the death of such tenant or the expiration of the term, as the case might require, have a fresh period of five years to prosecute his claim. For though the tenant for life or years had incurred a forfeiture of his estate, the re- mainderman was not bound to take advantage of the forfeiture (I). Upon the determination of the particu- lar estate, whether for life or years, a new right accrued to the remainderman; and, by consequence, a new period of five years within which it might be prosecuted. (See Fermor's case, 3 *Eep. 77; WhaleyY. Tankard, [*319] 2 Lev. 52, 1 Vent. 241; Brandlyn v. Ord, 1 Atk. 571; Cruise, 1 Fines & Rec. 239. {Tc) Upon the tortious operation of a feoflfment, see p. 328, infra. {I) Per Lord Hardwicke, in Kemp v. Westhrook, 1 Ves. sen. 278. (1121) Digitized by Microsoft® 296 ON ASSURANCES. Uses declared Uses might be declared upon the seisin which passed on a line or by means of a fine or a recovery, in the same way as recovery. j^^^j jjjjgiit ^q declared upon the seisin which passed by a feoffment; and such uses, since they caused the conusee, or the recoveror, to be "seised to the use" of the person entitled to the benefit of the use, were within the language and intent of the Statute of Uses and were executed by the statute. The uses of a fine were declared by the person by whom it was levied; and the uses of a recovery were declared by the person by whom it was suffered. If no uses were declared, and the fine was levied, or the recovery suffered, without valuable consideration, the use, and with it, by virtue of the statute, the legal estate, resulted to the person entitled to beclare the use. Owing to the last mentioned circumstance, a doubt at obe time existed, whether a tenant to the prcBcipe could be made by levying a fine without any declara- tion of use; for it was thought that the seisin might be forthwith devested out of the tenant to the jjrcecijje by the resulting of the use, instead of remaining in him to enable him to serve the purposes of the recovery. But it was decided that the use would not result con- trary to the intention of the parties. (Altham. v. An- glesea, 11 Mod. 210; 2 Salk. 676.) Fines and Since a married woman might always, at common recoveries as j^w, be joined as a co-defendant with her husband in raarried^^^ ^ ^^ action at law, it follows that she could concur with women. him in levying a fine or suffering a common recovery; because, for all technical purposes, these stood in ex- actly the same position as the actions at law which they simulated. Before the Fines and Recoveries Act, a fine was the assurance commonly used by married wo- men to release dower or convey estates of inheritance. A recovery had the like effect; but it was not commonly used in practice for these purposes, unless it was also intended to be used to bar an estate tail. ( 1 Prest. Conv. 4, 5.) For these purposes a fine was effectual without proclamations (3 Prest. Abst. 133); because it was sufficient for these purposes that the parties should [*320] be bound *inter se by estoppel, there being no need to have recourse to the peculiar properties of a fine levied under the statutes 4 Hen. 7, c. 24, and 32 Hen. 8, c. 36, or to the doctrine of non-claim; and, at common law, even after the Statute of Non-claim, 84 Edw. 3, c. 16, a fine bound the parties themselves, in- cluding the married woman, by estoppel. For the same (1122) Digitized by Microsoft® OF FINES AND RECOVERIES. 297 reason, a recovery was for these purposes effiectual, al- though it was suffered without a proper tenant to the Origin of praecipe. The separate examination of married women "separate arose from the provision of the statute Modus levandi ^r^™iii^- fines — " And if a woman covert be one of the parties, then she must first be examined by four of the said jus- tices; and, if she doth not assent thereunto, the fine shall not be levied." (2 Inst. 510.) And when a mar- ried woman joined in suffering a common recovery, =he was always separately examined by the practice of the Court." (Cruise, 2 Fines & Ree. 179.) It may also be remarked that, by the custom of Lon- Assurances don and of many other cities and boroughs, married by married women might bind their real property by deed inrolled, ^he'^ustom of with acknowledgment. (See, for a very similar custom London, of the town of Denbigh, Dy. 303 b, pi. 26. ) This cus- tom is expressly confirmed by 34 & 35 Hen. 8, c. 22; which statute remained in force until 1863. Though this custom was recognised by the statute, it did not depend upon the statute for its validity, and there is no reason to suppose that the repeal of the statute has destroyed the custom. But at the present day this form of assurance would have little practical utility. It would enable a woman, who is neither entitled in equity to her separate use, nor entitled as a feme sole Tender the Married Women's Property Act, 1882, to alienate or charge lands situate in the City of London, without obtaining the concurrence of her husband, which would be necessary to the validity of any assur- ance made by virtue of the Fines and Recoveries Act. (1123) Digitized by Microsoft® 298 ON ASSURANCES. [*321] *CHAPTER XXVIII. OF A FEOFFMENT. Functions of A feoffment, the moat valuable of assuranpes, survives feofifments at to this day, but is now little used. It is believed that common law. certain old corporate bodies still retain, at all eVents to some extent, their ancient habit of conveying by feoff- ment. The present vrriter, not many years ago, was concerned in drawing a power of attorney to deliver in seisin. It is the only assurance (not being matter of record, as a fine or recovery) by which, at common law, legal estates of freehold in possession can be conveyed to a person having no subsisting interest in the land and no privity with the person making the. assurance. It consists simply and solely in the livery of the seisin ; and some phrases in common use, which seem to imply a distinction between the feoffment and the livery are so far incorrect. In what cases Under the following special circumstances the imme- the imme- diate freehold might at common law be acquired with- diate free- out livery of seisin and without any assurance of hold might record:— livery. (1-) The tenant of the immediate freehold might surrender to the immediate remainderman or reversioner. (Co. Litt. 50 a.) Before the Statute of Frauds, the surrender might have been effected by mere parol,- without any writing. {Ibid. 33,8 a.) By 8 & 9 Vict. c. 106, s. 3, a surrender of any estate of freehold is void at law unless made by deed. (2.) The immediate remainderman or reversioner, upon a term of years, or a tenancy at will, might release by deed to the tenant for years, or at will. (Co. Litt. 50 a ) (3.) An exchange might be made, without livery of seisin, of lands held for a freehold in possession, all the exchanged lands being situate in the same county. And before the Statute of Frauds, f *322] such exchange might have been by *mere parol. (Litt. sect. 62.) A deed is now necessary. (See 8 & 9 Vict. c. 106, s. 3.) (1124) Digitized by Microsoft® OF A FEOFFMENT. 299 (4.) Partition between coparceners might be effected without livery. (Doct. & Stu. 17th ed. p. 23.) For example, by drawing of lots. (Litt. sect. 2l6.) A deed ia now necessary. (See 8 & 9 l^iot. c. 106,8.3.) V (5.) Lands or tenants which are appurtenant to an office, would pass in possession on a grant bv deed of the office. (Co. Litt. 49 a; Shep. T. 90.) (6.) Similarly of lands or tenants which are appur- tenant to a corrody. (Co. Litt. 49 a.) The last two instances are hot, strictly speaking, ex- amples of a conveyance of the freehold in the lands, which passes only as appurtenant to the subject of the grant. Lord Coke adds, as further examples, assignment of dower ad ostium ecclesice, or otherwise (meaning also dower ex assensu patris), and the surrender of cus- tomary freeholds. (Co. Litt. 49. a.) But though the assignment of dower forthwith gave the wife an inde- feasible claim, this can hardly be called an immediate claim, and still less can the assignment be said to have vested in her an immediate freehold ; and as to customary freeholds, the opinion that these are properly freeholds must now be regarded as quite exploded. (Vide supra, p. 27.) Any livery of the seisin for an estate of freehold is Usage of the commonly styled a feoffment; but in strict propriety word. the word, being equivalent to donatio feodi, denotes livery for a fee or estate of inheritance. (Co. Litt. 9 a. ) Since estates of mere freehold in possession will at common law pass by livery of seisin as well as estates of inheritance in possession, it was convenient, when feoffments were in common use, to have only a single name to denote the appropriate assurance. Livery of seisin is divided into livery in deed, and livery in law. Livery in deed (or actual livery) is made upon the land itself, and in the absence (m) of every person, (m) It seems to have been held in MeUeforde' s ensc, Dy. 362 b, pi. 20, that the presence on the land ot the reversioner, if he raises no objection, would not, at common law, have hindered a tenant for years from making a (tortious) feoffment. But it is not clear that this was more than obiter dictum, for it was doubted in 'that case whether the effect of the particular deed of feoffment was not to convey the term itself previously to the livery of seisin, in which case the livery would, it is conceived, have been (1125) Digitized by Microsoft® 300 ON ASSURANCES. • Requisites to [*323] other than the feoffor or *feoffors, having any hvery m lawful estate and possession in the thing whereof livery is made. (Shep. T. 213.) But a lessee for years may be present, if assenting to the livery; and the livery is good if made in his absence without his assent. (Co. Litt. 48 b.) The absent lessee must not leave behind him any servant, or other representative. Otherwise the livery is void, even though such sei-vant should assent. (Eol. Abr. Feoffment, L. 15. See also Dy. 363 a, pi. 22.) Indifferent persons, having and claiming no estate or possession, nor representing anyone who does, may be present. (Doe v. Taylor, 5 B. & Ad. 575.) It seems that the ceremony in which livery in deed, consists may be merely the utterance by the feoffor of express words, unaccompanied by any action, declaring a present intent that the feoffee shall immediately have the seisin ; but in practice the utterance of appropriate words was commonly accompanied by "the delivery of anything upon the land in the name of seisin of that land, though it be nothing concerning the land." (Co. Litt, 48 a. ) Words to signify the intent are necessary to perfect the delivery of seisin, though they are not necessary to perfect the delivery of a deed. (Co. Litt. 49 b.) An exception to this rule seems to exist in the case of a dumb feoffor. (Co. Litt. 42 b, 43 a.) The reports of Sharp's Case, 6 Kep. 26, Cro. Eliz. 482, Serj. Moore's Rep. 458, if they all refer to the same case, are utterly at variance (n). According to Moore, a certain man, intending to deliver seisin of a [*324J house and land, merely (solement) ^delivered a deed of feoffment within the house ; which was held to upon Sharp's be no livery of the land, but only a delivery of the deed. *"'" If this account is both correct and complete, the case would be clear and undoubted law ; but Moore's ac- count of the facts, if he is referring to the same case. The cere- mony of liv- ery in deed. Remarks void. The authority of the Touchstone is express, that the per- son above referred to in the text, if present, must actually join in the livery ; in which case they would of course be counted among the feoffers. Preston, in his additions to the text of Shep- pard, seems to support this view, as to freeholders ; but he re- marks that a mere assent by lessees for years is suiiicient. («) Lord Coke's editors have during several generations treated these reports as referring all to the same case ; nor is there any 'reason, from the facts stated, to doubt the identity of the case in Croke with that of Lord Coke. But the dates are different. At the end of Croke 's report is the following remark : — "Note, that Serjeant Glanvil said, such a case was between Swan and Sparks." In Moore the name is Sharpe v. Swaine, and it may perhaps be plausibly conjectured that the case in Moore is that to which Glanvil referred. (1126) Digitized by Microsoft® OP A FEOFFMENT. 301 is expressly contradicted by both of the other reporters. They affirm that the man who meant to make the feoff- ment used words which, in the apprehension of ordi- nary persons, would leave no doubt of his intention. Lord Coke gives the words, with peculiar minuteness of circumstance, as follows : — " Brother, I here demise unto you my house as long as I live, paying twenty pounds by th^ year to me, and finding me my board and washing and keeping of a horse." Croke plainly represents the case as having decided, that mere words, unaccompanied by the symbolical delivery of something, like a turf, a twig, or the ring or handle of the door of a house, are insufficient to efPeet livery of seisin. To- wards the beginning of Lord Coke's report, which is apparently confused and certainly obscure, the reader IS inclined to think that he is being told the same thing ; but Lord Coke afterwards explicitly affirms that the words. Enter into this land and enjoy it during your life, would alone have constituted a good livery of seisin. Therefore it would seem that, according to Lord Coke, the case only decided that the word demise is not an apt word to make livery of seisin, even for an estate pwr autre vie; although in a deed it is undoubt- edly an apt word to make a lease for life or lives, so far as the operation of the deed is concerned. In practice the safest course is undoubtedly to make Course to be a symbolical delivery, upon the land or in the house, pursued m of some appropriate object in the name and as a symbol practice. of the land or house, and to accompany this act with words, desiring the feoffee to hold the land or house according to the limitations contained in the deed of feoffment, by which, under the statute 8 & 9 Vict. c. 106, hereinafter mentioned, the livery must now be evidenced. Feoffor or feoffee may both, or either, be represented Livery by, or by their respective attorneys, duly appointed for the to, an attor- purpose by deed. (Co. Litt. 48 b.) A parol attorney ^^y- will not suffice. An infant may appoint an attorney to receive livery of seisin on his behalf ; *and this [*325] is an exception from the general rule, that an infant cannot execute a deed. (1 Prest. Abst. 293.) Livery in law differs in its ceremony from livery in Livery in deed only in being made in sight of the land instead of law. actually upon it. (Co. Litt. 48 b. ) It does not require the same absence of hostile claimants; and it was in fact seldom used unless the presence on the land of such claimants made livery in deed dangerous or impossible; (1127) Digitized by Microsoft® 302 ON ASSURANCES. "When it passes the seisin. though such danger is not essential to the validity of livery in lavr. (Co. Litt. 253 a.) But livery in law passes no estate without entry by the feoffee during the joint lives of himself and the feofPor. Such entry must be actual entry (entry in deed), unless the feoffee be hindered from' making actual entry by fear of violence; in which case he may make an entry in law instead, by approaching as near as he dares, and in words claiming the land to be his. Under such circumstances, an entry in law will operate to perfect the livery, and cause the estate to pass, in the like manner as entry by deed. (Litt. sect. 419; Townsend v. Ash, 3 Atk. 336, at p. 340.) Parcels in the The law imagines such an intimate union between same county, different parts of the same county (Finch, Law, p. 79) that livery of seisin of one parcel suffices to give seisin of all other parcels in the same county, to which the livery relates. (Litt. sect. 61. ) Feofifments by infants. Customary feoffments by infants. At common law, a feoffment made by an infant, proprid manu and not by attorney, is voidable only and not void ; and the age of the infant is not material. (13 Vin. Abr. 174 = Feoffment, E, pi. 1, 2; 1 Prest. Abst. 323. ) By the custom of the county of Kent, an infant, whether male or .female, not being below the age of fifteen years, seised in fee simple in possession of lands subject to the custom of gavelkind, may inde- feasibly alienate them by feoffment; at all events for valuable consideration. (Bob. Gav. pp. 248, 249.) It is doubtful whether, in the absence of consideration, such a feoffment would be unavoidable. (Ibid. pp. 276, 277.) It would not be void; because if it should [*326] fail as a customary *feoffment, it would be in the position of a f eoff'ment made by an infant at com . mon law. The alienation is not necessarily for a fee simple, but may be for a fee tail, or for life. (Bob. Gav. p. 280.) But (independently of 8 & 9 Vict. c. 106, s. 4) a feoffment made by an infant could not have any tortious operation. (Bob. Gav. pp. 279, 280.) It is doubtful whether this custom extends to lands taken by the infant otherwise than by descent. (Ibid. pp. 277, 278, and p. 27P, note c.) But infants so rarely take lands by purchase, that the question is of little practical importance. The custom is construed strictly; and therefore the infant must deliver seisin (1128) Digitized by Microsoft® OP A FEOFFMENT. 303 proprid manu, and not by attorney. (Ibid. p. 249.) The Statute of Frauds, s. 1, whereby no feoffment can convey any greater estate than a tenancy at will, unless it is " put in. writing," signed by the feoffor or his agent thereunto lawfully authorized by writing, seems to apply to feoffments made under a custom by an in- fant. But such feoffments are expressly excepted from 8 & 9 Viet. 0. 106, s. 3, whereby feoffments in general are declared to be void unless evidenced by deed. This custom is not necessarily confined to gavelkind lands in Kent. It might lawfully be alleged to exist in manors and boroughs elsewhere. (Eob. Gav. p. ' 287. See Co Litt. 110 b, and Harg. n. 2 thereon. ) In respect to lands not within the county of Kent, its ex- istence would require to be specially proved. At common law, a deed was necessary only in the Livery secun- case of a feoffment made to a corporation aggregate, dumformam and not being a gift in frankalmoigne. (Co, Litt. 94 ^'•'''*- b. ) But though the livery was itself the feoffment, and nothing else than livery was generally necessary to a perfect feoffment, yet the limitation of the estate or the estates for which the livery was made might be contained m a deed, executed for the purpose pre- viously to the feoffment; and if the livery were after- wards made without any formal limitation, but ex- pressed to be made with reference and according to the deed {secundum formam, or formam et effecturh, cartce), such livery would enure to effect the limitations con- tained in the deed. If livery of seisin be made secundum formam cartce, the jj^g^ ^Yie operation *of the livery, so far as regards the [*327] charter con- quantum, of the estate passed by it, is controlled by the tools the import of the deed; so that (1 ) if the deed should limit ^^^^'T- an estate which cannot pass, or which cannot be created, by livery of seisin, as a remainder de novo in fee sim- ple expectant upon the death of the feoffor, or a term of years followed by no remainder of freehold, the livery is void; (2) if the livery purport to be secun- dum formam cartce, but the feoffor should also verbally limit an estate which is less than the estate limited in the deed, the estate limited in the deed passes by the livery. (Co. Litt. 48 a, b; ibid. 222 b.) An estate of freehold having any quantum, in re- mainder expectant upon a term of years created at the same time, may be passed by making livery of seisin to that intent to the termor for years. (Litt. sect. 60.) But such livery cannot be made after the termor has (1129) Digitized by Microsoft® 304 ON ASSURANCES. Statutory requisites. Writing. Deed Signing not essential to the deed's validity, entered into possession by virtue of his tprm; it being, of course, understood that his entry upon the land for the purpose of receiving livery, does not, being made with that intent, amount to an entry into possession so as to defeat the livery. (Co. Li tt. 49 b.) Andfor this pur- pose the livery must be livery in deed, not livery in law; which latter can only be made to the person who is himself to take the freehold. {Ibid.) Since the Statute of Frauds, 29 Car. 2, c. 3, s. 1, no feoffment can convey any greater estate than a tenancy at will, unless it is "put in writing," signed by the feoffor or his agent thereunto lawfully authorized in writing. By the 8 & 9 Vict. c. 106, 3, a feoffment, other tha a feoffment made under a custom by an infant, is void unless evidenced by deed. Except in special cases by virtue of special enact ments, a deed does not need signing in addition to seal ing and delivery. (Taunton v. Pepler, Madd. & Greld. 166; Cherry v. Heming, 4 Exch. 631.) Blackstone seems to have thought that the above- cited section of the Statute of Frauds had made signing necessary to every deed by which any estate or interest specified in that section is granted or evidenced. (2 Bl. Com. 306.) But he seems for a moment to have forgotten, that all transactions not by deed are in contemplation of law [*328] by parol. The statute *seems only to aim at restricting (in the specified cases) the latitude of parol transactions, forbidding parol transactions by mere words, permitting parol transactions by written words without deed. There is not any reason to believe that the "many fraudulent practices, which are commonly endeavored to be upheld by perjury and subornation of perjury," against which the statute is aimed, were com mon in transactions by deed; or that, if they had been, the remedy applied by the statute would have been efficacious in such cases; or that the makers of the statute" thought it would. Transactions by deed seem wholly outside the language, as well as the intention, of the statute. (See Prest. Shep. T. 256, note 24. 3 Brest. Abst. 61.) It is therefore conceived that there is nothing in the Statute of Frauds to make signing necessary to the deeds contemplated in 8 & 9 Vict. c. 106, s. 3. Such deeds ought nevertheless to be signed in practice. (11.30) Digitized by Microsoft® OP A FEOFFMENT. 305 By the common law, any person having actual pos- Tortious session (not necessarily actual seisin, of lands, could, operation of by a feoffment, give to any person other than the ''' feoffment person having the nest or the immediate estate of free- faw°™™°° hold in the lands (o). an immediate estate of freehold, • having any quantum. If the feoffor was actually seis- ed, and the estate which passed by the feoffment was no greater than the estate of the feoffor, the feoffment took effect rightfully; but if the feoffor was not ac- tually seised, or if the estate which passed by the feoff- ment was greater than his estate {p), the feoffment was styled a tortious feoffment, and was said to take effect by- wrong. In accordance with the maxim that no one can qualify his own wrong, a tortious feoffment devested the whole fee simple out of the rightful owner or owners. It does not follow that the tortious feoffment was neces- sarily a feoffment in fee simple; *and it might [*329J in fact be for a less estate. In such case, the feoffee took only the less estate, but the whole fee simple was devested out of the rightful owner or owners, and such part of it as was not disposed of by the feoffor by way of a tortious reversion upon the tortious particular es- tate created by the feoffment. The tortious operation of feoffments made after 1st -^"^ P^^' October, 1845, is prevented by 8 & 9 Vict. c. 106, s. 4. Statute. The possession of a termor for years, or tenant at -^^q could will, or by sufferance, sufficed to enable the termor, or make a tenant, to make a tortious feoffment; and thus convey tortious an iiiamediate estate of freehold which fulfilled many feoff^^ent. of the purposes of a rightful estate, though it afforded no defence against the title of the rightful owner. Upon the subject generally, and especially upon the case of , Doe v. Horde, Cowp. 689, 1 Burr. CO, 5 Bro. P. C. 247 (1st edition), (q) in which Lord Mansfield, striv- (o) If the feoffment' had been made to the person lawfully seised in possession, it would have been void; as purporting to give him, by means of a wrongful title, what he already had by right- ful title. If it had been made to the next remainderman, it would have operated rightfully as a surrender of the estate of the feoffor, thus accelerating the remainder. (1 Prest. Abst. 35.3.) ' (p) "Where a greater estate passeth by livery than the par- ticular tenant may lawfully make. " (Co. Litt. 251 a. ) Upon the whole subject of disseisin by tortious feoffment, see Litt. sect. 611, and Butl. n. 1, thereon. (g) The reference to the Second Edition, Ijy Tomlins, is 6 Bro. P. C. 633, in all other citations of these reports the references are to the 2d Ed. 20 (1131) Digitized by Microsoft® 306 ON ASSURANCES. Its effect, "when not made by tenant in tail actually seised. Entry tolled. Entry now not tolled by descent. Discontinu- ance. Eight of action refers to real action, ing after an unattainable equity (rd ij.-q ysviaOat Sovo.ruv StZijlxe'^oq ), threw the law into much confusion, see Butl. n. 1 on Co. Litt. 330 b. If a tortious feoffment was made by any person other than a tenant in tail actually seised, the person right- fully entitled (or any other person acting in his name, even though without his assent) might at common law destroy the tortious estate of the feoffee by mere entry (Co. Litt. 258 a); but if the feoffee's heir had succeeded by inheritance before entry made, the heir's estate could not be affected by entry, and the rightful claimant was put to his action. (Litt. sect. 385. ) His entry was technically said to be tolled by descent cast. Entry was tolled by a descent cast in fee tail (when the dis- seisor made a gift in tail) as well as in fee simple. [Ibid. sect. 386.) But on the extinction of the entail by failure of issue, the entry was revived against the remainderman or reversioner. (Co. Litt. 238 b, ) The 3 & 4 "Will. 4, c. 27, s. 39, enacts that no descent cast after 31st December, 1833, shall toll any right of entry. This enactment made the learning of descents cast, and also of continual claim whereby rights of entry might be protected therefrom, equally obsolete. A feoffment made by a tenant in tail actually seised, operated as a discontinuance of the estate tail, and de vested all remainders, and the reversion, expectant [*330] upon it, unless they were vested *in the king. {Stone V. Newman, Cro. Car. 427, at p. 428.) By such discontinuance the persons entitled under the entail, and in remainder or reversion, were barred of their- right of entry, and respectively put to their action as the only means to enforce their claims. The learning relating to discontinuance, though obsolete in respect to the common practice, is still sometimes of practical importance. In 1884 a case was litigated in the House of Lords in which the validity of a claim partly depended upon the properties at common law of a tortious fee simple, which had been gained by a discontinuance effected in the preceding century, by a feoffment made by the survivor of two joint donees in special tail. In all cases where the right of entry was tolled or barred, the needful action to recover the seisin was a real action. An action of ejectment [ejectione firmce.) would not suffice. (2 Prest. Abst. 328. ) There were two degrees of remoteness in a right of action, the first being said to be founded upon a right of possession, and the second being styled a mere right; (1132) Digitized by Microsoft® OF A FEOFFMENT. 307 and there were two kinds of real actions corresponding thereto, possessory actions, grounded upon writs styled writs of entry, and droitural actions, grounded upon writs styled ivrits of right. A right of possession might be turned to a mere right, either by suffering such a time to elapse as would be a bar to a writ of entry, or by suffering adverse judgment by default in an action on such a writ. (See on this subject, Butl. n. 1 on Co. Litt. 239 a.) But the discontinuance of an estate tail by the tortious feoffment of the tenant in tail in pos- session, forthwith turned the right of the issue in tail to a mere right, without passing through any interme- diate stages. The feoffment hitherto contemplated, is a strictly feoffment as common law conveyance. But uses capable of being assurance executed by the statute may be declared upon the seisin under Statute of the feoffee; and in such case the conveyance takes of Uses, effect partly by the common law and partly by the statute. (1133) Digitized by Microsoft® 308 ON ASSURANCES. [*331] *CHAPTER XXIX.> OF A RELEASE. A EELEASE has seYoral modes of operation; but of these only two, strictly speaking, entitle it to be styled an assurance of lands — (1) its operation by way of en- larging an estate {enlarger V estate), when a remainder- man or reversioner releases his estate to a particular tenant; and (2) its operation by way of passing an estate {mitter I'estate), when one joint tenant releases his estate to another. The following remarks will be confined to releases by way of enlargement. Who may A mere interesse termini does not qualify the person take a release entitled thereto (the intended lessee) to take a release enlarger (Litt. sect. 459); for there does not exist a reversion upon an interesse termini. (Co. Litt. 270 a.) The lessee must be in possession either by actual entry or by force of a bargain and sale under the Statute of Uses. But he remains qualified to take a release, if he parts with the possession to a sub-lessee of his own; and a termor for years in remainder upon another term which is an interest in possession, is sulficiently qualified to take a release, without being or having been in posses- sion, by the possession of the termor under the prior term. (Ibid.) There is a sufficient reversion upon a tenancy at will to qualify the tenant to take a release (Litt. sect. 460); but not xipon a tenancy at sufferance, which is a bare possession without any privity of estate. (Co. Litt. 270 b.) The general principle which sums up and explains the foregoing observations is this, that the releasee must have in him a vested estate to which the releasor is privy. Its effect. Lease and release. By a release in fee, the estate of the particular ten- ant is enlarged, and, if his estate is only a chattel in- terest, his mere possession is turned to an actual seisin (Litt. sect. 546); and uses capable of being executed by the statute may be declared upon the seisin so ac- quired. [*332] *Upon the foregoing proposition was founded the efficacy of the now obsolete conveyance by lease- and release. The lease was a bargain and sale for a (1134) Digitized by Microsoft® OF A RELEASE. 309 year, which, being made by a person having the seisin in him, raised a nse capable of being executed without transmutation of the seisin, whereby the bargainee ac- quired a lease for a year, and was constructively in pos- session under the statute without actual entry. There- by he became qualified at common law to acquire the seisin in fee by means of a release of the reversion. New uses capable of being executed by the statute might be declared upon the seisin so transferred in fee to the releasee. Thus this kind of assurance might serve, and was in fact employed to serve, two different purposes, accord- ingly as the use was declared to the releasee himself, or as new uses were declared upon his seisin. ( 1) If the use was declared to the releasee himself, the latter re- mained seised; and, since he was seised to his own use, he was in by the common law, and not by the statute. In this case the lease and release operated merely as a conveyance, and its operation is divisible into two stages : first, the bargain and sale for a year, which took effect by the statute; and, secondly, the release, which took effect by the common law. (2) If new uses were de- ela,red upon the seisin of the releasee, these (if other- wise valid) were executed by the statute, whereby the seisin was devested out of the releasee to serve the uses. In this case the lease and release might operate as a settlement; and its operation was obviously divisible into three stages, of which the first and third were due to the statute, and the second was due to the common law. (1135) Digitized by Microsoft® 310 ON ASSURANCES, [*333] *CHAPTER XXX. OF A STATUTORY GRANT. All heredita^ The several stages by which the form of assurance by mentsnowlie jgggg a,nd release was superseded, have been traced m grant. above; the last of them being the 8 & 9 Vict. c. 106, s. 2, which enacts that, after Ist October, 1845, all cor- poreal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery. Relation The disuse in practice of feoffments is connected with between the some remarkable modifications in the practical effect premisses of a qJ conveyances, so faf as regards the relation between habendum the premisses and the /ia6ewdM?w. The following state ment of the chief points which require to be noticed in this relation may be found useful, since very confused, and even erroneous, ideas are now current upon the subject. A careful examination of the authorities seems to establish the following propositions : — (1) The habendum may enlarge an estate expressly contained in the premisses, and capable of tak- ing effect, but may not abridge or make void any such estate. (Co. Litt. 299 a ; Lilley v. Whitney, Dy. 272 a, pi. 30 ; Carter v. Madgwick, 3 Lev. 339 ; Germain v. Orchard, 1 Salk. 3'16, 3 Salk. 222 ; Goodtitle v. Gibbs, 5 B. & C. 709 ; Bod- dington v. Robinson, L. R. 10 Exch. 270.) It follows from the above- stated proposition, that the habendum, cannot abridge any estate contained in the premisses, unless such estate either is not expressly contained, or else is not capable of taking effect. And it accordingly appears, from an examination of the authorities, that all cases in which the habendum has been [*334] held *to abridge an estate in the premis- ses,' are referable to one or the other of these two heads, and are divisible into two classes, which are summed up in the two next following propositions. (1136) True criterion, ■whether habendum may control premisses. Digitized by Microsoft® OF A STATUTORY GRANT. 311 (2) Where an estate in the premisses arises, not ex- pressly, but by mere implication, an express estate in the habendum, if repugnant, may abridge the implication of the premisses. {Buck- Ur^s Case, 2 Rep. 55 ; Hogg v. Cross, Cro. Eliz. 254 ; Co. Litt. 183 a ; ibid. 190 b.) The language in which this rule is often re- ferred to, as being an example of repugnancy between the habendutn and the premisses, and of the controlling of the latter by the former, is not very happily chosen, though it is sanctioned by high authority. For, since it is not only un- necessary, but even improper, that the premisses should contain any mention of the estate to be granted (8hep. T. 75), there is no reason, under snch circumstances as above mentioned, to sup- pose that any estate by implication arises by the bare mention of a grantee in the premisses. In such cases, instead of saying that the implied estate in the premisses is controlled by the ex- press estate in the habendum, we should more properly say that there is no estate in the pre- misses at all. (3) Where, under the old law, an estate was con- tained in the premisses, which could not take effect without livery of seisin, and such livery was not duly made, then, if an estate was con- tained in the habendum which could take effect without livery of seisin, the latter estate would take effect by mere delivery of the deed, though the former would not. {Baldwin's Case, 2 Eep. 23.) In these cases also there is little propriety in speaking of the habendum as controlling the' premisses. It would be more correct to say that two limitations are contained in the same deed, one of which (that in the premisses) is void, while the other (that in the habendum) is cap- able of taking effect. It follows that, strictly speaking, the habendum does *not control the premisses in any [*335] of the foregoing cases, because either there is no estate in the premisses, or else the estate in the premisses is already void, independently of the operation of the habendum. Morebver, the introduction into common prac- tice of assurances by which an immediate free- (1137) Digitized by Microsoft® 312 ON ASSUKANCES. hold can be conveyed without making livery of seisin, such as a bargain and sale inrolled, a lease and release, or a grant under 8 & 9 Vict. c. 106, has rendered impossible, in modern prac- tice, any such seeming conflict between the habendum and. the premisses as appears in the cases referred to under proposition (3) ; because in modern assurances all estates whatsoever can pass by delivery of the deed without livery of seisin. The concluaion seems to follow, that in mod- ■ em assurances the habendum, though it may en- large, yet may not abridge, any estate previously contained in the premisses, unless the estate in the premisses arises by mere implication. In strict propriety of speech it should rather be said that the habendum only seems to abridge, when in fact there is no estate in the premisses at all. (4) In certain cases the estates limited in the pre- misses and the habendum respectively, though not precisely identical, are so far ejusdem gen- eris, that it is held to be compatible with the due intent of both, that a modification intro- duced by the habendum, shall be permitted to take effect. Thus, there is, for the present purpose, no re- pugnancy between a fee simple and a fee tail, both being of inheritance. If the former be limited in the premisses, and the latter in the habendum, the grantee undoubtedly takes a fee tail; but whether he also takes a remainder thereupon in fee simple is doubtful. (Co. Lilt. 21 a; Harg. n. 2 thereon, and cases there re- ferred to.) Some further evidence of intention, beyond the bare limitation in the premisses, is perhaps necessary to pass the remainder also. So, also, when there is a grant in the pre- [*336] misses to *several grantees, such as, if standing by itself, would import a joint tenancy, there is no repugnancy if the limitation in the habendum- sSnovld. be such as to import a tenancy in common; and in such a case the effect of the habendum, ia to sever the joint tenancy. (Co. Litt. 183 b. See also Dy. 361 a, pi. 8.) And if the grant in the premisses be to a man and his heirs habendum to him and his heirs (1138) Digitized by Microsoft® OF A STATUTORY GRANT. 313 during a life or lives, there is no repugnancy, and the grantee takes only an estate pur autre vie. (2 Prest. Est. 4.) And if a lessor, being seised of the reversion in fee simple upon a lease for life, makes a lease which. purports to be of the reversion, habendum the land for twenty-one years, there is no re- pugnancy, and the lease creates a good term in the land for twenty- one years after the death of the lessee for life; the habendum showing that the assurance was intended to be a lease of the lands and not a grant of the reversion. ( Throgmorton v. Tracey, Dy. 1 24 b. ) The sig- nificance of this distinction lies in the fact, that in that case the lessee for life had died without having attorned to the grantee, and at that day, the attornment of the person having the partic- ular estate, during the lives of the grantor and grantee, was necessary to the validity of a grant of the reversion. (Litt. sect. 551, and Lord Coke's comment. ) But now, by 4 Ann. c. 16, s. 9, the grant of a reversion is good without the attornment of the tenant. The remarks at p. 332, supra, as to the declaration Grant, as of uses in assurances by lease and release, whether to assurance the release himself, or upon his seisin, are exactly „" Tjtgs ^ ^ ^ applicable to the case of a grantee by virtue of the 8 & 9 Vict. c. 106. A modern conveyance by way of grant may therefore, to the same extent and for the same reasons, serve either as a conveyance or as a settlement; and it is the assurance now most commonly employed to serve those purposes. (1139) Digitized by Microsoft® 314 ON ASSURANCES. [*337] *CHAPTER XXXI. OF ASSURANCES BY WAY OF USE WITHOUT TRANS- MUTATION OF POSSESSION. It was a principal of equity, that the courts of equity would not enforce a mere voluntary use, as against any person who was not himself a volunteer; though, if an owner parted with the seisin and declared a voluntary use upon the seisin in the hands of his feoffee, equity would enforce the voluntary use as against the volun- tary seisin of the feoffee. Voluntary uses, therefore, did not interfere with the legal rights of any person whose seisin did not depend upon a voluntary title. It follows that no effectual use could, without considera- tion, be raised in favour of another person upon the seisin of a person who also had in him the beneficial title, while he retained the seisin in himself; because he could exercise all his legal rights unfettered by the voluntary use. By what con- The considerations which sufficed to raise a use upon use^mavbe''^ ^^^ seisin of a person who was also beneficially entitled, raised. were (1) valuable consideration, (2) the consideration of relationship by blood or marriage. A use so raised was capable of being executed by the statute. In the first case, the transaction, styled a bargain and sale, was complete upon payment of the purchase-money, and nothing further was absolutely necessary in order that the use might efiPectually be raised. In the second case, the consideration was such that it was no consid- eration at all, unless and until the person to be affected by it elected to regard it as such; and therefore a for- mal declaration of his intention was necessary. This was usually done by a covenant, whence came the as- surance briefly styled a covenant to stand seised. But a covenant was not necessary: a declaration of inten- tion made by deed poll would serve equally well. (Shep. T. 508). A mere parol promise was not suffi- [*338J cient. Collard v. *Collard, Poph. 47, Serj. Moore's Eep. 687, 2 Anders. 64; Page v. Moulton, Dy. 296 a, pi. 22. ) A bond fide valuable consideration was necessary to the raising of a use by means of a bargain and sale (1140) Digitized by Microsoft® BARGAINS AND SALES AND COVENANTS TO STAND SEISED. 31t operating as a conveyance, and a bond fide relationship' of blood or marriage was necessary to a covenant to stand seised. ' The fact that the bargain and sale for a year, which ■was the foundation of the conveyance by lease and re- lease, was expressed to be made for a nominal consider ation that was in fact never paid, does not form any ex ception to the rule, that a bargain and sale must, in order to effect as a bargain and sale, be made for valu- able consideration. The lease did not operate as a con- veyance until it was perfected by the release ; and both stages formed together one transaction. The acknowl- edgment of the fictitious consideration in the lease operated as an estoppel at law, and by the release, even though it were made for no consideration, the assurance became complete at law, without any need to resort to the equitable doctrine of bargains and sales. This as- surance is therefore no exception to the rule, because it did not take effect by the means contemplated by the rule. Though the lease is commonly styled a " bargain and sale," yet it was not in fact a bargain and sale in the same sense as the bargains and sales which are within the meaning of the Statute of Inrolments. After the pastsing of the Statute of Uses, the use Statute of which was raised upon the seisin of the vendor in Inrolments. favour of a purchaser who had paid his purchase- money, was forthwith executed by the statute and became a legal estate; and thus, by means of mere parol bargains and sales made for valuable consideration, it was possi- ble, until the passing of the statute next hereinafter mentioned, for vendors and purchasers to convey and acquire the freehold and the inheritance in lands with no more ceremony than was needed for the purchase of a chattel. The -27 Hen. 8, c. 16, called the Statute of Inrolments,- enacted, that from the 31st July, 1536, no manors, lands, tenements or other hereditaments, should pass from one to another, whereby any estate of inher- itance or freehold should take effect in any person, or any use thereof to be made by reason only of any bar- gain and sale *thereof, except the same bargain L*339j and sale be made by writing, indented, sealed, and in- rolled as therein mentioned. It will be observed that the statute did not extend to interests less than a freehold; and therefore that the bargain and sale for a year, which was used as the foun- dation of the release in assurances by lease and release, needed no inrolment. ■ (1141) Digitized by Microsoft® 316 ON ASSURANCES. Bargain and sale: its dis- advantages. Covenant to stand seised. Bargains and sales for valuable consideration, if duly inrolled, are still perfectly valid, and perhaps they are still sometimes employed. But they can serve only to convey, not to settle, legal estates; for since the bar- gainee comes in only by a use, any further use limited thereupon will be a use limited upon a use, which is not capable of being executed by the statute, and will exist only as a trust. For the same reason, this kind of assurance does not permit the insertion of powers intended to take eilect at law by declaration of use. The covenant to stand seised has long been quite ob solete. Its only function was to carry into effect family settlements ; and as the frame of these became more complex, usually comprising trustees to preserve con- tingent remainders, covenants to stand seised were nec- essarily abandoned, because the trustees were not within the consideration, and could, therefore, take no estate by virtue of the covenant. This insuperable obstacle does not now exist, since trustees to preserve contingent remainders are no longer needed; but there is no motive for reviving the defunct assurance. An important part has been played by the doctrine of covenants to stand seised, in the development of the maxim, Benigne faciendce sunt interpretationes curtd- rum. It has long been the practice of the courts to allow an assurance, technically invalid in the shape in which it was intended by the parties to operate, to take effect as a covenant to stand seised, when the circum- stances of the parties are such that the last mentioned assurance would have been valid. Thus an assur- ance of lease and release made by a man to his brother, which was void as a lease and release because it pur- ported to convey a freehold in faturo, was held good [*340] as a covenant to stand seised. (Roe v. *Tran- marr, Willes, 682, 2 Wils. 75.) It is sometimes nec- essary at the present day to have recourse to this doc- trine in order to defend a title. The scope of the foregoing remarks has been con- fined to matters preliminary to the investigation in de- tail of the conveyances and settlements which are per- mitted by the law. This subject introduces the theory and practice of modern conveyancing, which the writer may perhaps be enabled to discuss upon a future occa- (1142) Digitized by Microsoft® 317 APPENDIX. ■*THE CASE OP [*341] "W I T H A M V. Y A I^ E. [1879.— W.— No. 104] BEFORE THE 2%th, 21th April, 1883. A coyenant by a purchaser of lands in fee simple, contained in the convey- ance made to him by the vendor, that the purchaser, his heirs, appointees, and assigns, will from time to time and at all times pay, or cause to be paid, to the vendor, his heirs, executors, administrators, or assigns, the sum of sixpence for every chaldron of coals wrought and gotten out of the lands conyeyed, and which shall be shipped for sale, is not restricted to refer only to coal put on shipboard by or on behalf of the colliery proprietor for the purpose of subsequent sale by him, but refers also to all coal sold by or on behalf of the colliery pro- prietor Tor the purpose of shipment and actually shipped. Such covenant -is restricted to refer only to coals actually put on board ship, and cannot, by reason of subsequent changes in the customary modes of carry- ing coal, be extended to refer also to other modes of carrying coal, such as by railway transport, which have grown into use since the date of the deed con- taining the covenant. Such a covenant confers upon the vendor no interest in the land conveyed, and it is accordingly not open to any objection on the ground of remoteness, or as tending to create a perpetuity. In default of production of a counterpart of the conveyance executed by the purchaser, after due search made for such counterpart by the representatives of the vendor, secondary evidence of the execution of the conveyance by the pur- chaser is admissible ; and a recital of the covenant contained in ' a subsequent indenture executed by the respective representatives in title of the vendor and the purchaser, and a like recital contained in a private act of parliament obtained by the representatives of the purchaser, is sufSoient evidence, in addition to the antecedent probability of the matter, to prove the execution of the conveyance by the purchaser. (1143) Digitized by Microsoft® 318 APPENDIX. Sekl also, by the Court of Appeal, that the mere fact that the land conveyed had been enjoyed under the title obtained by the conveyance, and that the con- [*342] *veyance purported to contain such a covenant, would not, in the absence of proof of the execution of the conveyance by the purchaser, sufiice to render the purchaser and his representatives liable, either at law or in equity, to perform the covenant. The principal question in this case turned upon the validity, and the construc- tion, of certain stipulations, contained in certain articles of agreement in writ- ing, dated 24th June, 1823, and in a conveyance, dated 21st January, 1824, made between the predecessors in title of the plaintiffs, who were also the ap- pellants, and the predecessors in title of certain of the defendants, who were also the respondents, respectively. By the said articles of agreement, dated 24th June, 1823, and made between George Silvertop of the one part, and William Harry Earl of Darlington (after- wards Duke of Cleveland) of the other part, the said G. Silvertop agreed to sell and the said earl agreed to purchase the manor of Hutton Henry and other hereditaments in the County of Durham, containing in the whole 3, 200 acres or thereabouts, at the price of 42,000?. And it was thereby agreed that, in the conveyance of the said hereditaments to the said earl, there should be inserted a covenant from the said earl that he, his heirs and assigns, should from time to time pay to the said G. Silvertop, his heirs, executors, administrators, or as- signs, the sum of sixpence for each chaldron of coals of the Newcastle measure, which should be wrought and gotten out of the said hereditaments and which should be shipped for sale. The said articles of agreement were signed by the said G. Silvertop and the said earl respectively. In the conveyance of the said hereditaments to the said earl, made in pur- suance of the said articles of agreement, and dated 21st January, 1824, was contained a covenant in the following words : — "And the said William Harry Earl of Darlington doth hereby, for himself "his heirs executors and administrators, covenant with the said George Silver- " top, his heirs executors administratoi-s and assigns, that he, the said Wil- "liam Harry Earl of Darlington, his heirs appointees and assigns, shall and ' ' will from time to time and at all times hereafter pay or cause to be paid unto [*343] "the said George Silvertop, his heirs executors *administrators or as- ' ' signs, the sum of sixpence of lawful money current in Great Britain, for each "and every chaldron of coals of the Newcastle measure which shall be 'wrought ' ' and gotten from and out of the said hereditaments hereby released or other- ' ■ wise assured or intended so to be, and which shall be shipped for sale. ' ' The lands to which the present action related were comprised in the above- stated conveyance of 21st January, 1824, and are by Lord Selborne in his judgment styled the Hart Estate. The representatives in title of the Earl of Darlington had parted with all his estate in the said lands before the com- mencement of the present action. The plaintiffs, as the representatives in title of the said G. Silvertop, were entitled to the benefit of the said covenant, and certain of the defendants, as the representatives of the said earl, were liable to the burden of the said covenant, if and so far as the same was a valid and subsisting covenant, for the purpose of imposing a valid and subsisting liability upon the said earl and his representatives in title. The original of the indenture of 21st January, 1824, which was produced by the defendants, was duly executed by all parties whose concurrence was neces- sary to pass the estate agreed to be sold to the purchaser, the Earl of Darling- ton, but it was not executed by the purchaser. Diligent search had been made by the plaintiffs for the counterpart supposed to have been executed by the purchaser and delivered to the vendor; but no such counterpart was found. From the number of the seals afBxed to the original, and from certain pencil marks written against them, it appeared to have been contemplated that the original would be executed by the purchaser. (1M4) Digitized by Microsoft® WITHAM V. VANE. 319 The purcTiaser, the Earl of Darlington, was created Duke of Cleveland in the year 1841, and died on 29th January, 1842. In the judgments delivered he is commonly named by his later title. By an indenture dated 1st March, 1843, to which the persons then entitled to the benefit of the covenant, and the persons then liable to its burden, were both parties, certain arrangements, not material to be stated, were made in re- lation to the premises; and the said indenture contained a, full recital of the above-stated *conveyance of 21st January, 1824, in the course of which [*344] recital it was stated to be the fact, that the said Dulie of Cleveland had, by the said conveyance, entered into the covenant above specified. The indenture of 1st March, 1843, was executed by the persons then entitled to the benefit, and by the persons then liable to the burden of the said covenant, upon the hypothesis of its validity. In a private Act of Parliament passed in the year 1846, to amend a prior Act which had been passed for the purpose of vesting certain powers of manage- ment in the trustees of the will of the Duke of Cleveland, was contained a re- cital that, upon the purchase of the said hereditaments in the year 1H34, the said duke had entered into a covenant in the terms above specified. The Act which contained this recital was promoted by the persons who, as representing the said duke, would then have been liable to the burden of the said covenant upon the hypothesis of its validity. The principal questions which arose for discussion, and which are dealt with in the judgment, are as follows: — (1.) "Whether there was any, or sufficient, evidence that the purchaser, the Duke of Cleveland, had executed the covenant. (2.) Whether, on the hypothesis that the covenant had never been executed by the purchaser, it was nevertheless binding upon his personal repre- sentatives. (3.) "Whether, supposing the covenant to be binding on the purchaser, the words, ' ' coals . . which shall be . . . gotten from and out of the said hereditaments and which shall be shipped for sale," must be restricted to refer only to coals shipped by the colliery proprie- tor for the purpose of being subsequently sold by him or on his behalf. (4.) "Whether in the said covenant the word " shipped" must be restricted to refer solely to coals actually put on board ship, or whether it might be extended to refer also to other modes of carrying coal which had come into common usage since the execution of the covenant, and *had to a considerable extent taken the place of the then exist- [*345] ing custom of shipment. (5.) "RTiether, supposing the covenant to be otherwise valid and binding upon the purchaser, it was not void, as tending to a perpetuity. The original action came on for trial before Mr. Justice Fry, on 5th June, 1880. The trial lasted until 7th June, when judgment was given for the plain- tiffs. The learned judge seems to have held that, partly by reason of the un- doubted execution of the articles of agreement of 24th June, 1823, and partly by reason of the fact that the lands had been enjoyed under the title acquired by the conveyance of 21st January, 1824, it was not material to enquire whether the purchaser had in fact executed the conveyance, and that the covenant was, upon either hypothesis, binding upon his estate. He also held, that the cove- nant was not void as tending to create a perpetuity; that it referred only to coals put on board ship by or on behalf of the colliery proprietor for the purpose of subsequent sale by him; and that it could not be extended to refer to any other method of carrying coals than by shipment. Omitting the formal parts, and the part relating to costs, the order dated 7th June, 1880, drawn up in pursuance of Mr. Justice Fry's judgment, is as fol- lows : — (1145) Digitized by Microsoft® 320 APPENDIX. " This Court doth declare that according to the true construction of the cove- " nant in the deed of the 21st January, 1824, in the pleadings mentioned ' coal " shipped for sale ' means .coal put on shipboard by or on behalf of the colliery "proprietor for the purpose of subsequent sale by him and such coal only. " And doth order and adjudge that an inquiry be made having regard to the ' ' declaration aforesaid what nijmber of chaldrons of coal of the Newcastle ' ' measure wrought and gotten out of the Hutton Henry Colliery have been ' ' shipped for sale: And certain of the defendants who were the executors of the Duke of Cleve- land's will were ordered to pay to certain of the plaintiffs, in whom was vested the power to give a discharge for moneys becoming payable under the covenant, out of the assets of the said duke, sixpence for every such chaldron as should [■''346] be certified to have been so shipped for sale as aforesaid; with *certain further directions, in case the last-mentioned plaintiffs should not admit assets for the purpose. The plaintiffs appealed from the above-stated order. The appeal was heard by the Lords Justices James, Baggallay, and Lush. Their lordships appear to have held, that there was no evidence that the Duke of Cleveland had in fact executed the covenant; that upon that hypothesis, the covenant was not bind- ing upon him, although he had held the lands under the title acquired by the con- veyance in which the covenant purported to be contained ; and that the only remedy of the plaintiffs was, to have brought an action (before such action had become barred by the Statute of Limitation) for the breach of the agree- ment, contained in the articles of agreement of 24th June, 1823, to execute such a covenant. They accordingly reversed the judgment of Mr. Justice Fry, and ordered the action to be dismissed out of Court. The plaintiffs appealed from this decision to the House of Lords. The ap- peal was heard on 26th, 27th April, 1883, by the Lord Chancellor, Lord Black- burn, Lord Bramwell, and Lord Fitzgerald. The counsel for the appellants were Sir Farrer Herschell, S. G., Mr. Cookson, Q. C, Mr. Dunning, and Mr. W. B. Trevelyan. The counsel for the respondents were Mr. Whitehorne, Q. C. , Mr. Wolsten- holme, and Mr. Smart. At the conclusion of the arguments for the respondents their lordships re- tired for 'consultation ; and upon their return to the House, the following judg- ments (a) were delivered: — , LoED Chancelloe: My lords, I quite feel that this covenant is one of a somewhat unusual character, and that its operation may be in some respects inconvenient to the persons interested in the estate of the covenantor. Neither, however, of those rea,sons can be sufficient to prevent your lordships from gixTng to it its proper legal effect. They explain, perhaps, the pertinacity with which this action appears to have been defended, and I must, for my own part, say that, but for the respect which I feel for every opinion, even when contrary to my own, of the learned judges of the Court of Appeal, I should have thought [*347] *that there was no question in this case susceptible of serious difficulty or argument, excepting the question upon the construction of the covenant. The Court of Appeal, however, thought that the existence of the covenant was not sufficiently proved and - because they thought so it is impossible for your lordships not to regard that as a question requiring to be seriously examined. Now the matter stands in this way. There is a sale of land, not merely for a certain sum of money to be paid down at the time, but also in consideration partly of this peculiar covenant, under which, though the vendor, as I under- stand its effect and operation, retains no interest in the land, yet he may in a certain event which is provided for, the event of the working of the minerals under that land which he has sold, have a right to receive sums which may be of considerable amount and value from the purchaser or his representatives. My lords, this transaction was to be carried into effect by indenture, and we have produced to us an indenture executed by the vendor, and coming out of the (a) Such parts of the judgments as refer only to costs have been omitted. (1146) Digitized by Microsoft® WITHAM V. VANE. 321 purchaser's possession, which, upon the face of it, shows plainly on what terms and under what contract the purchaser, out of whose possession the deed comes, held and was in enjoyment of the land. The only question is whether the covenant was executed under seal hy the covenantor ; but that there was a con- tract for such a covenant, of importance and value to the vendor, is perfectly clear, because, as I say, the title deed, coming out of the purchaser's muniment room, contains upon the face of it the terms of that covenant, about which, therefore, if the covenantor was ever liable, there can be no controversy what- ever. Now what would be the natural course of such a transaction ? Would it be that one part only of the indenture would be executed by both parties and left in the hands of the purchaser ? Can your lordships suppose that such a transaction could naturally or reasonably take that course ; that the person who was to have the benefit of this covenant would not have in his power and in his own hands the covenant of which he was to have the benefit, and that the deed which alone could prove it would be delivered by him, acting by a solicitor, in a matter of business, over to the purchaser ? Your lordships will find it stated in *the books of law, and it is a familiar proposition, that [*348] when an indenture contains provisions in which each party retains and will have a continuing interest, one part of that is delivered by each party to the other. An indenture bi-partite is supposed not only to be between two parties, but to be in two parts ; and the natural, proper and ordinary course would be that each party could have a part executed by the other party which would secure to him his own interest. It may be, and I think it is, so stated by Mr. Hargrave (a), in a note to the passage about indentures in Coke upon Littleton, that the more modern practice has been for all the parts to be executed by all the parties, and it seems in this particular case that the deed produced from the muniment room of the purchaser was prepared by the solicitor in such a form as to show that he contemplated that it would be executed by both the parties ; and the fact that, on the face of it, it shows some preparation for execution by the Earl of Darlington, who was the covenantor, as well as by Mr. Whitham, and those who joined with him in conveying as vendors, has been relied upon in the Court of Appeals as evidence that no other execution by the earl, the cove- nantor, can have been contemplated, except the execution of that particular piece of parchment, which the earl did not execute. My lords, it certainly seems to me that that ground is most insufficient for the argument which is founded upon it. I cannot but believe that if the earl had executed the part which he retained in his own possession, the necessity for the execution of a counterpart would have been exactly the same, and that the business would not have proceeded in the natural and ordinary course of such a transaction unless a counterpart retained by the vendors had been executed by the earl. All reason, presumption, and probability are in favour of it. I do not say that a priori reason, presumption, or probability would have been by itself enough if there were no evidence of any kind, properly receivable, that there was in point of fact a covenant duly entered into and executed by the earl. But, my lords, there is, as it seems to me, upon that subject *evidence,[*349] not only admissible, but of the strongest possible character, and such that it is difficult to believe that its effect could have been rebutted vsdthout very strong and clear evidence indeed of a kind not at all likely to have been producible, and which certainly has not been produced in this case. What, my lords, is the evidence to which I refer ? It is this : an admission, under seal, by the duke's legal and personal representatives and devisees of this particular pur- chased estate, that he did enter into such a covenant. That admission your lordships find in the deed (6) bearing date the 1st March, 1843, which is made, (o) Not Hargrave, but Butler, n. 3 on Co. Litt. 229 a. See also 2 Bl. Com. 296. (6) Bee p. 313, ante. 21 (1147) Digitized by Microsoft® 322 APPENDIX. observe, my lords, 'between the persons the nrepresenting the vendors entitled to the benefit of this covenant of the first and second parts, and between cer- tain persons described as ' ' the trustees and executors ' ' named in and by the last will and testament of the Duke of " Cleveland " (for the earl had become the first Duke of Cleveland) ' ' deceased, of the third part ;" and they were in point of fact devisees in trust of that particular property, and also executors. The substance of that agreement is for the reduction upon certain terms of the payments Avhich might be exigible under this very covenant, a reduction which would operate for the benefit, both ofthe persons interested in the estate, if they were in any way liable for those payments, and in that way for the benefit of the trustees of the duke as devisees in trust, and also for the benefit of the duke's personal estate, as bound by the covenant, by reducing the amount which might be exigible against the estate under the covenant if it should come into force. Therefore, the executors of the duke, as such, were directly interested in the arrangements made by this deed. All the parties in- terested are brought together — ^the covenantees, the Withams, the devisees in trust of the estate to which the covenant related, and the personal representa- tives of the duke, who was personally bound by the covenant, and it is a bargain concerning the subject-matter ofthe covenant. In that deed it is solemnly recited, under the seals of all those persons, that "by an indenture of "release, dated on or about the 21st of January, 1824" (being evidently the very s.ame deed of which a part executed by the vendors was produced in evi- [*350] dencein the *case), " William Harry Duke of Cleveland" (his later title — he had been Earl of Darlington at the time he executed it), "did, in and by "the indenture now in recital, for himself, his heirs executors and administra- ' ' tors, covenant and agree with and to George Silvertop, his heirs executors " administrators and assigns, that the said William Harry, Duke of Cleveland, ' ' his heirs appointees and assigns, would from time to time and at all times " thereafter pay or cause to be paid to the said George Silvertop, his heirs ex- "ecutors administrators or assigns, the sum of sixpence for each and every "chaldron' of ccals of the Newcastle measure, which should be T\Toughtand ' ' gotten from and out of the said hereditaments and premises thereby released . " or otherwise assured, and which should be shipped for sale." Then there was a further covenant as to accounts, and so on, exactly corresponding with the terms of the covenant embodied in the part executed by the Withams, which is now produced from the muniment room of the duke. My lords, can there be better secondary evidence than this distinct admis.; sion under the seals of the parties bound that the duke did covenant ? Can those who now represent the estate as it was then represented by the parties to that admission be heard now to say that he did not covenant merely because they produce from the duke's muniment room a part of this indenture which > the duke did not execute, of which, although, no doubt, it was contemplated by the solicitors that he should execute it, his execution would have been wholly immaterial, if there were, as, unless this recital is untrue, there must have been, an execution of a counterpart of that indenture by the duke, which counterpart would naturally be in the custody of the vendors or those repre- senting them. The two parts of an indenture, when there are two parts, are one and the same indenture. It is not that there are two deeds or two inden- tures ; there is one indenture, but that is in two parts. Therefore the reason and probability of the case, and the ordinary course of business in such a case, agree with the express admission on record of these parties, an admission made upon the footing of the existence of such a covenant and for the purpose of varying the effect of it by contract for valuable consideration. [*351] That, my lords, has superadded to it a subsequent Act of *Parliament obtained at the request, as it recites, of the representatives of the duke and con- taining exactly the same recital ofthe existence of such a (^)venant. The remarkable thing, which I am unable after the argument we have heard to explain to my own mind, is that in the judgment of the Court of Appeal, in which the learned judges agreed in holding that there was a failure of evidence to prove the existence of such a covenant, there is not the least allusion to this (1148) Digitized by Microsoft® WITHAM V. VANE. 323 secondary evidence, to these admissions in the one case by Act of Parliament, and in the other under seal, no attention apparently having been directed to the question whether they are not enough under the circumstances to prove the existence of such a covenant, and to repel any presumption if otherwise there could have been a presumption, that because the signature of the duke was in- tended to have been placed upon the part which he produces and is not there, therefore it could not have been put upon any other part which is not pro- duced. Of course, my lords, the non-production of the counterpart bearing the signature of the duke, and his seal, was a thing to be accounted for, but it is hot in dispute that there is abundantly sufficient evidence of search and that it has not been found in the proper custody. Under those circumstances, my lords, I cannot entertain the least particle of doubt that we must proceed upon the footing that these recitals are true. Of the terms of the co^'enant there is no doubt or question for they are set forth in both the recitals and we have the counterpart of the deed before us. The only question, therefore, is, what is the effect of such a covenant if it is assumed to have been duly executed by the duke ? Now, my lords, some ingenious arguments were offered to your lordships which I own, notwithstanding the gi-eat ingenuity with which they were urged, I had difficulty in following, to the effect that this action is improperly brought, supposing that there was such a covenant; that the primary liability was upon the holders for the time being of the Hart Estate, and that, if so, the contract was objectionable on the ground of perpetuity, or some other grounds, into the details of which I really do not think it necessary to enter. My lords, if there had been, as between the owners of the estate and the gen- eral representatives of the covenantor, the relations which are described by the words primary and secondary liability, ' ' which may very possibly *have [*352] been the case by means of contracts between the purchasers of the estate, when it was sold by the duke's representatives and those who sold it, it appears to me that it would not have had the least effect upon the present question. It would have been res inter alios, a matter with which the covenantees had nothing to do. The only remedies they could enforce were remedies against the persons liable to them and, in my opinion, upon the construction of this covenant, it is a mere personal covenant, binding only and only purporting to bind tSe covenantor, his heirs, executors and administrators. Whatever be the thing which it covenants to be done, it cannot be in any way whatever a reservation of an interest in the land, nor is it susceptible of any construction which would postpone the liability under the covenant until some application or attempt had been made to obtain payment against somebody else, which in this case has not been done. There is not a word in the covenant to justify such an idea. Reference was made to the case of Hemingway v. Fernandas (e), a case of lease between a lessor and a lessee, in which a certain covenant to make certain pay- ments was held by the Vice-Chancellor of England to run with the land. But this is not a covenant which by any possibility can run with the land upon the alienation out and out in fee simple of the estate, nor has any authority what- ever been cited to your lordships in favour of such a proposition. I am not sure what the result might have been if it had been so. Most certainly it is not so, and therefore we need not trouble our minds with it. "With regard to the question of perpetuity, as far as I can make out it was put wholly on these alternative grounds by Mr. AVhitehorne, upon the ground with which I have already dealt, that it was in the nature of a reservation of an interest in land to arise at an indefinite time. As I think that it was not a reservation of any interest in land, the foundation of that argument fails. Being a mere personal covenant Mr. Whitehorne contended that it was a cove- nant to pay money in an event , which might only arise at a distant period of time; that can make no difference. In point of fact the case I mentioned dur- ing the argument of the Clive Fund of Walsh v. The Secretary of Slate of India (c) 13 Sim. 228; 12 L. J. Ch. 130; 7 Jur. 888. (1149) Digitized by Microsoft® 324 APPENDIX. [*353] {d) is a remarkaWe illustration of *the inapplicability of the doctrine of perpetuity upon any such grounds ; for the covenant there of the East India Company was this (the covenant being made (e) in the year 1756), that " if they should at any time thereafter by any means otherwise than by the fate of war be dispossessed of their territorial acquisitions in Bengal, and the revenues arising thereby, so that the jaghire granted to Lord Clive should cease to be paid to him or his assigns, or in case they should at any time before 1784 cease to employ, and maintain in their immediate pay and service a military force in the East Indies, ' ' they should pay him this money. Then ' ' if after the year 1784 it should so happen that the Directors and Company should have no mili- tary force in their actual pay or service in the East Indies" certain other pay- ments should be made. Of course that was a thnig which might not have hap- pened for centtiries. In point of fact it did not happen till more than a cen- tury or about a century after the date of the covenant — a very long time indeed after the year 1784. But although I remember perfectly well that this notion of perpetuity was thrown out tentatively in the arguments in that case, it met with no countenance — the money was held to be payable. The other argument was as to the inconvenience of tying up to a certain extent the administration of the duke's estate. All I can' say upon that is, that that was a matter which the Earl of Darlington, who entered into this covenant, should have thought of at the time when it was entered into. The convenience of persons beneficially interested in the estate before the Court cannot prevent the covenant from having its proper legal eifect. That brings me, my lords, to the question which alone really seems to me to be a serious question in this case, namely, the construction of the covenant ; and as to that, the large construction contended for by the learned counsel for the appellants, that ' ' shipped " is to be a flexible term which would be appli- cable to every mode of transport, and not only to the transportation of coal by sea, appeared to all your lordships to be one which on ordinary principles of construction we could not adopt. Therefore that must be taken to be excluded. Shipment, we think, means shipment, and the covenant must be constructed so. [*354] *But then the question is, what is the meaning of the words " "Which shall be shipped for sale?" Mr. Justice Fry thought that they meant, and he has so expressed it in his Order (f), " Put on shipboard by or on behalf of the calliery proprietor for the purpose of subsequent sale by him. ' ' My lords, that, I believe appears to your lordships, and certainly it does to me, to be too nar- row a construction. On the other hand, if the two circumstances of shipment and sale happened quocunque modo and without any connection between them, with which the colliery proprietor was concerned, I think it would be too large and wide and too unreasonable a construction to bring every such case as that within the covenant. To me it seems that it was happily put in argument by Mr. Cookson when he said "sale" means for "sale purposes" it must be shipped, and it must be for sale purposes. As far as reason is concerned, I cannot conceive why it should make any difference whether the sale was nego- tiated or made before or after the shipment, in point of time, so long as a sale and shipment are brought together in the transaction of the colliery proprietor. My lords, I believe that that opinion commends itself to your lordships gen- erally, and that you will be prepared to agree to the restoration of Mr. Justice Fry's Order, with this modification, which I will now read to your lordships. I shall propose that these words be omitted from Mr. Justice Fry's Order (/), ' ' Put on siiipboard by or on behalf of the colliery proprietor for the purpose of subsequent sale by him," and that instead of them these words should be introduced, ' ' Sold by or on behalf of the colliery proprietor for the purpose of shipment and actually shipped, and the coal shipped by or on behalf of the (d) 10 H. L. C. 3G7. (e) The date, according to the report, is 1770. (c) See p. 345, tniic. If) See p. 345, ante. (1150) Digitized by Microsoft® WITHAM V. VANE. 325 colliery, proprietor for the purpose of sale by him or on his account." It will run, therefore, thus, "This Court doth declare that, according to the true con- struction of the covenant in the deed of the 21st January, 1824, in the plead- ings mentioned, ' coal shipped for sale ' means coal sold by or on behalf of the colliery proprietor for the purpose of shipment and actually shipped, and coal shipped by or on behalf of the colliery .proprietor for the purpose of sale by *him or on his account, and such coal only. ' ' That excludes, of course, [*355"J coal -which is subject of land transport as distinct from sea transport. And, my lords, I am bound to say that, while I think the words lyill fairly bear that construction, and the reason of the thing strongly points to it, I am glad that it should be possible to put upon this instrument a construction which will in some degree mitigate the severity and inconvenience of its operation upon the persons representing the duke, because, if they have taken proper care of them- selves in their transactions with those to whom they have sold the estate (and of course it is their own fault if they have not), they will have an indemnity against that which they may have to pay, which, of course, the present appel- lants have nothing to do with, and the proprietors for the time being of the estate will not have it made unless to them, because it will only be necessary for them to dispose of their coal in a diflerent way ; for example, to send it to other markets by railway, and then they will be free from any burden under this covenant. LoED Bl AOKBUEN : My lords, I entirely agree in what the noble and learned Lord Chancellor has proposed, and I will only say a few words upon the one point on which the Court of Appeal went. Mr. Justice Fry had decided that in his opinion the counterpart of this indenture (as there was undoubtedly an indenture at the time of the sale) was sufficiently proved, and that in equity it would be enforceable just as if it had been produced, because the estate had been enjoyed under it. The Court of Appeal thought that the mere fact of the estate being enjoyed under an indenture which only one side had executed, would not in equity have that effect. Upon that point I say nothing what- ever, as it is not a point upon which we have now to decide. They further said what amounts to stating that although this was an indenture which iri the old times, no doubt, would have been an indenture, of which by terms ex- pressed it was meant that there should be two counterparts originally cut in a wavy line to separate them from each other, one of which should be executed by one party and given to the other, and the other executed by the second party and given to the first, in order that each might keep one counterpart for his own, — that although *that would be the meaning of the word " in- [*3.56] denture, ' ' yet in modern times it has very often been the case that an inden- ture has been drawn up in one part and one part only. There is no doubt that that is true; and, consequently, the mere fact that this was an indenture does not by itself raise a presumption that there was another counterpart, or at least not so strong a presumption as would be necessary for acting upon. But I think, looking at the nature of the transaction, where there was a very con- siderable estate, and where there was a very important covenant such as this, — I do not know what its pecuniary value amounts to, but from the great degree of force and vehemence with which the defence has been conducted I suppose that the sum is large, — I say that I think, where there was such an important transaction as that, the legal advisers of the vendor of this estate would have been excessively to blame and guilty of the grossest negligence if they had not seen that the Earl of Darlington affixed his seal to the covenant, and they would also have been guilty of very great negligence if they had not seen that that seal of the Earl of Darlington which was affixed to the covenant* was put upon the counterpart which would be kept by them for their client. No doubt, they have been guilty of very great negligence; and although all this tends very much to make it antecedently probable that there would be acounterpart executed and sealed, I do not very much differ from the Court of Appeal (in- deed I may go further than that, and say that I agree with the Court of Appeal) that if it had stood on that and that only, there would have been no reason to (1151) Digitized by Microsoft® 326 APPENDIX, say that the parties had not been guilty of gross negligence. That they ■were guilty of negligence afterwards in losing the counterpart if there ever was one, is perfectly plain; and I cannot say that they were not guilty of some negligence previously: they may ha^-e been. But then (and it is singular enough that the Court of Appeal do not seem to have noticed it) we are not without evidence that the counterpart did exist, quite independently of this presumption. The Earl of Darlington, who had become Duke of Cleveland, died in 1842. Immediately after his death his devisees in trust w,ere brought into contact with those who represented the [*357] original covantees, who at that time, if there *was a counterpart, ought to have had it in their possession; and as early as 1843 the devisees in trust of the Duke of Cleveland came to make an agreement. They discussed and con- sidered the effect of this covenant, and made an agreement relating to this covenant, and in 1843 they executed that agreement. There was an argument which I could notreally understand (I am afraid that I may be doing it injustice because I could never apprehend it) to this effect — it was said that if the Duke of Cleveland's trustees in 1843 admitted under their hand and seal that there was a counterpart existing, and that it had been sealed by the late duke, it would not be evidence against the trustees of the Duke of Cleveland, the de- visees, in this action, for some reason which I was not able to understand. They are not the same identical people, because we know that Henry, Lord Brougham, is dead, and that William, Lord Brougham, seems to have become one of the trustees since; but they represent the same trustees — they represent the same estate; and why it should not have been admissible evidence I do not understand. That fact being admitted, it seems to me, for reasons which I need not repeat over again, as strong and as clear as can be. They admit that "the said William Harry, Duke of Cleveland, did, in and by the indenture now in recital, for himself, his heirs, executors, and administrators, covenant and agree, ' ' and then the document proceeds to recite the very covenant which is now in question, that being the very indenture. It was endeavored to be argued that we should understood that to mean, not that he had covenanted by it, but that they thought he was bound as much as if he had covenanted by it. I cannot say that I put that construction upon the words. I think the conclusion to be drawn from them is that in 1843, the indenture, the counter- part, with his hand and seal to it, did exist, and that the trustees knew that it was in existence, and that they made this agreement under their hand and seal, admitting that it was existing. And that is a great deal strengthened when you come to what took place a few years afterwards, in 1846, when a private Act of Parliament was passed, promoted for this purpose, to which the trustees were consenting parties ; indeed, they were the very^arties who pro- [*358] ifioted it. In that private Act there are certain statements; *amongst other things, they put this as a recital, that ' ' the said William Harry, Duke of Cleveland, on the purchase of the Hutton Henry and Hurworth Estates, in the year 1824, covenanted to pay to the said George Silvertop, his heirs, exec- utors, administrators and assigns, " and then they proceed to state this cove- nant, which, I may observe, was one of those things for the purpose of dealing with which that Act was obtained in respect of the very property in question. Now. what I cannot understand is why all this should not be good evidence to lead to a conclusion as to the existence of the counterpart. In the case of the. private Act it is further strengthened by this consideration, that there was every reason why the committee should require proof of these allegations upon which they were asked to proceed: and therefore the statement that the Duke of Cleveland had covenanted is much stronger evidence there than even the prior on%; because it is just possible, though it is not very likely, that the trustees of the Duke of Cleveland might have taken it for granted that a coun- terpart was existing in 1843, but it is hardly probable that both the trustees of the Duke of Cleveland and a committee of the House of Lords should take it for granted that there was one if it really did not exist. I can, therefore, come to no other conclusion than that the counterpart con- taining this covenant was actually executed and did really exist, but has been (1152) Digitized by Microsoft® WITHAM V. VANE. 327 lost, I know not how, but "by some negligence probably; and that being so, secondary evidence can be given. The question therefore caines, What was the effect of that covenant? First, I may say, that several points were put which I do not think it necessary to deal with, because I think that they have been sufficiently dealt with by the noble and learned lord on the woolsack. It was said that this covenant of the Duke of Cleveland, or rather of the Earl of Dar- lington as he then was, is not enforceable now. I am afraid to deal with these points, because I did not understand what they were; but I can only say that they were none of them such as I could advise your lordships to give effect to. I think that this covenant is just as much enforceable as any other promise or contract made to pay a sum of money. It is said that that would be a perpe- tuity. It is not a perpetuity in the sense in which the law *aims at per- [*359] petuities. The person who is entitled to receive this sixpence a chaldron, what- ever the amount may be, and the person who has now got the estates in question, or the Dulie of Cleveland's personal representatives, or whoever it is, can come to an agreement for releasing it. Those who are entitled to it would sell it readily enough if a sufficient consideration were offered for it. The parties could settle the matter in that way: it is no perpetuity. Then it is said (and it is very true) that it was very unwise in the Duke of Cleveland to enter into an agreement which would have the effect of binding him, and his estate after his death, to pay a sum of money which would go on to be payable until the coals, in fact, were worked out, which might be a vast number of years hence: and so it was; it was not a wise bargain, but that was his fault. If he has brought an inconvenience upon himself and his estate, there it i.s, and those who have the estate must take the consequences resulting from it. The only remaining question is, What is the meaning of the contract? It is not very artificially drawn, but we have to construe a contract made in 1824 in relation to the working of a colliery in Durham, having regard to the words which are used in that contract, but putting a sense upon those words which they will bear, as used with reference to the subject-matter; that is to say, with reference to the subject as to which the parties were contracting. I think, therefore, that evidence is admissible to show what was the ordinary course of things in 1824 (not as they are now) in the district round these coal-pits, or in the county of Durham (you may say generally) where these coal-pits lie, and what was the ordinary course of dealing there; and having that before us, we have then to see what these words mean when used by the parties contracting with regard to that state of things. It is quite true that this colliery was not then opened: it was not opened till some time afterwards; but still the parties were thinking of the ordinary state ofbusiness, and what was ordinarily done in coal-pits and coal mines in that neighbourhood when they were at work ; and the words used in the contract are, I think, to be understood in the sense in which such words would be understood when used with reference to such a course of dealing. *Now there is hot much evidence here as to what was done in 18124 ; [*360] but it is quite intelligible to this extent. Coals which were raised in that dis- trict at that time were sometimes sold to country customers, people who came to carry them away in carts — a good deal of the coal was disposed of in this way :' and more was carried down to the river side and put on board' keels — those keels took the coals up the river to inland places where they were wanted; some was taken down the river in keels and sold to people along the banks of the river for local consumption. But the bulk of the coal was ultimately sold to be consumed by people to whom it was sent by sea; and the mode in which it was the common custom to sell it is explained in this way — the coals were sent down by the coal proprietor in trams or keels, and the fitter, who seems to have been a sort of intermediate broker between the persons who had sent their ships there to be loaded and the owner of the coal or the occupier of the collieries, made an arrangement by which so much of these coals was put on board a .ship, and the ship sailed off, and the person who had the ship paid for the coals. I do not understand that the fitter was liable to the person who (1153) Digitized by Microsoft® 328 APPENDIX. sold the coals, but the purchaser paid for them to the colliery owner through the fitter : that was the ordinary course of business. Then we come to this covenant. The covenant is that the Earl of Darling- ton ' ' shall pay sixpence for every chaldron of coals of the Newcastle measure which shall be wrought and gotten from " the premises, and which shall be "shipped for sale." What does "shipped for sale" mean? Mr. Justice Fry put a very limited meaning upon it. He thought it meant this, namely, where the coal-owner himself hired a ship and put the coals on board the ship, and sent away the ship with the coals to be sold somewhere else, they being the coals of the coal-owner at the time, which were shipped for the purpose and with the object that they should be sold. Mr. Justice Fry thought that, though the coals were sold for the purpose and with the object of their being shipped, and however clear it might be that they were afterwards shipped, yet if the sale passed the property in the coals from the coal proprietor before they were put on board the ship, it could not be a " shipment for sale ' ' within the meaning of the contract. I have come to a different conclusion. I have [*361] *found some difficulty in exactly seeing how the words should be used to express the idea which I have ; but I think that those words which the Lord Chancellor has read, come as accurately as any words can be brought to do it, to express what we mean. If the coal proprietor has sold the coals — that is to say, has entered into a contract for the sale of the coals, which contract for sale is such as to show, as a matter of fact, the intention of that sale to be that the goods shall be put on board ship — though it would not literally be the case that they were shipped for sale, but literally it would rather be that they were sold before shipment, yet I think that that is within the meaning of the con- tract, and that what the parties meant was that upon such sales as those the sixpence per chaldron should be paid. That goes beyond what Mr. Justice Fry allowed. My lords, there was a contention, which was not much urged, but an attempt was made to say that, inasmuch as the coals which are now. sent up by railway were within the mischief (if I may use the phrase) that the parties had in view, it was reasonable and just and ey-prh to say, " If you are to pay six- pence for every chaldron which comes to London by sea you should pay six- pence for every chaldron which comes to London by railway. ' ' That might be said, but whether it would be just or would not be just as a cy-prea doctrine, it is to my mind perfectly clear that you cannot construe the words used in the covenant of 1824 as meaning anything of the sort. In asking for that, those who do so ask for a great deal too much. Lord Beamwell : My lords, I concur in what has been proposed to your lordships. We are invited to say that there was no counterpart of the convey- ance of 1824 executed by Lord Darlington. Now I feel as certain that a coun- terpart was executed by him. as one can feel of anything not depending upon one's own knowledge or the direct testimony of persons who declare that they have seen and know the thing of their own knowledge and whom one believes. I am satisfied that it was executed ; and it strikes me as rather alarming that a doubt should be entertained upon the matter, because the same difficulty might be made in every case in which a man had granted a lease and taken a ,coun- [*362] terpart signed by the tenant. I am *very much inclined to tliink that, without further evidence, there would be enough to show that there was this indenture in separate parts. I do not rely very much upon its being stated to be an "indenture." In point of law, no doubt, that means that it is in more than one part, that is the technical signification ; but I should not attach much value to that point. However, it is stated to be an indenture; but it is an in- strument which purports to contain a covenant by Lord Darlington. He takes the estate which is conveyed to him by it ; it was his duty, under his contract, to execute a counterpart. It was to the interest of the gi'antor of the estate that that counterpart should be executed ; and I strongly i ncline to think that that alone would sxiffice to make us believe in the existence of the counterpart: it would be good prima fade evidence of it, and the legitimate conclusion, if (1154) Digitized by Microsoft® WITHAM V. VANE. 329 it stood there, would be, not that the instrument had not been executed, but that it had been executed, and had been lost. But when, in addition to that, tlie other evidence is considered, it seems to me to be absolutely clear that the counterpart was executed. Now, if I thought that I was differing from that most able and, in my opinion, most consummate judge, the late Lord Justice James, I should have great doubt whether I was not in the wrong, but it is a singular thing that if his judgment is examined, it will be found that he assumes that the counter- part was not executed. He gives no reason; but he seems to assume it, and his judgment is directed to the consideration whether, if that was so, any relief could be given to the plkintiffs. With respect to the other two learned Lords Justices, I say, with great submission to them, that I cannot agree with their reasoning ; and, in particular, that matter which was relied on, that the part of the instrument executed by the grantors was not executed by Lord Darlington, seems to me almost to furnish an argument that a counterpart was executed by him, because, if it was his duty to execute some instrument, and he did not execute that part, the legitimate conclusion would be that he had executed a counterpart. I am satisfied, therefore, that that counterpart was executed. The only other matter on which I think it necessary to say anything, the other ingenious difficulties having been dealt with *by the noble and [*363] learned lords who have preceded me, is upon the words ' ' coals shipped for sale." Now, upon that subject I concur in the opinion which has been ex- pressed. If I entertained anything like a grave doubt upon the matter, I should yield it to the opinion of the three noble and learned lords who have also heard this case and who entertain none, but really the only misgiving which I have about it is whether "shipped tor sale" would include the case of coals that were sold to the consumer, and as it were put on board the consumer's ship, or possibly taken away by the purchaser for the purpose of consumption. But I must "say that I think the good sense of the thing is the other way — the good sense of the thing is to make the royalty payable upon every thing that is got from the colliery and taken and shipped. It may be said that that gives no meaning to the words "for sale. " Possibly it does not give any meaning to them — ^but it continually happens, I believe, that the argument, that you must find some meaning for every word, is unduly pressed. It may possibly have been in the minds of those who drew this instrument, that if coals were put on board a ship somehow or other, not in anticipation of a sale by the person to whom thej' were delivered or for any other object, a royalty should not be pay- able upon them — ^but I do not think we are driven to hold contrary to what, as I said before, is the good sense of the thing. I think it is contrary to the good sense of the thing, that where goods have been sold and put on board the ship, or the chartered ship of the purchaser for his own consumption, that it is not within the clause. It must always be borne in mind that at the time when this instrument was executed, except as regards the coal sold locally and in the neighbourhood, there could be no contemplation that there would be any ex- tensive sale, or indeed any other sale than that which resulted in a shipment. I concur therefore in the opinions which have been expressed to your lord- ships. LoED Fitzgerald: My lords, I also concur in the judgment which has been pronounced by the noble and learned Lord Chancellor, and in the reasons which he has given for that judgment. I have only to say a word on two points of the *case. The first is upon the question of evidence. I con- [*364] fess that when I read the judgments, having before me the Appendix, and read also the documents in the Appendix, I was amazed at the statements in the j udgnlents. First, Mr. Justice Fry expressed himself as having come to the conclusion that a counterpart had been executed by the then Earl of Darlington, but solely upon the ground that it was his duty to do so, and that enjoyment under the deed which was produced had been consistent with the execution of such a covenant as that now in question. It is not necessary for me to offer any opinion on the point whether, if it rested on (1155) Digitized by Microsoft® iiOO APPENDIX. the supposed duty alone, the learned judge was right in coming to that conclusion. But when we come to the evidence in this case, there is clear evidence of the existence and execution of the counterpart. Not only is there e\'idence, hut it is evidence which is proper to he considered as con- clusive by way of estoppel. In reference to contracts, I have always under- stood that, even as to a deed, a verbal admission by a party of its existence, and of the contents of that deed, will be amply sufficient when once you account for the non-production of the original. You have an admission of it, and you have evidence showing its contents. But this case does not rest upon a verbal statement. There is an instrument of 1843, proceeding upon the basis of a solemn statement that the earl had executed a deed containing this cove- nant, and that deed is not the one which is produced, for that is not executed by him. That is further confirmed by the Act of Parliament; and I feel that I can only account for the course which has been pursued in this case, and for the judgment, by supposing that this evidence was not brought to the attention of the Court. For instance, we find one of the Lords Justices saying this: — ' ' As regards the question of fact, there does not appear to me any evidence at all which would lead to the inference that the duke executed a counterpart of that deed of 1824. That a counterpart was in contemplation hardly appears to be a probability. There is nothing upon the face of the deed to suggest that a counterpart was intended. ' ' And, again, another of the Lords Justices says this: — "With great deference to the learned judge" (Mr. Justice Fry) "that [*365] is a matter in which I cannot coincide with him. Whether the *duke did execute that deed or not is, to my mind, a question of fact " (as it is) "to be tried like every other question of fact, namely, upon the evidence, and if there is no evidence which leads to the reasonable conclusion that he did so, we ought to find that that fact was not proved. ' ' I can only account for these judgments by supposing that this evidence was never brought before the learned judges in some shape or other. It is observable (I called attention to this yesterday) that there is not a single expression on the face erf any one of these judgments dealing either with the instrument of 1843 or with the Act of Parliament. Therefore it seems to me perfectly clear, that there is ample and persuasive proof of the execution by the earl of the counterpart of the deed con- taining the covenant. My lords, there is only one other thing upon which I wish to observe, and' that is as to the construction of this covenant. I confess that it appears to me to be a question of some difSculty. No doubt upon the literal construction, if you were to adhere to the very letter of the contract, the construction given to it by Mr. Justice Fry is quite correct. But I apprehend that we are not to adhere to the literal construction of the covenant if it will work injustice, and above all if that literal construction will enable the covenantor to eVade a lia- bility which he is under. Now, upon looking to the covenant itself, it is open to a fair and liberal interpretation which will work no injustice, but which vrill give to each party fairly their rights. No doubt it will make it possible for the covenant in one sense to be inoperative, because the present colliery pro- prietors, if they find it for their interest, in place of shipping the coal to send it all to London by rail, may evade the payment of the sixpence per chaldron. My lords, we must interpret this covenant by the state of things at the time when it was entered into. That was at a time when there were no railways; and it is in evidence that there were then three modes of disposing of the coal, namely, by land sale, by river sale, and by sea sale. Land sale is out of the question here, because it is admitted that the covenant does not attach upon a mere land sale, that is to say, a sale in the interior. That it might attach upon a river sale is plain, because, according to the evidence, the river sale is some- [*366] times conducted in this *way : the coal having been sold is put on board a keel, or river boat, and is loaded into a certain ship, so that it is ob- vious that the coal taken by the river boat may come under the designation of a shipment by sea. Therefore the covenant would appear to us to attach to certain river sales, that is, where there is a contract for sale in connection with a delivery by river on board keels which carry the coal to a certain ship. And (1156) Digitized by Microsoft® WITH AM V. VANE. 331 SO it would equally apply to the case of a sea sale, which I understand to he a sale of coal to he shipped and sent by sea away from the place. Once shipped for sale we have nothing more to do wH^i it — it is not necessary to inquire fur- ther; for the interpretation which the Lord Chancellor has given, and in which I entirely join, is this, that where there is a sale of. coal to be shipped, to he sent by sea, where it is brought into connection with a contract for shipment and is actually shipped, it matters not whether there is to be afterwards a sale or not. That would embrace all the cases in which the owners of the colliery themselves shipped for sale according to the literal interpretation of the con- tract, and also the other cases where there was a sale or a contract for shipment, the coal being either delivered by river in the manner described, or sent down to the staith to be put on board ship, and when once that takes place we have no further inquiry to make as to what becomes of the coal. My lords, upon these grounds I entirely concur in the judgment which has been delivered by the Lord Chancellor. The Order appealed from was reversed ; and it was declared that the Order of Mr. Justice Fry should be varied by omitting the words "put on shipboard by or on behalf of the colliery proprietor for the purpose of subsequent sale by him " and substituting the words " sold by or on behalf of the colliery proprietor for the purpose of shipment, and actually shipped, and coal shipped by or on behalf of the colliery proprietor for the purpose of sale by him or on his account. And after certain declarations as to costs, the cause was remitted to the Court below. (1157) Digitized by Microsoft® Digitized by Microsoft® (333) G-ENERAL INDEX. [The paging refers to the [*] pages. ] ABATEMENT, is the wrongful entry of a stranger, before the entry of the heir, 182. reduces heir's estate to a right of entry, 182. ACCUMULATIONS OF INCOME, formerly subject only to the rule against perpetuities, 162. Mr. Thellusson's will, 162. Thellusson Act restricts the period allowed for, 163. any one or more of the periods allowed by the Act may be adopted, 163. the Act applies to real and personal settlements, 163. the period must commence from testator's death, 164. excessive trusts for, only void for the excess, 164. unless they violate the rule against perpetuities, when they are wholly void, 164. intestacy ensues as to the excess, 164. in case of personalty the excess falls into residue, 164, 16.5. realty, goes to the heir or residuary devisee, 165. excepted from the Act are — (1) provisions for payment of debts, 165. (2) provisions for raising portions, 165. remarks on this exception, 165. (3) provisions as to produce ot timber or wood, 166. the Act doec not extend to Ireland, 166. has been extended to Scotland, 166. English freeholds and leaseholds are within the Act, independently of domicil, 166. ACTION, RIGHT OF, estates might be turned to, by tortious alienation, 68. this operation styled discontinuance, 68. distinction between, and a right of entry, 68. would not support a contingent remainder, 94, 111. how right of entry could be turned into, 110.. no longer exists, 111. two stages in — (1) founded on right of possession, 330. (2) founded on mere right, 330. right of possession, how turned to a mere right, 330. ADMINISTRATORS, might take advantage of a condition, as to estates transmissible to them, 62. whether they might be special occupants, 289, 290. estates pur autrie vie taken by, under Statute of Fraudsj 290. under Wills Act, 291. ADMITTANCfi, legal estates in copyholds acquired by, 25. right to, in copyholds, acquired by surrender, 25. relates back to the surrender, 25. the true criterion between freeholds and copyholds, 27. (1159) Digitized by Microsoft® 334 INDEX. [The paging refers to the [*] pages.] ADVOWSON, APPENDANT OR APPURTENANT, seisin in deed of a manor is seisin of, 183. ADVOWSON IN GROSS, is a mixed liereditament, 40. . reason for application of common law rules of limitation to an, 88. seisin in deed of an, evidenced by the presentation to the benefice, 181. of an, impossible if heir died before vacancy, 183. ALIEN, crown acquired a base fee in lands of an alien tenant in tail, 267. ' effect of Naturalization Act upon sta,tus of, 267. ALIENATION, history of, prior to Quia Emptores, 16. effect of Quia Emptores on, 17. fines upon, abolished by Quia Emptores, except as to tenants of the crown in capite, 19. abolished as to tenants of the crown in capite, when, 19, 21. in common recoveries by tenants of the crown, 19. due by particular customs, not abolished, 21. by lord, effect upon copyholds, 25. conditions against, good in gift in fee simple to a corporation, 174. bad in gift in fee simple to an individual, 174. ' of a qualified fee simple, is unrestricted, 223. ,of fees tail, 244—263. by joint tenants, 296, 297. by cestui que use, 310. of infant by a feoffment, only voidable, 325. by custom of Kent, good, 325, 326. ALLODIAL LANDS, none in England, 5. whether any in Soctland, qusere — ibid. ANN JOUR ET WAST. And see Waste ; Attainder. meaning of, 30. crown's right to, 30. substitute for, 30. generally compounded for by the lord, 30. existed by custom of Gloucester, though no escheat, 31. none by custom of Kent,, 31. ANNUITY, not charged on land, is a personal hereditament, 40. ATTAINDER, three kinds of : — 1. Quia suspemus est per collum, or by judgment for death, 39. did not apply to gavelkind lands, 30. abolished by 33 & 34 Vict. c. 23 . . 30. the judgment must have been a judgment at common law, 30. 2. Quia ahjuravit regnum, 30. nature of the abjuration, 30. long since abolished, 30. 3. Quia utlegatus est,, or by judgment of outlawry, 30. reversal of the outlawry gave tenant right to re-enter, 30. not affected by 32 & 33 Vict. c. 23 . . 30. crown's right to a year and a day, committing waste, 30. generally compounded for by the lord, 30. (1160) Digitized by Microsoft® INDEX. 335 CTlie paging" refers to the [*] pages.] ATTAWDER—eoniinued. no escheat by, by custom of Gloucester, 31. ' of Kent, 31. crown acquired a base fee by, of tenant in tail, 265. BARE TRUSTEE, cannot be protector of the settlement, 257. except in certain cases, 261. meaning of, 261. BARGAIN AND SALE, fee simple might pass by, without words of limitation, 171. was formerly a common mode of conveying remainders, 308. takes effect under Statute of Uses without transmutation of possession, 316. the lease in a lease and release was a, 332. was expressed to be made for a nominal consideration, 338. distinction between, as preceding a release, and as a substantive con- veyance, 338. the latter must be for a iondflde valuable consideration, 337, 338. might be effected by parol, prior to Statute of Inrolments, 338. the Statute applied only to estates of inheritance of freehold, 338, 339. and therefore not to the lease preceding the release, 339. for valuable consideration, duly inroUed, still valid, 339. BARONIES, by tenure, 4, n. among the earliest incorporeal hereditaments, 37. BASE FEE, origin of, out of fees tail, 44, 53. distinction between, and a determinable fee, 44. enlargement of, under Fines and Recoveries Act, creates estate de novo, 52. merger of, 72, 269, 270. when created by a disentailing assurance, 256, 262. wife entitled to dower out of deteasible base fee, 262. a defeasible, might be co];ifirmed by a fine, 262. definition of a, 2ii4. difference between a, and a fee tail, 264. and a fee simple, 264. by what methods base fees may arise: 1. Prior to Fines and Recoveries Act, by a fifle levied, 265. effect of the fine was to bar all issue inheritable under the entail, 265. 2. Now, by an assurance insufiScient to bar remainders, but suffi- cient to bar issue in tail, 265. 3. In entf ils of a rentcharge, 265, 266. 4. Rule as to rentcharges still the same, 266. 5. Prior to 34 & 35 Hen. c. 20, by a recovery, where remainder was in the crown, 266. modern law in such a case, 266. 6. In the crown, upon attainder of tenant in tail for high treason, 266. 7. In the lord of a villein tenant in tail, 266. 8. In the crown, where an alien was tenant in tail, 267. duration of such estate, 267. 9. In the case of issue in tail being outlawed and obtaining pardon, guxre, 267. 10. By any assurance made by a tenant in tail, purporting to con- vey his whole estate, but not sufficient to bar issue in tail, 268. (1161) Digitized by Microsoft® 336 INDEX. [The pagjlng refers lo the [•] pages. ] BASE FEE— con«m«c(i. this base fee differs from the rest in its liability to determin- ation by entry of the issue in tail, 53, 268. ^ an estate conterminous with a, may arise as a determinable fee, 268. this limitation discussed, 268, 269. enlargement, now substituted for merger, of, 970. the descent of, assumed to be to the heirs general, 271. arising by express limitation, 270. whether the reversion subsists as, upon enlargement of a term into a fee simple, 272. BOROUGH-ENGLISH, not a tenure, but a customary mode of devolution, 12. tenure connected with, is burgage tenure, 12. . not confined to, but generally found in, ancient boroughs, 13. not affected by 12 Car. 2, c. 24 . . 14. character of descent of lands in, 14, 178. modifications of, 14. custom of, not affected by the Descent Aci;, 186. BURGAGE TENURE. A7id see Borough-english. • a species of tenure in socage, 9. connected with custom of borough-english, 9, 12, 13. to devise by will, 9. CASES PARTICULARLY DISCUSSED, Atkins V. Mountac/ue, 89. Beverley v. Beverley, 102. Boddinglon v. Bobinson, 84. Darhison v. Beaumowt, 105. GoodrigM v. White, 105. Keppell V. Bailey, 150. Sharp's Case, 323. Shelley's Case, 124. Taltarmn' s Case, 250. CASTLE-GUARD, an incident of knight-service, 8. CESTUI QUE VIE, during life of, on death of tenant pur autre vie, seisin may be in abeyance, 78. CHARITABLE USES. And see Peepetdities. gifts to, are within the rule against perpetuities, 1.57, 158. explanation of the dictum to the contrary, 157. CHATTEL INTEREST IN LAND. And see Teem of Yeae.s. includes terms of years, 47. also certain interests which endure for an uncertain time, 48. nature of such interests, 48. tenancy by statute merchant, 48. staple, 48. elegit, 48. guardian in chivalry holding over, 48. devise to executors for the payment of debts, 48. devise to A. and his executors for payment of debts will create a, 48. if limited to heir, passes nevertheless to executor, 198. (1162) Digitized by Microsoft® INDEX. 337 tTlie paging refers to the [*] pages.] CHIEF RENT. 4»(J see Extinguishment; Meegbe. sulDJect to extinguishment, not merger, 68. COKE, LOED, his classification of fees, 45. his distinction, as to merger of estates en autre droit, 71, 73. COLLATERALS, of the Wood of the first purchaser, succeed on failure of lineal issue, 188. rule now obsolete and replaced, 189. by the common law, the collateral heir must be next collateral kinsman of the whole blood, 190. alteration of the rule by the Descent Act, 190, 191. male stocks preferred to females, 191. , modern rule as to preference of males, 191. COMMON IN GROSS. And see Hereditaments. do not escheat, 33. become extinct on failure of heirs, 33. are within general definition of tenements, 37. are mixed hereditaments, 40. subject to extinguishment, not merger, 68. COMMON, EIGHTS OP, are extinguished at common law by enfranchisement, 283. not in equity, 283. effect of statutory enfranchisement upon, 283. and of sale, by tenant for life, under S. L. Act, 282. COMMON LAW ESTATES, have their source in the common law, 42. include (1) fee simple and its derivative estates, 42. (2) estate for life and its derivative estate, 42. distinction between common law fees and estates, 43. two common law fees cannot exist in the same land, 64. COMMON LAW TENURE, meaning of, generally, 6. strictly, 6. does not extend to relations outside feudal organisation, such as a term of years, 6. relation of, to quantum of estate, 6. ' to status of tenant, 6. is free or frank tenure, 7. divided, as to lay tenure, into tenure in chivalry and tenure in socage, 7. as to spiritual tenure is frankalmoigne, 10. CONDITION, who entitled, by the common law to take advantage of a, 62. statutory innovations upon the common law rule, 62. remainder cannot be limited upon a forfeiture for breach of, 62. in defeasance of a freehold, not strictly within the rule against perpetuities, 152 et seq. but is subject to the common.law rules, 153, 206. assignments and devises thereof may be subject to rule against perpe- tuities, 153. possibility of reverter upon a, neither assignable nor devisable at common law, 153. is now assignable by statute, 153. and devisable, 176. 22 (1163) Digitized by Microsoft® 338 INDEX. [The paging refers to the [*] pages.] COT!fDlTIO^— continued. may be annexed to an estate in fee simple, 168. estate subject to a, is not destroyed until entry, 168, 206. benefit of a, cannot be reserved to a stranger, 168. distinction between a determinable limitation and a limitation upon a, 206. in defeasance of a fee simple is subject to common law rules, 206. CONDITIONAL FEE,. estate given in frankmarriage was, before Stat. De Donis, 11. customary, what is a, 25, 45, 65. forfeiture of, 32. arose out of the fee simple, 43. now only exists as a fee tail, 43. cut down by Stat. De Donis to a fee tail, 43, 53. difference between, and a fee iail, 43, 44. may be created in hereditaments which are not intailable, 45. whether two, can exist in the same land, 64. possibility of reverter upon a, 64. ■whether there could be a remainder or reversion upon a, 64, 65. can now only subsist (1) in hereditaments other than tenements, 209. (2) in copyholds of manors where there is no custom of entail, 209. definition of, 209. the type of condition necessary to limit a, 209. different forms of the type, 209, 210. the special heirs under the limitation of a, must be heirs of the body, 210. how'far converted iuto a fee simple, by birth of issue inheritable, 211. alienation before birth of issue bars alienor's issue, 211. does not bar donor's possibility of re- verter, 211. not converted to fee simple, by descent to the heir, 211. descent of, to heir special, to exclusion of heir general, 211, 212. on failure of heirs special, reverted to donor, 212. heir taking by descent had the powers of the original donee, 212. ■wide descent of, in certain <:ases, 212. did not extend to a, created by giftinfirankmarriage, 213. abolished by Stat. De Donis, 213. certain fees limited upon a condition, classed by Preston ■with a, 213. not an accurate classification, 214. how a, differs from a qualified fee simple, 218. CONTINGENT ESTATES OR REMAINDERS, distinction between vested and, 49, 56. definition of, 57. methods of limitation of, 57. distinction between, and executory interests, 57, 58, 93. how far, and in what manner, assignable or transmissible, 58. destruction of, by merger, allowed in equity, 73. must formerly have vested in interest, on determination of prior freehold, 78, 93. how they differ from a remainder in futuro, 82. only void, if prior freehold should determine before vesting, 82, 93. cannot be supported by a term of years, 93. various modes of destruction of, 94. failure of, more accurate phrase than destruction, 94. , destroyed by the devesting of the prior freehold, 94. however created, must be supported by a prior freehold, 94. created by assurance under Stat, of -Uses, are liable to destruction, 95. by devise, 95. (1164) Digitized by Microsoft® INDEX. 339 [The paging refers to the [•] pages. ] CONTINGENT ESTATES OR REMAmU'EBS— continued. secus, if the limitation is not capable ab initio of taking effect as a re- mainder, but IS executory, 95. equitable, not liable to destruction, 95. in copyholds, not destroyed except by natural expiration,of tlie prior free- hold, 95, 96. in copyholds, on enfranchisement, cease to be protected, 96. destruction of, how prevented, by trustees to preserve, 96. checked by modern statutes, 96, 109, 112. limitations capable ab initiu of taking effect as, are not executory, 96, 97. probability of failure of, will not relax the rule, 97. the rule applies to limitations in favour of a class, 97. secus, in a testament in deference to testator's intention, 97. characteristic common to all, 98. Pearne's four classes of, 98. Class 1. Where the contingent event is the determination of the prior estate in one, or some only, of several possible ways, 98. definition of, 98. example of, 99. the remainder can be vested only on the determination of the prior estate, not during its continuance, 99. definition not perfectly accurate, 99, 116. would include trustees to preserve, 99, 116. the estate of trustees to preserve, not contingent, 115, 116. suggested modification of definition so as to exclude the estate of trustees to preserve, 117. . Class 2. Where the contingent event is one which may never hap- pen, 100. definition of, 100. examples of, 100. Class 3. Where the contingent event must happen at some time, but not necessarily till after determination of prior estate, 100. definition of, 100. example of, 100. differences between classes 2 and 3 . . 101. exception from class 3 . . 101. remainders which are vested, and may be supported by a chattel interest, 101. limitations wdthin the exception, 101, 102. Beverley v. Beverley, 102. Class 4. Where the contingent event is the coming into being of a per- son not yet in esse, or the ascertainment of a person not yet ascertained, 103. definition of, 103. examples of, 103. exceptions from class 4 . . 104 et seq. J occur in limitations in wills where the heir is treated as a persona designata, 1D4. Darbison v. Beaumont, 105. the true principle of the exceptions, 105. limitations within the Rule in Shelley's case are not to be treated as exceptions, 106. destruction of, by — 1. Forfeiture, 107. only where entry had been actually made by person entitled, 107. abolished by statute, 109. . 2. Surrender to next vested remainderman, 107. (1165) Digitized by Microsoft® 340 INDEX. [The paging refers to the [*] pages.] CONTINGENT ESTATES OE EEMAINDERS— coKMm«e(f. might be effected by collusion between tenant for life and next Tested remainderman, 108. abolished by statute, 108, 109. 3. Merger, either through conveyance or descent, 108. if by conveyance, the precedent estate must be already in be- ing, 108. by descent or by Rule in Shelley's case, 108. taking place simultaneously with creation of precedent estate, would not destroy contingent remainders, 109. estate opens to let in contingent remainders, 109. abolished by statute, 109. 4. Tortious alienation of precedent estate, 110. abolished by statute, 110. 5. Turning of precedent estate to a mere right, 110. when precedent estate did not cease to exist, but became a mere right, 110. how effected, 110. right of action not sufficient to support contingent remainder, 111. no longer possible, 111. 6. Natural expiration of precedent estate. 111. at common law applied to a child en ventre sa mh-e, 111. this application abolished by statute. 111. attempt to prevent destruction by statute, 112. provisions of stat. 40 & 41 Vict. c. 33 . . 112. how far such expiration still destroys, 112. rule against perpetuities now applies to equitable, 113. and to legal, when protected by statute, 113, 161. limitation within Rule in Shelley's case may be, 133. prior to 40 & 41 Vict, were not subject to rule against perpetuities, 159 et seq. how far objectionable on ground of remoteness, 161. created by limitation " to A. and the heirs of the body of his father, ' ' who is alive, 269. CONVEYANCE IN PAIS. a conveyance between party and party, and not matter of record, 41. COPARCENERS. a peerage falls into abeyance among, 90. may be revived by the crown in favour of any of the, 90. an ofiSce of honour held in grand serjeanty does not fall into abeyance among, 90. how to be exercised on descent among, 90. a release by one to another, passed a fee simple without words of limita- tion, 171. a rent granted by one to another for equality of partition, was in fee sim- ple, 171. definition of coparceners at common law, 301. by custom of gavelkind, 301. the custom, as to collateral descents, must be specially proved of gavelkind lands not in Kent, 301. rule of representation prevails among, 301. distinguished from joint tenants and tenants in common, 301. may release one to another, 302. characteristics of, 302. entitled at common law to compulsory partition, 302. voluntary partition among, 302. (1166) Digitized by Microsoft® INDEX. 341 [The paging refers to the [•] pages.] COPAECENEES— confe'wMed. descent among, 303. partition by, required no livery at common law, 322. must now be by deed, 322. COPYHOLD TENUEE AND COPYHOLDS, fealty generally incident to, 11, 12. not affected by 12 Car. 2, c. 24 . . 22, 25. is tenure by custom of the manor, 23. connection with villenage, 23. with status in early times, 23, n. not derogatory to a free man, 24. characteristics of copyholds, 1. Estates in, are legal, 24. 2. Quantum and devolution, governed by custom, 24. 3. Legal estate acquired by admittance after surrender, 25. 4. As to escheat, dower and curtesy, 25. 5. As to destruction of, by lord, 25. common characteristics of, and of customary freeholds, 27. customary freeholds are, 27. criterion between copyholds and freeholds, 27. equitable copyhold estates do not escheat, 33. equity will not compel admittance of trustee to, on failure of trusts, 33. but trustee has right to mandamus to compel admittance, 33. entails of copyholds, 25, 65, 242. contingent remainders of, not destroyed except by natural expiration of the prior freehold, 95, 96. on enfranchisement, lose their protection, 96. Eule in Shelley's case applies to limitations of, 134. peculiar customs of descent, why more common in copyholds than in free- holds, 178. copyholds are by escheat united to the manor, 188. escheated copyholds descend along with the manor, 188. conditional fees in copyholds of manors in which there is no custom of entail, 209, 242. a special custom to entail copyholds may exist and is good, 242. difficulty as to origin of such a custom, discussed, 242, 243. Dower Act does not extend to copyholds, 281. copyholds may be enfranchised, under S. L. Act, by tenant for life of the manor, 282. no general occupancy of copyholds, 288. estates pur autrie me in copyholds now devisable, 291. COENAGE, an incident of knight-service, 8. COEPOEATION, successors of corporation sole might take advantage of a condition, 62. seisin of a corporation sole is in abeyance during interval caused by death or other vacancy, 78. the queen consort is not a corporation sole, 89. " heirs " not necessary in limitation of a fee simple to, 170. restrictions on enjoyment of a fee simple by an ecclesiastical, 168, 173,174. "successors" necessary in limitation of fee simple to a corporation sole, 173. qusere, whether the Conv. Act, 1881, has altered this rule, 173. words of limitation not necessary in a grant to a corporation aggregate, 173. two classes formerly of corporations aggregate, 173. (1167) Digitized by Microsoft® 342 INDEX. [The paging refers to the [*] pages. ] CORPORATION— conMBMcd. gift in frankalmoigne to, would pass a fee simple, 10, 173. upon dissolution of, estate in fee simple reverted to donor, 174. no escheat of estate in fee simple upon dissolution of, 31, 174. condition against alienation, good in gift to a, 174. a corporation sole may be tenant in common witli himself as an individual, 297. cannot be seised to a use, 313. a person may be seised to the use of a, 313. a corporation sole may in his natural capacity be seised to the use of him- self and his successors as a corporation, 313. COVENANT, giving a specific claim to specific property, is ■within the rule against per- petuities, 149, 150. seeus, of a personal covenant, 150. running with the land, 150. distinction, in equity, between affirmative and prohibitive, 150, 151. for the renewal of leases, excepted from rule against perpetuities, 151. negative covenants, running with the land in equity, also excepted, 152. COVENANT TO STAND SEISED, not a common law assurance, 83. common law rules of limitation do not apply to a, 82. takes effect under the Statute of Uses without transmutation of possession, 316, 337. requires declaration of intention by the settlor, 337. and such declaration must be by deed, 337. .what was a good consideration to raise a use, 337. is now obsolete, 339. an assurance, invalid in its actual shape, may take effect as a, 339. CROSS-REMAINDERS, connection of, with tenancy in common, 299. the particular estates, upon which they are limited, generally estates tail, 299. may be in separate parcels, or in undivided shares, 299. to two persons only, 299. to more than two persons, 300. definition of, 300. nature of the estate taken by donees under the original limitation, 300. cannot arise by implication, except in a will, 301. evidence of intention required, 301. insertion of, in executory settlement, 301. CURTSEY, the four essentials to make a husband tenant by the, 276. allowed by custom, in copyholds, 25. husband not entitled to, unless he obtains seisin in deed, 184. tenancy by the, was a bar to possessw frairis , 188. tenant by the. may be protector of the settlement, 257. in gavelkind lands, 276. necessity for seisin in deed, absolute only in respect to lands, 276. gusere, as to the effect of the Descent Act upon the rule as to seisin, 276, 277. difference as to tenure, between curtesy and dower, 277. meaning of equitable, 277. to what it extends, 277. (1168) Digitized by Microsoft® INDEX. 343 [The paging retera to the [*] pages.] CVRTSEY— continued. when attaches to lands held to wife's separate use, 278. wife's power to defeat her husband's right to, 278. ~ effect of M. W. P. Act, 1882, upon, 278. powers of a tenant by the, under S. L. Act, 279. CUSTOMARY FREEHOLDS, a peculiar form of copyhold tenure, 26. found in manors of ancient demesne, 26. ancient privileges of the tenure, 26. tenant-right in, 26. characteristics common to, and to copyholds, 26. seisin of, is in the lord, 27. are really copyholds, and not freeholds, 27. . tenants of, not entitled at common law to vote for county, 27. how affected by sect. 62 of Conv. Act, 28. powers of tenant for life of a manor with respect to, under S. L. Act, 282. CUSTOMS, peculiar customs of descent, 14, 15. gavelkind and borough-english, 12, 13. why more common in ponnection with copyholds than freeholds, 178, 179. in what places they might exist, 15. CUSTOMS OP MANORS AND LOCAL CUSTOMS, Wareham, 14. Taunton Dean, 14. Bray, 14, and note. ■Sedgley, 14. Exeter, 14. Dymock, 243, n. Kent. See Gavelkind. Gloucester, 15. characters of, 14. extent of, 15. DEBTS, provision for payment of, not within Thellusson Act, 165. BE BONIS, THE STATUTE, modifies a conditional fee in two respects only, 230, 231. (1) in restraining alienation, 231. (2) in confining descent to persons included in the original form of the gift, 231. operation ol the, considered, 231, 232. DEED, takes eflfect from delivery, 83. in relation to rule against freehold in future, 83. DERIVATIVE ESTATE, distinguished from an original estate, 49, 50. gives rise to remainders and reversions, 49. retains the characteristics of its original estate, 51. is destroyed by the destruction of the original, 51. estate created by a power, is a, 51. three modes of .derivation of a, 52. out of an estate tail, 53, 54. for life, 54, 55. (1169) Digitized by Microsoft® 344 INDEX. [The paging refers to the [•] pages.] DEEIVATIVE 'ESTAT^E— continued, pur autre vie, 55. a term of years, 55. the particular estate is a, in relation to a reversion, 59. DESCENT, of lands in gavelkind, 13. in borough-english, 14. special customs of, more frequent in connection with copyholds than with freeholds, 178. of lands, unaffected by questions of domicil, 179. by comnion law, traced from person last seised in deed, 180. such person, called the ' ' stock " or " root " of, 180. seisin in law not sufficient to make a stock of, 180. now traced from the purchaser, 180. common law rule, seisina facit stipitem, 185. now, perquisitio facit stipitem, 185. definition of purchaser, 185. special customs of, not interfered with by the Descent Act, 186. summary of Descent Act's provisions, 186. of escheated copyholds, merged in that of the manor, 188. could not, by common law, be traced lineally upwards, 188. modem alterations o± the rule, 189. lineally to the issue in infinitum of the root of, 189. rule as to tracing upwards to ancestors, 189. to males, before females, 189. to males in order of seniority, 189. to females, equally, 189. lineal descendants represent their ancestor, 189. but rule of seniority applies among such representatives, 190. Common law rule of, excluded collaterals of the half-blood, 190. to collaterals of the half-blood under the present law, 190. in descent to collaterals, male stocks preferred, 191. paternal ancestors and their descendants preferred, 191. male paternal ancestors and their descendants preferred, 191. maternal ancestors and their descendants preferred, 192. rule of, where recourse must be had to a female stock, 192. on total failure of heif s of purchaser, to be traced from person last en- titled, 193. this rule restricts escheat, 193. examples of, under the rules, 193, et seq. of uses, followed the things of which they were the uses, 309, 310. of a conditional fee, 212. at common law, in certain cases, very wide, 212. not applicable to gifts in frankmarriage, 213. effect of Statute De Donis in confining descent, 231. of an estate tail, 212. from ancestor, excluded at common law all heirs of the descendant, not being of the blood of the ancestor, 216. Descent Act has practically not affected this rule, 216. of a qualified fee, how differs from that of fee simple, 216, 217. when entry was said to be tolled by a descent oast, 329. entry now cannot be tolled by a descent cast, 329. DESULTORY LIMITATIONS, meaning and instances of, 89. good only on creation de novo of incorporeal hereditaments, 89. whether must be such as, if continuous, would create a fee, 89, 90. whether may be made in favour of any series of persons, 90. (1170) Digitized by Microsoft® INDEX. 345 [The paging refers to the I*} pages. ] DETERMINABLE FEE, defined,. 44. arose out of tlie fee simple, 43. distinction between, and base fee, 44. still valid, 45. validity of, assumed in a strict settlement, 202, S07. no remainder upon, 63. two, cannot exist in the same land, 64. cannot be limited, except continuously, 89, 201. whether possibility of reverter upon, is now deviseable, 176. how it diifers from fee simple, 197. arises, where the succession is liable to defeasance by a future event, 197. the future event must be such as may never happen, 197. limitation of, may be either — (1) until a specified contingency shall happen, 198, or (2) so long as an existing state of things shall endure, 198. no special words necessary to the limitation of a, 193. happening of the future event, isjio facto determines a, 198. divisible into classes, according as the future event is one, 199 (1) which admits of becoming impossible, 200. (2) which must for ever remain liable to happen, 200. in the former case, is enlarged into a fee simple, 200. when an executory limitation may be limited upon a, 200. can only be enlarged by release of the executory limitation, 200. second class can only be enlarged by release of possibility of reverter, 200. examples of, 201 et seq. power of alienation by tenant of, 207. assignee or heir takes no greater estate than grantor or ancestor, 207. powers of tenant of, not affected by S. L. Act, 208. how it differs from a qualified fee simple, 218. may be limited so as to be conterminous with a base fee, 268, 269. DEVESTING, is properly the turning of an estate to a right of entry, 68. arose out of tortious feoffment by any one lawfully in possession, 68. if amounting to a discontinuance of the prior freehold, destroyed contingent remainders, 94, 110. but a prior freehold turned to a right of entry would support contingent remainders, 94. DEVISE, POWER TO, effect of Statute of Wills on, 22, 175. effect of abolition of feudal tenures on, 22, 175. fee simple at common law conferred no, 174. might exist by custom, 174. custom of, did not extend to remainder or reversions upon a fee tail, 174. not enlarged by Wills Act, as to a fee simple, 176. extends to a right of entry, 176. as to estates, pur autre vie, 290, 291. DISCONTINUANCE. And see Action, Right of. resulted from certain tortious assurances, 68, 329. is the turning of an estate to a right of action, 68, 330. distinction between, and devesting, 68. origin of, 69. distinction between, and merger, 69. devested all remainders, unless vested in the king, 329. (1171) Digitized by Microsoft® 346 INDEX. [The paging refers to the [•] pages.] JJISENTAILINa DEEDS, wlience they derive their operation, 306. effect of the Fines and Eecoveries A ct, 306. DISSEISIN, of tortious feoffee, effect of remitter upon, 70. turns the estate of the disseisee to a right of entry, 70. may still take place, 70. of tenant of prior freehold, would not destroy contingent remainder, 94. reduces the lawful estate to a right of entry, 182. entry upon, tolled at common law, 329. tolling of entry prevented by statute, 329. DISTRESS, by lord, for services in arrear, 16, 17. goods could not be sold under, at common law, 17. by crown, on unlicensed alienation, 18. DIVINE SERVICE, tenure by, distinguished from frankalmoigne, 10. ■ DOMICIL, rules of descent of lands unaffected by questions of, 179. English freehold subject to Thellusson Act, independently of testator's, 166. DOWER, how affected by custom of gavelkind, 13. by custom, of copyholds, 25. is freebench, 25, 280. wife entitled to, by seisin in law only, 184. no possessio fratris of lands actually in, 188. seisin of widow in lands assigned as, continues the seisin of her husband, 187. wife is entitled to, out of a base fee created by a disentailing deed, not in- rolled, 261. diil'erence as to tenure, between dower and curtesy, 277. three kinds of, apart from dower at common law, are now abolished, 279. characteristics of dower at common law, 279, 280. wife is entitled to, out of a fee tail, 280. by special custom may be of a half, or the whole, 280. out of lands in gavelkind, is of a moiety, 280. ceases on remarriage or fornication, 280. by special custom, must be distinguished from freebench, 280. no dower out of a joint tenancy, 280. arises out of a tenancy in common, 280. no equitable, 280. redemption of mortgage, defeats right of mortgagee's vrife to, 280. exercise of a power by husband may defeat wife's right to, 280. provisions of the Dower Act, 281. do not extend to copyholds, 281. tenant in, has no powers under S. L. Act, 281. ' EASEMENTS, subject to extinguishment, not merger, 68. whether customary freeholder can create by way of use, 28. EN AUTRE DROIT, merger of estates en autre droit, 71. none, by operation of law, 71. nor by act of parties, in equity, 74. secus, by act of parties, at law, 71, 74. Lord Coke's distinction, as to, untenable, 71, 73. (1172) Digitized by Microsoft® INDEX. 347 [The paging refers to the [•] pages. ] ENFEANCHISEMENT, powers of tenant for life, as to, under S. L. Act, 282. extinguishes rights of common over waste, at law, 283. not in equity, 283. ENTAIL, custom of, to entail copyholds is good, 2.5, 242. of copyholds, in absence of custom, creates customary conditional fee, 25, 65, 242. tenements alone are within the stat. De Bonis, 38. equities of redemption are capable of, 39, note. estates pur autre vie, are not capable of, 291. ENTIRETIES, TENANCY BY, definition of, 303. applies to all estates of freehold, 304. differs from joint tenancy in the impossibility of barring surviTorship, 304. is held per tout ei non per my, 304. as to the tenancy in chattels personal and equities of redemption, 304. whether applicable to chattels real, 304. might exist of an undivided share, 305. qusere, as to effect of the M. W. P. Act upon, 305. ENTEY, is sufficient, if made on any part of the lands, 183. and with any part of the person, 183. in law, is sufficient, where actual entry is prevented by violence, 183, 325. right of, when tolled by descent cast, 329. when entry would destroy a tortious estate, 329. distinction between right of entry and seisin in law, 182. ENTEY, EIGHT OF, none, by issue in tail, till death of tenant, 54. estate might be turned to a mere, by tortious feoffment, 68. might be turned to an actual estate by remitter, 69, 70. will support a contingent remainder, 94. if tolled, or turned to right of action, will not support contingent remain- der, 110. acquired by forfeiture does not destroy preceding freehold, until entry made, 107. on condition, accrues to grantor or his heirs, 168. estate subject to condition, not destroyed till entry made, 168. may now be devised, 176. . distinguished from a seisin in law, 182. may, by actual entry, be turned to a seisin in deed, 182. instead of seisin at law, results upon abatement, 182. and upon intrusion, 182. on death 'of tenant pur autre me in lifetime of cestui que vie, 287. EQUITABLE ESTATES, subject to extinguishment, not merger, 68. contingent remainders limited out of, not liable to destruction, 95. Eule in Shelley's case applies to, 134. EQUITY OF REDEMPTION, on failure of heirs of mortgagor does not escheat, 34. but is extinguished for benefit of mortgagee, 34. provisions of Intestates Estates Act, 1884, as to, 34, 35. is a mixed hereditament, 39. can be intailed, 39, n, (1173) Digitized by Microsoft® 348 INDEX. [The pa^g refers to the [•] pages.] EQUITY OF EEDEMPTION— co«MnM(Y7. contingent remainders limited out of, not liable to destruction, 95. as to husband's right in, when held by entireties, 304. ESCHEAT, effect of, on lands held by frankalmoigne, 10. gavelkind, abolished by stat. 33 & 34 Vict. e. 23 . . 13. sub-ieudation, 16. of copyholds, 25. peculiar to lands in fee simple, 29. arises upon failure of heirs of the tenant, 29. rarely claimed, except by the crown, 29. confusion between, and forfeiture, 29, 32. division of, into — 1. By attainder, 29. (i.) Quia suspensus est per collum, 29. (ii.) Quia abjuravit regnum, 30. (iii.) Quia utlegatus est, 30. subject to crown's right for a year and a day, 30. unless restricted by local custom, 31. 2. Without attainder, 31. birth of subsequent heir will defeat lord's right to, 31. may be defeated by devise, 31. none on dissolution of a corporation, 31, 174. of trust or mortgage estates on death without heirs of sole trustee or mort- gagee, now abolished, 31, 32. none of hereditaments not strictly the subjects of tenure, 33. nor of equitable estates, 33. nor of equity of redemption on failure of heirs of mortgagor, 34. provisions of Intestates Estates Act, 1884, with respect to, 34. will alone terminate a fee simple, 169. of freeholds, merges the lands in the seignory, 188. of copyholds, merges the lands in the manor, 188. escheated copyholds descend along with the manor, 188. restricted by the 9th rule of descent, 193. distinction between, and reverter, as to the onus of proof, 225. whether incident to a qualified fee simple, 223, 225. ESCUAGE, a service incident to tenure by knight-service, 8. peculiar use of the word, 8. ESTATE DE NOVO, cannot be created except by statute, 50. examples of, 52. ESTATE FOR LIFE, has its origin in the common law, 42. has given rise to estates pur autre vie, 43. what estates can be derived out of, 54,55. estates created by conveyance under S. L. Act are not derived out of, 55. merger of, in a joint tenancy in reversion, 67. — --,„is a "mere freehold," 77. prior to Stat. De Bonis, a remainder could only subsist upon an, 158. tenant in tail after possibility has for some purposes only an, 235. properly includes an estate pur autre vie, 273. effect of limitations to one for his own life and that of another person,273. list of possible estates for life or lives, 273. right to estovers incident to an, 273. (1174) Digitized by Microsoft® INDEX. 349 [The paging refers to the [*] pages.] ESTATE FOR LIF'E— continued. distinction between, under settlement, and under lease at rent, 274. methods in which it may arise, 275. how arises by implication of law, 27.5. the implication may be rebutted by evidence of contrary intention, 275. effect of limitation to grantee, his executors, administrators, and as- signs, 276. of a husband by the curtesy in his wife's lands, 276 — 279. of a wife as tenant in dower, 279 — 281. ESTOVERS, • within general deiinition of tenements, 37. right of tenant for life to, at common law, 273. pur autre vie, 286. EXCHANGE, whether subject to rule as to abeyance of freehold, 82, 83. whether may be made to take effect in futuro, 83. or at election, 83. between a tenant for life and a tenant in tail after possibility, good, 235. of settled land, by a tenant for life, 283. of land in the same county, needs no additional livery, 321. might prior to Statute of Frauds have been by parol, 321. a deed is now necessary for, 322. EXECUTORS, might take advantage of a condition as to estates transmissible to them, 63. could not be named as special occupants, 288, 289. but took the estate, under Statute of Frauds, 290. and now, by Wills Act, 291. take a term of years, though it be limited to the heir, 198. EXECUTORY DEVISES, are executory limitations in a will, 57. distinction between, and shifting uses, 57. seisin, during unappropriated interval, is in heir-at law, 137. freedom of, from common law rules, 138. origin and history of, 136 et seq. of the legal estate in chattel interests, possible, 138, 139. subject to rule against perpetuities, 149. EXECUTORY LIMITATIONS, distinction between, and remainders, 62. limitations, which might be good as remainders, not construed as, 97, 139. legal remainder cannot be subsequent to, 97. may be subsequent to a legal remainder, 97. Rule in Shelley's Case does not apply to, 134. history and origin of, 136 et seq. arfe free from the common law rules as to — (1) the impossibility of limiting a fee upon a fee, 137. (2) the non-abeyance of the freehold, 137. of the legal estate in chattel interests, not possible by deed, 139. seem, Iff devise, 138, 139. definition of, 139. division of, according to difference from common law limitations, 140. into shifting and springing limitations, 141. in defeasance of a fee tail, could be barred by a recovery, 143. seeas, of a fee simple or estate pur autre vie, 143, 144. effect of Conv. Act, 1882, upon certain, 144, 145, 172. (1175) Digitized by Microsoft® 350 INDEX. [The paging refers to tlio [•] pages. ] EXECUTORY LIMITATIONS— cojittwMct?. extent of this efifect, 145. origin of the rule against perpetuities, 145, 146. must, if they vest at all, vest within a certain period, 146. except executory limitations subsequent to an estate tail, 146. void, if at their commencement they infringe rule against perpetuities, 155. seens, in case of woman past child-bearing, 1 55. bad as to some of a class, are bad as to the whole, 155. ■ subsequent to such as are bad for remoteness, are also bad, 155. void, leave a prior limitation unaffected, 155, 156. under exercise of special power, rule as to, 156. as to general powers, 156. in gifts to charities, subject to rule against perpetuities, 157, 158. liability to defeasance by, differs from liability to defeasance by a common law condition, 168, 169. benefit of, may be reserved to a stranger, 168. take effect without entry actually made, 169. restrictions on enjoyment of a fee simple, subject to be defeated by, 172. present position of tenant in fee simple subject to, 172. may exercise powers under S. L. Act, 172. may be limited upon a determinable fee, 200. EXECUTORY INTERESTS, cannot be limited under the common law, 57. origin of, 57. arise under executory limitations, 57. distinction between and contingent estates, 57, 58, 93. how far and in what manner assignable or transmissible, 58. are descendable and devisable, 58, 142. not assignable at common law, inter vivos, 58, 143. now assignable by statute, 59, 143. EXTINGUISHMENT, applies to things collateral to the legal estate, 67, 68. distinction between, and merger, 67, 68. two conditions necessary to create, 68. distinction between, and suspension, 68. FAIRS, do not escheat, 23. becomes extinct on failure of heirs, 33. FEALTY, incident alike to tenure in chivalry and in socage, 11. by custom to copyhold and customary tenure, 11. to a reversion, 11. not incident to a common law tenancy at will, 11. nor to tenure by frankalmoigne, 11. sometimes the only service due from tenant, 11. not abolished by 12 Car. 2 c. 24 . . 12, 21. usually respited, on admittances to copyholds, 12. FEE, in English law means an estate of inheritance, 167. in feudal language means a subject of tenure, 167. all fees must be such that they may by possibility endure for ever, 197. distinction between a, and an estate pur autre vie, 197, 198. and a term of years, 198. and a tenancy at will, 198. (1176) Digitized by Microsoft® INDEX. 351 [The paging refers to tlie [•] pages.] FEE SIMPLE, tlie greatest estate known to the law, 29, 42, 167. characteristics of, 29. escheat peculiar to, 29. has its origin in the common law, 42. has given rise to determinable fees, 43. conditional fees, 43. qualified fees, 43. no reversion or remainder upon, 64, 272. two estates in, cannot exist in the same land, 64, 271. no merger of estate tail in, 72. executory limitation in defeasance of, not barred by recovery, 143. quantum and incidents of, 167. rights conferred by, may be restricted by easements, commons, &c., 168. may be subject to a condition, 168. liable to defeasance by executory limitation, 168. restrictions upon, not removed by alienation, 169. is presumed by the law to last for ever, 169. differs in this respect from a. modified fee, 169. can only fail by escheat, 169. word ' ' heirs ' ' formerly necessary in limitation of, to a natural person, 170. qusere, whether the copula ' ' and ' ' was necessary, 170. form of limitation of, 170. limitation to a bastard and his heirs gives, 171. to an alien or a felon and his heirs gives, 171. Informal limitation of, by direct reference, 171. when may arise without express limitation, 171. may now be limited without use of word "heirs," 171. restrictions in equity on enjoyment of, when liable to be defeated by executory limitation, 172. position now, as regards waste, of a tenant in, subject to executory limi- tation over, 172. effect of Conv. Act, 1882, on such limitations, 144, 145, 172. may exercise powers under S. L. Act, 172. restrictions upon enjoyment of, in hands of an ecclesiastical corporation, 173, 174. condition against alienation ot, good in gift to a corporation, 174. bad in gift to an individual, 174. at common law conferred no power to devise, 174. might be devised by custom, 174. now confers absolute power to devise, 176. effect of Wills Act upon right to devise, 176. customs affecting descent of, more common in copyholds than freeholds, 178. how a conditional fee could be converted into a, 211. a conditional fee not converted into, by a, descent cast, 211. how far a, differs from a qualified fee in quantum, 217, 224. difference between and a base fee, 264. effect of enlargement of a term into a, upon the reversion, 271, 272. FEE TAIL, forfeiture of, 32. originated from conditional fees, as modified by Stat. De Donis, 43, 53, 230. quantum of, 43. inheritance of, restricted to a class of special heirs, 43. does not exclude remainder or reversion, 44. and therefore is a particular estate, 241. what may be the subject of, 44. gives rise to base fee, 44, 53. estates derived out of, 53, 54, (1177) Digitized by Microsoft® 352 INDEX. [The paging refers to the [*] pages. ] PEE TAJJ^— continued. whether estates created under powers of S. L. Act are derived out of, 54. no merger of, in a fee simple, 72. in a subsequent fee tail, 72. merger of, after possibility of issue extinct, 72. limitation to trustees to preserve contingent remainders upon, of no avail, 113. executory limitation in defeasance of, might be barred, 143. subsequent to, not subject to rule against perpetuities, 146. custom to devise did not extend to remainders or reversions upon a, 174. possessio fratris did not apply to, 190. descent of, 212. how differs from qualified fee simple, 218. definition of, 230. limitation of, to heirs female, valid though unknown in practice, 230 and note, differs only in certain statutory restrictions from a conditional fee, 230, 231. the Stat. De Bonis and its operation generally, 231, 232. classification of, into two divisions according as the limitation : (1) is restricted to one sex, 233. (2) is to the issue of one or more than one body, 233. meaning of terms "tail general" and "tail special," 233. "general tail" and "special tail," 233, 234. after possibility of issue extinct. See Tenant in Tail. word ' ' heirs ' ' formerly necessary to limitation of, 235. qusere, whether ' ' heir ' ' in the singular was good in a deed, 235. limitation to ' ' heir ' ' good in a will, 235. words of procreation also necessary, 335. might be implied, even in a deed, 236. by the past or future participles, 236. limitation ' ' in frankmarriage ' ' gives an estate in special tail, 236. special conditions necessary to, 236, 237. forms of limitation of, according to their classification, 237, 238. as to the necessity of a possessive pronoun in the limitation of, 238. "the heirs male or female " equivalent to heirs general, 239. the fee is in the person whose heirs are specified, 239. wife (or husband) assigned to single donee in special tail, may be member of a specified class, 239. effect of a limitation, purporting to be in special tail, to two incapable of lawful marriage, 239. effect of a limitation to a man and two women and the heirs of their , bodies, 239. limitation, where marriage is impossible at the time of limitation only, 240. words "in tail " now by statute sufiGlcient for limitation of, 240. words "in tail " inapplicable to a limitation to a single donee in special tail, 240. the reversion expectant upon, remains in the donor, 241. a remainder may be limited upon, 241. takes effect as a particular estate, 241. limitation to the heirs of the body of an ancestor, 241. in copyholds, is good by special custom, 242. in default of special custom the limitation creates a conditional fee, 242. formerly barred by a fine or recovery, 245, 254. by a devise to charitable uses under 43 Eliz. c. 4 . . 246. effect of a fine upon, 254. (1178) Digitized by Microsoft® INDEX. 353 [The paging refers to the [*] pages. ] FEE TAIL — continued. a recovery upon, 254. estates derived out of, and incumbrances upon, not affected by a recovery, 255. how barred by modern disentailing assurance, 255, 256. cannot be barred, so as to affect paramount estates, 256. bar of, confers only sucb estate as might have been created by the original settlor, 256. cases in which a disentailing assurance has its full effect, 256. in all other cases only creates a base fee, 256. protector of the settlement under Fines and Recoveries Act. See Pkotec- TOE. disentailing deed must be enrolled, 261. ' disposition by tenant in tail without enrolment has same operation as it would have had before the Act, 262. creates a voidable base fee, 262. exercise of powers under S. L. Act, does not operate to bar the entail, 263. difference between, and a base fee, 264. wife is dowable out of, 280. FEOFFMENT, consists solely in the livery of the seisin, 321. only mode at common law to convey corporeal hereditaments, 41. tortious, by tenant in taU operates as a discontinuance, 68, 329, 330. by other tenant, devests lawful estates, 68, 328. effect of, upon subsequent estates, 68, 69, 109, 328, 330. immediately devested the seisin out of the feoffor, 81. the true nature of, is the origin of the rule as to fteeholds in futuro, 81. but the rule not confined to feoffments, 82. takes effect from the livery of the seisin, 83. tortious, formerly destroyed contingent remainder, 110. now abolished, 110, 329. operates under Statute of Uses with transmutation of possession, 315. still exists, but not used unless by old corporations, 321. by an infant, at common la*, is only voidable, 325. by the custom of Kent, is good, 325. can have no tortious operation, 326. by an infant, under a custom, must be in writing, 326. need not be by deed, 326. the infant must deliver seisin proprid manu, 326. deed was necessary at common law only for a feofiment to a corporation aggregate, 326. was generally accompanied by a deed declaring the limitations, 326. must now be in writing and with deed, 327. the deed not necessarily, but in practice ought to be, signed, 327, 328. tortious, definition of, 328. who could make, 329. might be destroyed by entry of rightfnl owner, 329. unless his entry had been tolled, 329. could then only be destroyed by a real action, 330. FINES, common law rules of limitation apply to, 82. capable of tortious operation, 110. tortious, how it destroyed contingent remainder, 110. by some, a fee simple might pass without words of limitatation, 171. levied of lands in fee tail, made void by Stat. Be Donis, 232. practically repealed by Statute of Fines, 232. 23 (1179) Digitized by Microsoft® 354 INDEX. [The paging refers to the [*] pages.] FINES — continued. definition and meaning of, 246. four kinds of, 246. effect of, at common law, 247. first Statute of, 247. decisions under the first statute led to passing of second statute, 248. effect of second Statute of, 248. could be levied without concurrence of tenant of immediate freehold, 254. barred any estate tail, in remainder, contingent, or to arise by way of ex- ecutory limitation, 254. but only the issue in tail, 254. fee simple not generally obtained by, but only a base fee, 254. differences, in effect, from common recoveries, 254. abolished since 31st December, 1833 . . 253. defeasible base fee might be confirmed by, 262. base fee, when created by fine levied by tenant in tail, 265. such fine barred all issue inheritable under the entail, 265. operate under Statute of Uses, with transmutation of possession, 315. effect of non-claim upon, 317. one of the parties must have had an estate of freeholds, 317. would only bar estates which were sufficiently devested, 318. effect of, in barring dormant titles, 318. uses deelared upon, by the persons levying, 319. where no use was declared, the use resulted to the person entitled to de- clare, 319. as used by married women before the Fines and Eeooveries Act, 319. proclamations not necessary to such, 319. separate examination of married women, origin of, 320. FORFEITUEE, of prior freehold destroyed contingent remainder, 94, 107. but only after entry made for the forfeiture, 107. how occasioned, 107. preceding freehold subsists in spite of; until entry made, 107. destruction of contingent remainders by, abolished by statute, 118. no need for trustees to preserve contingent remainders against, 118, 119. for breach of condition, no remainder upon, 62, 118, 119. no longer incurred by tortious alienation, 121. by compromising the title of remainderman in a real action, 121. whether now possible at all by operation of law, 121. FOBFEITUEE FOR HIGH TREASON, confusion between, and escheat, 29, 32. distinct characteristics of, 32. of common law fees, was by the common law, 32. of conditional fees, 32. related back to date of offence, 32. extended to gavelkind lands, 32. none of fees tail, after De Bonis, 32. restored by 26 Hen. 8, c. 13 . . 32 gave a base fee to the Crown, 32. restricted to life of attainted traitor, 32. abolished by 33 & 34 Vict. c. 23 . . 32. FORMEDON, WRITS OF, the foundation of real actions, 69. classification of, 65, n. , 69, n. new forms of, prescribed by Statute De Donia, 232. (1180) Digitized by Microsoft® INDEX 365 [The paging refers to tlie [•] pages,] FRANCHISES, royal, are mixed hereditaments, 40. FEANKALMOIGNE, a division of common law tenure, 7. incidents of : 1. Tenant must be an ecclesiastical corporation, 9. 2. Special terms of grant, 9. tenure by, .cannot be created by a subject since Quia Emptores, 10. continuing estate taken by, without words of succession, 10, 173. fealty not due to the lord in respect of, 10. could not only continue between donor and donee, 10. converted into socage, how, 10. services incident to, 10. differed from Divine Service, how, 10. strictly, only one species of spiritual tenure, 10. secular service repugnant to, and void, 10. • fealty due in respect of lands held in, only after conversion, 12. not abolished by 12 Car. 2, c. 24 . . 22. FEANKMAEEIAGE, not a tenure but an estate, 10. nature of the estate, 10, 236. conditions necessary to its validity, 236. land might be given in, after marriage, 10. is itself a word of limitation, 10. why not always used alone, as word of limitation, 11. before Stat. De Donis the estate was a conditional fee, 11. descent of conditional fee, created by a gift in, 213. lands given in, to a daughter, must be brought into hotchpot, 303. FEANK TENURE. And see Common Law Tentjeb. is the same as free tenure, 7. common law tenure, 7. FEEEBENCH, dower out of lands of customary tenure is, 25, 280. distinguished from dower by special custom, 280. FEEEHOLD TENUEE, ESTATE HELD BY, quantum of, the same now as in Littleton's time, 7. importance of, much lessened, 7. relation of, to free status, 7. customary freeholds are not, 27. ' criterion between freeholds and copyholds, 27. creation of easements by way of use under Conv. Act, 28. identical vrith common law estates, 43. terms of years and other chattel interests are not, 46, 47. possession of land founded upon the title given by an, is seisin, 76. meaning of "immediate freehold," 76. " mere freehold," 77. during a term of .years is not expectant upon, but subject to, the term, 77. is vested in possession, notwithstanding existence of a term of years, 77. immediate freehold cannot be placed in abeyance by act of parties, 77, 78. may be placed in abeyance by operation of law, 77. a freehold ' ' -in future ' ' void ab initio, 80 et seq. three kinds of freeholds " in futuro," 81. (1181) Digitized by Microsoft® 356 INDEX. [The paging refers to the [*] pages.] GAVELKIND, several meanings of the word, 12. not properly a tenure, but a customary mode of devolution, 12. the tenure is socage, 9, 12. descent of lands in, not affected hy enfranchisement, 12. nor hy a fine levied, 12. most commonly found in Kent, 13. presumption that all lands in Kent are, 13. effect of disgavelling Acts, 13. original extent of the word, 13. character of descent of lands by, 13, 178. no escheat of lands in, on attainder of felony, 31. effect of, on dower, 13. curtesy, 13. alienation by infants, 13. escheat, abolished by statute 33 & 34 Vict. c. 23 . . 13. no connection between, and other local customs, 14. forfeiture, for high treason, 32. custom of, not affected by the Descent Act, 186. curtesy of lauds in, is of a moiety only, and ceases on re-marriage, 276. attaches without birth of issue, 276. dower out of, is of a moiety, and ceases on re-marriage, 280. must be distinguished from freebench, 280. coparceny in lands in, in Kent, 301. not elsewhere, except by special custom, 301. customary alienation of lands in, by an infant, 325, 326. GEANT, opposed to livery, 41. at common law, corporeal hereditaments lie in, 41. now, by statute, all hereditaments lie in, 333. the word not necessary, at common law, to pass things lying in grant, 308. common law rules of limitation apply to, 82, 84. operation of the word prior to 8 & 9 Vict. c. 106 . . 308. under 8 & 9 Vict. c. 106 . . 308. the Conveyancing Act, 308. may serve either as a conveyance or as a settlement, 336. relation between the premisses and habendum in a, 333 — 336. HABENDUM, may enlarge an estate expressly limited in the premisses, and capable of taking effect, 333. may not abridge or make void such an estate, 333. may abridge the implication of an estate in the premisses, 334. takes effect in preference to an estate in the premisses which is void, 334. may modify the premisses when both estates are compatible, 335. effect of an estate in fee simple, habendum in fee tail, 335. may sever ajoint tenancy contained in the premisses, 336. effect of an estate in fee simple, habendum pur autre vie, 336. grant oUhe reversion, Jiabendum the land for twenty-one years, 336. HEIR, in copyholds, customary heir generally identical with heir-at-law, 24. might take advantage of a condition, as to estates descendible to him, 62. construed as persona designata, 104. takes no estate in a limitation within the Rule in Shelley's Case, 106, 124. is a word of limitation, not of purchase under the rule, 123. in limitations within Rule in Shelley's Case. See 123 et seq. distinction between heirs general and special, according as they take by purchase or by descent, 128. (1182) Digitized by Microsoft® INDEX. 357 [The paging refers tothe ["] pages.] HEIES — continued. in limitations, within the Rule in Shelley's Case, may be either general or special, 133. at common law, necessary to limitation of a fee simple to a person, 170. not to a corporation, 170. statutory substitute for, in limitation of fee simple, 171. tail, 240. aWaw, must refer to an estate to which he is entitled by inheritance, 178. the same person may have several dififerent heirs-at-law, 178. could not at common law take by purchase from his ancestor, the same es- tate which he would take by descent, 185. can now, by statute, 185. on failure of heirs of purchaser, descent to be traced from person last en- titled, 189, 193. limitation to heirs male creates fee simple in a deed, 310. may create fee tail in a will, 210. as special occupant, 287 et seq. HEREDITAMENTS, when not strictly subjects of tenure, do not escheat, 33. equitable, do not escheat, 33. used ambiguously, in regard to land, 38. divided into (1) real, mixed and personal, 39. (2) corporeal and incorporeal, 39. which savour of the realty, are also tenements, 38. distinction between descent of, and special occupancy, 38, 287, 288. when not tenements, cannot be intailed, 44. ' all, included in "land " for purposes of the Descent Act, 186. HEREDITAMENTS, CORPOREAL, at common law, lie in livery, and not in grant, 41. could only be conveyed by feoffment, 41. what are comprised in, 41. now lie in grant as well as in livery, 41, 333. HEREDITAMENTS, INCORPOREAL, at common law, lie in grant, 41. include all hereditaments which are not corporeal, 41. not included in definition of land in Lord Brougham's Act, 37. baronies and seignories of manors the earliest, 37. common law rules of limitation apply to, when in esse, 88, 89. do not apply upon creation, de novo, of, 88, 89. how seisin in deed is evidenced, as to, 181. special occupancy may exist of, 290. but not general occupancy, 290. estates pur autre vie in, now deviseable, 291. HEREDITAMENT, MIXED, includes every estate of inheritance which savours of the reality, 39. equitable estates of inheritance, 39. equities of redemption, 39. territorial baronies and peerages titular of a place, 39 and note, seignories, 39. estates of inheritance in oflices, 36 and note, advowsons in gross held for a fee, 40. renl^charge, 40. commons in gross, 40. profits d prendre, 40. tithes, by statute, 40. New River shares, &c. , 40. (1183) Digitized by Microsoft® 358 INDEX. [The paging refers to the [*] pages . ] HEEEDITAMENT, PERSONAL, meaning of, 40. a personal annuity, granted for an estate of inheritance is, 40. annuity granted by the Crown out of Barbadoes duties is, 40. annuity charged upon public revenue may be, 40. an office attached to the person, or to a chattel, is, 40. a villein in gross was, 40, n. HEREDITAMENT, REAL, meaning of, 39. HOMAGE, an incident of tenure, not a tenure, 11. generally, of tenure in chivalry, 11. abolished by 12 Car. 2, c. 24 . . 12. HOMAGE ANCESTRAL, a species of tenury, generally in chivalry, 8. generally knight service, subject to no other services, 11. nature of, and causes of its early disappearance, 11. in socage, nature of, 9. HONOUR, meaning and nature of, 4, n. decadence of Honours, 4, n. the Honour of Arundel, 5, n. INCUMBRANCES, subject to extinguishment, not merger, 50, n., 68, 74. effect of merger of a base fee upon, 269. may be shifted by tenant for life under S. L. Act, 283. INFANT, whether equity would prevent merger in case of, 74. ^ . feoffment by an, only voidable at common law, 325. is good by the custom of Kent, 325. can have no tortious operation, 326. under custom, must be in writing, 326. does not require a deed, 326. INTESTATES ESTATES ACT, 1884, the. provisions of sect. 4 of, 34. remarks upon 34, 35. INTRUSION, is the wrongful entry of a stranger, before the entry of a remainderman, 182. reduces remainderman's estate to a right of entry, 182. ISSUE. may be equivalent to "heirs" for the purpose of the Rule in Shelley's Case, 133. in sect. 6 of the Descent Act means " inheritable issue " according to Eng- lish law, 179. possibility of, extinct. Sre Tenant in Tail. birth, of necessary to create tenancy by the curtesy, 276. except as to lands in gavelkind, 276. not necessary, to give right to dower, 280. JOINT TENANCY, definition and limitation of, 294. " in fee simple " substituted for, "and their heirs ' ' in limitation of a, 294. (1184) ' Digitized by Microsoft® INDEX. 359 [The paging refers to the [•] pages.] JOINT I'ENA'NCY— continued. may exist of chattel interests, as well as of fees, 294. cannot be limited of estates in general tail, 294. may of estates in special tail, 294. distinguishing characteristic of, is right by survivorship, 295. the benefit of survivorship not necessarily the same to each ioiiit tenant, 295. is defeated by severance, 295. effect of alienation on, 296. severance of, creates a tenancy in common, 296, 298. served by the merger of a prior estate, 67. divorce of tv70 donees in special tail creates a, for life, 234. JOINT TENANT, effect of surrender of a prior life estate to, 67. grant of prior life estate to, 67. release by one to another required no words of limitation, 171. no dower but of a fee held by husband as, 280. jus accrescendi need not confer the same benefit upon each, 295. can only take by purchase, 295. must all take simultaneously, at common law, 295. secus, under Statute of tJses, 295. must have "unity of interest, title, time, and possession," 295. meaning of the phrase, 296. seised per my et per tout, 296. share of each, is distinct for the purposes of alienation and forfeiture, 296. power of alienation of, 296. may by severance become tenants in common, 296. effect of severance, where they are joint tenants for their lives, 296. limitation to joint tenants and " the survivor of them," 296, 297. partition by, under statute, 297. distinguished from coparceners, 301. KING, is lord paramount of the whole kingdom, 4, 5. not bound by Quia Emptores, 18. may dispense vpith that statute, 19. KNIGHT-SERVICE, a- species of tenure in chivalry, 8. services incident to, 8. sometimes verbally confounded with escuage, 8. abolition of, 9, 21. relation of, to homage ancestral, 11. LAND, meaning of, 36. definitions of, in Acts of Parliament, 37. in Lord Brougham's Act does not include incorporeal hereditaments, 37. estates in, the model of all other estates, 37. ambiguous meaning of ' ' hereditaments ' ' in relation to, 38. LAWFUL ESTATES, cannot be created de novo except by statute, 50. LEASES, by tenants in tail effectual as against issue in tail, 54. for specified lives commence from following day, 83. could not take effect without livery in seisin, 83. now take effect from delivery in deed, 84. (1185) Digitized by Microsoft® 360 INDEX. [The paging refers to the [•] pages.] LEASES — eonUnued. are freeholds, and cannot be limited in future, 84. remarks on Boddington v. Jiobinson, 84. lease for lives distinguished from tenancy for life under a settlement, 274. power of tenant for life to grant, under the Settled Estates Act, 281. under S. L. Act, 283. character of, under S. L. Act, 284. power of tenant for life under S. L. A. to confirm contracts for, 284. to renew according to a covenant, 284. to confirm void or voidable, 284. to accept surrender of, 284. to give copyholders license to grant, 285. severaiice by joint tenants of a lease for lives, 296, 297. LEASE AND EELEASE. And see Release ; Uses. is a release operating at common law to enlarge the lease, 82. common law rules of limitation apply to, 82. the lease alone derived its operation from the Statute of Uses, 306. could be effected, by a common law lease, with actual possession, 306. statutory substitute for, under 4 & 5 Vict. c. 21 . 307. superseded by 8 & 9 Vict. c. 106 . . 307. remainders and reversions were generally conveyed by, 308. founded on the doctrine of releases, 332. operation of, 332. how far dependent on the Statute of Uses, 332. may operate as a conveyance, or as a settlement, 332. LIMITATION, definition of a determinable, 198. a determinable, sometimes styled a collateral, 198. Preston's definition of a direct, 198. of a collateral, 199. on determinable limitations in general, 199. sometimes called a condition in law, 199. a conditional limitation, 199. the rule, that the future event must be such as may never happen, only ap- plies to the limitation of fees, 199. distinction between -a, determinable, and a limitation upon condition, 206. meaning of " conditional " in the S. L. Act, 208. to "heirs male" is void as to the qualification, and grantee takes a fee simple, 260. to special heirs, must be expressly to special heirs of the body, 210. except in a will, 210. forms of, for a fee tail, 237, 238. rules as to, for a fee tail, 238 et seq. And see Fee Tail. "to A. and the heirs of the body of his father," the father being living, 269. LIMITATION AT COMMON LAW, RULES OF, have been restricted as to contingent remainders, 79. do not apply (1) to assurances under Statute of Uses, 79. (2) to wills, 79. apply now in practice only to leases for lives, 79. first four, directed against abeyance of the seisin, 80. last two, directed against perpetuities, 80. Rule 1. As to freehold in futuro, limited out of estate in possession in cor- poreal hereditaments, 80. (1186) Digitized by Microsoft® INDEX. 361 [The paging refers to the [*] pages.] LIMITATION AT COMMON LAW, RULES OF—eoniinued. origin of the rule founded on the theory of a feoffment, 81. not restricted in its application to feoffinents, 82. applies to all assurances of freeholds at common law, 82. to a lease and release, 82. does not apply to a covenant to stand seised to uses, 82. "whether it applies to common law exchanges, 82, 83. does not operate until the assurance is perfected, 83. the result in respect to (1) a feoffment, 83. (2) an assurance hy deed, 83. still applies to leases for lives, 84. remarks on Boddington v. Jlobinson, 84 et seq. Rule 2. As to freehold in future limited out of remainder or reversion, 87. Rule 3. As to freehold in futuro limited out of incorporeal hereditaments in esse, 87. only applies to incorporeal hereditaments in esse, 88. does not apply upon the creation de novo of incorporeal heredit- aments, 88. no reason for its application to a rentcharge, 88. reason for its application to an advowson in gross, 88. Rule 4. As to discontinuous or desultory limitations, 88. application of, to a determinable fee, 89. does not apply upon the creation de novo of incorporeal heredita- ments, 89. desultory limitations, 89. remarks upon AtMns v. 3Iountague, 89. Rule 5. As to remote limitations of inheritance, 90. (1) application of, to a deed, 90, 91. (2) application of, to a vrill, 91. gives rise to the cy pres doctrine, 91. Rule 6. As to limitations upon remote contingencies, 91. founded on the rule against double possibilities, 91. does not interfere with contingent remainders, 91. is the common law substitute for the rule against perpetuities, 92, 158, 1.59. LIMITATION, WORDS OF, frankmarriage, 10. " his executors administrators and assigns'' by themselves, are not, 85. "reginse et reginis Anglise protempore existentibus," a good " desultory limi- tation," 89. form of, in limitation of a fee simple, 170, 171. when unnecessary to give a fee simple, 171. forms of, in limitation of a fee tail, 237, 240. LIVERY, at common law, corporeal hereditaments lie in, 41. feoffment consists solely in the, 321. feoffment takes effect from the time of, 83. assurance by deed needs no, 83. when not necessary, at common law, to convey freehold in possession, 321 1. Surrender. 321. 2. Release, 321. 3. Exchange, 321. 4. Partition, 322. 5. Lands appurtenant to an office, 322. 6. Lands appurtenant to a corrody, 322. in deed, must be in the absence of hostile claimants, 322. general requisites of, 322. ceremony of, 323. (1187) Digitized by Microsoft® 362 INDEX. [The paging refers to th* [*] pages.] LIVERY — continued. by or to an attorney, 324. in law, general requisites of, 325. feoffee under, must enter, 325. of one parcel gives seisin of all parcels in same county, 325. secundum formam cartse, 326. how far the charter controls the livery, 326, 327. is void, if the limitation in the charter is bad, 327. the charter prevails over a verbal limitation, 327. MANORS OP ANCIENT DEMESNE, origin of, 26. what are, 26. customary freeholds, are copyholds of, 26. MARKETS, do not escheat, 33. become extinct on failure of heirs, 33. MAXIMS OF LAW, Anglisejura in omni casu libertati dantfavorim, 7. cujus est dare, ejus est disponere, 49. no one may take advantage of a condition except the maker of it or his privies, 62. the immediate freehold may not by act of parties be placed in abeyance, 62. mergers are odious in equity, 73. the law will not conteinplate a double possibility, 91, 92. nemo est heres vivetitis, 103, 104, 268, 269. seisinafacit siipitem, 185. cessanie statu primitivo, cessat derivativus, 51, 254, benigne faciendse sunt interpretationes cartarum, 339. MERGER OP ESTATES, generally. See Ch. X., passim, 66 e< seg. meaning of, 50, 66. prevented by intermediate estate, 66. of undivided shares of land, 66. arises by operation of law, without regard to intention, 67. distinction between, and surrender (1) in origin, 67. . (2) in operation, 67. of a tenancy for life severs joint tenancy in reversion, 67. distinction between, and extinguishment, 67, 68. discontinuance, 68, 69. remitter, 70. none, of estates em autre droit, taken by operation of law, 71. nor by act of parties in equity, 74. seems, at law, by act of parties, 71. distinction taken by Lord Coke untenable, 71, 73. none, of estate tail in remainder or reversion in fee simple, 72. another estate tail, 72. of a base fee, 72, 269, 270; effect of, as between vendor and purchaser, 270. of estate tail, after possibility of issue extinct, 72. not favoured in equity, 73. but not unknown in equity, 73. effect of Judicature Acts on, 73 et seq. trust estate, 73. fraud, 73. cases of infants, 74. extinguishment of charges in the fee, 74. (1188) Digitized by Microsoft® INDEX. 363 [The paging refers to the [•] pagesO MERGER OF ESTATES— coniireMcti. equitable relief may be lost by acquiescence, 74. qusere, as to effect of intention on, in equity, 75. of precedent estate, generally destroys contingent remainder, 108. but not if it takes place simultaneously with creation of precedent estate, 109. in such cases, merged estates open to let in contingent remainders, 109. destruction of contingent remainders by, abolished, 109. enlargement now substituted for, in the case of a base fee, 270. MODIFIED FEE, how differs from a fee simple, 43, 197. several kinds of, defined: (1) determinable fee. 197. (2) conditional fee, 197, 209. (3) qualified fee simple, 197, 215. (4) fee tail, 43, 230. (5) base fee, 44, 264. confers absolute right of user on the tenant, 207. MORTGAGOR, failure of heirs of, does not cause escheat of equity of redemption, 34. redemption by, defeats dower of mortgagee's wife, 280. effect of power of sale in Lord Cranworth's Act upon the estate of, 309. NEW RIVER SHARES, are realty by statute, 33. are mixed hereditaments, 40. equitable estates in, do not escheat, on failure of heirs, 33. OCCUPANCY, GENERAL, reason why it was permitted, 86. distinguished from special occupancy, 287, 288. nature of, 288. none, of copyholds, 288. of incorporeal hereditaments, 290. OCCUPANCY, SPECIAL, is not a descent, 38; 288. nature of, 287. distinguished from general occupancy, 287, 288. heir could only be named as special occupant in the grant, 289. jwasi-occupancy of executors or administrators under Statute of Frauds, 289. may exist of incorporeal hereditaments, 290. ORIGINAL ESTATE, distinguished from a derivative estate, 49. a derivative estate may be an, in relation to a lesser one, 50. every estate, greater than a tenancy at will, may be, 50. in cases where a derivative estate is created by a power, 51. where the power is created by statute, 51. where the power operates by the Statute of Uses, 51. a reversion is the, in relation to the particular estate, 59. PARAMOUNT, LORD, supreme, is the king, 5. why so called, 5. PARCENERS. See Copaecenees. (1189) Digitized by Microsoft® 364 INDEX. [The paging refers to the [*] pages. ] PAETICXJLAE ESTATE, the estate prior to a remainder or reversion is a, 59. in relation to a reversion, is derivative, 59. relation of, to a remainder, 59. a fee tail, with a limitation over, takes effect as a, 241. PARTITION, a rent granted by one coparcener to another for equality of, was in fee simple, 171. tenant for life may concur, under S. L. Act, in making, 283. by joint tenants, 297. compulsory, by coparceners, at common law, 302. no estate passed by, so as to alter the rule of descent among coparceners, 302. voluntary, by coparceners, 302. must now be by deed, 303. among coparceners of lands held of the king in capiie, 303. by coparceners, did not require livery, 322. PEERAGE, falls into abeyance among coparceners, 90. may be revived by the crown in favour of any of them, 90. determinable limitations of, 89, 201. PERPETUITIES. And see Accumulations. the last two rules of limitation at common law are directed against, 80. rule forbidding abeyance of seisin tends to prevent, 80. certain contingent remainders must now conform to the rule against, 113. rule against, introduced in consequence of executory limitations, 143. ite relation to gifts to charitable uses, 157, 158. PERPETUITIES, THE RULE . AGAINST, fixes the time within which executory limitations must vest, 146. does not apply to limitations subsequent to an estate tail, 146. gradual development of, 147, 148. a child en 'ventre sa mh-e is in esse for the purpose of, 148. but no farther period allowed, in respect of a possible gestation, 148. statement of. 149. the shares of the persons to take must be ascertained within the period, 149. to what subjects the rule applies, 149. certain nondescript equities included, 149. the equity must give a claim to specific property, 150. a personal covenant is not within, 150. collateral covenants are not within, 150. exceptions Irom, are (1) conditions in defeasance of a term of years, 151. (2) covenants for the renewal of leases, 151. (3) negative covena.nts running with the land, 152. common law condition in defeasance of a freehold not strictly within, 152 etseq., 207. has strictly no application to the old common law limitations, 152, 153, 207. was introduced to meet the new limitations, 153. remoteness does not depend upon the event, 154. unless there is vehement presumption as to event, 155. application of, to appointments under a special power, 156. general power, 156. to powers of sale and exchange, 157. gifts to charities by way of executory limitations are within, 157. (1190) Digitized by Microsoft® INDEX. 365 [The paging refers to the [•] pages. ] PEEBETUITIES, THE RULE AGAINST— continued. what is meant by charitable uses being outside, 158. origin of the period ' ' a life in being, and twenty-one years afterwards, ' ' 158, 159. general effect of, as compared with common law rules of limitations, 159. is based upon the analogy of the common law rules, 158, 159. does not apply to legal remainders, 159, 160. Lord St. Leonards on the inapplicability, 160. dictum of Lord Hatherley, considered, 161 , 162. certain contingent remainders now by statute subject to, 161. Thellusson Act, does not affect, 163. trusts for accumulation which violate, are void in toto, 164. PORTIONS, provisions for raising, not within Thellusson Act, 165. P0S8ESSI0 FEATRIS, the doctrine of, 187. excluded collaterals of the half-blood, 190. the doctrine of, applied in equity, 187. the doctrine of, always treated rigorously, 187. now inapplicable, 187. none, of land actually in dower, 188. except in very rare cases, 188. ■ none generally, of lands held by the curtesy, 188. none, of an estate tail, 190. POSSESSION, at common law, synonymous with seisin, 76. extended meaning of, in modern times, 76. a freehold estate is vested in, in spite of outstanding term of years, 77. of tenant for years, gives seisin in deed, without entry by reversioner, 181. similarly of other persons having chattel interests, 181. POSSIBILITIES, distinction between bare, and coupled with an interest, 58 and note. not assignable at common law inter vivos, 58. coupled with an interest might be devised, 58. include contingent remainders and executory interests, 58. double, not allowed, 91. foundation and meaning of the rule against double, 92. POSSIBILITY OF REVERTER. See Reveetee. POSTHUMOUS CHILDREN, could not at common law take by way of remainder. 111, 126, 159. relieved by statute. 111. for purposes of descent, were treated as in esse, 111, 126. t[uiere, under Statutes of Wills, 111. could take under devises by special custom, 111. incapable of taking by purchase at comman law, 126. position of, in relation to the rule against perpetuities, 148, 149, 159. POWERS, distinction between postestas dandi and disponendi, 51. existence of prior power does not prevent vesting, 56. subsequent exercise of power may limit estate vrithin Rule in Shelley's Case, 133. application of rule against perpetuities to appointments under special, 156. general, 156. (1191) Digitized by Microsoft® 366 INDEX. [The paging refers to the [•] pages.] POWERS— conlinued. powers of sale and exchange, 157. of sale and exchange, subsequent to estate tail, not within the rule, 157. under the S. L. Act, 1882 . . 55, 172, 26.3, 279, 282—285, 286. exercise of prior power by husband, defeate wife's dower, 280. PEEEOGATIVE OF THE CEOWN, to revive dormant peerage, 90. PEOFIT A PRENDRE, generally included in definition of tenements, 37. is a mixed hereditament, 40. subject to extinguishment, not merger, 68. PEOTECTOE OF THE SETTLEMENT, is generally the owner of the first estate prior to the estate tail, 257. meaning of ' ' owuer, ' ' 257. such owner does not cease to be the, by incumbering, 257. by alienation, 257. by becoming bankrupt, 257. estate by the curtesy may be the prior estate, 257. so of estate vesting in settlor by resulting use, 257. no tenant in dower, bare trustee, heir, executor, administrator, or assign can generally be, 257. where there are concurrent owners of the prior estate, 258. se'ttlor may appoint special protectors, 258. so may trustee of an executory settlement, 258. special protector may disclaim by deed inroUed, 258. general protector may be specially excluded by the settlor, 258. Court of Chancery is, in what cases, 259. when married woman is, 259. when husband's concurrence may be dispensed with, 259. where the, is lunatic, 260. is convicted of treason or felony, 260. special protector is an infant, 260. is not known to be alive or dead, 260. where the prior estate had been assigned or mortgaged prior to the Act, 260. or the remainderman or reversioner, who would be protector, has charged or conveyed the remainder or reversion, 260. when a bare trustee may be protector, 261. PUR A UTRE VIE, ESTATE FOE, has its origin in estates for life, 43. but may be created de novo, ' 43. what estates can be derived out of an, 55. powers of tenant of an, under S. L. Act, 55. ■ is a " mere freehold," 76. estate of trustees to preserve contingent remainders was, 115. when following a term of years, gives actual seisin to the trustees, 118. executory limitation in defeasance of, not he barred by recovery, 144. distinction between, and a fee, 197, 198. quantum of, 286. methods in which it may arise, 286. distinction between, and a determinable fee, 287. how limited, 287. heirs as special occupants of, 287. heirs of the body as special occupants, 289. (1192) Digitized by Microsoft® INDEX. 367 [The paging '•efers to the [*] pages.] PUB A UTRE VIE, ESTATE ¥0U— continued. under Statute of Frauds, the exector or administrator takes as gumi special occupant, 289. may be alienated inter vivos, 290. not deviseable prior to Statute of Frauds, 290. when made distributable by executor as personal estate, 291. in copyholds and incorporeal hereditaments now deviseable, 291. not intailable under Stat. De Donis, 291. quasi entail of an, 291. PUB AUTBE VIE, TENANT, death of, may leave seisin in abeyance till entry of occupant, 78. cannot take surrender fi:om a tenant for his own life, 121. PURCHASE, "heirs " not a word of, in limitations within Rule in Shelley's case, 123. distinction between heirs general and special, according as they take by descent or by, 128. perquisitio facit stipitem, 185. heir may now take by, under gift or deviseirom ancestor, 18.5. whether heir took by, under a limitation to heirs of a specified person at common law, 186. the specified ancestor now takes by, for purpose of tracing the descent, 186. QUALIFIED PEE SIMPLE, arises out of the fee simple, 43. not found in practice, but may legally exist, 45. nature and mode of limitation of, 215. example of, 215. probable origin of, 215, 216. validity of, not affected by the Descent Act, 216, 225 et seq. course of descent of, does not differ in its inception from that of a fee simple, 216, 224. the root of descent of, differs from that of a fee simple, 217, 224. authority in favour of validity of, 217. differs ftom a determinable fee, 218. conditional fee, 218. fee tail, 218. supposed objection to validity of, by Blackstone, considered, 219 et scq. derived from Lord Coke, considered, 221 et seq. no real difference of view exists between Littleton, Coke, and Preston, 222. Preston's opinion as to effect of alienation of a, 223. . considered, 223 et seq. analogous limitations to heirs as purchasers found in settlements, 226. effect of the Descent Act is, at most, only to alter the mode of its limitar tion, 226. the bearing of Blake v. Hyne.a upon, 227 — 229. QUANTUM OF ESTATE, bears no necessary relation to tenure of estate, 6. relation of, to tenure of estate established by custom, 6. and to political status of tenant, 6. of copyhold estates, 24. conditional fees, 43. fees tail, 43, 44. (1193) Digitized by Microsoft® 368 INDEX. [The paging refers to the [*] pages. ] QUEEN CONSOET, , has for some purposes the capacities of a. feme sole, 89. is not a corporation sole, 89, 90. example of a limitation, to successive queens consort, 89. QUIA KMPT0BE8, STATUTE OF, prevented sub-infeudation, 17. but freed alienation in fee simple, 17. apportionment of services under, 17. applies only to lands held in fee simple, 17. effect of, on tenants of the crown in capHe, 18. on creation of manors, 19. general effect of, 19. crown and mesne lords together may dispense with, 19. REAL ACTION, writ of formedon in, 64, n. , 65, n., 69, n. remitter, in its effect, was equivalent to, 70. could only be brought against tenant of immediate freehold, 76. in theory, a fine was a, 246. also a recovery, 251. plaintiff and defendant in a, styled demandant and tenant, 251, n. two classes of, (1) possessory actions, 330. (2) droitural actions, 330. necessary on a discontinuance by tortious feoffment, 330. RECOVERIES, COMMON, effect of, on fines due to the crown, 19. common law rules of limitation apply to, 82. capable, at common law, of tortious operation, 110. seeus. since 8 & 9 Vict. c. 106 . . 110. valid, though executed after death of recoveree, 126. executory limitations in defeasance of a fee tail could be barred by, 143. a fee simple could not be barred by, 143. an estate pnr autre vie could not be barred by, 144. fee simple might pass by, without words of limitation, 171. history of, 244, 245. Taltarum's Case, 250. nature of, 251, 252. tenant to the prsecipe in, was, at common law, the per.son actually seised of the first estate of freehold, 251. inconvenience of the rule, where the land was let on leases for lives, 251. remedied by stat. 14 Geo. 2, i;. 20 . . 251. recovery with double voucher, 253. single voucher, 253. limited effect of recovery with single voucher, 253. recovery with treble vouchee, 253. now abolished, 253. barred estate tail, together vsdth the remainders and reversion, 254. conferred an estate equivalent to that of the original settlor, 254 and note. di(i not affect estates derived out of, or incumbrances upon, the estate tail, 255. could not be suffered by tenant in tail after possibility, 255. by women tenants in tail ex provisione vii-i, void, 255. effect of Fines and Recoveries Act upon such women, 255. (1194) Digitized by Microsoft® IKDEX. „ 369 [The paging refers to the [*] pftg^es.] RECOVERIES, COUMO^— continued. by tenant in tail, where reversion is in the crown, 255. analogy of, followed by modern disentailing assurances, 255, 256. how far a base fee could arise by, where reversion was in the crown, 265. take efl'ect under Statute of Uses with transmutation of possession, 315. uses declared upon, by the persons suffering them, 319. when use resulted to the person suffering them, 319. by married women, 319. separate examination of married women, 320. RECOVERIES, FEIGNED, evasion of Statutes of Mortmain by, checked, 5, n. by reversioners of terms of years, checked, 46, 47. RELEASE, one tenant in common cannot release to another, 297. coparceners may release one to another, 302. ^ by reversioner to tenant for years, requires no livery, 321. may operate (1) by way of enlargement, 331. (2) by way of passing an estate, 331. the releasee must be in possession, 331. possession of a sub-tenant will suffice, 331. or of termor in remainder upon an existing term, 331. tenant at will may take, 331. the release must have a vested estate to which the releasor is privy, 331. effect of, by way of enlargement of a term of years, 331. conveyance by lease and release founded on this doctrine, 332. REMAINDER, arises from the act of the grantor or settlor, 59. is part of his estate, 59, 63. distinction between, and a reversion, 59. relation of, to the particular estate, 59. definitions of, 60. at common law might be created by feoffment without deed, 60, 327. upon a term of years, 60, 61. base fee, 61. same estate may be both reversion and remainder, 61. alternative remainders in fee simple, 61. two essential characteristics of, 62, 63. whereby it differs from an executory interest, 62. cannot be limited to take effect upon forfeiture for breach of a condition, 62, 119. may be limited in expectancy upon a determinable estate, 63. cannot be limited in expectancy upon a common law fee, 64. whether a remainder could be limited upon a conditional fee, 64, 65. effect of tortious feoffinent upon, 69, 110, ii. infuiuro is bad, 82. how it differs from a contingent remainder, 82. prior to Stat. De Don is, could only be in fee simple, 158. and could only subsist upon an estate for life, or pur autre vie, 158. after Stat. De Donis, might be in fee tail, 158. and might be limited upon a fee tail, 241. legal, are outside the rule against perpetuities, 159 et seq. seisin in deed of, how acquired, 181, 183. remainder or reversion subsists upon a base fee, 264. how conveyed, undec the old practice, 308. 24 (1195) Digitized by Microsoft® 370 INDEX. [Tlie paglner refers to the [*J pages.] REMITTEE, the opposite of discontinuance, 69. meaning of, 69, 70. qtistiuction between, and merger, 70. EENTCHARaE, does not escheat, 33. hecomes extinct on failnre of heirs, 33. Is a tenement for purpose of entail, 38, 265. not for purpose of escheat, 30. is' a mixed hereditament, 40. subject to extinguishment, not merger, 68. application of common law rules of limitation to, 88. seisin in deed of, evidenced by receipt of, 181. base fee in, how created, 265, 266. granted for equality of partition, is descendible in same way as the land, 302. RENT-SECK, does not escheat, 33. * becomes extinct on failure of heirs, 33. RESULTING USE, estate taken by way of, is within Rule in Shelley's Case, 133. REVERSION, new tenure Can now be created, only where reversion in fee simple re- mains in the grantor, 20. distinction between, and remainder, in respect to the prior estate, 59. arises by operation of law, and is part of the estate of the grantor, 59, 63. was itself the original estate in relation to the particular estate, 59. definition of, 60. upon a term of years, 60, 61. same estate may be both remainder and reversion, 61. none remains, where grantor parts with the fee, 64. whether any could subsist upon a conditional fee, 64, 65. may subsist upon a fee tail under Stat. De Bonis, 65. seisin in deed of, how acquired, 181, 183. expectant upon fee tail, remains in the donor, 241. reversion or remainder subsists Upon a base fee, 264. merger of base fee in, 269, 270. what becomes of the, upon statutory enlargement of term into fee simple, 271, 272. how conveyed under the old practice, 308. REVERSIONER, at common law could destroy a term of years by collusive recovery, 6, 46, 47. remedy applied by statute, 47. REVERTER, strictly equivalent to reversion, 63. generally used to denote a possibility only, 63. to donor, upon dissolution of corporation, 31, 174. of a conditional fee, upon failure of heirs special, 213. REVERTER, POSSIBILITY OF, none, on a fee simple, 29, 63. of fee simple to donor, on dissolution of a corporation, 31, 174. upon a conditional fee, 64. (1196) Digitized by Microsoft® INDEX. 371. [The paging refers to the [*] pages,] EEVERTEE, POSSIBILITY OF— continued. effect of Stat. He Bonis upon, 231. upon a condition at common law, neither assignable nor deviseable, 253. now assignable by statute, 153. whether possibility of, is now deviseable, 176. determinable fee, how enlarged by release of, 200. not barred by alienation of conditional fee before birth of issue inheritable, 210. of conditional fee, upon failure of heirs special, 212. discussion as to qualified fees simple, 223, 225. SEIGNOEIES, of manors, among the earliest incorporeal herditaments,[37. were hereditaments mixed, 39. subject to extinguishment, not merger, 68. may be sold, under S. L. Act, by the tenant for life of the manor, 282. SEISIN. And see Liveby. of customary freeholds, is in the lord, 27. copyholds, 27. denotes the possession of the freeholder, 47. under the common law, formerly conterminous with possession, 76. none, in a termor for years, 76, 93. is a possession founded upon a title of freehold, 76. meaning of being " in of the same seisin," 76, 181. "actual seisin," 76, 180. independent of, and unaffected by, existence of term of years, 77. cannot be placed in abeyance by act of parties, 77, 78, 93. may by operation of law, 78. or by statute, 78. in case of executory devises, how abeyance is avoided, 79. shifting uses, 79. foundation of the rule as to abeyance, 80. the rule tends to prevent perpetuities, 80. person who last had seisin in deed, was at common law the stock of de- scent, 180. seisin-in-law was not sufficient, 180. seisin in deed, is that of a person having the immediate freehold, 180. of a brother, excluded collaterals of half-blood, 187. gave possessio fratris, 187. of corporeal hereditaments, how obtained, 181. how evidenced, 181, 183. of remainders and reversions, 181. might become impossible by death of heir, before exercising owner- ship, 183. existence of a chattel interest removes necessity for actual entry, 183, 184. seisin in law, defined, 181. is a presumption merely, which is rebutted by existence of an actua.1 seisin in another person, 182. distinguished from a right of entry, 182. suffices to prevent abeyance of the freehold, 182. how converted into seisin in deed, 182. made the estate assets in the hands of the heir, 184. entitles a wife to dower, 184. does not entitle a husband to curtesy, 184. possessio fratris required stringent proof, 187. of a widow by dower, continued her husband's seisin, 187. difficulty of obtaining seisin in deed of lands in dower, 187. (1197) Digitized by Microsoft® 372 INDEX. [The paging refers to the [*] pages.] SEISIN — continued. acquisition of seisin in deed by remainderman, very rare, 188. of lands held by the curtesy, as regards possessio fratris, 188. an infant making a customary feoffment must deliver seisin proprid manu, 326. SERJEANTY, GRAND, TENXJEE BY, a species of tenure in chivalry, 8, held only of the crown, 8. services incident to, 8. doubts as to its abolition, '8. retains its honorary incidents, though converted into socage, 8, 22. an office of honour held by, does not fall into abeyance among coparceners, 90. ' how to be exercised on descent among coparceners, 90. SERJEANTY, PETITE, TENURE BY, a species of tenure in socage, 9. held only by the crownj 9. effect of Stat. 12 Car. 2, c. 24, on, 9. SERVICES, incident to tenure in chivalry, 8. socage, 9. could not be reserved on a gift in frankalmoigne, 10. right of distress for, 16. effect of sub-infeudation on, 16. of Quia Emptores, 17. , apportionment of, an alienation, 17. peculiar to chivalry, abolished by 12 Car. 2, c. 26 . . 21. incident to socage, not abolished, 21. honorary services of grand serjeanty, not abolished, 22. incident to copyhold tenure, 24. at common law, due only from the tenant of the immediate freehold, 78. may be extinguished, under S. L. Act, by the tenant [for life of a manor, 282. SETTLED LAND ACT, 1882. See Statutoey Powbes. SHELLEY'S CASE, RULE IN, the estate limited to the heir, coalesces vrith precedent freehold, 106. the heir takes no estate, 106. why limitations within, are not exceptions from fourth class of contingent remainders, 106, 123. merger by, did not destroy contingent remainders, 109. heirs a word of limitation, not of purchase, in limitations within, 123. essential characteristics of limitations within, 123, 124. (1) a prior estate of freehold, 124. (2) a subsequent limitation in the same instrument to the heirs of the same person, 124. applies where an estate intervenes between the prior freehold, and the limi- tation to the heirs, 124, 133. statement of Shelley's Case in detail, 124 et seq. the questions in Shelley's Case, 127, 128. two main points decided in Shelley's Case, 129. argument for plaintiff, 129. defendant, 130. the rule was expressly laid down in Shelley's Case, 131, 132, n. prior freehold need not be for the life of the ancestor, 132. •eubsequent limitation may be to heirs general or special, 133. (1198) Digitized by Microsoft® INDEX, 373 [The paging refers to the [*] pages.] SHELLEY'S CASE, EULE IN— continued. both estates must arise under the same instrument, 133. an estate hj way of resulting use, deemed to arise under the same instru- ment, 133. an estate limited under a power contained in the same instrument, 133. the subsequent limitation may be contingent, 133. " issue " in a devise may be equivalent to "heirs," 133. what further words of limitation will not prevent the rule's operation, 134. applies to equitable limitations, 134. prior and subsequent limitations must be both legal, or both equitable, 134. applies to copyholds, 134. does not apply where neither limitation is executory, 134. probable origin of, 134. SHIFTING, OR SPEINaiNG, USES, are executory limitations contained in a deed, 57. distinction between, and executory devises, 57. seisin, during unappropriated intervals, is in grantees to uses, 79. distinction between shifting and springing limitations, 141, 142. subject to rule against perpetuities, 149. SPOETING, EIGHT OF, is an incorporeal hereditament, 40, n. STATUTES CITED, 9 Hen. 3 (Magna Carta), 4, n. 16, 17, 18, 19. 6 Edw. 1 (Stat, of Gloucester), 6, 16, 47. 13 Edw. 1 (Stat. Westm. 2, or De Bonis), 5, n., 11, 16, 25, 38, 41, 43, 44, 45, 53, 64, 65, 69, 72, 158, 174, 197, 209, 312, 213, 220, 230, 231, 242, 243, 244, 248, 249, 265, 294. 18 Edw. 1 Stat. Westm. 3, or Qui Emptores), 3, 5, 10, 16, 17, 18, 19, 178. 17 Edw. 2 {De Prierogativd Segis), 15, 18, 31. 34 Edw. 3, c. 15 . . 18. c. 16 (Stat, of Non-claim), 247, 320. I Eio. 3, c. 1 (uses), 310. c. 7 (repeal of non-claim), 247, 320. 8 Hen. 6, c. 7 . . 38. 4 Hen. 7, c. 24 (fines),. 144, 232, 245, 247, 317, 320. II Hen. 7 c. 20 (tenant in tail ex provisione viri), 255. 21 Hen. 8, c. 15 . . 6, 47, 76. 26 Hen. 8, c. 13 (forfeiture of fees tail), 32, 266. 27 Hen. 8, c. 10 (Stat, of Uses), 51, 52, 79, 93, 95, 136, 137, 138, 298, 306, 311, 312, 313, 314, 319, 338. c. 16 (Stat, of Inrolments), 338. 31 Hen. 8, c. 1 (partition), 297. c. 3 (gavelkind), 13. c. 13 dissolution of monasteries), 242. 32 Hen. 8, c. 1 (Stat, of Wills), 9, 15, 19, 22, 111, 136, 137, 175, 176, 180, 290, 312. c. T; (tithes), 40. c. 28 (leases by tenants in tail), 54. c. 32 (partition), 297. 32 Hen. 8, c. 34 (condition of re-entry), 62, 206. c. 36 (fines), 144, 231, 245, 248, 254, 317, 320. 34 & 35 Hen. 8, c. 5 (wills), 22, 175, 176, 180, 290. c. 20 (feigned recoveries), 266. c. 23 . . 330. 23 Eliz. c. 12 . . 14. (1199) Digitized, by Microsoft® 374 INDEX. [The paging refers to the [•] pages.] STATUTES CITED— contimied. 43 Eliz. c. 4 . . 246. 12 Car. 2, c. 24 (abolition of military tenures), 2, 8, 9 ,12, 14, 19, 21; , 22, 48, 90, 175, 180, 279, 303. 29 Car. 2, c. 3 (Stat, of Frauds), 286, 287, 288, 289, 290, 291, 321, ■828. 10 Will. 3, c i. 16 [c. 20, Stat. Eev.] (contingent remainders to posthumous children). 111, 159. 4 Ann. c. 16 . . 336, 14 Geo. 2, c. 20 . . 251, 254, 260, 274, 291. 31 Geo. 2, c. 14 . . 27. 39 & 40 Geo, , 3, c. 98 (Thellusson Act), 162, 163, 164, 165, 166. 54 Geo. 3, c. 145 . . 32. 3 & 4 Will. ■ 4, c. 27 (limitations), 317. s. 36 . . 47, 121. s. 39 . . 250, 329. c. 74 (fines a'nd recoveries), 69, 146, 245, 265, 306, 315, 31-9, 320. s. 2 . . 47, 110, 121, 253. s. 14 . .250. s. 15 . . 254, n., 256, 270. s. 16 . . 255. s. 17 .255. s. 18. .255. s. 22. . 103, 257, 258. s. 23 . . 258. s. 24. .259. s. 25 . .257. s. 26 . .257. s. 27 . 119, 257. s. 28 . .258. s. 29 . 246, n., 258, 260. s. 30 . .246, n., 261. s. 31 . . 119, 246, 257, 261. s. 32. . 258, 260. s. 33 . . 258, 259, 260. - s. 34 . . 256, 270. s. 39. . 52, 72, 270, 272. ' s. 40 . . 256. s. 41 . . 262. s. 42 . .256. c. 92 (fines and recoveries, Ireland), 250. c. 105 (Dower Act), 120, 279, 281. c. 106 (Descent Act), 142, 184, 224, 225, 277, 278, 302, 303. s. 1 . . 225. S. 2 . . 180, 185, 186, 216, 225. s. 3. . 142, 185, 186. s. 4 . . 186, 227. 3 & 4 Will. 4, c. 106, s. 5 s. 6 s. 7 ri. 8 s. 9 s. 10 . . 186, 189. . . 179, 186, 189. . . 192. . . 192. . . 187, 190. . . 187. 4 & 5 Will. 4, c. 23 . . 31. 7 Will. 4 & 1' Vict. c. 26 (Wills Act), 176. s. 2 . . 176, 291. s. 3 . . 176, 291. s. 6 . . 257, 291. s. 25 . . 165. (1200) Digitized by Microsoft® INDEX. 375 [The paging refers to the [•] pai^.] STATUTES CITED— continued. s. 33 277 4 & 5 Vict. c. 21 . . 307, 308. ' c. 35 (enfranchisement of copyholds), 283. ' 7 & 8 Vict. c. 76 . . 110, 112, 307, 308. 8 & 9 Vict. c. 106 (real property amendment), 83, 84, 87, 120, 307, 308, 316, 335, 336. s. 1 . . 110, 112. s. 2 . 41, 79, 84, 307, 312, 333. s. 3 . 60, 303, 321, 322, 328. s. 4 . . 110, 121, 329. s. 6 . . 59, 81, 84, 86, 143, 152. s. 8 . . 108, 109, 118. 8&9 Vict. c. 119 .*. 309. c. 124 . . 309. 11 & 12 Vict. c. 36 . . 166. 13 & 14 Vict. c. 21 (Lord Brougham's Act), 36. c. 60 (Trustee Act, 1850), 32. 14 & 15 Vict. c. 83 . . 260. c. 87 . 260. 15 & 16 Vict. c. 51 . . 283. 19 & 20 Vict. c. 120 . . 54. 22 & 23 Vict. c. 35 (Lord St. Leonards' Act, 1859)— s. 3 . . 62, 206. s. 19 . . 184, 189, 193, 195, 216, 225. s. 20 . . 184. 23 & 24 Vict. c. 145 (Lord Cranworth's Act), 309. 31 & 32 Vict. c. 40 (Partition Act, 1868), 297. 33 & 34 Vict. c. 23 (abolition of forfeiture), 13, 30, 32, 187, 266, 287. e. 14 (naturalization), 267. 36 & 37 Vict. c. 66 (Jud. Act, 1873), 73, 259. 37 & 38 Vict. c. 78 (V. & P. Act), 261. 38 & 39 Vict. c. 83 . . 73. c. 87 (land transfer), 261. 39 & 40 Vict. c. 17 (Partition Act, 1876), 297. 40 & 41 Vict. c. 18 (Settled Estates Act, 1877), 262, 281, 282. c. 33 (contingent remainders), 86, 87, 96, 112, 113, 120, 161. 44 & 45 Vict. c. 41 (Conveyancing Act, 1881), 145, 170. s. 2 . . 145. s. 6 . . 309. s. 7 . . 309. s. 10 . . 62, 206. s. 12 . . 62, 206. «. 18 . 309. s. 19 . 307. s. 30 . 32. s. 34 . . 309. s. 45 . 3. s. 49 . 308. s. 51 . . 171, 173, 230, 240, 275, 294. s. 62 . . 28. s. 63 . . 309. s. 65 . . 52, 271, 272, 308. 45 & 46 Vict. c. 38, (Settled Land Act, 1882), 157, 281. s. 2 . . 55, 275, 282. s. 3 . . 282, 283. s. 4 . . 283. s. 5 . . 283. ss. 6—12 . . 282, 283, 284. (1201) Digitized by Microsoft® 376 INDEX. [The paging refers to the [•] pages.] STATUTES CITmi— continued. a. 13 . . 284. s. 14 . . 285. s: 15 . . 282, 284. s. 16 . . 285. s. 18 . . 283. s. 20 . . 172, 262. s. 22 . . 262. s. 31 . . 285. s. 35 . . 285. s. 37 . . 285. s. 45 . . 282. s. 58 . . 54, 55, 56, 172, 208, 255, 262, 279, 282, 286. ss. 60—63 . . 282. c. 39 (Conveyancing Act, 1882), 145. s. 10 . . 144, 146, 172. s. 11 . . 53, 271, 308. c. 75 (Married Women's Property Act, 1882), 259, 295, 305, 320. s. 2 . . 278. s. 5 . . 278, 47 & 48 Vict. c. 18 (Settled Land Act, 1884), s. 3 . . 282. s. 8 . . 279. s. 6 . . 282, n. s. 7 . . 282, n. c. 71 (Intestates Estates Act, 1884), 34. STATUTOEY POWERS. under Settled Estates Act, 1877 . . 262, 281. of tenant for life under S. L. Act, 282—285. exerciseable by tenant in tail, 263. thongh restrained by statute from barring the entail, 262. though the reversion is in the crown, 263. but not exerciseable in respect to land purchased with money pro- vided by Parliament, 263. exerciseable by tenant by the curtesy, 279. not exerciseable by tenant in dower, 281. exerciseable by tenant pur autre me not holding under lease' at rent, 55. exerciseable by tenant for years ' ' determinable on life, ' ' not holding under lease at rent, 55, 56. STJB-INFEUDATION, meaning of, 16. effect of, on lord's rights, 16, 17. . checked by Quia Emptores, 18. SUEEENDEE, customary, precedes admittance to copyholds, 25. relation of, to admittance, 25. distinction between, and merger (1) in origin, 67. (2) in operation, 67. of a life estate, may sever joint tenancy in the reversion, 67. , of prior freehold, destroyed contingent remainder, 94. effect of, as to trustees to bar dower, 121. cannot be made by tenant for his own life to one pur autre vie, 121 by tenant of the freehold to reversioner, needs no livery, 321. of freehold is now void at law, unless made by deed, 321. tenant for life, under S. L. Act, may accept, 284. (1202) Digitized by Microsoft® INDEX. 377 [The paging refers to the [•] pages,] TENANCY IN COMMON. And see Tenant in Common. is a sole and several ownership, 297. may be claimed by prescription, 297. may arise (1) by express limitation, 298. (2) by severance of a joint tenancy, 296, 298. (3) by severance, through alienation without partition, of the shares of coparceners, 298. (4) by construction of law, 298. the shares in, may be unequal, 298, 299. connection of, with cross remainders, 299. TENANCY BY ELEGIT, is a chattel interest, 48. still exists, 48. enables seisin in deed to be obtained without entry, 184, TENANCY OF GUARDIAN IN CHIVALRY, was a chattel interest, 48. abolished by 12 Car. 2, c. 24 . . 48. TENANCY BY STATUTE MERCHANT, is a chattel interest, 48. now obsolete, 48. enables seisin in deed to be obtained without entry, 181. TENANCY BY STATUTE STAPLE, ' is a chattel interest, 48. now obsolete, 48. enables seisin in deed to be obtained without entry, 181. TENANCY AT WILL, tenancy in villenage by free men was, in fact, 24. at common law, copyhold tenure was, in theory, 24. relation of, to villein status, 46. connection of, with terms of years, 46, 47. may arise, though heirs be named in the grant, 198. TENANTS IN CAPITE. See Tenubb in Capite. TENANT IN COMMON. And see Tenancy in Common. wife is dowable out of husband's undivided share, 280. is sole owner as to his own undivided share, 297. cannot convey his share to another by release, 297. may claim by prescription, 297. a man may in an official capacity be, with himself as an individual, 297. the shares of, may be unequal, 298, 299. distinguished from coparceners, 301. TENANT FOR LIFE, on the subject in general, 273 et seq. common law right of, to take estovers, 273. unless restrained by covenant, 273. different position now of a, under a settlement, and under a lease for lives, 274. rec«gnised by statute, 274. powers of, under the Settled Estates Act, 1877 . . 281. under the S. L. Act, 283—285. joint tenants for life, 296. tenant in tail after possibility is a, for purposes of S. L. Act, 255. restrained by statute from barring his estate tail is a, for purposes of S. L. Act, 255. (1203) Digitized by Microsoft® 378 INDEX. [The paging refers to the [•] pages.] TENANT PUE AUTRE VIE, on the subject in general, 286 et aeq. rights of a, at common law, to estovers, 286. right of alienation inter vivos by, 290. had no power to devise under Statute of Frauds, 290. TENANT IN TAIL. And see Feb Taii,; Peotectoe of Settlement. in possession, effect of tortious feoffment by, 68, 69. after possibility, meaning of, 232. definition of, 234. after possibility, may be of an estate in remainder, 234. cannot come into existence, except by death, 234. can only be the original donee, or one of the original donees, in special tail, 234. has an estate for life only as to duration, 235. is not, however, punishable for waste, 235. could not suffer a recovery, 255. can make no disposition under Fines and Eecoveries Act, 255. if in possession, can exercise powers of S. L. Act, 255. coTild not sufifer recovery, if reversion in the crown, 255. alienation by, now regulated by Fines and Eecoveries Act, 255, 256. disentailing deed by, must be inrolled, 261. effect of disentailing deed not inrolled, 262. power of, to make leases under Settled Estates Act, 1877 . . 263. powers of, under S. L. Act, 1882 . . 263. TENANT AT WILL, effect of tortious feoffment by, 68. ' can take release of reversion, 331. TENEMENT, only tenements are intailable under Statute De Donis, 36, 38, 44. strict definition of, 37. wider meaning ot, in common use, 37. includes all hereditaments which savour of the realty, 38. things may be for one purpose and not for another, 38. what are, for purposes of county vote, 38. TENURE IJSf CAPITE, ■ land not in the king's hands is held by, 4. generally refers to tenure immediately ot the crown, 5. may be holden of a subject, 5. effect of Statute of Quia Emptores on, 5, 18. common recoveries on, 19. TENURE IN CHIVALRY, a division of common law tenure, 7. abolished, when, 8, 21. different kinds of, 8. TENURE IN SOCAGE, a division of common law tenure, 7. called free socage, 9. common socage, 9. « different species of, 9. all lay tenure now converted into, 21. how such conversion enlarged the right to devise lands, 22. TERM OF YEARS, could formerly be destroyed by reversioner, 6, 46. origin of, is later than the feudal system, 46. (1204) Digitized by Microsoft® INDEX. B79 [The paging refers to the [*] pages.] unknown to the common law, 46, 76. legalized and protected by statute, 47. no seisin, only possession, of, 47. enlargement of, under Conv. Act, creates estate de noto, 53. created by tenant in tail, is derived out of the estate tail, 54. what estates can be derived out of a, 55. does not affect the seisin, 77. existence of a prior, will not support a contingent remainder, 77, 93. precedent to estate of trustees to preserve contingent remainders, 117, 118. to bar dower, 122. executory limitation of the legal estate, not possible by deed, 139. is possible to devise, 138, 139. conditions in defeasance of, excepted from the rule against perpetuities, 151. also covenants for renewal of, 151. effect of enlargement of, under the Conv. Act, upon the reversion, 271, 272. whether tenancy by entireties is applicable to, 304. if limited to heir, passes nevertheless to executor, 198. TERMOR FOR YEARS, relation of, at common law, to reversioner, 6.' could not prevent destruction of the term, 46. relieved and protected by statute, 47. when may exercise powers under S. L. Act, 55. has no seisin, 76. may be present at livery of seisin, if assenting, 323. THELLUSSON ACT, THE. See Accumulations of Income. TIMBER, provision as to produce of, not within the Thellusson Act, 166. power of tenant for life under S. L. Act to cut, 285. TITHES, generally included in tenements, 37. are mixed hereditaments, 40. at common law, could not be held by a layman, 37. TORTIOUS ALIENATION, could be effected by feoffment, fine, or recovery, 110. estate conveyed by, was a new estate, 110. absolutely destroyed the estate of the alienor, 110, 328 — 330. secus, as to the estates in remainder, 110, n. how it destroyed contingent remainders, 110. abolished by statute, HO, 329. turns estate to right of action or right of entry, 68. devests lawful estates, 68, 328. by feoffment, could be made by any one having actual possession, 328. effect of, by tenant in tail actually seised, 329. TRUSTEES TO BAR DOWER, object of, 120. estate of, analogous to that of trustees to preserve contmgent remainders, 120. whether now valid, 120 et seq. TRUSTEES TO PRESERVE CONTINGENT REMAINDERS, origin of, 113. estate of, interposed between precedent estate and contmgent remainder, 113. (1205) Digitized by Microsoft® 380 INDEX. [The paging refers to the [*] pages.] TRUSTEES TO PEESERVE CONTINGENT REMAINDERS— coreimwed!, common form of limitation to, 113. suggestions as to the proper mode of limitation, 114. the construction of an erroneous limitation in fee simple, 114, 115. hoTC they prevented destruction of contingent remainders, 115. concurrence of, in such destruction, -was a breach of trust, 115. unless done with permission of the court, 115. estate of, was vested, not contingent, 115. comes within Pearne's definition of a contingent remainder, 99, 116. Fearne's definition modified to exclude estate of, 117. estate of, limited after a prior term of years, 117, 118. in this case gave the actual seisin, 118. and was the estate supporting the remainders, 118, generally, were "hare trustees," 119. causes for their appointment removed by 8 & 9 Vict. c. 106 . . 109. secus, if appointed to guard against natural expiration of prior estate, 119, 120. quasre, whether still used in practice, 120. TRUSTS, executed and executory are subject to rule against perpetuities, 149. substantially identical with uses before the statute, 309. origin of modern trusts, 311. USES, I. Prior to the Statute of Uses, nature of, 309. followed the descent of the things of which they were the uses, 309. course of descent of, could not be changed, 310. might be alienated inter vivos, 310. devised, although the lands were not deviseable, 310. the legal estate might be conveyed, under 1 Eic. 3, c. 1, 310. II. Under the Statute of Uses, general effect of the statute, 311. the origin of modern trusts, 311. ' how far the statute applies to uses in wills, 312. principal points in the first section, 313. estate of seisee to uses must be of freehold, 313. seisee cannot generally be identical with cestui que use, 313, 314. a limitation ' ' unto and to the use of ' ' takes effect by the common law, 313. effect of a declaration of use to the grantee himself, 313, 314. how estates may be created under the statute — (1) with transmutation of possession, 315. (a) fine, 315. (bj recovery, 315. (c) feoffment, 315. (d) release of the reversion of an estate, less than a freehold, to the person having the less estate, 315. (e) grant of the seisin, 316. (2) without transmutation of possession, 315. (a) bargain and sale, 316. (6) covenant to stand seised, 316. may be declared on the seisin acquired by release, 332. by grant, 336. ■what consideration should raise a use, without transmutation of pos- session, 337. (1206) Digitized by Microsoft® INDEX. 381. [The paging refers to the [*] pages. J USES — continued. (1) valuable consideration, 337. the use eflfeetually raised by payment; 337. (2) in consideration of blood or marriage, 337. required declaration of intention, 337. usually effected by covenant, 337. might be eflected by deed poll, 337. could not be effected by parol, 337. UT BE CORONA, TENURE, meaning of, 4, n. effect of, in respect of wardship, 4, n. UT DE SONORE, TENURE, meaning of, 4, n. UT DE PERSONA, TENURE, inaccurate phrase for tenure ui de corona, 4, n. VESTING, distinction between vested and contingent estates, 49, 56. ■when an estate is vested in possession, 56. interest, 56. not prevented by the existence of a prior power, 57. VILLEIN, enfranchised by grant of what estates, 6, 7. connection of status, with copyhold tenure, 23. how base fee in lands of a villein tenant in tail could arise, 266. VILLENAGE, meaning of, 23. relation to copyhold tenure, 7, 23. status of tenant, 23, n. tenure in, might be accepted by freemen, 7. how such tenure differed from customary tenure, 24. WARDSHIP, effect of tenure ut de corona on, 4, n. ut de Jtonore on, 4, n. sub-infeudation on, 16, and note. WARRANTY, was a covenant real, annexed to an estate of freehold, 249. created only by word warrantizo, 249. descent of benefit and burden of, 249. conveyed no estate, 249. operation of, 249. application of words lineal and collateral to, 249. examples of lineal and collateral, 249. a lineal, if accompanied by assets, was a bar to the issue in tail, not with- standing Statute De Bonis, 249. efficacy of a common recovery based on this rule, 249. how made effectual by statute, 250. the remedy against the common vouchee equivalent to assets, 252. WASTE, tenant in tail after possibility, not punishable for, 235. tenant pur autre me by his assignment is punishable for, 287. WORDS AND PHRASES, in liberam eleemodnam, 9. inpitram eleemosinam, 9. (1307) Digitized by Microsoft® 382 INDEX. [The paging refers to the [*] pages. ] WOEDS AND F'B'RAS^S— continued, ann jour et wast. See sub voc. quia augpensus est per collum. See Attainder. quia abjuravii regnum. See Attainder. quia utlegatua est. See Attainder. "tail general," and " tail special," 233. "general tail," and "special tail," 233, 234. procreaiis and procreandis, 236. in liberum maritagium, 236. And see Frankmarriage, conusor and conusee, 246. deforceant, 246. warrantizo, 249. tenant to the prascipe, 251. jus dccreaeendi, 295. per my et per tout, 296. j)er tout etnon per my, 304. "WEITS, of formedon. See Formedon. entry sur disseisin in thepeir, 70. cessavit, 16. prxcipe, 251. entry, 330, right, 330. THE END. THSl BLACKSTONE fUBLISHINQ COMPANY. (1208) Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft® Digitized by Microsoft®