m. Digitized by Microsoft® REEVES AND TURNER, 100, CHANCERY LANE & CAREY STREET, W.C. Buildings. — A Digest of Cases relating to the Construction of Build- ings, the Liability and Rights of Architects, Surveyors and Builders in relation thereto ; with Notes, and an Appendix containing Forms of Pleadings, Building Agreements, Leases and Conditions of Contracts, &c., and some Unreported rist bel and m, ia"w. Libel anc Pre M. Dei "Th( practica Zaw Ga The aoc a ] Foi Asi Bai The La ads M. Trus Ac- Lii A Cc for of 18t The. wii on IS! The Be Ac 18! Co ani "W M. 18l.„ QJnrn^U ICam i>ri^nnl ICibraty rery md 'ing and and pie, the and lent ,, of ited D., 8m. lier ing t'ays Act, way ■affic •ges. ON, ages. The Nature and Value of Jurisprudence. — Second{Enlaryed) Edition. By CHAN-TOON, Barrister- at-Law, of the Middle Temple, &o. Demy 8t'o. Price 6s. cloth. Digitized by Microsoft® 1^0 979.Sir'ls%T"'' '■""^^ '^''V.SX...of real 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® THE LAW OF REAL PROPERTY; Digitized by Microsoft® a Cornell University § Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.prg/detailsZcu31924021759844 ^ DiQifizeuby Microsoft® 'by THE LAW OF EEAL PROPERTY: CHIEFLY m RELATION TO CONVEYANCING. I BY H. W.^gjIALLIS, M.A. OF THE INNER TEMPLE, B ARRI STER- AT-L A W. SECOND EDITION. LONDON : REEVES & TURNER, 100, CHANOEEY LANE, AND CAEEY 8TEEET, 1892 Digitized by Microsoft® LONDON : PEIKTED BY C. F. EOWOKTH, GEEAT NEW STBKKT, EKTTEE LANE E.O. Digitized by Microsoft® TO Walter Blackett Trevelyan, Esq., BAEEISTEE-AT-LAW, ONE OF THE MASTERS OF THE BENCH OF THE HONOURABLE SOCIETY OF THE MIDDLE TEMPLE. My dear Mr. Trevelyan, To you I dedicate this edition, in admiration of that incomparahle learning, which is always at the service of your friends. My hook could meet with no more formidahle critic : it will assuredly meet with none more candid and considerate. With the greatest respect, and most affectionate regard, I remain, Sincerely yours, H. W. GHALLI8. Digitized by Microsoft® Digitized by Microsoft® PREFACE. The present Edition is somewhat more worthy of the kind reception which was accorded to the first, and the Author ventures to hope that it will be found a trust- worthy guide to the fundamental princi2)les of Real Property Law. His very sincere thanks are due to his friend Mr. H. A. Colmore Dunn, of Lincoln's Inn, who has taken upon himself the greater part of the labour of seeing it through the Press. Since the joublication of the First Edition, several cases have occiuTed to illustrate Lord Coke's remark, that no point of learning is incapable of affording practical assistance. But a distinction in this respect is to be drawn between things that are truly obsolete and things that are merely not generally known. In the following pages, though some brief allusion is made to matters, such as frank-marriage, which never occur in modern practice, and to others, such as the law of warranty, which serve only to illustrate the historical basis of some branch of law, yet it is believed that little will be found which is not capable, in Lord Coke's words, of standing our student in stead at one time or another. 11, Stone BmLDiNOs, Lincoln's Inn, Fi'hrvarTj, 1892. Digitized by Microsoft® Digitized by Microsoft® PREFACE TO THE FIRST EDITION. In its earliest shape this work was prefixed to a work on the Con- veyancing and Settled Land Acts, published by the Author in conjunction with his friend Mr. H. 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 contained 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 Eules 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 Con- current Ownership. The Author is indebted to his friend Mr. W. E. Sheldon, of Lincoln's Inn, for the General Index at the end of the work.* A good many additional references, chiefly to the serial reports, win be found in the Table of Cases. The new series of the Law Journal Reports and Law Times Reports are cited without any addition. 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, before 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 learning, the Author would commend the lesson to be learned from the Case * Mr. Sheldon is ia no way responsible for any defects which may be found in the General Index to the Second Edition. Digitized by Microsoft® X rREPACl; TO THE FIRST ElllTION. of BMe V. Hijim, 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 knowledge, 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 reading " nothing to be pretermitted." (Co. Litt. 9 a.) In the Preface to his Essay on Estates, Preston speaks of the " inconceivable labour " which that work had cost him. If the present writer had never attempted to grapple with kindred sub- jects, 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, Stone Btjildinqs, Lincoln's Inn. 1st Feh-uarij, 1885. * Now p. 255, infra. Digitized by Microsoft® ( ^i ) TABLE OF CONTENTS. PAGE Dedication v INTRODUCTORY REMARKS ♦- Part I.— ON TENURE. Vll Preface Pbeface to the First Edition ix Table of Contents xi Addenda - xvi Table of Cases xvii List of Text Books cited xxix Chapter I. Tenure by the Common Law - - - 4 — 17 Chapter II. The Statute of Quia Emptores 18—22 Chapter III. The Statute 12 Oar, 2, c. 24 23, 24 Chapter IV. Tenure by Custom of the Manor (OoPYnoLD Tenure) 25 — 28 Digitized by Microsoft® Xn TABLE OF CONTENTS. Chapter Y. PAOB Copyhold Tenttrb by the Custom of Ancient Demesne (CtrsTOMAHY Feeeholds) . - - - - 29 — 32 Chapter VI. Escheat- . - . _ _ 33—40 ForPeitiire for Higli Treason - - - - 36 The relation of Escheat to Incorporeal Hereditaments and Equitable Estates - - - - - 37 Part II.— ON ESTATES IN GENERAL. Chaptee VII. Of the Subjects in "vthich Estates may subsist - 41 — 48 Chapter VIII. Of Estates at the Common La"w - - 49 — 56 Chapter IX. On the Dekiyation and Succession of Estates - - 57 — 75 Original Estates and Derivative Estates - 58 On the Terms Vested, Contingent, and Executory 64 Remainders and Reversions 67 Possibility of Reverter 73 Chapter X. Merger - 76 — 87 Estates en autre droit - 82 Of Estates Tail and Base Eees - - . §3 The Modern Law of Merger, and Merger in Equity _ . §4 Chapter XI. EiTLES OF Limitation at Common TjAw 88— 107 Digitized by Microsoft® TAliLE OF COJS'TENTS. XIU Chapter XII. PAGE Contingent Eemaindehs 108 — 140 First Class of Contingent Eemainders - 115 Second Class of Contingent Eemainders - 116 Third Class of Contingent Eemainders - 117 Exception from the Third Class - - 118 Fourth Class of Contingent Eemainders - - 120 Exceptions from the Fourth Class - - - 121 Further Eemarks on the Liability to Destruction - 124 Trustees to preserve Contingent Eemainders 130 Chapter XIII. The Eule in Shelley's Case - 141 — 155 The Statement of the Eule - 151 Chapter XIV. Executory Limitations - 156—190 The Eule against Perpetuities 168 Eestrictions upon Trusts, or Directions, for Accumulation of Income (The Thellusson Act) - 186 Part III.— THE NATURE AND QUANTUM OF ESTATES. Chapter XV. Of a Fee Simple - 191—202 Chapter XVI. The Descent of a Fee Simple 203—223 On the Distinction between Seisin in Deed and Seisin in Law 205 The Eules of Descent - - - 210—223 Chapter XVII. Determinable Fees 224—235 Examples of Determinable Fees - - 228 Chapter XVIII. Conditional Fees 236 — 240 Digitized by Microsoft® XIV TABLE OF CONTENTS. Chapter XIX. PAGE Qualified Fees Simple - - . . . 241 — 258 Chapter XX. Fees Tail, ok Estates Tail .... 259—273 Classification of Estates Tail - .... 262 Tenant in Tail after Possibility of Issue Extinct - - 263 The Limitation of Estates Tail - - - . . - 264 Chapter XXI. The Alienation oe Fees Tail - - 274 — 296 The Protector of the Settlement under the Fines and Recoveries Act 288 Assurances not operating under the Act and Assurances by way of Mortgage . . . 293 Modem Statutory Powers - - . - 295 Chapter XXII. Base Fees - - - 297—310 List of Base Fees - - - .298 Enlargement of Base Fees - - 307 Chapter XXIII. An Estate eoe the Life op the Tenant 311 — 324 Curtesy ... - 314 Dower - - 317 Statutory Powers - - 320 Chapter XXIV. Estates pub autre Vie - 325 — 331 Chapter XXV. Of Concurrent Ownership - 332—346 (1) Joint Tenancy 333 (2) Tenancy in Common 336 (3) Coparcenary 341 (4) Tenancy by Entireties - 344 Digitized by Microsoft® TABLE OF COKXBNTS, XV Part IV.-ON ASSURANCES. Chapter XXVI. PAGE ASSUEANCES IN GenEEAL _ . . . . 347 Chapter XXVII. Of Fines and Eecoyeeies - 359 Chapter XXVIII. Of a Feoffment - - - 363 Chapter XXIX. Of a Eelease - 375 Chapter XXX. Of a Statutoey Grant - 377 Chapter XXXI. Of Asstjeances by Way of Use ■without Teansmutation of Possession - - 382 APPENDICES. Appendix I. — Are Leaseholds Tenements ? - 387 II. — On Eemaindees after Conditional Fees - 391 in. — The Sqtjattee's Case - 395 IV. — Determinable Fees 398 V. — WiTHAM V. Vane - 401 GENEEAL INDEX - 429 Digitized by Microsoft® ( ^tvi ) ADDENDA. Page 286, line 5 from bottom, after "p." insert " 59." „ 328, 329. The case of Be Michell, Moore v. Moore, 1891, M. 787, was decided on 2Rth January, 1892, by Stirling, J., too late for inclusion in tbe text. The principal point decided was as follows. Under the will, executed in 1843, of Anne Michell, who died in 1844, in the events which happened, A became tenant for life of certain freeholds and copyholds, with remainder to trustees to preserve, with divers remainders to his issue, which faUed for want of such issue, with remainder to B for hfe, with remainder to trustees to preserve, with remainder to C, the only son of B, in tail male, with divers remainders over. The will contained a clause of forfeiture, in the usual terms, upon neglect for one year after coming into possession to assume a certain name and arms. In 1872, A and B being both alive, C with their consent barred his estate in tail male, limiting the lands, subject to the prior estates, to the use of himself, his heirs and assigns. A died in 1883 without issue. Upon the expiration of a year, B incurred a forfeiture by neglecting to assume the name and arms. Thereupon C became entitled to an equitable estate pur autre vie, during the life of B, and subject thereto in fee simple. C died in 1890 without issue, leaving B his heir at law and customary heir. The learned judge held that the equitable estate pur autre vie had by the terras of the win been limited to C and the heirs male of his body ; and that the efiect of the disentailing' deed was to turn this to a limitation to Mm and his heirs general ; and that B as heir general took the estate pur autre vie (which, B being cestui que vie, became in his hands an estate for his own life) as special occupant for his own use and benefit. It follows, that an estate pur autre vie, limited in its inception to a man and the heirs male of Ms body, may by the act of the tenant be turned to an estate pur autre vie limited to Mm and Ms heirs general ; and that the heir general may then take as special occupant. There is no reason to suppose that in this respect there is any difference between equitable and legal estates, or between freeholds and copyholds, provided that the copyholds are capable of being intailed. Digitized by Microsoft® ( xvii ) TABLE OF CASES. A. PAGE Abbiss d. Bumey, Ee Pmch, 17 Ch. D. 211 ; 50 L. J. Ch. 348 ; 29 W. R. 449 ; 44 L. T. 267 Ill, 130 Adams v. Angell, 5 Ch. D. 634 ; 46 L. J. Ch. 352 ; 36 L. T. 334 86 V. Savage, 2 Salk. 679 ; Ld. Raym. 854 160 Agency Co. v. Short, 13 App. Caa. 793 81, 395 Ainslie, Re, Ainslie v. AinsHe, 33 W. E. 148 288 Allen V. AHen, 2 Dr. & War. 307 ; 4 Ir. Eq. Rep. 472 331 Altham (Lord) v. Lord Anglesea, 11 Mod. 210 ; 2 Salk. 676 ; Gilb. 16 361 Anon., 2 Mod. 7 234 Archer's Case, or Baldwin v. Smith, 1 Rep. 66; Cro. Eliz. 453; 2 Anders. 37. . 127 Astley V. Micklethwait, 15 Ch. D. 59 ; 28 W. R. 811 ; 43 L. T. 58 Ill Atoheson v. Atoheson, 1 1 Bear. 485 345 Atkins V. Mountague, 1 Ch. Ca. 214; Case of St. Katherine's Hospital, 1 Vent. 149 ; and see Thos. Jon. 176 ; 2 Keb. 808 103 Atkinson v. Baker, 4 T. R. 229 , 328 Atkyns v. Horde. See Doe v. Horde. Att.-Gen. of Ontario v. Mercer, 8 App. Cas. 767 ; 52 L. J. C. P. 84 ; 49 L. T. 312 7 Att.-Gen. v. Heydon. See Heydon's Case. ». Poulden, 3 Ha. 555 189 V. Rye, 2 Vem. 453 276 Aubin V. Daly, 4 B. & Aid. 59 47 Aveline v. Whisson, 4 Man. & G. 801 ; 12 L. J. C. P. 58 370 B. Baddeley v. Leppingwell, 3 Burr. 1533 363 Bagshaw v. Spencer, 1 Ves. sen. 142 232 Baker v. Wall, Ld. Raym. 185 237 V. WiUis, Cro. Car. 476 ; or Dixie v. Beaumont, W. Jo. 393 304 Baldwin's Case, or Baldwin v. Marton, 2 Rep. 23 ; Anders. 223 379 Baldwin v. Smith. See Archer's Case. Bankes v. Le Despenser, 11 Sim. 608 290, 291 V. SmaU, 36 Ch. D. 716 ; 56 L. J. Ch. 832 ; 35 W. R. 765 ; 57 L. T. 292 308 Barber's Settled Estates, Re, 18 Ch. D. 624 ; 50 L. J. Ch. 769 ; 29 W. R. 909 ; 45 L. T. 433 166 Barton v. Lever, Cro. Eliz. 388 307 Barwick's or Berwick's Case, 6 Rep. 93 ; Serj. Moore's Rep. 393 93, 100 Basset v. Clapham, 1 P. "Wms. 358 133 Bath's (Earl of) Case, Carter, 96 233 Beale v. Symonds, 16 Beav. 406 38 Beaumont and Long. See Darbison v. Beaumont. Beaumont's Case, 9 Rep. 138 ; 2 Inst. 681 , 304 Beokley v. Newlaud, 2 P. Wms. 182 67 C.R.P. b Digitized by Microsoft® XVm TABLE OF CASES. PAQE Bedford's (Earl of) Case, 7 Rep. 7 103 Bell V. Holtby, L. R. 15 Eq. 178 ; 42 L. J. Ch. 266 ; 21 W. R. 321 ; 28 L. T. 9.... ! 290 Bengough v. Edridge, 1 Sim. 173 169 Bennet v. Davis, 2 P. Wms. 316 316 Benson v. Scott, or Soot, 4 Mod. 251 ; Garth. 275 ; 3 Lot. 386 27 Beresford's Case, or Beresford v. Beresford, 7 Rep. 41 265 Berkeley Peerage Case, 8 H. L. C. 21 5 Berry «. Berry, 7 Oh. D. 657 ; 47 L. J. Ch. 182; 26W. R. 327; 38L.T. 474.. Ill Beverley v. Beverley, 2 Vera. 131 119 Biokley v. Biokley, L. R. 4 Eq. 216 16 Birkteck v. Paget, 31 Beav. 403 46 Birmingliam Canal Co. v. Cartwright, 11 Ch. D. 421 ; 48 L. J. Ch. 552; 27 W. R. 597 ; 40 L. T. 784 171, 172 Bishop of Winchester's Case, or Wright v. Wright, 2 Rep. 43 ; Serj. Moore's Rep. 425 43 Bishop V. Eountaine, 3 Lev. 427 164 Blagrave v. Clunn, 2 Vem. 576 232 Blake v. Hynes, L. R. Ir. 11 Eq. 417 ; 11 L. R. Ir. 284 255, 256 V. Peters, 1 De G-. J. & S. 345 197 BHght V. HartnoU, 19 Ch. D. 294 ; 51 L. J. Ch. 162 ; 30 W. R. 513 ; 45 L. T. 524 178 Boddington v. Robinson, L. R. 10 Exch. 270 ; 44 L. J. Ex. 223 ; 23 W. R. 925; 33 L. T. 364 94, 97, 314, 378 Boraston's Case, or Hynde v. Ambrye, 3 Rep. 19 90, 93, 119 Bowen v. Lewis, 9 App. Cas. 890 152 Bowles's (Lewis) Case, or Bowles v. Bury, 11 Rep. 79 ; 1 EoU. Rep. 177 127 Boyoe v. Hanning, 2 0. & J. 334 181 Brackenbnry v. aibbons, 2 Ch. D. 417 100, 114 Brandlyn v. Ord, 1 Atk. 571 361 Brandon v. Brandon, 31 L. J. Ch. 47 ; 9 W. R. 825 ; 5 L. T. 339 85 Brewster v. Kitchin, Comb. 425 275 Brook V. Ward, Dy. 310 b. pi. 81 34 Brookman v. Smith, L. R. 6 Exch. 291 ; L. R. 7 Exch. 271 194 Brown and Sibly's Contract, Re, 3 Ch. D. 156 180 Brown v. RawHns, 7 East, 409 31 Browne v. Stoughton, 14 Sim. 369 179 Brudenell v. Elwes, 1 East, 442 104 Bruerton's Case, 6 Rep. 1 20 Bryan, Re. See Godfrey v. Bryan. Buckeridge v. Ingram, 2 Ves. 652 , 46 Buckler's Case, or Buckler v. Harris, 2 Rep. 55 ; Serj. Moore's Rep. 423; Cro. Eliz. 450, 585 ; 2 Anders. 29 93, 100, 313, 378 Burchett v. Lurdant, 2 Vent. 311 ; Carth. 154 ; sub nom. James v. Richardson, 2 Lev. 232 121 Burgess v. Wheate, 1 W. Bl. 123 ; 1 Eden, 177 38 BurreU v. Dodd, 3 Bos. & P. 378 , 31 Bushby V. Dixon, 3 B. & C. 298 209 Butler V. Duckmanton, Cro. Jac. 169 , 375 C. Gadell v. Palmer, 1 CI. & E. 372 ; 10 Eing. 140 169, 170 Cameron, Re. See Nixon v. Cameron. Digitized by Microsoft® TABLE OF CASES. XIX FAaE Campbell v. Sandys, 1 Sch. & Lef. 281 328, 331 Oapel's-Case, 1 Eep. 61 ; Serj.. Moore's Eep. 154 ; Gouldsb. 5 286 Carter v. Madgwick, 3 Lev. 339 377 Casborne oj- Casburne v. Soarfe, 1 Atk. 603 ; 2 Jac. & "W. 194 ; 2 Eq. Ca. Ab. 728 316 Case of Perpetuities, The. See Chudleigh's Case. CattHn V. Brown, 11 Ha. 372 185 Chamberlayne v. Brockett, L. R. 8 Oh. 206 181 Chambers v. Kingham, 10 Ch. D. 743 ; 48 L. J. Ch. 169 ; 27 W. R. 289 ; 39 L. T. 472 82, 85 V. Taylor, 2 My. & Cr. 376 259, 264 Chaplin i'. Chaplin, 3 P. Wms. 229 ; 2 Eq. Ca. Ab. 384 318 Chapman v. Pendleton. See Talbot's Case. Chatham {Earl of) v. Tothill, 7 Bro. P. C. 453 179 Cheek or Clarke v. Day, or Davy, Serj. Moore's Rep. 593 ; 1 Roll. Abr. 832 ; 2 Roll. Abr. 417 195 Cherry v. Homing, 4 Exch. 631 ; 19 L. J. Ex. 63 ; 14 L. T. (0. S.) 274 370 Chester v. Willan, 2 Wms-Saund. 96 337, 349 Chesterfield's (Earl of) Case, Hard. 409 296 Cholmley's Case, or Cholmley v. Hanmer, 2 Rep. 50 ; Serj. Moore's Rep. 342. . 105 Christie v. Ovington, 1 Ch. D. 279 ; 24 W. R. 204 293 Christ's Hospital v. Grainger, 1 Mao. & G. 460 182 Chudleigh's Case, or Dillon v. Ereine, or Eraine, or The Case of Perpetuities, 1 Rep'. 120 ; Poph. 70 ; 1 Anders.' 309 266 Clark V. Manning. See Matthew Manning's Case. Clarke v. Chamberliu, 16 Ch. D. 176 ; 29 W. R. 415 290 Clayton's Case, or Clayton v. Presenham, 5 Rep. 1 , 97 Clere's Case, or Parker v. Clere, 6 Rep. 17 ; Serj. Moore's Rep. 567 ; aff. Cro. Eliz. 877; Cro. Jao. 31; ■. 233 Coape V. Arnold, 4 De G. M. & G. 574 154 Cooket V. Sheldon, Serj. Moore's Rep. 15 232 Cole V. Levingston, 1 Vent. 224 340 V. SeweU, 4 Dr. & W. 1 ; in Dom. Proc. 2 H. L. C. 186 93, 169, 185 Collard «. Collard, Poph. 47; sub nam. Callard ». Callard, Serj. Moore's Rep. 687 ; 2 Roll. Abr. 788 ; sub mm. Tallarde v. Tallarde, 2 Anders. 64 383 Collier v. Walters, L. R. 17 Eq. 252 232 Compton (Lord) v. Oxenden, 2 Ves. 261 86 Cooch v.- Goodman, 2 Q. B. 580 370 Cook V. Gerrard, 1 Wms. Saund. 170 341 Cooper 4). Eranoe, 19 L. J. Ch. 313; 14 Jur. 214 344 V. Kynoch, L. R. 7 Ch. 398 ; 41 L. J. Ch. 296 ; 20 W. R. 503 ; 26 L. T. 566 354 V. Laroche, 17 Ch. D. 368 ; 29 W. R. 438 178 V. Macdonald, 7 Ch, D. 288 ; 47 L. J. Ch. 373 ; 26 W. R. 377 ; 38 L. T. 191 316 Corbet's Case, or Corbet v. Corbet, 1 Rep. 83 ; Serj. Moore's Rep. 601 ; 2 Anders. 134 102 Cornish ,«;. Cawsy, Aleyn, 75 ...,,,... 97 Coventry (Mayor of) v. Att.-Gen., ,7 Bro. P. C. 235 355 Coxt>. Parker, 22 Beav. 168 38 Crawley v. Crawley, 7. Sim. 427 189 Crofts V. Middleton, 8 De G. M. & G. 192 ; 4 W. R. 439 ; 27 L. T. (0. S.) 114 ; 2 Jur. (N. S.) 528 67 Crowther v. Oldfield, Ld. Eaym. 1225 ; Salk. 364 ; Holt, 146 30 b2 Digitized by Microsoft® XX TABLE OF CASES. PAQE Cunlifiej). Brancker, 3Ch. D. 393; 46L. J. Ch. 128; 35 L. T. 578.. 100, 111, 130,175 Cunningham v. Moody, 1 Vee. sen. 174 316 Cunynghame's Settlement, Ke, L. R. 11 Eq. 324 ; 40 L. J. Ch. 247; 19 W. K. 381 ; 24 L. T. 124 180 Curtis V. Lukin, 5 Beav. 147 • ^"^^ D. Dale's Case. See TJtty Dale's Case. Damerell v. Protheroe, 16 L. J. Q. B. 170 17 Danby v. Dauby, Rep. temp. Finch, 220 85 Darbison v. Beaumont, 1 P. Wms. 229 ; 2 W. Jo. 99 ; 3ui nom. Beaumont and Long, 1 Eq. Ca. Ah. 214 ; in Dom. Proo. 3 Bro. P. 0. 60 121 Davall V. New River Co., 3 De a. & Sm. 394 38 Dawkina v. Lord Penrhyn, 4 App. Cas. 51 276 Dawson, Re. See Johnston v. HiU. — ■ V. Robina, 2 C. P. D. 38 ; 46 L. J. C. P. 62 ; 25 W. R. 212 ; 35 L. T. 699 43 Dean v. Dean, [1891] 3 Ch. 150 114 De Grey v. Richardson, 3 Atk. 469 209 Delacherois v. Delaoherois, 11 H. L. C. 62 ; 10 Jur. (N. S.) 886 ; 10 L. T. 884. 21 Denn v. GiUot, 2 T. R. 431 268 Dillon V. Dillon, 1 Ball & B. 77 331 V. Ereine. See Chudleigh's Case. Dixie V. Beaumont. See Beaumont's Case. Dodda V. Thompson, L. R. 1 C. P. 133 43 Doe V. BumsaU, 6 T. R. 30 71 V. Clark, 5 B. & Aid. 458 272 V. Danvers, 7 East, 299 , 31 V. Dixon, 5 Ad. & E. 834 343 V. DorveU, 5 T. R. 518 340 V. Goddard, 1 B. & C. 522 328 V. Horde, 1 Burr. 60 ; 6 Bro. P. C. 633 ; 2 Cowp. 689 371 V. Huntington, 4 East, 271 9, 31 V. Keen, 7 T. R. 386 207, 209 . ■ V. Luxton, 6 T. R. 289 327, 331 V. Martin, 4 T. R. 39 112 t>. , 2 W. Bl. 1148 328 V. Martyn, 8 B. & C. 497 67 V. Oliver, 10 B. & C. 181 67 V. Parratt, 5 T. R. 652 344 V. Passingham, 6 B. & 0. 305 355 V. Rivers, 7 T. R. 276 294 • V. Shilaon. See Goodright v. Mead. V. Simpson. See Simpson i'. Simpson. . 1). Taylor, 5 B. & Ad. 575 ; 2 N. & M. 508 365 V. Thomas, 3 Man. & Gr. 815 210 V. Waiuewright, 5 T. R. 427 341 . . V. Whichelo, 8 T. R. 211 207, 209, 216, 294 Don's Estate, Re, 4 Drew. 194 204 Dormer v. Parkhurat, 3 Atk. 135 ; 6 Bro. P. C. 361 ; Willes, 327 ; IS Vin. Abr. 413, pi. 8 133 Douglaa, Re. See Wood v. Douglas. Digitized by Microsoft® TABLE OF CASES. XXI PAQE Dowman's Case, 9 Rep. 7 ; 1 Andera. 125 ; Serj. Moore's Rep. 191 361 Drybutter v. Bartholomew, 2 P. Wms. 127 46 Dubber v. Trollop, Ambl. 453 ; on app. Gas. temp. Hardw. 160 195, 264 Dudson's Contract, Re, 8 Ch. D. 628 ; 47 L. J. Ch. 680 ; 27 W. R. 179 ; 39 L. T. 182 288 Dunn V. Flood, 25 Ch. D. 629 ; 53 L. J. Ch. 537 ; 32 W. R. 197 ; 49 L. T. 670; on app. 28 Ch. D. 586 ; 54 L. J. Ch. 370 ; 33 W. R. 315 ; 52 L. T. 699. . 177 Button, Re, 4 Exch. D. 54 181 E. Eager v. EumivaU, 17 Ch. D. 115 ; 50 L. J. Ch. 537 ; 29 W. R. 649 ; 44 L. T. 464 315 Edmonds v. Edmonds (Re Elower), 55 L. J. Ch. 200 180 EUia V. Maxwell, 3 Beav. 587 189 Elaam, Re, 3 B. & C. 597 275 Estwick's Case, 12 Rep. 135 4 Eustace v. Scawen, Cro. Jao. 697 337 E. Eermor's Case, or Eermor v. Smith, 3 Rep. 77 ; Jenk. 253 ; 2 Anders. 176 361 Ferrers' (Earl) Case, 2 Eden, 373 45 Festing v. AUen, 12 M. & W. 279, S. C. in Ch. 5 Ha. 573 114 Finch, Re. See Abbias v. Bumey. Fitch V. Weber, 6 Ha. 145 160 Flower, Re. See Edmonds v. Edmonds. V. Hartopp, 6 Beav. 476 176 Forbes v. Moffatt, 18 Ves. 384 86 Forsbrook v. Eorsbrook, L. R. 3 Ch. 93 ; 16 W. R. 290 105 Foye V. Hynde, 5 Vin. Abr. 63, pi. 12 72 Freeman v. West, 2 Wils. 165 97 Freke v. Lord Carbery, L. R. 16 Eq. 461 ; 21 W. R. 835 190 Freme, Re, Freme v. Logan, (1891) 3 Ch. 167 Ill French's Case, 4 Rep. 31 28 Frost, Re, Frost «;. Frost, 43 Ch. D. 246 107, 186 Fulmerston v. Steward, Plowd. 102 354 a. Gage V. Acton, 1 Salk. 325 82 Gallard ■!). Hawkins, 27 Ch. D. 298 ; 33 W. R. 31 38 Gardner v. Sheldon, Vaugh. 259 229 Gerard v. Gerard, 1 Salk. 253 ; 13 Vin. Abr. 209 5 Germain or Jerman v. Orchard, 1 Salk. 346 ; 3 Salk. 222 ; Skin. 528 ; Holt, 331 ; 12 Mod. 11 ; Freem. 500 377 Godfrey v. Bryan, Re Bryan, 14 Ch. T>. 516 ; 49 L. J. Ch. 504 ; 28 W. R. 761 ; 42 L. T. 582 345 Godwin v. Winsmore, 2 Atk. 525 318 GoodhUl V. Brigham, 1 Bos. & P. 192 356 Goodier v. Johnson, 18 Ch. D. 441 ; 51 L. J. Ch. 369 ; 30 W. R. 449 ; 45 L. T. 515 179 Digitized by Microsoft® XXU TABLE OF CASES. PAGE aoodman v. Mayor of Saltash, 7 App. Gas. 638 ; 62 L. J. Q. B. 193 ; 31 W. B. 293 ; 48 L. T. 239 182 Goodriglit v. Cornish, 1 Salk. 226 ; 12 Mod. 52 ; Ld. Kaym. 3 ; Holt, 227 ; Comb. 254 108, 110 V. Mead (sometimes cited as Doe v. Shilson), 3 Burr. 1703 294^ V. "White, 2 W. Bl. 1010 122 Goodtitle v. Burtenshaw, Fearne, Cont. Rem. App. 1 147, 259 V. Gibbs, 5 B. & C. 709 ; 4 L. J. (0. S.) K. B. 284 378 Grayenor, Re, 1 De G. & Sm. 700 292 Greet v. Greet, 5 Beav. 123 179 Grey v. Mannock, 2 Eden, 339 ; also cited 6 T. R. at p. 292 330 Griffiths V. Vere, 9 Ves. 127 , 188 Grute V. Looroft, Cro. Eliz. 287 345 H. Haggerston v. Hanbury, 5 B. & C. 101 ; 7 B. & R. 723 349 Haley v. Bannister, 4 Madd. 275 188, 189 Hannaford v. Hannaford, L. R. 7 Q. B. 116 ; 41 L. J. Q. B. 62 ; 20 W. R. 292 ; 25 L. T. 820 341 Harris v. Jay, 4 Rep. 30 45 Haslewood v. Pope, 3 P. Wma. 3i2 41 Hatter v. Ashe, 3 Lev. 438 ; Ld. Eaym. 34 97 Hay V. Earl of Coventry, 3 T. R. 83 104 Haywood v. Brunswick Permanent Benefit Building Society, 8 Q. B. D. 403 ; 61 L. J. Ch 73 ; 30 W. R. 299 ; 45 L. T. 699 172 Heasman v. Pearse, L. R. 7 Ch. 275 ; 20 W. R. 271 ; 26 L. T. 299 168 Heathersall v. Mildraay. See Mildmay's Case. Heydon's Case, or Att.-Gen. v. Heydon, 3 Rep. 7 ; Serj. Moore's Rep. 128 . . 27, 271, 272, 273 Heywood v. Smith. See Seymor's Case. Hiatt V. Hillman, 19 W. R. 694 ; 25 L. T. 55 350 Hinde and Lyon, 3 Leon. 64 158 Hogg V. Cross, Cro. EHz. 264 93, 378 Holcroft's (Lady) Case, 4 Rep. 30 45 Holdernesse (Lady) v. Marquis of Carmarthen, 1 Bro. C. C. 377 47 Holland V. Boins or Bonis, 2 Leon. 121 ; 3 Leon. 175 354 Hooper ». Clark, L. R. 2 Q. B. 200 ; 8 B. & S. 150 ; 36 L. J. Q. B. 79 ; 15 W. B. 347 ; 16 L. T. 152 [Hooper f. Lane] 46 Hougham v. Sandys, 2 Sim. 95 305 Howard v. Duke of Norfolk, 2 Swanst. 454 230 Hudson V. Hudson, 20 Ch. D. 406 ; 51 L. J. Ch. 455 ; 30 W. R. 487 ; 46 L. T. 93 341 Hughs V. Harrys, Cro. Car. 229 , 30 Hunt V. Bishop, 8 Exch. 675 67 V. Remnant, 9 Exch. 635 67 Hynde v. Ambiye. See Boraston's Case. Idle V. Cook, Coke or Cooke, 1 P. Wms. 70 ; 2 Salk. 620 ; Ld. Raym. 1144 ; 11 Mod. 57 ; Holt, 164 229 Isoham v. Morrice, Cro. Car. 109 , . . , 376 Digitized by Microsoft® TABLE OF CASES. XXIU J. PAGE Jagger v. Jagger, 25 Ch. D. 729 188 James v. Richardson. See Buroliett v. Durdant. Jee V. Audley, 1 Cox, 324 178 Jenkins v. Jones, 9 Q. B. D. 128 67 Jerman v. Orchard. See Germain v. Orchard. John Talbot's Case. See Talbot's Case. Johnston v. Hill (Ee Dawson), 39 Ch. D. 1.55 178 Johnstone v. Hamilton, 5 Gift. 30 38 Jones II. Davies, 7 H. & N. 507 ; 31 L. J. Exch. 116 : 10 W. E. 464 ; 6 L. T. 442 ; 8 Jur. (N. S.) 592 82 • V. Maggs, 9 Ha. 605 189 ■ ■ V. Roe, 3 T. E. 88 , 67, 164 Josselyn v. Josselyn, 9 Sim. 63 179 Jupp, Ee, Jupp V. Buckwell, 39 Ch. D. 148 ; 57 L. J. Ch. 774 ; 36 "W. E. 712; 59 L. T. 129 346 Keen v. Kirby, 1 Mod. 199 30 Kemp V. Westbrook, 1 Ves. sen. 278 360 KeppeU V. Bailey, 2 My. & K. 517 172 King V. Dilliston, 1 Show. K. B. 83 27 Lampet's Case, or Lampet v. Starkey, 10 Eep. 46 ; 2 Brownl. 172 67, 159 Lashmar, Ee. See Moody v. Penfold. Lautsbery v. Collier, 2 K. & J. 709 181 Leach v. Jay, 9 Ch. D. 42 ; 47 L. J. Ch. 876 ; 27 W. E. 99 ; 39 L. T. 242 . .54, 81 Leake v. Eobinson, 2 Mer. 363 178, 189 Lechmere and Lloyd, Ee, 18 Ch. D. 624 ; 45 L. T. 551 100, 114 Lee's (Vincent) Case, 3 Leon. 110 , 82 LethieuUier or LetheulHer v. Tracy, or Tracey, 3 Atk. 774 ; Ambl. 204 232 Lewis Bowles's Case, or Bowles v. Bury, 11 Eep. 79 ; 1 EoU. Eep. 177 127 i;. Eees, 3 Kay & J. 132 , 132 Lnford (Lord) v. Att.-Gen., L. E. 2 H. L. 63 286 LiUey v. Whitney, Dy. 272 a, pi. 30 377 Lloyd V. Carew, 1 Show. P. C. 137 169 Loddington v. Kime, 1 Saik. 224 ; Ld. Eaym. 203 71 London and South Western Eailway i>. Gomm, 20 Ch. D. 562 ; 51 L. J. Ch. 530 ; 30 W. E. 620 ; 46 L. T. 449 174, 176 Long V. Beaumont. See Darbison v. Beaumont. V. Blackall, 7 T. E. 100 170 Longdon v. Simson, 12 Ves. 295 188 LoveU V. Lovell, 3 Atk. 11 30 Low V. Burron, 3 P. Wms. 262 327 Lvisher v. Banbong, Dy. 290a 233 Luttrel's Case, 4 Rep. 86 , 6 Digitized by Microsoft® XXIV TABLE OF CASES. M. PAGE MacUl or Maohell v. Clark, Clarke, or Clerk, 2 Salk. 619 ; 2 Ld. Eaym. 778 ; 7 Mod. 18 293 Maohu, Ee, 21 Ch. D. 838 ; 30 W. E. 887 234 Mackenzie v. Childers, 43 Oh. B. 265 ; 59 L. J. Ch. 188 ; 38 W. E. 243 ; 62 L. T. 98 174 Macleay, Ee, L. E. 20 Eq. 186 ; 44 L. J. Ch. 441 176, 186 MaUory's Case, 5 Eep. Ill 19* Mander v. Harris, Ee March, 24 Ch. D. 222 ; 52 L. J. Ch. 680 ; 31 W. E. 885 ; 49 L. T. 168 ; on app. 27 Ch. D. 166 ; 32 "W. E. 941 345 Mandevnie's Case, Co. Litt. 26b 270 Manning's Case. See Matthew Manning's Case. Mansell i>. Mansell, 2 P. Wms. 678 Ill, 133 March, Ee. See Mander v. Harris. Marlborough (Duke of) v. Earl Godolphin, 1 Eden, 404 171 Marquis of Winchester's Case, 3 Eep. 1 74 Marshall ». Gingell, 21 Ch. D. 790; 51 L. J. Ch. 818 ; 47 L. T. 159 Ill V. HoUoway, 2 Swanst. 432 189 Martin ». Mowlin, 2 Burr. 969 345 V. Strachan, WiUes, 444 283 Mary Portington's Case, or Portington v. Eogers, 10 Eep. 35 ; 2 Brownl. 65, 138 275 Matthew Manning's Case, or Clark v. Manning, 8 Eep. 94 103, 159 Maynard v. Cors, 20 Vin. Abr. 241, pi. 12 17 Mayne v. Cross, T. B. 14 Hen. 4, fo. 2 17 Metteforde's Case, Dy. 362 b, pi. 20 365 Meyler v. Meyler, 11 L. E, Ir. 622 195 Mildmay's Case, or Hethersall v. Mildmay, 6 Eep. 40 ; Serj. Moore's Eep. 632 275 Miles V. Jarvis, 24 Ch. D. 633 114 Mogg V. Mogg, 1 Mer. 654 330 Monypenny v. Bering, 2 De a. M. & G. 145 , 104 Moody V. Penfold, Ee Lashmar, [1891] 1 Ch. 258 40 Moore «!. Simkin, 31 Ch.D. 95 254 t>. Webster, L. E. 3 Eq. 267; 36 L. J. Ch. 429; 15 W. E. 167; 16 L. T. 460 316 Morgan v. Morgan, 4 De G. cfe Sm. 164 190 V. Swansea Urban Sanitary Anthority, 9 Ch. D. 582 ; 27 W. R. 283 . . 293 Moseley's Trusts, Ee. See Pearks v. Moseley. Mnggleton v. Barnett, 2 H. & N. 653 212 Murthwaite v. Jenkinson, 2 B. & C. 357 232 N. Nevil's Case, 7 Eep. 33 45 NiooUs ff. Shefdeld, 2 Bro. C. C. 215 168 Nixon V. Cameron, Ee Cameron, 26 Ch. D. 19 160 Norfolk's (Duke of) Case, 3 Ch. Ca. 1 ; Pollexf. 223 106, 169, 231 Northen v. Carnegie, 4 Drew. 587 327, 329 Nurse v. Terworth, 3 Swanst. 608 83, 85 O. O'Keefe v. Jones, 13 Ves. 413 195 Oldham v, Pickering, 2 Salk. 464 ; Carth. 376 329, 330 Digitized by Microsoft® TABLE OF CASES. XXV PAQE O'Neill f . Lucas, 2 Keen, 313 189 OhsIow v. Wallis, 1 Mao. & Gr. 506 40 Ontario, Att.-Gen. of v. Mercer, 8 App. Gas. 767 ; 52 L. J. P. C. 84 ; 49 L. T. 312 6 Orme's Case, L. E. 8 0. P. 281 356 P. Page V. Hayward, 2 Salk. 570 268 V. Moulton, Dy. 296 a, pi. 22 383 Paine's Case, or Paine v. Sammes, 8 Rep. 34 ; 1 Anders. 184 ; 1 Leon. 167 ; Gouldsb. 81, pi. 22 240 Papillou V. Voice, 2 P. Wms. 471 , . . . . 155 Parfitt V. Hember, L. R. 4 Eq. 443 , 105 Parker v. Clere. See Clere's Case. Paterson v. Mills, 19 L. J. Ch. 310 ; 15 Jut. 1 344 Peacby v. Duke of Somerset, 1 Stra. 447 36 Peacock v. Eastland, L. R. 10 Eq. 17 ; 39 L. J. Ch. 634 ; 18 W. R. 856 ; 22 L. T. 706 287 Pearks v. Moseley, 5 App. Cas. 714 ; 60 L. J. Ch. 57 ; 43 L. T. 449 178 Pells 4). Brown, Cro. Jac. 590 165, 193 Pendred v. GrifEth, 1 Bro. P. C. 314 174 Perpetuities, The Case of. See Chudleigh's Case. Pimb's Case, Serj. Moore's Rep. 196 , 37 Plomley v. Enlton, 14 App. Cas. 61 294 Poole V. Nedham, Yelv. 149 229 Portington's Case. See Mary Portington's Case. Powdrell v. Jones, 2 Sm. & GifE. 407 ; 24 L. J. Ch. 123 ; 3W. R. 32 ; 24 L. T. (O. S.) 88 ; 3 Eq. Rep. 63 ; 18 Jur. 1111 320 Powell V. Bull, Comb. 265 42 V. HoweUs, L. R. 3 Q. B. 654 341 Prince's Case, The, 8 Rep. 14 102 Pullen V. Lord Middleton, 9 Mod. 483 272 R. Radbum v. Jervis, 3 Beav. 450 47 Rawley v. HoUand, 22 Vin. Abr. 189 ; 2 Eq. Ca. Abr. 753 160 Ray V. Pung, 5 Madd. 310 ; 5 B. & Aid. 561 319 Reading v. Rawsteme or Royston, Ld. Raym. 829 ; Salk. 242 ; Comb. 123 ; Preo. Ch. 222 205 Reeve or Reve v. Long, 1 Salk. 227 ; 3 Lev. 408 ; 4 Mod. 282 ; 12 Mod. 53 . . 129 Rex 1). Bishop of Chester, 2 Stra. 797 102 V. Coggan, 6 East, 431 38 n. EUis, 3 Eag. & Y. 776 ; 3 Price, 323 43 V. Kempe, Ld. Raym. 49 ; Salk. 465 ; 4 Mod. 275 ; 12 Mod. 77 ; Comb. 334 ; Holt, 419 ; Garth. 350 ; Skin. 446, 580 102 V. Knollys 0)- Knowles, Ld. Raym. 10; Salk. 509; 3 Salk. 242; Comb. 273; Skin. 517; 12 Mod. 55 45 1!. Shingle, 1 Eag. & T. 738 ; 1 Stra. 100 43 Rhodes v. Whitehead, 2 Dr. & Sm. 532 114 Richards v. Lady Bergavenny, 2 Vem. 324 264 Ridge's Trusts, Re, L. R. 7 Ch. 665 341 Digitized by Microsoft® XXVI TABLE OF CASES. PAGE Ring V. Hard-wick, 2 Beav. 352 179 Ripley V. Waterworth, 7 Ves. 425 327, 329 Rivett-Carnao's Will, Re, 30 Ch. D. 136 ; 33 W. R. 837 ; 54 L. J. Ch. 1074 ; 63L. T. 81 45 Robinson v. Gee, 1 Vea. Ben. 251 307 V. Litton, 3 Atk. 209 196 Roe V. Briggs, 16 East, 406 14, 112 V. Galliers, 2 T. R. 133 173 V. Jones, 1 H. Bl. 30 67, 164 . V. Quartley, 1 T. R. 630 338 f . Tranmarr or Tranmer, WUles, 682 ; 2 Wils. 75 96, 385 V. Vernon, 5 East, 51 i 31 Ross (Earl of) v. Worsop, 1 Bro. P. 0. 281 174 Rosslyn's (Lady) Trust, Re, 16 Sim. 391 189 Rous V. Jackson, 29 Ch. D. 521 180 Rowdeu V. Maltster, Cro. Car. 42 271, 272 Rowlet's Case, Dy. 188 a 46 S. Saint Katherine'a Hospital, Case of. See Atkins v. Mountague. Salter v. Butler, or Salter's Case, Telv. 9 ; Cro. Eliz. 901 ; Noy, 46 329 Saunders v. Vautier, 4 Beav. 115 ; S. C. 1 Cr. & Ph. 240 179 Sayer's Trusts, Re, L. R. 6 Eq. 319 178 Selby ». Alston, 3 Ves. 339 86 Seymor's Case, or Heywood v. Smith, 10 Rep. 95 ; 1 Bulst. 162 327 Sharp's Case, or Sharp v. Swan, 6 Rep. 26 ; Cro. Eliz. 482 ; [Serj. Moore's Rep. 438] 366 Shelley's Case, 1 Rep. 93 ; Serj. Moore's Rep. 136 ; 1 Anders. 69 ; Dy. 373 b, pi. 15 ; Jenk. Cent. 6, o. 40 141, 153 Sherwood v. Winchcombe, Cro. EUz. 293 43 Shields v. Atkins, 3 Atk. 560 233 Shove V. Pincke, 5 T. R. 124 '. 349 Simpson v. Simpson, 4 Bing. N. C. 333 272 Slark V. Dakyns, L. R. 10 Ch. 35 ; 44 L. J. Ch. 205 ; 23 W. R. 118 ; 31 L. T. 712 180 Smart, Re, Smart v. Smart, 18 Ch. D. 165 16 Smith c. Adams, 5 De G-. M. & G. 712 ; 24 L. J. Ch. 258 ; 2 W. R. 698 ; 23 L. T. (0. S.) 325 320 ■ v. Pybus, 9 Ves. 566 46 d. Dormer v. Parkhurst. See Dormer v. Parkhurst. Snowe V. Cuttler, 1 Lev. 135 - 109 Solomon and Meagher's Contract, Re, 40 Ch. D. 508 ; 58 L. J. Ch. 339 ; 37 W. R. 331 ; 60 L. T. 487 350 Southampton (Lord) v. Marquis of Hertford, 2 Ves. & B. 54 189 Spencer ». Chase, 10 Vin. Ab. 203 ; 9 Mod. 28 232 Sperling v. Rochfort, Re Van Plagan, 16 Ch. D. 18 ; 50 L. J. Ch. 1 ; 29 W. R. 84 ; 44 L. T. 161 40 Stafford (Earl of) v. Buckley, 2 Ves. sen. 170 47, 52, 74 Stansfield v. Habergham, 10 Ves. 273 196 Stapilton v. Stapilton, 1 Atk. 2 294 Stephenson v. Hill, 3 Burr. 1273 31 Stone i: Newman, Cro. Car. 427 294, 301 Styant v. Staker, 2 Vem. 250 321 Digitized by Microsoft® TABLE OF CASES. XXVU rAOE Surtees v. Surtees, L. R. 12 Eq. 400 ; 19 W. E. 1043 341 Sutton's Hospital, Case of, 10 Rep. 23 102, 355 Sweet v., Anderson, 2 Bro. P. G. 256 174 Sweetapple v_. Bindon, 2 Vem. 536 316 Swyft V. Eyres, Cro. Car. 546 100 Sym's Case, Cro. Eliz. 33 335 T. Talbot's Case, or Chapman v. Pendleton, 8 Rep. 104 ; 2 Brownl. 293 20 Taltarmn's Case, M., 12 Edw. 4, pi. 25, f. 19a 280 Taunton v. Pepler, Madd. & Geld. 166 370 Taylor ». Frobisher, 5 De G. & Sm. 191 179 V. Haygartb, 14 Sim. 8 38 ■ ■ V. Horde. See Doe v. Horde. Teagnae's Settlement, Re, L. R. 10 Eq. 564 ; 18 W. R. 752 ; 22 L. T. 742 ... . 180 Thellusson v. Woodford, 4 Ves. 227 ; in Dom. Proc, 11 Ves. 112 170, 187 Thomas v. Kemeys, 2 Vem. 348 86 Thomasin v. Mackwortb, Carter, 75 232 Thompson v, Hardinge, 1 C. B. 940 ; 14 L. J. C. P. 268 ; 9 Jur. 927 31 Thomson v. Shakespear, 1 De G. E. & J. 399 181 Thorn v. Newman, 3 Swanst. 603 83,85 Throgmorton v. Tracey, Dy. 124 b, pi. 40 380 Took V. Glascock, 1 Saund. 260 294 Toulmin v. Steere, 3 Mer. 210 86 Townsend v. Ash, 3 Atk. 336 , 367 Trevor v. Trevor, 1 P. Wms. 622 ; 1 Eq, Ca. Ab. 387 155 Tulk t). Moxhay, 2 Ph. 774 ; 18 L. J. Ch. 83 ; 13 Jur. 89 174 Turner v. Turner, Ambl. 776 ; 1 Bro. 0. G. 310 46 v. Wright, 2 De G. E. & J. 234 196 Turvin v. Newcome, 3 K. & J. 16 179 Tyler, Re, Tyler v. Tyler, [1891] 3 Ch. 252 182 U. Utty Dale's Case, Cro. EUz. 182 329 V. Van Hagan, Re. See Sperling v. Rochfort. Venables v. Morris, 7 T. R. 342 152, 153 Vincent Lee's Case, 3 Leon. 110 82 W. Wainewright, Re, 1 Phill. 258 292 WaUis V. Freestone, 10 Sim. 223 181 Walsingham's Case, Plowd. 547 301 Ward V. Ward, 14 Ch. D. 606 ; 49 L. J. Ch. 409 ; 28 W. R. 943 ; 42 L. T. 623 . . 345 Ware v. PolhiU, 11 Ves. 257 180 Waring v. Coventry, 1 My. & K. 249 181 Weale v. Lower, PoUexf . 64 67 WeatheraU v. Thoruburgh, 8 Ch. D. 261 ; 47 L. J. Ch. 658 ; 26 W. R. 693 ; 39 L. T. 9 189 Digitized by Microsoft® XXVIU TAliLK OF CASES. PAaB Webb V. Webb, 2 Beav. 493 , 188 Webberf. Lee,9Q.B.D.315; 51 L. J. Q.B. 485; 30W.E.866; 47L.T.216.. 46 Wellington v. Wellington, 1 W. Bl. 645 ; 4 Burr. 2165 232 Westfaling v. Westfaling, 3 Atk. 460 41 Whaley v. Tankard or Tanored, 2 Lev. 52 ; 1 Vent. 241 361 Whitby V. MitcheU, 44 Ch. D. 85 105, 107 White and Hindle's Contract, Ee, 7 Ch. D. 201 ; 47 L. J. Ch. 86 ; 26 W. E. 124 71, 154 V. Thomburgh, 2 Vem. 702 155 Williams v. Lord Lonsdale, 3 Ves. 752 38 V. WilHams, 15 Ves. 419 ; S. C. 12 Kast, 209 264 Willion «). Berkeley, Plowd. 223 73,270 Wnis V. Palmer, 2 W. Bl. 687 ; 5 Burr. 2615 147 Wilson «). WUson, 1 Sim. N. S. 288 186,188 Winchester's (Bishop of) Case, or Wright v. Wright, 2 Eep. 43 ; Serj. Moore's Eep. 425 43 Winchester's (Marquis of) Case, 3 Eep. 1 74 Windham's Case, 5 Eep. 7 ; Serj. Moore's Eep. 191 338 Wiscot's Case, 2 Eep. 60 83 Witham v. Vane, Appendix V., p. 401, infra 172 Wood V. Douglas (Ee Bouglas), 28 Ch. D. 327 86 Wright V. Vernon, 2 Dr. 439 ; aff. 7 H. L. C. 35 265 V. Wright. See Bishop of Winchester's Case. V. Wright, 1 Ves. sen. 409 .... , 67, 194 T. Yeap Cheah Neo v. Ong Cheng Neo, L. E. 6 P. C. 381 181 Z. Zetland (Earl of) v. Lord Advocate, 3 App. Cas. 505 259 Zouch V. Forse, 7 East, 186 328 Digitized by Microsoft® ( xxix ) LIST OF TEXT-BOOKS CITED. J,* In the absence of special mention, numbers preceding the name refer to volumes, and numbers following the name refer to pages. Bacon, Use8. Lord Bacon's Reading upon the Statute of Uses ; ed. by Eowe, 1806. The references are to the marginal pages. The correc- tions of the text in this edition are important, and the explana- tory notes are valuable, though frightfully prolix. Bl. Com. Blackstone's Commentaries ; 15th ed. by Christian, 4 vols. 1809. Bl. Law Te. Blackstone's Law Tracts. 2 vols. 8vo. Oxford. 1762. Booth, Real Actions. 2nd ed. 1811 ; with Serjeant Hill's notes. Bbo. Abe. Brooke's Abridgment, 2 vols. fol. Tottell, 1673. The pagination is not preserved in Tottell' s quarto edition of 1576. Chance on Powees. "With Supplement, 2 vols. 1841. This able work appears to have met with undeserved neglect. The present writer's copy ob- viously belongs to an edition of 1831, with a vamped-up title dated ten years later to match the Supplement. Co. Cop. Lord Coke's Oompleat Copyholder. See his Law Tracts. Co. Law Te. Three Law Tracts : (1) The Compleat Copyholder ; (2) A Eeading on the Statute De finihus 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 ; 1 9th ed. 1832 ; with notes by Francis Hargrave and Charles Butler ; among which are inserted the MS. notes of Lord Hale and Lord Nottingham. Hargrave's notes extend from the beginning to the end of p. 190b, and Butler's notes from the beginning of p. 191a to the end. This edition is a reprint of the 18th, pub- lished 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 occurring in the 18th edition, are for the most part reproduced in the 19th. Digitized by Microsoft® xxx list of text-books cited. Com. Dig. Digest of the Laws of England ; by Sir John Oomyns, Lord Chief Baron; 6th ed. hy Hammond; 8 vols. 8yo. 1822. This edition contains much valuable additional matter ; but it is very incon- venient for reference, and some of the titles are displaced. References are to this edition. Cetjise, Pines and Eec. Cruise on Fines and Recoveries ; 3rd ed. 2 vols. 1794. Cruise made great alterations in the successive editions of this work. DocT. & Stu. Doctor and Student, or dialogues between a doctor of divinity and a student in the laws of England. 17th ed. by Wm. MuchaU, gent. 1787. Fbaene, Cont. Eem. Eearne's Essay on Contingent Remainders and Executory Devises ; 10th ed. 1844 ; with Butler's notes. To this edition was added a second volume upon Executory Interests by Mr. Josiah W. Smith. The latter is cited as Smith on Executory Interests. The earliest edition of Eearne, edited by Butler, was the 6th. The paging of the 5th ed. is preserved in aU. the subsequent editions. Eeaene, Posth. Woeks. Pearne's Posthumous Works, 1797; edited by T. M. Shadwell, who had been one of his pupils ; see Butl. Pref . to Pearne, Oont. Eem. This contains (1) a reading on the Statute of Inrolments, 27 Hen. 8, c. 16 ; (2) two arguments, one for each side, in the, case of General Stanwix, composed as an amusement, and never delivered or intended to be delivered ; and (3) numerous Cases with Pearne's Opinions thereon. Pinch, Law. Law, or a discourse thereof, in four books ; by Sir Henry Finch ; edited by Danby Pickering, 1759. This is a work of consider- able authority, now little read. It fell into disuse after the publication of Blackstone's Commentaries. (Butler's Eeminis- cences, p. 131.) PiTZH. N. B. The New Natura Brevium, of Mr. Justice Anthony Pitzherbert. 8th ed. 4to. 1755. Translated from the law French of tho' 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. [This pretended edition of 1 809 really consists of the unsold copies of the edition of 1797, furnished with a vamped-up title-page.] Digitized by Microsoft® list of text-books cited. xxxi 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 juris- diction of courts. Jaem. Wills, Jarman on "Wills, 4th ed. 2 vols. 1881. KiTCHIN, JmaiSDIOTIONS. 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 Eeports, p. xxxv of ed. 1826. Mad. Bab. 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; 16th ed., by Greening, 1827. This is the best edition. The references are to the sections. Peest. 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 Richard 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. Edwards was probably one of Preston's pupils. [Since these remarks were written, the writer had the good fortune to make the acquaintance of a cousin of Mr. Edwards, who confirmed this conjecture, but was unable to give any information about the origin of the notes.] The notes (some of which appear to have been transcribed from a MS. which the transcriber in places could not decipher) are full of tantalising 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. Peest. Conv.'' Preston's Treatise 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. Peest. Est. Preston's Essay on Estates; 2nd ed. 2 vols. 1820, 1827. No third volume was published, but the work has no index and seems in other respects to be incomplete. Digitized by Microsoft® XXXll LIST OF TEXT-BOOKS CITED. Peest. Shep. T. The additions made by Preston to Slieppard's text, in Ms edition of the Touchstone, 2 vols. 1820. The pages cited in the refer- ences, are the pages of the Touchstone. Where the text itself of the latter work is cited, it is referred to as " Shep. T." EoB. Gav. Robinson 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. Sand. Uses. Sanders on Uses and Trusts ; 6th ed. 2 vols. 1844. Shep. T. See Prest. Shep. T. Smith on Exectttoiiy Interests. An Original View of Executory Interests, by Josiah W. Smith. 1844. Added as vol. 2, to the 10th ed. of Eearne, Cont. Eem. The references are to the pages. SuQD. Pow. Sugden on Powers, 8th ed. ViN. Abr. General Abridgment of Law and Equity ; by Charles Viner ; 2.3 vols, folio. 1742—1753. Viner died in 1756. See Pref. to Bl. Com. On this work, Hargrave expresses the following opinion: — "It is indeed a most useful 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. These faults, in great measure, pro- ceeded from the author's error of judgment, in attempting to engraft his own very extensive Abridgment on that of Mr. Serjeant Eolle, whose work, though most excellent in its kind, and in point of method, succinctness, legal precision, and many other respects, fit to be proposed as an example for other abridg- ments 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 execution, should produce much con- fusion and disorder in the effect. Mr. Viner's labours would probably have advanced his reputation as a compiler much higher, if he had not attempted 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 incomparably the best book on copyholds ever written, and deserves a new edition. The references are to the pages of this edition. Watk. Desc. Watkins on Descents; 3rd ed. by Vidal. 1819. The refer- ences are to the pages of this edition. Digitized by Microsoft® THE LAW OF REAL PEOPEETY: CHIEFLY IN RELATION TO CONYEYANCING. INTEODUCTORY EBMAEKS. 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 personal 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 assimilate real property law to the law of personal property. But, in spite of the numerous changes which have been effected during the last sixty years, 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 certainly 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. But 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 legislation relating to conveyancing and real property law be completely 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 freehold 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. C.K.P. B Digitized by Microsoft® INTRODUCTOEY REMARKS. It is obviously impossible, within the present limits, to enter upon the details of practical conveyancing ; but the bulk of the iaformation which is here collected together, has a special bearing upon the work of the conveyancer, as distinguished from that of the pleader and advocate. Notwithstanding the present decayed state of its general application and importance, some knowledge of the essential characteristics of tenure is necessary to the adequate treatment of the other parts of the subject ; nor without such knowledge is a clear apprehension possible of some distinctions which are still of practical importance ; such as the distinctions between (I) Eent which is incident 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 reversion. 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 another 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, untU its operation was interrupted by the abeyance of the royal authority in 1645, followed by the abolition in 1660, by the statute 12 Car. 2, c. 24, of the burden- some incidents attached to tenure in capite. The abolition by that statute of the rights enjoyed by the crown in respect to its freehold 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 election 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 ; and even previously to that time the political Digitized by Microsoft® INTRODUCTORY REMARKS. privileges attaclied to freehold tenure did not much favour the careful preservation of the express evidence relating to it, because all tenure is presumed to be freehold unless proved to be copyhold. The decreased practical importance of freehold tenure has led to something 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 difficvdt to prove ; (2) rights of the lord in respect to copyholds of the manor ; and (3) rights of the lord on the one hand, and of the commoners 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 pro- prietary 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 process. Ancient quit- rents which affect freehold lands held for a fee simple and are undoubted incidents of their tenure, still exist ; but in practice these must be at least as old as the year 1290, in which year the statute of Qida Emptor es made it thenceforward impossible for a subject, under ordinary circumstances, to reserve a rent as incident to tenure only. They are, therefore, comparatively rare, and the change in the value of money makes them now of little import- ance, 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. b2 Digitized by Microsoft® ( 4 ) Paet I m TENURE. CHAPTEE I. TENURE BY THE COMMON LAW. All land is held either mediately or immediately of the king-. By the doctrine of the common law, all the land in England is either in the hands of the king himself, or is held of him by his tenants in capite* The king is therefore styled, xar' e|ox»)v. * For some purposes it is necessary to distinguish hetween tenants of the Mng ut de corona and tit de honore. The former held by direct grant from the Mng. The latter held of the king only by reason that the land-barony, or Honour, of which they held, had oome 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. These tenures are both pro- perly styled tenure in capite ; because that phrase only imports that there is no mesne lord between the king and the tenant ; and this is as much the fact in the one case as in the other. Lord Coke uses the phrase " tenure of the king in capite" to denote what is more properly expressed by the phrase, " tenure of the king ut de corona " ; and uses the phrase, " tenure of the king not in capite," to denote what is more pro- perly expressed by the phrase, "tenure of the king ut de honore." See, for example, his summary of the Statutes of Wills, 32 Hen. 8, o. 1, and 34 & 35 Hen. 8, c. 5, in Co. Litt. 111b, which is cited at p. 199, infra. In order to denote tenure ut de corond, he also uses the phrase, "lit de persond " ; on which phrases, see Harg. n. 1, on Co. Litt. 77 a, and notes 2, 3, on 108 a. He even has a further phrase, holding " of the person of the king and not in capite " ; of which he gives as an example the case where the seignory of lands, held in gross of a common person, passed to the king from such person by escheat or forfei- ture for treason ; in which case the tenure passed from such person to the king, but was not nt de corond, or, as Lord Coke calls it, in capite, because the original tenure was not created by the king, but by the common person aforesaid. (Co. Litt. 108 a.) If a tenant of the king by knight-service, who held ut de corond, died leaving his heir under age, the king, by virtue of his prerogative, had the wardship both of the lands held of himself 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 general the wardship only of lands holden of him. (Co. Litt. 77 a.) The duchies of Lan- caster and of Cornwall, and some other Honours, were exceptions from this rule. See Estwick^s Case, 12 Rep. 135, at p. 136 ; which refers to the Honours of Rawleigh, Hagent, and Peverel, and states that the doctrine applied to the ancient Honours generally. It is clear that, to Lord Coke's mind, the chief Digitized by Microsoft® TENURE BY THE COMMON LAW. the Lord Paramount ; as being the " sovereigne lord, or lord paramount, either mediate or immediate, of all and every parcell of land within the realme." (Co. Litt. 65a.) To this rule there is no exception ; but Hargrave seems to surmise that allodial lands may still exist in Scotland. 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 are Immediately, commonly referred to as " the tenants in capite " ; and that ineapUe. phrase usually imports, in the absence of any addition, tenure holden immediately of the crown ; but the phrase " tenure in capite " only imports that the land to which it refers is held immediately of the grantor, instead of being held of him mediately through another person, of whom the tenant holds it practical distinction between the two kinds of tenure in capite lay in the question, whether the king's wardship extended to all the infant's lands, or only to the lauds held of himself. As to Honours in general, the curious reader may consult Mad. Bar. Amgl. 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 nobles of the kingdom. Upon the decadence of the feudal system, nobility became a matter of mere titles, unconnected with the tenure of the land, and the meaning of the word "Honour" was almost forgotten. Madox ridicules Henry VIH. for his absurd conduct in passing Acts of Parlia- ment to turn the manors of Ampthill, Hampton Court, and Grafton, 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 manors, or some parcel of its demesne lands ; and this was sometimes done even in early times, though not to a great extent, because the practice, if common, would then have disarranged both the political and the military organization of the Kingdom. Some early examples are col- lected in Mad. Bar. Angl. 44 — 60. At a later period, when it was no longer attended by the same public incouTenience, the practice became more common. "Thus," says Madox, at p. 59, "land-baronies were divided and subdivided, tUl at length they were brought to nought." Perhaps the only Honour now held by a subject is the Honour of Arundel, which gives to the Duke of Norfolk his title as Earl of Arundel. The fact is so stated, and apparently agreed, in Gerard v. Gerard, 1 Salk. 253, 13 Vin. Abr. 209, sub tit. FeudaU Honour. For some further mention of this Honour, see Mad. Bar. Angl. 63, 71. The right to the title of Arundel is now regulated by a private Act of Parliament, 3 Car. 1, 0. iv. See Berkeley Feerage Case, 8 H. L. 0. 21, at pp. 101, 137. Digitized by Microsoft® ON TENURE. Mediately, hj the tenants of the crown, tenants of immediately ; and therefore tenure in capite, in its wide sense, is a phrase which may without any impropriety he applied to a suhjeot,* (Co. Litt. 73 a ; and see Dy. 277 a, pi. 57, where the learned editor in a note hoggles over the mention of a tenant in capite to the Bishop of Durham; Mad. Bar. Angl. 166.) But, as has ahove been remarked, the phrase is usually restricted to Under the tenants in capite came mesne lords, others who held of them ; and until the statute of Quia Emptores, 18 Edw. 1, forbade the practice of subinfeudation, the tenants of the tenants in capite might, by the common law, convey lands in fee simple to tenants of their own to be held of themselves, and these again to others under them, and so on theoretically ad infinitum,,'^ though in practice the successive links could not be very numerous. After the last-mentioned statute, though successive feoffments in fee might be made, yet the feoffee did not hold under the feoffment of the feoffor, but, under the statute, of the chief lord of the fee. Meaning of The tenure by which this system was held together, because common law . . , . o ^ tenure. it existed by force of the common law, is often styled tenure by the common law or common law tenure. Siace the decadence of the feudal system, which has deprived the true doctrine of * There is much important difference between the mere tenure in gross, which, before the statute of Quia Emptores, could be created by any person seised in fee simple of a plot of laud, and tenure of a lord of a manor " as of his manor." On this point, see LuitreVs Case, 4 Rep. 86, at p. 88b. Of course lands could not be granted to be held " as of a manor," unless they were in fact parcel of the manor at the time of the grant. Since the statute of Quia Emptores, it has been unlawful for a subject to grant lands in fee simple to be held of himself ; nor can the lord of a manor grant any parcel of his manor to be held of him as of his manor. t As is shown by the Statute of Westminster 2, 13 Edw. 1, c. 32 ; which, in order to prevent evasion of the Statutes of Mortmain by means of feigned re- coveries, 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 demand 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 haU a year after the same year ; and so every lord after the next lord {quilibet dominus post proximum dominum) shaU have the space of half a year to demand it successively, uutU. it come to the Hng, to whom at length, through default of other lords, the lauds shall accrue." (2 Inst. 428.) Digitized by Microsoft® TENUEE BY THE COMMON LAW. 7 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 : at confusion which is chiefly due to the fact, further referred to in the next following paragraph, that common law tenure is found only ia connection with estates having a certain quantum, not being less than an estate for the life of the tenant himself, or for the Hf e of some other person. But the word properly denotes the specific feudal relation subsist- ing between the lord and the tenant. (See Ait. Gen. of Ontario V. Mercer, 8 App. Cas. 767, at p. 772.) It refers only to those Does not ex- relations which were comprised within the feudal organization of years. of the realm, and does not properly include the relation between a reversioner and a termor for years. Until the Statute of Grloucester (6 Bdw. 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 term of years at his own will and pleasure, by suffering a collusive recovery. (Co. Litt. 46a ; and see further, as to the origin of terms of years, regarded as legal estates, p. 53, infra. As to the practice of using the word tenure in connection with terms of years, see p. 55, infra.) There is not necessarily or in the nature of things any definite Couneetiou between relation between the nature of the tenure by which the tenant common law holds, and the quantum of the estate held hy the tenant ; but an freehold invariable custom did, in fact, establish such a definite relation, estates. 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. 206.) From its connection with political status, the common law tenure acquired the name of free or franh tenure, and the common law estates were styled estates of freehold. These estates remain, in point of quantum, the same now as in Digitized by Microsoft® ON TENURE. } connec- The tion between frank tenure and free status not absolute. Divisions of common law, or frank, tenure. Tenure in chivalry. the days of Littleton ; but the practical importance of the dis- tinction between estates of freehold and estates not of freehold, has been much lessened. Moreover, certain important distinc- tions 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 after the Norman conquest, the division between free and villein tenure accurately corresponded with the division of the population in regard to status ; but the connection between tenure and status, at all events after the earliest days of the feudal system, was not 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 enfranchisement ; as also did the grant of an annuity, or the giving of a bond, or anything whereby the villein acquired the right to maintain an action against the lord. {Ihid. sects. 206, 208 ; and Lord Coke's com- ment.) The existence of these breaks in the connection between tenure and status is sufficiently explained by the leaning in favorem libertatis, which has from very early times been a marked feature of English law. {Anglice jura in onini casu libertati dant favorem. Co. Litt. 124 b.) All free or common law tenure (other than spiritual tenure) was either in chivalry or in socage. (Litt. sect. 118.) It is necessary to restrict Littleton's words, which are general, to lay tenure ; for franlxalmoigne 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 abolition in the year 1660 (which took effect as from 1645) by the statute 12 Car. 2, c. 24, the following species : — 1. Grand Serjeanty. (Litt. sects. 153 — 158, and Lord Coke's Digitized by Microsoft® TENURE BY THE COMMON LAW. comment.) This tenure could be of none but the king. (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 special service of the king ; and they were services to be performed by the tenant himself in person, such as, " to carry the banner " of the king, or his lance, or to lead his army, or to be " his marshall, or to carry his sword before him at his " coronation, or to be his sewer at his coronation, or his " carver, or his butler, or to be one of his chamberlaines " of the receipt of his exchequer, or to do other like " services." (Litt. sect. 153. See also Lord Coke's comment thereon ; and 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. '69.) It will be observed that the services might be either of a useful kind, or merely ornamental. On the performance of the service by deputy, when the tenant was unable to perform it in person, see Lord Coke's comment on Litt. sect. 167. Language has been some- times 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 tliis, 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 converted into free and common socage, retaining nevertheless its honorary incidents. 2. Homage Ancestral, on which some remarks will be made shortly. ( Vide infra, p. 13.) 3. Knight-service, commonly so called, of which escuage, cornage, castle-guard, &c., were incidental 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 yfhich fixity in the extent of the services laufuHy demandable is the most salient characteristic. (Co. Litt. 87 a.) But Digitized by Microsoft® 10 ON TENURE. when the term is used without any specific addition, it refers to knight-service. It is unnecessary for the present purpose to make any particular mention of the burdensome incidents of knight- service, which were abolished, together vnth that tenure, by the statute 12 Car. 2, c. 24. Tenure in QJ'^ Tenure in socage, also styled free and common socage, comprises : — 1. Petite Serjeant-!/. (Litt. sects. 159, 160.) This tenure also can be of none but the king. {Ibid. sect. 161.) Sundry incidents of this tenure have been abolished by the statute 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. The services appertaining to petite serjeanty were not to be performed by the tenant in person, but consisted in furnishing for the King's use some small article re- lating to war ; "as a bow, a sword, a dagger, a knife, a launce, a pair of gantlets of iron, or shafts, and such like." {Ibid.) 2. Homage Ancestral in Socage. (See Litt. sect. 152.) This tenure may be said to have been converted into mere fealty ancestral by the abolition 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 Resto- ration. 3. Peculiar sjxcies 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 custom to devise by will lands so held, before the first Statute of Wills, 32 Hen. 8, c. 1 ; also Oavelldnd, when the 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 Digitized by Microsoft® TENUKE BY THE COMMON LAW. 11 socage or other tenures, by their connection with peculiar customs of inheritance, is of doubtful propriety ; because an alteration in the tenure does not effect any alteration in the associated custom. ( Vide infra, p. 14.) This fact is expressed by saying, that the custom inheres in the land and is not associated with the tenure. There can therefore be little propriety in regarding the custom as a differentia for the purpose of distinguishing between species of tenure. 4. Common Socage, so styled generally, in the absence of any special characteristic. (Ill) Frankalmoigne is a species of tenure to which the Tenure in following conditions are necessary : — (1) that the tenant be an moigne. ecclesiastical corporation, whether aggregate or sole ; (2) that the grant be made by the words in liberam (or puram) eleemosinam, or the 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, which in an ordinary grant would not take a fee simple without the addition in the limitation of words of succession, would take a fee simple by the use of the word frankalmoigne without words of succession. (Co. Litt. 9 b ; iUd. 94 b.) Fealty was not due to the lord. (Litt. sect. 135.) 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 {Ibid. sect. 139), fealty became due, and the tenure was con- verted into socage, even though the new tenant were an eccle- siastical person, for the tenure of frankalmoigne could only subsist between donor and donee. (Litt. sect. 141 ; 2 Inst. 602.) No definite or specified services could be reserved to the lord * Mad. Form. Angl. p. 240, No. 398, gives a charter ascribed to about the year 1135, where the form ia in perpetuam ekmos'mmn, which is his usual spelling of the last word. No. 400 has only in elemosinam. Afterwards the forms, in puram ct perpehiam elemosinam^ in liberam et perpetuam elemosinam, and even (No. 420) in puram el libera?n ac perpetuam elemosinam, are found. Sometimes the expression used is not with the preposition, but the word elemosina is put in apposition to the subject of the gift itself. In No. 402 the gift is styled, elemosinam istam et concessionem. In No. 403 it is styled, elemosinam meam et oblationem. In No. 408 it is styled, sicuti puram elemosinam liberam et perpetuam. Digitized by Microsoft® 12 ON TENURE. on a gift in frankalmoigne, but a general obligation 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 Bii'ine 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 reservation 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. [lUd.) Estates in D'anlanarriage (sometimes vaguely coupled with frankal- riage. moignc, and sometimes erroneously styled a 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 mar- riage and of a near blood relationship between the donor and one of the parties to the marriage ; which estate has some peculiar characteristics distinguishing it from an estate in special tail not limited upon those particular considerations. (See Co. Litt. 21 b.) Land may be given in frankmarriage 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 confer such an estate in special tail without the word heirs. The fact that old precedents of deeds, or charters, relating to feoffments pur- porting to be made in frankmarriage, often contain words of express limitation, may be explained, without supposing that the persons who made the deeds had any doubt as to the suffi- ciency of the word frankmarriage alone.* Their motive may have been, to avoid the necessity for actual proof of the relation- * The examples of charters of gift in frankmarriage to be found in Madox, Formulare Anglkanum, are only three, No. 145, p. 79, No.l46, p. 80, and No. 148, p. 81 ; and they all contain words of express limitation. In the first, the limi- tation is in special tail, illi et haredibus qui de predict^ filid med exihunt. In the other two, the limitation is in the form of a fee simple, sibi (or illi) et hare- dibus suis. The expressions in maritagio, in libcrum maritagium, and in libera mariiagio, are used in the three forms respectively. Digitized by Microsoft® TENURE BY THE COMMON LAW. 13 ship 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 which have caused them to be distinguished as fees tail or estates tail, the estate created by a gift in frankmarriage was a conditional fee. (1 Bro. Abr. 359 b, pi. 8=Franke marriage, &o., pi. 8.) Homage and Fealty were not themselves tenures, but incidents Homage and of tenure. Homage was due only in respect of estates of inherit- ance (Litt. sect. 90) ; and was almost confined to tenure in chivalry, though it was sometimes fouad 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 copy- hold and customary tenm'e, 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 wiU ; that is, a tenancy at will other than the customary tenancy upon which copyhold tenure depended. But (as has above been remarked) fealty was not due in respect of lands held in frankalmoigne. It sometimes Tenure ty happened that homage, or fealty, was the sole obligation which ancestral. 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 ; Go. Litt. 102 b.) This tenure tends by its nature rapidly to become extinguished ; since it generally requires for its validity a double prescription, one on the side of the lord and the other on the side of the tenant ; and Lord Coke doubted whether any examples of it were still in being at his day. (Co. Litt. 100 b.) It is some- times mentioned as though it had been a special tenure; but may more properly be regarded as knight- service (in some rare cases, socage) which had never been subject to any other services, or perhaps, in some cases, had practically lost the liability to such services by long disuse. Tenm-e in frankalmoigne (as has above been remarked) might be converted into socage, with no service incident to it except fealty, either by alienation of ^ the lands or by escheat of the seignory. Digitized by Microsoft® 14 ON TENURE. Homage now Homage was aLolislied by 12 Car. 2, c. 24. But fealty remains but fealty due, if demanded ; though long neglect would, in many cases, remains. make the title, where it exists in 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 copyholds, where the lord's right to fealty is generally indisputable, it is usual expressly to respite the tenant's fealty. But by the custom of some manors, the copyholders are not bound to do fealty. (Litt. sect. 84.) Ongavelkind Gavelkind (in its usual sense) and horouqh-english are not and borough- ^ ' . english. tenures, but customary modes of descent affecting lands in particular places, by virtue of which the inheritance of them descends differently from the course of descent prescribed by the common law, although the tenure is socage, and the words of limitation used to create the estate are those used to create common law fees. The word gavelkind is used, or confused, in three different senses : — (1) To denote the tenure, which is a species of socage having certain peculiar customs connected with it ; (2) to denote the several particulars which together make up the custom of Kent ; and (3) to denote only the custom of equal partition among males upon a descent. (Rob. Gav. 9.) Customs of But it is conceived that the word is not properly used to denote not depend the tenure ; for the custom " runs with the land and not with teC-e.''^ the tenure " {Ihid. p. 80 ; and see pp. 87, 90) ; and the descent of copyholds subject to the custom is not altered by enfranchise- ment. [Ibid. 92.) It was the better opinion that a fine (improperly) levied at common law of gavelkind lands in ancient demesne, did not alter the course of descent, though remaining unreversed. (Dy. 72 b, pi. 4.) Some later writers seem to use the word gavelkind, in conjunction with the word tenure, to denote the custom — a highly inappropriate com- bination. In relation to borough-english, the name of the tenure is burgage tenure. The custom of borough-english, however, is not confined to boroughs, but may exist in manors. (See Roe v. Briggs, 16 East, 406.) GavelMnd. Gavelkind is found as a custom most commonly, but not exclu- sively, in Kent. (Litt. sect. 210, and Lord Coke's comment.) In. Digitized by Microsoft® TENURE BY THE COMMON LAW. 15 that county, though the extent of the custom has been curtailed by 31 Hen. 8, c. 3, and other private Acts passed for the dis- gavelling of particular lands, all lands are still presumed to be gavelkind tmtil the contrary is shown. (Eob. Grav. 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 included ia a specified Act. It seems that the word gavelkind is not properly used of Properly lands affected by the custom outside Kent, such extended usage the custom of of the word having been introduced only by the disgavelling "*• Acts of Hen. 8. (Rob. Grav. 8, note.) The custom of Kent must, at all events, from its importance, be regarded as the normal standard of gavelkind, and all variations from it as being separate and peculiar customs. By this custom, the How it affects descent is among all the sons equally, and, in default of sons, to all the daughters equally, and, in default of children, to all the brothers equally ; the issue of a deceased son, daughter, 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 respect to some other How it other- things besides descent ; namely, dower, curtesy, alienation by lands, infants, and escheat, together with other less important points, some of which are now obsolete ; and the effect of the disgavelling Acts above refen-ed to is confined to descent alone, so that the custom still applies in all other respects. (Rob. Grav. 96.) The peculiar advantage of immunity from escheat upon attainder of felony, which was formerly possessed by gavelkind lands under the custom of Kent, 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 connection with Borough- , . , , , engliflh. lands held by burgage tenure withm certam ancient boroughs (Litt. sect. 165) ; which species of socage does not seem to be affected by 12 Car. 2, e. 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 modi- Digitized by Microsoft® ^6 ON TENURE. fications of the custom, including its extension to females, and also to collateral descents, are also found. The custom also ohtains in certain manors. (Eoh. Gav. 391, 393.) Peculiar customs of descent, for the reasons which are stated at p. 203, infra, are much more commonly found in connection with copyholds than with freehold lands. Such customs are not extended to collateral descents, merely on proof of the custom with regard to direct descents ; but it is necessary to prove that, in the particular manor, the custom extends to the particular kind of collateral descent under which the claimant prefers his claim. {Re Smart, Smart y. Smart, 18 Ch. D. 165.) Other peculiar Other customs affecting the descent of lands, resembling those descent in above mentioned, are found in considerable variety scattered about the kingdom. It is said, for example, that in the borough of "Wareham in Dorsetshire, and in Taunton Dean in Somerset- shire, 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 in- heritable as lands at the common law. (Ibid.) These customs appear to refer to freehold lands. Lord Coke also mentions " the mannor of B. in the county of Berks," in which, if there be no son, and more than one daughter, the eldest daughter inherits, to the exclusion of her sisters.* (Co. Litt. 140 b.) The tenure of freehold lands within such boroughs and manors may be socage. * Lord Coke's testimony as to the eldest daughter is clear. He then continues ■ — " and if he [the deceased tenant] have no daughters, but sisters, the eldest sister by the custome shall inherit, 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 ; where a presentment, dated the 19th of October, 1770, and entered upon the Court Rolls of this manor, is printed ; which states the custom of descent in similar terms to those used by Lord Coke. The language of the presentment is somewhat vague, but it seems to refer to freeholds. For a curious customary descent of copyholds within the manor of Sedgley in the county of Stafford, see Bickley v. Bickley, L. R. 4 Eq. 216. In this case the word descent was held to signify a link in the pedigree, without reference to the question, whether it had, or had not, been the cause of an actual devolution by heirship. Digitized by Microsoft® TENURE BY THE COMMON LAW. 17 regarded 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 modifications 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 either denomination. Cus- How far such toms like these, including the custom to devise lands before the good, passing of the Statutes of Wills, which are in derogation from the common law, may be alleged to exist in counties, honours, cities, boroughs, hundreds, and manors, but not in less im- portant places, such as hamlets, and towns other than boroughs. (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 repairing a church, or for the well- ordering of common lands. {Ibid.) The restriction upon the legality of local customs is founded upon the consideration that, if every trifling locality were indulged in the use of special customs, the common law, which is only the general custom of the realm (Co. Litt. 115b), would practically cease to exist. For an example of a custom (besides the custom of Kent) peculiar to a county, see the custom of the county of Gloucester, referred to in the statute DePrcerogativa Regis, cited infra, p. 35.* * In the Year Book, 14 Hen. 4, fo. 5, B., cnstoms peculiar to several counties are mentioned : — (1) In the countj of Cornwall, que chescun purchasor doit payer relief ; which seems to mean, that every purchaser of lands paid a fine to the Duke, under the name of a relief, upon taking possession. (2) In the county of Chester, the Prince Palatine had a fine for every alienation ; which also was probahly paid by the purchaser. (3) The same custom obtained in the county of Durham, in favour of the bishop. These statements occur in the case of Mayne v. Cross, ibid. fo. 2, in which the custom of the Honour of Gloucester ia expressly laid down, that a fine is payable to the lord on the alienation of a freehold. S. C. sub nom. Maynard v. Cors, 20 Vin. Abr. 241=Tenure (B, a), pi. 12 ; cited, Damerell v. Frotheroe, 16 L. J. Q. B. 170, in which case a heriot due upon the death of the tenant of freehold lands held of the manor of South Tawton, otherwise Itton, in the county of Devon, was recovered. These fines are probably the ' ' fines for alienation due by particular customs of particular manors and places," referred to in the statute 12 Car. 2, c. 24, s. 6. But see 7 Vin. Abr. 190, pi. 8=Cu3tom3, I, pi. 8. C.R.P. Digitized by Microsoft® 18 ON TENURE. CHAPTER II. THE STATUTE OF QUIA EMPTORES. Effects of By the common law, ever since the time when it assumed the alienation . upon the form 01 a tolerably uniform and settled scheme, lands held in eu a po y. ^^^ simple could be alienated, and upon alienation a tenure could, if the parties chose, he created between the feoffor and feoilee. (2 Inst. 65.) 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 nest following paragraph, it is evident from the complaints made by the superior lords, that the practice of creating 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, marriages and wardships of lands and tenements belonging to their fees." The explana- tion t of the lord's complaint is possibly as follows : — Though * Various strange things are cited by Lord Coke out of what he calls the " ancient law of England." See, for example, the restrictions on alienation cited out of Glanvile, in 6 Eep. at p. 17 d. Also the notion that leases might not he granted for a longer term than forty years. (Co. Litt. 45 b, ad Jin., referred to, p. 54, infra.) These things probably had a historical basis. (Reeve, 1 Hist. Eng. Law, pp. 42, 43.) But they stand out of all relation, not only to the modem law, but to the foundations upon which the modern law rests. t Blackatone says that the wardships, &o. feU 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. Digitized by Microsoft® THE STATUTE Of QUIA EMPTORES. 19 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 Grloucester and Westminster 2, might recover the lands hy writ of cessavit, yet he would lose the benefit of escheats, marriages, and wardships, if his own tenant, having infeoffed a sub-tenant, should simply disappear, so that the happening of the occasions upon which those 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 wardship of a person entitled to nothing but a bare seignory. Notwithstanding the lord's right at common law to distrain Eemedy at- for the services, the, latest version* of Magna Carta, 9 Hen. 3, Magna Carta. 0. 32, provided an additional protection for him, by forbidding the tenant to alienate more than would leave enough to answer the services. This enactment 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 but could not be sold, was very imperfect. The mischief specified Quia Emptores. in the preamble to Quia Emjptores, since it sprang rather from the method of sub-infeudation than from the mere passing of the lands into the hands of a new tenant, was appropriately met by removing all restraint from alienation, and at the same time absolutely forbidding the practice of sub-infeudation. The statute (cap. 1) enacts, " That from henceforth it shall be lawful to every free man to sell at his own pleasure his lands and tenements, or part of them, so that the feoffee shall hold the same lands or tenements of the chief lord of the same fee by such service and customs as his feoffor held before." Here the word customs means the same as services. (2 Inst. 502.) The statute (cap. 2) provides for apportionment of the services Apportion- on aliejiation of a part only of the lands. But this applies only ™r^oes on to services which are in their nature divisible. Of services alienation. * Confirmed by charter of Inspeximus ty Edw. 1, in the 25th year of his reign ; and therefore printed iinder 25 Edw. 1 in Stat. Eev. at Vol. I., p. 84. c2 Digitized by Microsoft® 20 ON TENUKE. which do not admit of apportionment, some are due, after alienation, from each tenant ; some are due from one only ; and some are, and some are not, extinguished on the purchase of a portion of the land by the lord. {Bruerton's Case, 6 Eep. 1 ; Talbot's Case, 8 Eep. 104.) The apportionment is to be made according to the value {pro particula secundum quantitatem valor is), and not according to the quantity of the land. (2 Inst. 503, 604.) The statute (cap. 3) extends only to lands held in fee simple. The statute does not tind the crown. This statute did not exempt the tenants of the crown in capite from the necessity of procuring the king's licence to alienate, because the king's rights, he not being specially named, are not affected by the statute. (Co. Litt. 43 b.) Therefore, (1) if the tenant in capite aliened without licence, the crown could distrain for a fine upon the land (Fitzh. N. B. 175 A) ; and, (2) upon such unlicensed alienation, the services were not apportioned, but the crown could distrain upon any of the tenants for the whole services. {Ibid. 235 A.) The king's right to the fine seems to have been derived from Mag. Cart. cap. 32. (Co. Litt. 43 b.) But it seems to bind the tenants in capite. Blackstone seems to have thought that the statute did not extend to the tenants of the crown in capite, in the sense that they might subsequently create de novo a tenure in fee simple to be holden of themselves. (2 Bl. Com. 91.) But it is perhaps uncertain whether he adverted to the distinction between the different senses which the words " extend to " may bear. The statute has two aspects, one in so far as it enables the tenant to alienate, the other in so far as it disables him from creating de novo a tenure in fee simple to be held of himself. The statute did not enable the tenants in capite to alienate as against the crown ; and in this sense it may be said that the statute did not " extend to " the tenants in capite, though it would be more strictly correct to say, that the statute did not extend to the crown. This proposition is, in fact, the import of the passages cited in the last preceding paragraph from Fitzherbert. But it does not follow that the statute did not extend to the tenants in capite, meaning thereby that it failed to restrain them from Digitized by Microsoft® THE STATUTE OF QUIA EMPTORES. 21 creating de now a tenure in fee simple. The question seems to be at this day of no practical importance ; for Blackstone held that in any case the effect of the statutes 17 Edw. 2,* De Prce- rogativa Regis, c. 6, and 34 Edw. 3, c. 15, is to invaKdate all suh-infeudations by the tenants in oapite of later date than the commencement of the reign of Edward I. The inference may, perhaps, be too hasty, that " all manors How far existing at this day must have existed as early as King Edward seated sSj^" the first." (2 Bl. Com. 92.) Charters have been granted by the ^'^^ statute. crown, and confirmed by parliament, empowering subjects to create manors since that date ; of which an example is to be found in the case of Delacherois v. Delacherois, 11 H. L. C. 62. In that case the land to which the charter had reference was in Ireland, and the confirmation was of course by the Irish parlia- ment. There can be no doubt that, if aided by the confirma- tion of the English or British parliament, a charter authorizing the creation de novo of manors in England would be valid. Nor is it at all clear, that such confirmation is necessary. Lord Coke expressly afl^ms, that the statute may be dispensed with, by consent of the crown and all the mesne lords. (Co. Litt. 98 b ; 2 Inst. 501.t) The practical result of the partial restraint upon alienation AKenation, imposed by Mag. Cart. cap. 32, was, that lords exacted a fine free by the upon alienation as the price of their consent, without which ^'^*^*^- their tenants could not make a safe title. The right to such fines was abolished, so far as the tenants of common persons are concerned, by the statute of Quia Emptores. But, as above mentioned, the tenants of the crown in capite acquired by the statute of Quia Emptores no rights as against the crown ; and therefore fines upon alienation continued to be due from the tenants in capite, until expressly abolished by 12 Car. 2, c. 24. * This statute is of uncertaiii date. (1 Stat. Kev. 131.) The passage referred to by Blackstone is not printed in Stat. Rev. It seems to be cap. 7, as given in Eaithby, ed. by Tomlins, 1811, Vol. 1, p. 374. The 34 Edw. 3, c. 15, is printed, 1 Stat. Eev. 204. t See also Bro. Abr. Tenures, pi. 2. " Car ceo [statute] fmjtfait in advantage de eux, et idea Us poient dispenser ove ceo." Also Fitzh. N. B. 211, 1 ; where th? same reason is given. Digitized by Microsoft® 22 ON TENURE. One effect of the introduction of common recoveries into general practice, was, that the king's tenants in capite acquired power to alienate their lands, under pretence of a paramount title in the demandant, without compounding with the crown for fines on alienation. The statute 32 Hen. 8, c. 1, s. 15, accordingly enacted, that fines for alienation should be paid upon obtaining writs of entry for suffering common recoveries. (Cruise, 2 Fines & Eec. 17.) Effect of the statute. It is the general effect of the statute of Quia Emptores, so often as a mesne tenure for a fee simple is extinguished by imion of the land and the lordship in the same hands, to pre- vent the mesne tenure from being ever again revived by any act of the parties. Thus, by the gradual extinction of the mesne tenures, the seignory of all freehold lands held for a fee simple tends to become concentrated in the crown. A tenure can etiU be created, accompanied by a reversion. A tenure can still be created between donor and donee of lands to be held in tail, or for any less estate of freehold. On a gift in tail, the reversion in fee remaining in ilie donor, the tenure is necessarily between donor and donee, and cannot, even by express tenendum, be created between the donee and the superior lord of the donor. But if on a settlement the whole fee passes out of the settlor, the tenure, even as regards particular estates carved out of the fee, is executed by the statute in the superior lord. (2 Inst. 505. See also Litt. sect. 215 ; Perk. sect. 637. To this effect also is the decision in Dy. 362 b, pi. 19.) Digitized by Microsoft® ( 23 ) OHAPTEE III. THE STATUTE 12 CAR. 2, C. 24. -^) This loosely-drawn statute, like the Statute of Frauds, is plausibly ascribed to Lord Hale — a report which Hargrave would willingly discredit. (Harg. n. 1 on Co. Litt. 108 a.) Its language is marked by an iteration, always inept and some- times perversely maladroit, which is a surprising feature of such authorship. By it (1) the Court of "Wards and Liveries is Burdensome abolished, and the burdensome incidents of knight-service and tenurTin° of socage in capite, including fines for alienations, are dis- 9^i"i'aks' and charged as from 24th February, 1645, since which date the abolished. Court of Wards and Liveries had ceased to hold sittings ; (2) all tenures, whether of the king or of any person or corporation, are turned into free and common socage as from the same day ; (3) all conveyances and devises of any hereditaments made since the same day are to be expounded as if the same hereditaments had been then held in free and common socage ; (4) certain statutes passed for the establishment and regulation of the abolished court are repealed ; (6) all tenures thenceforward to be created are to be and to be adjudged free and common socage only. (Sects. 1 — 4.) The savings out of the Act require more particular mention. Savings. 1. The Act does not take away rents certain, heriots or suits of court belonging or incident to any former tenure now taken away or altered by virtue of this Act, or other services incident to tenure in common socage, or the fealty and distresses incident thereunto. (Sect. 5.) 2. The Act does not take away fines for alienation due by particular customs of particular manors and places, other than fines for alienation of lands or tenements holden immediately of the king in capite. (Sect. 6.) Digitized by Microsoft® 24 ON TENURE. 3. The Act does not take away tenures in frankalmoigne, or subject them to any greater or other services than they then were subject to ; nor does it alter or change any tenure by copy of court-roll or any services incident thereunto ; nor does it take away the honorary services of grand serjeanty. (Sect. 7.) But there is no saving of the last-mentioned tenure. 4. Nothing in the Act is to infringe or hurt any title of honour, feudal or other, by which any person hath or may have right to sit in the Lords' House of Parliament, as to his or their title of honour or sitting in parliament, and the privilege belonging to them as peers. (Sect. 10.) Effect of the By the conversion of all lay frank-tenements into socage statute on the . « n right to tenements, it followed that every freehold tenant acquired the ^^'^^' right to devise all lands held by him for a fee simple, which right had been given by the Statutes of Wills, 32 Hen. 8, c. 1, and 34 & 35 Hen. 8, c. 6, only partially to tenants by knight- service, but completely to tenants in socage. It seems clear that, since the passing of this statute, no lay frank-tenure other than socage can be created, even by the crown, without the assent and confirmation of parliament. Digitized by Microsoft® ( 25 ) CHAPTER IV. TENURE BY CUSTOM OF THE MANOR (cOPYHOLD TENURE). Customary tenure may be said to exist by virtue of the common Origin of law, in a sense which is applicable to all matters which the com- tenure! mon law does not forbid to exist ; * but this merely permissive ense is evidently opposed to the active sense in which common law tenure is said to exist by virtue of the common law. The analogous active cause of the existence of customary tenure is local custom ; and particularly those local customs which regu- lated the terms upon which villein tenants were permitted to hold land. Thus Littleton says, that " tenure in villenage is most properly, when a villeine holdeth of his lord, to whom he is a villeine, certaine lands or tenements according to the custome of the mannor, or otherwise, at the will of his lord, and to doe to his lord villeine service." (Litt. sect. 172.) It does, indeed, also appear from Littleton's language, that lands not parcel of any manor belonging to the lord of whom they were held, might be held in something called villenage ; and by a tenant who was not the lord's viUein, or not a villein at all, but a free man. But for all practical purposes copyhold tenure not only does now, but probably always did, exhaust the whole extent of villein tenure or tenure in villenage ; and originally the villein tenants throughout the kingdom were probably conterminous with the villeins by status, t Villein tenure, if it was ever accepted by * " Wtatever is not by statute, nor against law, may be said to be at the oommon law." Bacon, Uses, 22. t It is a remarkable circumstance, whicb seems to have passed 'without remark, that in his commentary on Litt. sect. 73, Lord Coke cites the words " certaine tenements,''^ as though they were the words of Littleton. Littleton's words, as translated by Lord Coke, are, "certaine tenants." What follows shows plainly that the substitution was not due to a clerical error. Littleton connects the tenure with status. To Lord Coke this idea was so unfamiliar, that he unconsciously substitutes a phrase which connects it with the particular Digitized by Microsoft® 26 ON TENURE. free men of lands not parcel of the manor, would diSer from villein tenure by custom of the manor in two important respects : (1) that the grant was not made or evidenced by copy of court roU ; (2) that there existed no custom to prevent the lord from asserting his right at common law to eject the tenant, who was only his tenant at wiU, whenever he would. So far as such a relation between lord and tenant ever existed, it could have been nothing more than a contract for hiring, determinable at the will of either party (the tenant by hypothesis not being the villein of the lord) which can be termed a tenure only by vague analogy to the true villein tenure by custom of the manor, with which it shared two prominent characteristics : — (1) that the estate, or interest, to which it related was only a tenancy at will ; and (2) that the services due in respect thereof were of a kind conventionally reputed to be below the dignity of a free man. But from early times it has been no unknown thing for free men to accept a tenancy of copyholds ; and no notion of villein status has for several centuries been attached to this tenure. Its character- Copyhold tenure is distinguished by the following charac- istics. teristics : — 1. The estates to which it relates are legal estates, i.e., the custom of the manor is, and for centuries has been, recognized by the courts, even of law, as conferring a right, though the tenure is not by the common law, and the estate is not freehold. The recognition of the fixity of the tenure may be traced very high in the history of England. (See Litt. sect. 77, and Lord Coke's com- ment ; Eeeves, 3 Hist. Eng. Law, 312, 313.) 2. The quantum and mode of devolution of the tenant's estate are governed by the custom of the particular manor of which the lands are parcel ; but generally the custom follows the common law ; so that (1) the utmost quantuyn lands habitually demised by the custom ; and he proceeds, accordingly, to discuss what things are so demiseable. This fact, perhaps, points to a change in the way of viewing this kind of tenure. Originally, copyholds may have been any lands held by the villeins ; and afterwards the characteristics of the tenure became attached to the particular lands which were usually so held. Digitized by Microsoft® TENURE HY CUSTOM OF THE MANOR ((;OPYHOLD TENURE). 27 of the estate is generally equal in quantum to a fee simple, and it admits, to the same extent as a fee simple, of being cut up into particular estates followed by re- mainders ; and (2) the customary heir is generally iden- tical with the heir-at-law. * In spite of the diiEoulty, or impossibility, of seeing how, when the law presumes every custom to have been in existence at the beginning of the reign of Richard I., a custom to intail copyholds Entails of can have sprung up since the statute De DoniSjf it is settled law that a custom to intail copyholds may exist and is a good custom. Entails of copyholds of manors in which there is no custom to intail, give rise to cus- tomary conditional fees, which are analogous to condi- tional fees at common law. . The legal estate is acquired by admittance; the title to admittance being acquired by surrender according to the custom (generally into the lord's hands) to the use of the surrenderee. But an admittance made upon and subsequently to a valid surrender, relates back to the timB of the surrender, and displaces all estates created or attempted to be created by the surrenderor subsequently to the surrender. {Benson v. Scott, 4 Mod. 251, Garth. 275, 3 Lev. 385.) . Copyholds held for a customary fee simple, escheat to the lord on a failure of heirs of the tenant, in a manner analogous to the escheat of common law lands. And curtesy and dower are commonly allowed by the custom to the surviving husband and wife respectively ; but frequently with a variation from the common law custom as regards the quantity of land assigned and the condi- tions on which it is held. Dower out of customary inheritances is usually styled free-bench. If copyholds come to the lord's hands by forfeiture or escheat, he may keep them in hand for any length of * " A copyhold shall descend according to the common rules of the law, unless particular custom alter and order it otherwise." P^r Eyres, J., in King v. DilUstm, 1 Show. K. B. 83, at p. 84. t See the argument of Sir Roger Manwood, in Seydon's Case, 3 Rep. 7, at p. 8 b, referred to iu the chapter on fees tail, infra, p. 272. Digitized by Microsoft® 28 ON TENURB. time without prejudice to his power of granting them hy copy. (Co. Litt. 68 b.) But if he should once grant them by any other kind of assurance, the copyhold tenure is for ever destroyed and incapable of being restored. {French's Case, 4 Eep. 31.) This is usually expressed by saying that the " demiseable quality " of the lands is destroyed. But such a grant, if made by a lord having a less estate than a fee simple, is not an absolute destruction of the demiseable quality ; but only suspends the demiseable quality during the time of the lord's ownership. (1 Scriv. Cop. 15, 16.) As we have seen, this tenure and all services incident thereto are expressly saved by the 12 Car. 2, c. 24. Digitized by Microsoft® ( 29 ) CHAPTER V. COPYHOLD TENURE BY THE CUSTOM OF ANCIENT DEMESNE (CUSTOMAEY FREEHOLDS) . In some manors, chiefly, though it seems not exolusiyely, those Origin of the of ancient demesne {de antiquo dominico), copyhold tenure is found under a peculiar form : some of the tenants holding only by copy of the court-roll, and being expressed to hold by the custom of the manor, but not at the icill of the lord. The manors so styled are those mentioned in Domesday as being in the hands of Edward the Confessor, or William the Conqueror (2 Inst. 542 ; 4 Inst. 269) ; and they are reputed by the law to be ancient patrimonial possessions of the crown, which were properly kept in the king's own hands, to provide a revenue for maintaining the royal dignity, while other manors and honours, when by escheat or forfeiture they came to the crown, were usually after no long time granted out to a new tenant. The omission from these grants of the declaration, usual in grants of copyholds, that their tenancy is at the will of the lord, gives to the customary inheritances arising under such grants an air of greater dignity, though not of greater security, than is pos- sessed by ordinary copyholds. The lands are usually styled customary freeholds, and the interest of the tenant is often styled tenant right. Lord Coke seems to have thought that they were The tenure is actually freeholds. (Co. Cop. sect. 32= Co. Law Tr. p. 58 ; copyhold, and see also Co. Litt. 49 a ; ibid. 59 b ; 5 Eep. 84 b.) Of course, in a place like England, which affords an endless variety of circumstances relating to the tenancy of lands, cases occur of a doubtful complexion ; in which it is impossible to predict with certainty the decision at which the courts would arrive. Eor example, it cannot be laid down as being free from doubt, that the mere fact of the tenants being accustomed to accept admittance, would, in the absence of holding by copy of Digitized by Microsoft® 30 ON TENURE. court-roll according to the custom of the manor, suffice to prove the tenure to be copyhold. But where the three things are found together, (1) holding by copy, (2) according to the custom, and (3) admittance by the lord, the lands so held appear to share with ordinary copyholds all the most essential characteristics of copyhold tenure. As previously shown, no land in England, not being in the king's hands, can be without a common law tenant of the free- hold. It is almost superfluous to say that, in the case of ordinary copyholds, the common law tenant is the lord, and the common law seisin is in him. (See Litt. sect. 81 ; the second resolution in Keen v. Kirly, 1 Mod. 199 ; also Lovell v. Lovell, 3 Atk. 11, And tte at p. 12.) Besides Lord Coke, several of the older writers have seisin is in doubted, or denied, the application of the same doctrine to the lord. customary freeholds. (See Kitchin, Jurisdictions, 5th ed. p. 161 ; 2 Yent. 144 ; Garth. 432 ; Ambl. 301 ; 1 Atk. 474 ; HugM v. Harrys, Cro. Oar. 229 ; Crowther v. Oldfield, Ld, Eaym. 1225, Salk. 364, Holt, 146.) But it seems now to be settled beyond doubt, that, in cases where the tenancy is by copy of the court- roll, and is expressed to be according to the custom of the manor, and admittance is required in order to complete the title to the legal estate, these so-called customary freeholds are essen- tially copyholds, and that of them the seisin is in the lord. It then follows, as in the case of other copyholds, that, unless a special custom can be proved in favour of the tenant, the timber and minerals belong to the lord. The observation of Lord Coke, which occurs in the passage above cited from the Compleat Copyholder, that " these kind of copyholders have the frank-tenure in them, and it is not in their lords, as in case of copyholds in base-tenure," is explained by Blaokstone (somewhat disingenuously, for there can be no reasonable doubt that Lord Coke meant simply what he said, and would have repudiated Blackstone's explanation) as refer- ring to the interest of the tenant in the land, and not to the tenure. (1 Bl. Law Tracts, 146= 3rd ed. 228.) He adds the following arguments, urged with much force and ingenuity, to show that the tenure is essentially copyhold : — (a) That the modes of alienation in use with regard to these lands are inap- propriate to freeholds ; (b) that the tenants can only sue in the Digitized by Microsoft® BY CUSTOM OF ANCIENT DBMESNI! (CUSTOMARY FREEHOLDS). 31 court baron by writ of right close ; (c) that the lands are liable to forfeiture for causes and in a manner incompatible with free- hold tenure ; (d) that the tenants are not members of the county court, and were exempted from contributing towards the ex- penses of the knights of the shire ; and (e) that the tenure in question, since it undoubtedly continues to exist, must be one of the three following : free and common socage, frankalmoigne, or copyhold ; all others having been destroyed by the 12 Car. 2, c. 24 ; while the difficulty of supposing it to be either of the two first-mentioned tenures is obvious. (Ibid. 159=3rd ed. 236 ; and see on the subject generally, Stephenson v. Sill, 3 Burr. 1273 ; Burrell v. Bodd, 3 Bos. & P. 378 ; Doe v. Hunting- ton, 4 East, 271 ; Roe v. Vernon, 5 East, 51 ; Doe v. Danirrs, 7 East, 299 ; Droirii v. Rawlins, 7 East, 409.) The publication of Blackstone's tract was shortly followed by the passing of the statute 31 Geo. 2, c. 14, which gave practical effect to his conclusions, by enacting that no person holding by copy of court-roll should be entitled to vote at the election of knights of the shire. In a postscript added to the first collected edition of the Tracts, Blackstone refers to this circumstance vsith much complacency. The true criterion between copyhold and freehold perhaps lies in the necessity for admittance by the lord in order to gain the legal estate. {Thompson v. Hardinge, 1 C. B. 940 ; and the cases there cited. See also 11 H. L. C. at p. 83.) The cases above cited seem at least to establish the proposition above laid down, that the concurrence of tenancy by copy of court-roll according to the custom with the necessity for admittance, is suffi- cient to prove the tenure to be copyhold, and to saddle the lands in the tenant's hands with the usual incidents of copyhold tenure. The question is not without practical interest to the con- veyancer, because, if the customary freeholder's estate is not " freehold " within the meaniag of sect. 62 of the Conveyancing Act of 1881, he cannot create easements by way of use under that section. The Act contains nothing to make such lands freehold by statute, if they are not freehold by the common law. The manors forming the ancient demesnes of the crown Freehold occupy a position, relatively to the king and the kingdom, ancient demesne. Digitized by Microsoft® 32 ON TENURE. closely resembling the position of the demesne lands of an ordinary manor, relatively to the lord and his manor. As the former were the part of the kingdom usually kept, or presumed by the law to be usually kept, by the king in his own hands for the support (among other sources of revenue) of his royal state and dignity, so the demesnes of an ordinary manor were the part of the manor usually kept in the lord's own hands for his own support, in addition to the rents, heriots, and other profits derived from his freehold and copyhold tenants. The manors of ancient demesne of course, had freehold tenants, like other manors, as well as copyhold tenants. In the old books, the phrase " tenants in ancient demesne " usually refers to the genuine freehold tenants, and not to the " customary free- holders " who were essentially copyholders. The freeholders properly so called had several special privileges and immuni- ties, now obsolete ; as to which, see 4 Inst. cap. 68, p. 269. The most important of these privileges was the right to have all suits and actions relating to theil' lands of ancient demesne heard and determined in the Court Baron of their own manor, and not in the king's ordinary public courts of justice ; and accord- ingly, the plea of " ancient demesne " was a good plea in abate- ment to a writ sued out in the king's courts. (2 Inst. 543 ; 4 Inst. 269.) The privileges were retained by the tenants in full force and validity, even though the manor by the king's grant came to the hands of a subject. [Ibid.) If a fine was in fact, though improperly, levied, or a recovery suffered, in the Court of Common Pleas at Westminster, of lands in ancient demesne, the manorial court no longer had conusance of pleas relating to those lands, until the fine or recovery had been reversed by a writ of deceit. (4 Inst. 270.) Digitized by Microsoft® ( 33 ) CHAPTER VI. ESCHEAT. A FEE simple, the greatest estate known to the law, absolutely Is peculiar to exhausts the whole possible interest which anybody can have, by way of estate, in the lands, so as to leave no residue (nor even a mere possilility of reverter, such as may subsist at common law upon other fees) subsisting in anybody else, or susceptible of enlargement, or of a change from expectancy into possession, by the determination of the fee simple. The lord is the only person with whom the tenant, as such, has any connection ; and the only connection between them is the tenure. This link confers on the lord a peculiar right or title, said to be hy escheat, upon a failure (whether actual, or by construction of law) of the heirs of the tenant ; upon the happening of which event, he becomes entitled to the land as his escheat. The word escheat has long been restricted to denote this reverter of lands held for a fee simple to the next superior lord propter defectum tenentis. The fact that all tenures in fee simple created by private per- sons must be older than Quia Emptores,* and the general negli- gence in preserving evidence of freehold tenure, make the proof of the title in private persons difficult at the present day. In the absence of proof of title in any other claimant, the title is of course in the crown. Escheats were either by attainder or without attainder. (Co. Litt. 13 a; ibid. 92 b.) Escheats by attainder are often also styled forfeitures ; but the use of this appellation is inconvenient. * This is of course ■without prejudice to the opinion above expressed, that n tenure in fee simple to be held of the grantor may, with the assent of the cronn and all the mesne lords, lawfully be created at the present day. But in practice such cases do not occur. O.K. P. U Digitized by Microsoft® 34 ON TENURE. since it tends to confuse escheats properly so called with for- feitures properly so called, which latter were for high treason. Escheat by Escheat by attainder was a consequence of the corruption of blood caused by the attainder, which caused a constructive failure of heirs. These escheats are subdivided as follows : — (1) Quia suspensus est jser collimi, or by judgment of death (which took effect by attainder before and irrespective of the execution) for felony. The writ of escheat contained the words even when the sentence had not in fact been executed. (Fitzh. N. B. 144 H.) This cause of escheat was abolished by 33 & 34 Vict. c. 23, s. 1. It never applied to gavelkind lands subject to the custom of Kent.* The exemption was not restricted to cases where the heir was the son. (See Eob. Grav. 291.) Nor was it absolutely restricted to gavelkind lands in Kent, though it seenis to have been very rarely found elsewhere. The judgment required to cause escheat was a regular judg- ment at common law : judgment of death passed by martial law during a rebellion caused no escheat. (Co. Litt. 13 a.) (2) Quia ahjiiravit regnum ; this abjuration was a privilege allowed upon a claim of sanctuary, to escape conviction, which implied a confession of felony,! and had the same eilect, so far as escheat is concerned, as judgment upon conviction. (3 Inst. 217.) This kind of abjuration has long since been abolished. (4 Bl. Com. 333.) (3) Quia utlegatus est ; or by judgment of outlawry upon an indictment of (capital) felony, which had the same effect, in all respects, as judgment upon conviction. (3 Inst. * "For their custom is, 'The father to the bough, the son to the plough.^" (1 Doct. & Stu. ^. 10 ; Brook v. Ward, By. 310 b, pi. 81.) t Abjuration might be imposed by statute for something less than felony, as by Stat. Westm. 2, c. 35, for carrying off a ward in chivalry and procuring him or her to be married "within age, in prejudice of the rights of the lord as guardian, and failing to satisfy the lord in damages : for which offence, says the statute, ahjuret regnum vel haheat perpetuam prisonam ; which, says Lord Coke, did not give the defendant a right to elect, but gave the court a discretion to award either punishment ; and he continues, "albeit the party that is by judg- ment abjured return again, yet shall he not be hanged, because he was not abjured for felony, but he may be punished for his contempt, and remaunded." (2 Inst. 439.) Digitized by Microsoft® ESCHEAT. 35 212.) If the outlawry was reversed, the tenant might re-enter upon the escheated lands. Escheat as a conse- quence of outlawry seems not to be affected hy 33 & 34 Yict. 0. 23. The right of the lord on an escheat by attainder was subject Ann jour et to the crown's right to hold the lands for a year and a day, com- mitting waste ; or, according to some opinions, receiving the rents and profits for a year and a day, in lieu of a right at common law to enter and commit waste. (1 Com. Dig. 618 ; 22 Yin. Abr. 550= Tear, Day, and Waste; 2 Inst. 36; 3 Inst. Ill; 4 Bl. Com. 385, 386.) For many centuries the right, whatever it was, was always compounded for by the lord with the crown ; and its precise details are now immaterial. It appears by the statute Custom of Be Prcerogaiiva Regis, 17 Edw. 2, st. 1, c. 16, that by the custom of the county of Gloucester, the king had his year and day, but that there was no escheat to the lord, and the lands descended to the felon's heir upon the expiration of the year and day. By the custom of Kent there was neither the year and day nor, as above mentioned, any escheat upon attainder of felony ; but the custom was construed strictly, and did not apply either to abju- ration or outlawry. (Eob. Grav. 289, 290.) Escheats without attainder are : — (4) By death without leaving an heir : that is, when the heir Esoheat for cannot be discovered ; or when, on the death without of heirs' issue of a bastard (who can only have taken by purchase) the heir is known not to exist. If a tenant in fee simple dies without an heir, but leaving his wife enceinte, the lord may enter for an escheat ; but the subsequent birth of an heir will defeat the lord's claim. (Watk. Desc. 212.) The lord is entitled to the mesne profits. Since lands held for a fee simple have been deviseable, this right by escheat has been liable to be defeated by devise. The right by escheat arises only upon a failure of heirs. If No escheat a corporation holding lands in fee simple is dissolved, there is no tion'^of cor-"' escheat to the lord, but a reverter to the donor. (6 Yin. Abr. poiation. 219=. Corporation, pi. 6, 7; 10 ihid. IZ9 = Escheat, A. pi. 2, 3, d2 Digitized by Microsoft® 36 ON TENURE. 4 ; 16 ibid. 461 = Possibility, A. pi. 3 ; Co. Litt. 13 b. But see also Harg. n. 2 thereon.) The question is not at this day of much practical importance ; because the only dissolutions of corporations which frequently occur, are due to the winding up of joint stock companies formed under the Companies Acts, and in such cases the destination of their property is regulated by the Acts. The reader will also remember that, upon the dis- solution of the monasteries and clerical colleges in the reign of Henry YIII., their lands were vested in the crown by statute, where they had not previously been surrendered.* Trusts and Until 27th June, 1834, the date of the passing of 4 & 5 equities of redemption Will. 4, c. 23,t lands held upon trust or mortgage would have desSoyed ty escheated upon the attainder or death without heirs of a sole escheat of the trustee or mortgagee seised in fee 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 ; Peachy v. Bitl{e of Somerset, 1 Stra. 447, at p. 454.) This inconvenience was remedied by the last-mentioned 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. 30 of the Conveyancing Act of 1881, lands, of which a trustee is solely seised in fee simple, upon his death, notwithstanding any testamentary disposition, become vested in his personal representatives. Forfeiture for High Treason. Distinguished Escheat must not be confused with forfeiture to the crown for high treason. Of lands held for any common law fee, such forfeiture was by the common law (3 Inst. 18, 19) ; and in the * On the dissolution of the Order of Knights Templars, their lands were Tested in the Knights Hospitallers of St. John of Jerusalem by the statute, Be Terris Templariorum, 17 Edw. 2, st. 3. Upon this statute, see Boll. Rep. 167, 168 ; W. Jo. 191. The lands of the Hospitallers were vested in the crown by 32 Hen. 8, o. 24. t By 11 Geo. 4 & 1 "Will. 4, o. 60, s. 8, the Court of Chancery was em- powered to appoint a person to convey trust estates, if upon the death of a sole trustee his heir was not known. Digitized by Microsoft® ESCHEAT. 37 case of a conditional fee, after birtli of issue of the kind prescribed in the limitation, the forfeiture was absolute and barred the lord of his reverter. The forfeiture related back to the time when the offence had been committed. {Pimb's Case, Serj. Moore's Eep. 196.) Forfeitiire for high treason extended to gavelkind lands. (Eob. Gav. 293.) After the statute Be Bonis, by which conditional fees were ttirned 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, o. 13, s. 5, partly restored the rights possessed by the crown, before the statute Be Bonis, in respect of lands held for a conditional fee, after the birth of issue of the kind prescribed in the limitation. Thereby it was enacted that every offender lawfully convicted of high treason should forfeit to the king all lands, tenements and here- ditaments, 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 the statute, a base fee, which endured so long as any issue was in existence which might have inherited under the entail. For- feiture for high treason was restricted to the lifetime of the attainted traitor, by 54 Geo. 3, e. 146, and was altogether abolished by 33 & 34 Yiot. c. 23, s. 1. The Relation of Escheat to Incorporeal Hereditaments and Equitable Estates. An attempt has recently been made by the Intestates Estates Act, 1884, 47 & 48 Vict. c. 71, to extend the application of the rules of escheat to incorporeal hereditaments and equitable estates. Some remarks upon this enactment, which is expressed to refer only to persons dying intestate after 14th August, 1884, will be found below. Its meaning does not seem to be so clear as to render superfluous all statement of the previous law, to which the following remarks must be understood to refer. Hereditaments which may be held for a fee simple, but are Legal here- not strictly subjects of tenure, such as fairs, markets, commons which are not Digitized by Microsoft® 38 ON TENURE. subjects of ill gross, rents-charge, rents seek, and the like, by the common law do not escheat, but become extinct upon a failure of heirs of the tenant. (3 Inst. 21.) Equitable If a trustee were seised in fee simple upon trust for another ments. person in fee simple, who died intestate and without heirs, there was no escheat of the equitable estate, but the trustee held the lands to his own use. {Burgess v. Wheatc, 1 W. Bl. 123, 1 Eden, 177; Cox v. Parker, 22 Beav. 168 ; Johnstone v. Hamil- ton, 5 Giff. 30.) The rule was the same for copyholds as for freeholds. {Taylor v. Haygarth, 14 Sim. 8.) Also for realty created by statute, such as New River shares. {Datall v. Neio River Co. 3 De Gr. & Sm. 394.) In the case of copyholds, if the trustee had not been admitted, a court of equity would not interfere to compel the lord to admit him. ( Williams v. Lord Lonsdale, 3 Yes. 752.) But the trustee had a right to a manda- mus at law ; and there was no equity to interfere with his legal right. {Rex v. Coggan, 6 Bast, 431 ; Gallard v. Hawkins, 27 Oh. D. 298.) In Gallard v. Hawkins, the deceased cestui que trust was entitled only for life ; but the trusts subsequent 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 advan- tage of the resulting trust in his favour. Equities of And similarly, upon a failure of heirs of a mortgagor who emp ion. ^^^ parted with the fee simple by way of mortgage, the equity of redemption was extinguished in the legal estate for the bene- fit of the mortgagee; but subject to payment of the mortgagor's debts. {Beale v. Symonds, 16 Beav. 406.) The material sections of the Intestates Estates Act, 1884, 47 & 48 Yict. 0. 71, which received the royal assent on 14th August, 1884, are as follows : — 47 & 48 Vict. 4. From and after the passing of this Act, where a person dies without an heir and intestate in respect of any real * Now repealed, but substantially re-enacted by tbe Mortmain and Charitable Uses Act, 1888, 51 & 52 Viot. c. 42. See also 64 & 55 Vict. c. 73. c. 71, s. 4. Digitized by Microsoft® ESCHEAT. 39 estate consisting of any estate or interest whether legal or equitable in any incorporeal hereditament, or of any equitable estate or interest in any corporeal hereditament, 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. 7. Where any beneficial interest in the real estate of any 47 & 48 Vict, deceased person, whether the estate or interest of ' ' ' ' such deceased person therein was legal or equitable, is, owing to the failure of the objects of the devise, or other circumstances happening before or after the death of such person, in whole or in part not effectually disposed of, such person shall be deemed, for the purposes of this Act, to have died intestate in respect of such part of the said beneficial interest as is ineffectually disposed of. The intention of this enactment seems to have been two- Remarks fold : — (1) to provide, that upon the death of any person above-cited intestate and without leaving an heir, entitled to any ineorpo- ^iiactment. real hereditament or to any equitable estate of inheritance, such hereditament or estate shall escheat in the same manner as if it had been a legal estate in corporeal hereditaments ; and (2) to provide that upon the death of any such person without leaving an heir, not intestate, but having devised the hereditament or estate in question to trustees upon trusts which do not admit of being executed, there shall be the same operation of escheat as the fourth section has attempted to describe in the case of an intestacy. With regard to the first branch of this intention, the enact- ment is founded upon a very superficial view of the law of escheat, and a complete misapprehension of its relation to tenure. A corporeal hereditament, when it is the subject of escheat, escheats to the lord of whom it is holden. But in rela- tion to the incorporeal hereditaments and equitable estates contemplated by the enactment, there exists no such person ; and therefore the hereditaments or estates in question cannot escheat to him. The law of escheat, therefore, cannot " apply in the Digitized by Microsoft® 40 ON TENURE. same manner ; " and the question must arise, in what other manner, if any, it shall apply. In the case of incorporeal here- ditaments, 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. With regard to the second branch of the apparent intention of the enactment, the following remarks must be premised. It was held, in the case of Onslow v. Wallis, 1 Mao. & Gr. 506, that the trustees of a will, to whom an equitable 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 Vidll were incapable of being executed, and that the testator had left no heir. (Compare Sperling v. Rochfort, 16 Oh. D. 18.) In the recent case of Re Lashmar, Moody v. Penfolcl, [1891] 1 Ch. 258, the case of Omloic v. Wallis was distinguished, upon the ground that there, although the trusts failed, the trustee had duties to perform ; and it was held that a trustee, who had no duties to perform, could not demand a conveyance of the legal estate from the trustee in whom it happened to be vested. In that case, the intestate had died before the coming into operation of the Intestates Estates Act, 1884 ; and upon that ground the Treasury made no claim. From this it may be inferred that in like cases in the future, a claim will be made ; and such claims will probably be held good, upon the ground that the Act must be taken to have meant something, and that its only possible meaning is to vest a prima facie claim in the crown, unless such claim can be displaced by proof of tenure of a mesne lord ; which is of course impossible, seeing that there is no tenure at all of the things with which the Act is concerned. Digitized by Microsoft® ( 41 ) Paet II. ON ESTATES IN GENERAL. CHAPTEE VII. OF THE SUBJECTS IN WHICH ESTATES MAY SUBSIST. heredita- ments. The subjects in which estates may subsist are commonly sub- Division into divided into lands, tenements, and hereditaments ; which is a cross ments and division, of which the sub-classes are by no means mutually exclusive. Lands are treated as a separate class, by reason of their prominent importance and peculiar physical characteristics. Tenements require special mention, because they alone are in- tailable. Hereditaments is a convenient class-name for uniting together everything which may be the subject of estates of inheritance. Land includes whatever is parcel of the terrestrial globe, or Land, is permanently affixed to any such parcel. (Oo. 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 Oo. 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.* But it is to be observed that, by virtue of Lord Brougham's Act, 13 & 14 Vict. e. 21, * Even in a will, the word " lands " will not include an advowsou in gross. ( Westfaling v. Westfaling, 3 Atk. 460.) And it is doubtful whether the word wiU include a manor, when the testator has other lands, not parcel of the manor, which can pass by the devise. {Sasleivood 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. Digitized by Microsoft® 42 ON ESTATES IN GENERAL. 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 some particular tenure." This Act has been repealed by the Inter- pretation Act, 1889, 52 & 53 Vict. c. 63 ; but sect. 3 enacts {inter alia) that in eyery Act passed after the year 1850, " unless the contrary intention appears, . . . the expression land shall include messuages, tenements, and hereditaments, houses and buildings of any tenure." Sundry curious mean- ings 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 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 distinguished from seignories in gross, was for several generations inseparably connected with the tenure of land. Tenements. Tenement is properly defined to include whatever can be the subject of common law tenure. (" Wherein a man hath any frank-tenement, and whereof he is seised ut de libera tenemento." Co. Litt. 6 a.) In this sense, the word is not restricted to what is held by some service, but includes also what is held in frank- almoigne. (Potvell v. Bull, Comb. 265.) That case was a decision upon the meaning of a statute; but the reasoning refers only to the meaning in law of the word tenement, not to the language of the statute. The meaning which the word actually bears is wider than that strictly contained in this definition. (Co. Litt. 19 b, 20 a ; ibid. 154 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, advowsons in gross,* and perhaps chief rents, or * An advowson in gross might be held by knight service ; see Co. Litt. 85 a ; Digitized by Microsoft® OF THE SUBJECTS IN WHICH ESTATES MAY SUBSIST. 43 rents reserved as incident to tenure in fee simple, and therefore created before the statute of Quia Emptores. But the word " tenement " is in practice, with less obvious propriety, extended to include also rents-charge, rents seek, commons in gross, estovers and other profits a j^rendre, owing to their close con- nection with the land ; also offices 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 Hex v. 8Mngk, 1 Eag. & Y. 738, 1 Stra. 100 ; Rex v. Ellis, 3 Bag. & T. 776, 3 Price, 323) ; though by the common law these could not be in the hands of a lay person. {Bishop of Winchester's Case, 2 Eep. 43 ; Sherwood v. Winehcombe, Cro. Bliz. 293.) And it is the general rule, that all hereditaments which savour of the land or realty, are so far accounted tenements in law as to be intail- able by virtue of the statute Be Donis* It is material to observe, that a thing may be a tenement for A thing may til i p n n be a tenement one purpose, and not a tenement lor another purpose ; tor foj. one pur- example, a rent-charge is undoubtedly a tenement for the pur- f °r an°th'^°* pose of entail, but it is not, by the common law, a tenement for the purpose of escheat. ( Vide supra, p. 37.) As to what are tenements within the meaning of 8 Hen. 6, c. 7, relating to the qualification of county voters, see Dodds v. Thompson, L. E. 1 0. P. 133 ; Dawson v. RoUns, 2 0. P. D. 38. Hereditament includes whatever upon the death of the owner Heredita- passes (apart from testamentary disposition) to the heir by ™^" '^^ hereditary succession. (Co. Litt. 6 a.) The word hereditary ex- cludes special occupancy. Land regarded as a hereditament stands in a peculiar position, see also Plowd. 498 a; the advowsou is in lieu of the laud upon which the church is built, and is therefore a subject of tenure, and may be held either mediately or immediately of the king. * Such tenements were also within the meaning of a custom to devise layids and tenements. (Litt. sect. 585.) But after disseisin of a rent-charge, a descent cast by the disseisor did not, at common law, affect the title of the disseisee. {Co. Litt. 237 b.) As to the tolling of a right of entry by a descent cast after a disseisin, see p. 373, infra. Digitized by Microsoft® 44 ON ESTATES IN GENERAL. 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 heredita- ment, 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 in which it is used when a legal estate for life is styled a tenement ; and that the word hereditament is not used in exactly the same sense, in which it is used when a rent-charge in fee simple is styled a hereditament. In the case of land, the estate contem- plated is the legal fee simple ; and since this exhausts the whole possible interest, 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 extent, a double meaning. In other cases of the use of words denoting hereditaments, where 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 here- ditaments. For example, a legal estate for life, or pur autre vie, since it is held by common law tenure, is a tenement ; but, since it is not capable of descending to the heir, it is not a heredita- ment. Some hereditaments, also, are not tenements, as will shortly appear. ... . Hereditaments are commonly divided (1) into real, mixed and heredita- personal; and (2) mio corporeal &ii^ incorporeal. ments. The phrase hereditaments real (or real hereditaments) is com- monly used to denote lands regarded as a physical object, and legal estates of inheritance in lands, whether ia possession, remainder or reversion. Digitized by Microsoft® OF THE SUBJECTS IN WHICH ESTATES MAY SUBSIST. 45 The phrase hereditaments mixed (or mixed hereditaments) includes all estates of inheritance which, as the phrase goes, savour of the realty, being — (1) Equitable* estates of inheritance in land ; with which may also be classed equities of redemption of estates of inheritance, whether legal or equitable ; (2) Territorial baronies, or peerages titular of a place ;t with which may also perhaps be classed seignories of manors and seignories in gross ; but perhaps these are more properly classed with hereditaments real ; (3) Estates of inheritance in offices + of trust or dignity to be exercised within or in relation to lands, such as the * It is conceived that now, since the Judicature Acts, equitable estates are hereditaments to all intents and purposes. Previously they could not be called hereditaments at law. (1 Rep. 121 b ; see also 3 Rep. 2b, 3 a.) The same re- mark 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 in equity. t ' ' When the Hng created an earl of such a county or other place, to hold that dignity to him and his heires, this dignity is personall, and also eoucerneth lands and tenements." (Co. Litt. 2 a.) And, therefore, such dignities may be intaUed ; though only by the act of the crown. {Ibid. 20 a.) If a baronetcy is created, not beiag titular of some place, it is not intailable ; and a limitation (by the crown) of such a baronetcy to a man and the heirs male of his body, does not create an estate tail but a conditional fee at the common law. (12 Rep. 81, sub tit. "Honours and Dignities." The resolution there reported was dissented from in a curious judgment by Chitty, J., in Ee Rivett-Carnao' s Will, 30 Ch. D. 136.) Earldoms stand in this respect in a peculiar position; because, even though not expressed to be titular of a place, the oflSce of an earl in contempla- tion of the law relates to the whole kingdom, in a sense which is sufficient to make it intailable. See Earl Ferrers' Case, 2 Eden, 373 ; Rex v. Knollys or Knowlea, Ld. Raym. 10, 12 Mod. 55, where particularly see Ld. Raym. p. 12, ad Jin., the observations of Holt, C. J. ; and 12 Mod. p. 60, ad iiiit., where it is said that ' ' the earldom is not confined to the place, but extends through the whole kingdom." Compare what is said in Nevil's Case, 7 Rep. 33, at p. 34 a, that earls "are created to two purposes; 1. Ad consulend' Megi temp' pads ; 2. Ad defendend' Regem et pair' temp' belli." See also 12 Rep. 96, sab Jin. % It must not be assumed, because these kinds of ofSces may exist, that therefore anybody can create them or transfer them when created, or that new kinds of a sort unknown to the law can be invented at pleasure. ' ' An ancient of&ce 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 ; Harris v. Jatj, i Rep. 30 ; Zadg Solcroft's Case, ibid.) On the grant of an office for life, there is no reversion in the grantor ; but, on the death of the grantee, the office is determined, until a fresh grant. (17 Vin. Abr, 146, pi. ll=Frerogative of the King, I. c., pi. 11-; ibid. 147, pi. 1=Prerogative of the King, I. o. 2, pi. 2.) Digitized by Microsoft® 46 ON ESTATES IN GENERAL. stewardship of a manor, or the rangership of a forest ; ■with which may also perhaps he classed advowsons in gross, though they seem to be not less properly classed among real hereditaments ; (4) Eoyal franchises of such a nature as to be connected with lands, and yet capable of being held in gross; such as forest, chase, free warren, free fishery, fairs and markets. Franchises which cannot be held in gross, must be re- garded as mere appurtenants of the lands with which they are held, and not as being substantive heredita- ments ; (5) Rents-charge, commons in gross, and profits d prendre, which imply some participation in the land or its profits ; (6) Impropriate tithes, which are made hereditaments by 32 Hen. 8, c. 7 ; (7) New Eiver shares (see Brybutter v. Bartholometv, 2 P. Wms. 127) ; Eiver Avon shares (see Buckeridge v. Ingram, 2 Ves. 652) ; and the shares in some other similar under- takings.* The phrase hereditaments personal (or personal hereditaments) includes certain inheritable rights, either having no connection with lands, such as a personal annuity (not issuing out of, or secured upon, lands) granted or devised for an estate of inherit- ance (see Turner v. Turner, Ambl. 776, 1 Bro. C. C. 316 ; and Smith V. Pyhvs, 9 Yes. 666, at p. 574) ; or having some connec- tion which implies no participation either in the land or its profits; also annuities granted in fee by the crown out of mercantile dues or duties payable by colonies or dependencies of * The right to bring a writ of error upon a judgment in a real action was a mixed hereditament. (Co. Litt. 20 a ; and see RowUfs case, Dy. 188 a, there referred to, which incidentally explains his meaning.) The possibility of reverter upon a breach of a condition annexed to an estate of inheritance is a hereditament (3 Eep. 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 Sooper V. Clark, L. K. 2 Q. B. 200; and compare WMer v. Zee, 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 intailuig a right of sporting, regarded as a tenement in gross, is somewhat startling to the imagina- tion. For an example of a lease of a right of sporting, see BirJcbeck v. Paget, 3 1 Beav. 403. Digitized by Microsoft® OF THE SUBJECTS IN WHICH ESTATES MAY SUBSIST. 47 the crown, such as the Barbados duties (see Earl of Stafford v. BucMey, 2 Ves. Sen. 170) ; and certain other annuities charged upon public revenue (see Lady HoMernesse v. Marquis of Car- marthen, 1 Bro. 0. 0. 377 ; Radhurn v. Jervis, 3 Bear. 450) ; and the term also includes certain offices of dignity or trust which admit of being granted in inheritance, but have no reference to lands, being concerned with duties or functions to be fulfilled in relation to some superior dignitary, or to be exercised only in respect to chattels, as a mastership of hounds.* Personal hereditaments will pass under a general bequest in a win of personalty. [Aubin v. Baly, 4 B. & Aid. 59.) There is some variety of usage, and room for difference of opinion, in respect to the precise place where the line of sub- division is to be drawn between real and mixed hereditaments. But this gives rise to no practical inconvenience ; because they are both intailable by virtue of the statute Be Bonis. But personal hereditaments are not intailable ; and any limitation which, in the case of a tenement, would create an estate tail, will, in the case of a personal hereditament, create a conditional fee at the common law. The single word hereditaments, when used in its largest sense, includes the whole of the particulars enumerated under the three classes above described. Corporeal hereditaments are fixed as to their definition by the Corporeal and legal maxim, that at common law they lie in livery, and not in iiere(£ta- grant. The phrase therefore includes 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 stranger, was a feoffment, and the essence of a feoffment is the livery of the seisin. All other hereditaments, to which applies the * Villeins in gross "were personal hereditaments. (Fincli Law, p. 159.) Also corrodies of office. (Ibid. p. 161.) And see the grant of privilege by Edw. I., mentioned in Co. Litt. 1 b, 2 a. As to a personal annuity, which arose when one CO ?enanted for himself and his heirs to pay an annuity to another and his heirs, see 7 Rep. 34 b, where " it was resolved that an annuity of inheritance shall be forfeited by force of this Act (2S Hen. 8, o. 13), by attainder of treason ; for that is an hereditament." Digitized by Microsoft® 48 ON ESTATES IN GENERAL. description, tangi non possunt nee videri, are included under the term incorporeal hereditaments. This phrase, therefore, includes all the particulars ahove enumerated, except legal estates of inheritance of lands in possession. It also includes legal estates of inheritance in lands in remainder or in reversion. Incorporeal hereditaments are said at the common law to lie in grant ; because they would pass by the mere delivery 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 hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery. A similar remark may be made with regard to the Intestates Estates Act, 1884, sects. 4, 7 ; in so far as those sections render the law of escheat applicable to incorporeal hereditaments. Digitized by Microsoft® ( 49 ) CHAPTER VIII. OF ESTATES AT THE COMMON LAW. The distinction between absolute dominion, or absolute ownership, The origin of sucb as the law permits to be had in chattels, 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 existence of estates of inheritance was sug- gested, and made possible, by the indestructibility of their commonest 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.* 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 improper 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 copy- hold and customary estates ; and the fourth, as already men- tioned, is the source of equitable estates. From the common law spring two primitive estates of free- hold — (1) a fee simple, which is of inheritance, and the largest Fee simple. * " Consuetudo is one of the maine triangles of the lawes of England ; those lawes being divided into common law, statute law, and oustome." (Co. Lilt. 110 b.) C.R.P. E Digitized by Microsoft® 50 ON ESTATES IN GENERAL. Estate for Ufe. Estate pur autre vie. estate known to the law ; and (2) an estate for Ufe, 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 styled a qualified fee or qualified fee simple. The nature of these modifi- cations, and of the estates to which they give rise, will hereafter be explained. From the estate for life is derived, by its being assigned over to another person, the estate _pt«r 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 assignment, but admits of being created de novo by express limitation. No other estates at common law. The above-mentioned estates are the only estates known to the common law, and are therefore the only estates held by common law tenure and the only estates 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; which 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 ConditionaMbus, Stat. Westm. 2, or 13 Edw. 1, cap. 1. It is convenient, for some purposes of discussion, to separate fees tail from the other estates above mentioned. The latter may conveniently be styled common laio estates; and those which are estates of inheritance, namely, a fee simple, a determinable fee, a conditional fee, and a qualified fee simple, may conveniently be styled common laic fees. Origin of fees tafl. The statute De Bonis restricted in some important respects the right of alienation incident to a conditional 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 inheritance 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 Digitized by Microsoft® Oi' ESTATES AT THE COMMO^' LAW. 51 reverter, upon a conditional fee ; * while there is a remainder or reversion upon a fee tail. (Litt. sect. 19.) The statute uses only the word tenementum, which the English All tenementa versions mistranslate land. Not only lands, hut all tenements, provided that they are also hereditaments (without which there can of course be no inheritance of them) are intailable by force of the statute. For this purpose the word tenement includes not only tenements properly so called, which are capable of being held, in the strict sense of the word, by common law tenure, but also all mixed hereditaments. Such hereditaments as are not tenements cannot be intailed. These are personal hereditaments; and, as has above been observed, any limitation which, in the case of a tenement, would create an estate tail, will, in the case of a personal hereditament, create a conditional fee at the common law. ") From the fee tail sprang the base fee commonly so called, origin of Methods of barring the entail having been invented, 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 reversion. 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 remainderman 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 construction of law, and not by mere conveyance or assurance 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. An estate conterminous with a base fee, as above defined, Vid^ infra, may arise by express limitation, as well as by the conversion of " ' " * Vi'Je infra, pp. 74, 75. e2 Digitized by Microsoft® 52 ON ESTATES IN GENERAL. a fee tail. "When created by express limitation, it is a deter- minable fee. But there is this cardinal distinction between a base fee, as above defined, and a determinable fee of the like duration arising under the ordinary rules of limitation ; namely, that there exists a remainder or reversion in fee simple upon a base fee, while no remainder or reversion can subsist upon a determinable fee arising by limitation only.* Modified fees. All fees, 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 modified fees now exist. Such hereditaments as are not tenements, namely, personal hereditaments, cannot be intailed-; and words of limitation which, if applied to tenements, would create an entail, will, at the present day, if applied to them, create a conditional fee at common law. {Earl of Stafford v. Buckley, 2 Yes. sen. 170 ; and see 2 Bl. Com. 154.) The same remark, mutatis mutandis, applies also to copyholds of manors in which there exists no custom to permit entail ; the estate being in this case a customary 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 good reason to doubt the possibility of their existence. The division of fees above proposed is not verbally identical Remarks oa of fees. with that given by Lord Coke, Co. Litt. 1 b, 10 Eep. 97 b ; but • " If A enfeoffs B of the manor of D, to have and to hold to him and his heirs, so long as has heirs of his body, this is oaUed a fee simple limited and quali- fied ; and .... the whole estate in the land is in the feoffee ; and therefore no remainder or reversion can be expectant upon " it. (10 Eep. 97 b.) This kind of estate is, in the present work, always styled a determinable fee. Digitized by Microsoft® OF ESTATES AT THE COMMON LAW. 53 the doctrines laid down are Lord Coke's doctrines, and some difference 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 Be Bonis, to include fees tail. He also uses the phrase qualified or lasefee to include all fees except fees simple and conditional fees ; and in this usage he is often followed by other authors. He sometimes (10 Eep. 97 b) seems to use the phrase fee simple determinable to include all fees except fees simple and base fees. But, with the exception of the peculiar estate which, in the present work is styled a qualified fee simple, 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. In the present work, the phraseology adopted is, at all events, used with exact consistency. The common law of England knew of no estate, or proprie- The origin tary interest, less than a freehold. The only 'other title to, of terms of possession, in the nature of a proprietary right, was a tenancy J<^^^'^- at will, and there is much reason to believe that the division between estates of freehold and tenancies at will originally 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 ancient tenancies at will, by turning them into the customary 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 greiw 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 Digitized by Microsoft® 54 ON ESTATES IN GENERAL. being against the policy of the law. (Oo. Litt. 45 b, ad fin.) This, however, 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. (Co. Litt. 46 a ; Harg. n. 1.) But terms of years were by the common law liable to de- struction 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 judgment upon a supposed title paramount to the title of the reversioner ; and this destruction of his estate could not be hindered by the termor, because, having 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 ; Oo. Litt. 46 a.) They exist as An estate which could not, by the common law, be defended only by ^t law, seems at common law to have been no estate. The statute. foregoing considerations warrant the conclusion, that terms of years originally pushed themselves 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, 1863 ; but the previous abolition of common recoveries by the Fines and Recoveries Act, s. 2, and of real actions generally by 3 & 4 Will. 4, c. 27, s. 36, will prevent the repeal from affect- ing 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 possession; showing that they recognized no possession, so far as real property is concerned, unaccompanied by an estate of freehold. The word seisin is still appropriated solely to describe the possession of freeholders {Leach v. Jay, 9 Oh. D. 42) ; while the word posses- sion 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 Digitized by Microsoft® OF ESTATES AT THE COMMON LAW. 55 right or title whicli is not founded upon an estate of freehold.* (Litt. sect. 324.) It is also evident that an estate which at the common law did On the use ,. 11. -iiiii 1. I. i°f '^^ word not exist, could not possibly be the subject of common law tenure in tenure ; and it seems to be the more judicious com-se, to avoid ^atTerms of altogether the use of the word tenure in connection with terms y^"^"^^- of years. However, a practice has sprung up, of referring to terms of years under the name of "lands held by leasehold tenure." This phrase is peculiarly inaccurate, because there is nothing in the word " leasehold " to confine it to terms of years, and it is equally applicable to lands which are held under leases for lives. Thus the phrase compresses withia a single word both the nondescript tenure (if there is one) by which terms of years are held, and the well-known common law tenure by which estates of mere freehold are held. Littleton has lent some countenance to the use of these loose expressions. In sect. 132 he arrives at the conclusion that some kind of tenure subsists between a termor for years and the lessor. His language (as translated by Lord Coke) is as follows : "Also " if a lease be made to a man for terme of yeares, it is said, " that the lessee shall do fealty to the lessor, because he holdeth " of Mm. And this is well proved by the words of the writ of " wast, when the lessor hath cause to bring a writ of wast " against him ; which writ shall say, that the lessee holds his " tenements of the lessour for terme of yeares. 80 the writ proves * In his translation of Litt. sect. 177, Lord Coke uses the word seisin to de- note the act of talcing possession of chattels. And in Litt. sect. 567, the word seised is used in reference to a term of years. [Professor F. W. Maitland has also shown, in a very interesting article in the Law Quarterly Review, Vol. I., p. 324, that in early times the word seisin was used indifferently in relation both to real and personal property. This does not, of course, prove that lawyers then saw no distinction between the seisin of lands and the seisin of chattels. On the contrary, it should rather be inferred, that they saw the distinction so clearly, and had so little fear of its being overlooked, that they apprehended no danger of confusion in the use of a single word to express the two things. Professor Maitland ia of opinion that the word acquired its special appropriation to land at some time during the fifteenth century. This looks as though the stricter use of the word had been introduced at about the time when, by reason of the grow- ing importance of chattel interests in lauds, some danger of confusion might have been apprehended, if a single word had continued to be used to denote the two kinds of possession. ] Digitized by Microsoft® 56 ON ESTATES IN GENERAL. " a tenure betweene them.'" Here Littleton first cites the opinion that the reason why termors for years were admitted to do fealty was that they held of their lessors ; and then, but with a very circumspect air, infers the existence of some kind of tenure from the language of the writ of waste.* Chattel interests in land other than terms of years. The cessation of an estate of freehold can only occur by the dropping of a life, or the failure of issue, or the failure of heirs, or the happening of some event of which the happening is uncertain ; and it is often said, that this affords a distinction between estates amounting 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 iaterest may under peculiar circumstances arise in lands, which, 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 ; (o) by the guardian in chivalry holding over for " single or double value," after the ward's marriage within the age of wardship without the consent of the guardian ; 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 ; ihid. 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 occurring in practice is tenancy by elegit. These interests are not properly estates, and can hardly even be styled proprietary rights, but are rather temporary liens, subject to an obligation to apply the profits 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. 608.) But if the devise had been to the man and his heirs, it would have created a determinable fee. {Vide infra, p. 232, Nos. 21—23.) * for some further remarks upon this suhject, see Appendix I., in^ra, Digitized by Microsoft® ( 57 CHAPTBE IX. ON THE DERIVATION AND SUCCESSION OF ESTATES. Proprietary ownership, in the absence of any special cause of incapacity, such as infancy, coverture, or lunacy, imports by the common law, as a general characteristic, the right of alienation ; ■which right may be exercised either absolutely or partially, in accordance with the maxim, Cxijus est dare, ejus est disponere ; partial alienation being made possible by the fact that estates difier 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 per- sons may at the same time be entitled, in different degrees of nearness and remoteness, to the possession of the same land, one* only being entitled to the possession for the time being. The idea of a partial, as distinguished from an absolute, Distinctions alienation, opens the distinction between original estates and the s'uraessio: derivative estates. The fact that several successive estates may estates. be simultaneously derived out of one original, whereby it comes to pass that a derivative estate may be an estate not in posses- sion, 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 distinction between vested estates and contingent estates ; which last-men- tioned estates can only be remainders, because estates in posses- sion and reversion are necessarily vested. And the fact that the ingenuity of conveyancers, operating upon the statutes of wills and the Statute of Uses, has devised other prospective possibilities, unknown to the common law, as interests to arise * Tenants in common, coparceners, joint-tenants, and tenants by entireties, Ijeing- for tHs purpose counted as one person, Digitized by Microsoft® 58 ON ESTATES IN GENERAL. 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 remainders. 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. Original Estates and Derivative Estates. The terms derivative and original, as applied to estates, scarcely need definition. When by the act of a grantor or settlor, a less estate is (or several estates are) jDarcelled out from a greater, every such less estate is derivative in respect to the greater; which latter, in respect to all the less estates, is original. The same The word derivative is applied to estates not in reference to both ori°-mal ^^7 intrinsic quality in the derived estates, but only to describe and deriva- their relation to the original estate. An estate which is deri- vative in respect to a 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. For this purpose, a term of years, or a tenancy from year to year, is regarded as an estate ; though the word estate is strictly applicable only to estates existing by the common law. Merger. The Opposite of the process by which one or more less estates may be derived out of a greater, is the merger of estates ; * by which one or more less estates may become blended with a greater, so 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. Some remarks upon this sub- ject will be found in a subsequent chapter. * Styled the merger of estates — i. e. , the merger of one estate in another estate, — to distinguish it from the merger (more correctly styled extinguishment) of incumbrances in the estate over which they subsist : a subject with which the merger of estates is sometimes confused, Digitized by Microsoft® ON THE DERIVATION AND SUCCESSION OF ESTATES. 59 From tlie difficulty of preserving strict consistency when Estates oan- dealing with abstractions, and the confusion introduced by the ^„oto'!''^^ ^ practice of classing together physical 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 perhaps by the express operation of an Act of Parliament, be created de novo in any other sense than that of being derived cle novo out of an existing estate in which it was previously included. Lands themselves cannot be settled, devised, or intailed, for the subject of the settlement, devise, or entail, is an estate ia the lands, not the lands themselves ; and the nature of all dealing with lands is in general circumscribed by the nature of the estate by which such dealing is made possible. Estates which are derived out of any estate less than a fee DerfvatiTe simple, retain the characteristics of their restricted original. No destroyed by settlor can emancipate the derivative estates from any restrie- tbn'of tlie°' tion, or liability to determination, which affects the original original GS*3;t6. estate out of which they are derived. If the original estate is itself less in quantum than a fee, or is a determinable fee, or other determinable 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 annexed, as a deter- minable limitation, to each of the derivative estates ; so that each of the latter will be iiJso 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 Eep. 34 a.) Nevertheless, it must be remarked, in qualification of the Apparent preceding paragraph, that a tenant in tail in possession can, by from the virtue of the Fines and Recoveries Act, dispose of the intailed p°inf°X° lands for a fee simple absolute ; which estate is of course not liable to be determined by the happening of any event which would have determined the estate tail. A tenant in tail in remainder, with the consent of the protector of the settlement, can make a like disposition. Similarly, the tenant for life in possession, under a settlement which comprises the fee simple. Digitized by Microsoft® 60 ON ESTATES IN GENERAL. can dispose of the fee simple in the settled lands under the powers conferred by the Settled Laud Acts. These, and other like cases, are only apparent exceptions from the principle stated in the foregoing paragraph. The fee simple of which the tenant in tail disposes, is the fee simple out of which the estate tail was derived ; and the fee simple of which the tenant for life disposes, is the fee simple comprised in the settlement ; and in both cases the disposition takes effect under a statutory power: a subject which is further considered in the next foUowiDg paragraph. Operation of powers. The practical application of the maxim, Ciijus est dare, ejus est cHsponere, is complicated by the existence of powers ; whereby a separation may be effected between the potestas dandi and the potestas dispionendi, to such purpose that there is no necessary relation between 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, and usually is not, vested in the person by whom the power is exercised. Therefore, in apply- ing the maxim, Cessante statu primitivo, cessat derivativus, to the exercise of powers, we must observe that the status primitivus is not necessarily, or usually, the estate of the donee of the power. In the case of powers contained in wUls, or powers operating by virtue of the Statute of Uses, the original estate is the estate of the testator or settlor. In the case of powers created by express statute, the original estate is the fee simple, upon which, where- soever 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. Modes of deriyation. Thus the methods by which one estate may be derived 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 derivation, as an incident attached to his ownership ; Digitized by Microsoft® ON THE DERIVATION AND SUCCESSION OF ESTATES. 61 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 statu- tory power, which operates directly upon the legal estate, without need for the intervention of the machinery of uses or devises. To these must be added certain cases in which it would seem As to estates that, by force of an express statute, an estate is truly created de by statute. novo, being made to arise in one person under circumstances which are inconsistent with the hypothesis that it arises by deri- vation 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, 3 & 4 Will. 4, c. 74, 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 «}jso facto enlarged into as large an estate as the tenant in tail, with the consent of the protector (if any) might have created by any disposition under the Act if such remainder or reversion had been vested in any other person. This estate is usually a fee simple absolute. Here the declaration, that enlargement sball be substi- tuted for merger, is equivalent to a declaration that the estate obtained by the enlargement is created de novo ; since the contrary hypothesis would require a different declaration ; namely, that, notwithstanding merger, the remainder or reversion sbould retain certain character- istics of the base fee. (2) The Conveyancing Act of 1881, s. 65, amended by the Conveyancing Act, 1882, s. 11, 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 accord- ingly. For reasons similar to those alleged in the pre- vious ease, the conclusion seems to follow, that the estate Digitized by Microsoft® 62 ON ESTATES IN GENERAL. obtained by the enlargement 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-existiag fee simple is destroyed, or whether it continues to exist in the shape of a reversion upon the fee simple obtained by the enlargement; in which case the latter would exist as a base fee. ( Vide infra, p. 305.) 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 circuitously, by the exercise of a power created by a settlor. The Kmits 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 statutory 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 1. A fee tail is in the eye of the law a conditional fee, though of a fee tail. ^7 the statute De Bonis certain rights are given to the issue in tail, to defeat alienations made at the common law by their ancestor. 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 suffice 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. 293.) The same remark holds good of dispositions at the present day made by the tenant in tail, which are insufficient to bar the entail by virtue of the Fiaes 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 De Donis. Leases made by tenants in tail under 32 Hen. 8, e. 28 (of which the term might not exceed twenty-one years, or three lives), were by that statute made effectual in Digitized by Microsoft® ON THE DEKIVATION AND SUCCESSION OF ESTATES. 63 law as against the issue in tail. Such terms seem to have been derived out of the estate tail. (See 8 E.ep. 34 a.) This statute was repealed, so far as tenants in tail are concerned, by 19 & 20 Yict. 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 common law out of an estate tail. 2. Out of an original estate for the life of the grantor, there Estates can be derived only estates determinable upon the of an estate dropping of his life. These may be either estates for ™'""*®- joint lives, one of the lives being the life of the grantor ; or they 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 settle- ment, beneficially entitled to the possession of the settled land for his life, is enabled, by the Settled Land Act, 1882, to exercise 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 tenant for life in possession under a settlement, in exer- cise of the powers conferred by the Settled Land Acts, 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 settlor, and to be, under the provisions of the Act, determinable with it, in cases where it is liable to determination. 3. Out of an original estate pur autre vie, whether for life or Estates lives, there can, in like manner, be derived only estates of an^esr^e determinable upon the dropping of all, or some, of the ^"^ ""'''^ ^^^' original lives. Such estates may be estates for life, estates pur autre vie, or terms of years. Digitized by Microsoft® 64 ON ESTATES IN GENERAL. Estates derived out of a term of years. Out of a term of years there can be derived no estate, except a term of years, either expressed to be of less duration than the original term, or determinable (whether expressly or by operation of law) with its determination. On the Terms Vested, Contingent, and Executory. Vested estates Of the divisions into vested and contingent and into vested and executory, neither is exhaustive ; but the term vested estate is sometimes opposed to the i^rm. contingent estate, and is sometimes opposed to the term executory interest. An estate may be either vested in possession, or vested only in interest, the actual possession being in another. The phrase, vested in possession, needs no definition. An estate is said, though not vested in possession, 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 become the estate in possession by the determination of all the True criterion precedent estates. In the words of Fearne : — " It is not the vested and " uncertainty of ever taking effect in possession that makes a ''™*™S'®^' " remainder contingent ; for to that, every remainder for life or " in tail is and must be liable ; as the remainderman may die, " or die without issue, before the death of the tenant for life. " The present capacity of taking effect in possession, if the pos- " session were to become vacant, and not the certainty that the " possession will become vacant before the estate limited in " remainder determines, universally distinguishes a vested " remainder from one that is contingent." (Fearne, Cont. Eem. 216.) Restriction upon the criterion. The doctrine laid down by Fearne in the foregoing passage, is almost universally true ; though it is possible to imagine a case which would impose some qualification. For example, a limitation in a deed to the use of A for life, with remainder to the use of his heir, and the heirs male of the body of such heir. In such a case, the heir of A would take an estate in tail male by Digitized by Microsoft® ON THE DERIVATION AND SUCCESSION OF ESTATES. 65 purchase, because the words of limitation superadded to the word heir would prevent the application of the Eule in Shelley's Case ; and during the life of A this estate tail would he a con- tingent remainder, although the heir apparent or presumptive for the time being would always be ready, during 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 by purchase as heir in remainder expectant upon an estate for life limited to his ancestor, during his ancestor's life- time: such a remainder being contingent, because the heir's claim is liable at any time to be defeated by his ceasing to be heir, either, if he is heir apparent, by his own death in the 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 hesita- Existence of tion, that the existence of a power of appointment will not ^^gg not pre- prevent estates limited to take effect in default of the exercise "^^^^ vesting-. of the power from vesting, if they are such as, apart from the existence of the power, would be vested estates. (Fearne, Cont. Eem. 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 the Contingent rules of the common law; and their distinguishing 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 fiirst comprises the first and second of Fearne's four classes; and the second and third correspond with his third and fourth classes respectively. Executory interests do not admit of being limited under the Executory rules of the common law. They owe their whole existence partly to the statutes permitting devises of lands, and partly to the Statute of Uses. The limitations under which they arise C.R p. V Digitized by Microsoft® 66 ON ESTATES IN GENERAL. are called executory limitations, which, in a will are executory devises, and in a deed are springing or shifting uses. Phrases which properly refer to the mode of their limitation are in prac- tice often confused, or used interchangeahly with, phrases 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 executory devise, is often briefly styled an executory devise. Distinction between contingent estates and ezeoutory interests. Since executory interests may be, though they are not neces- sarily, limited to arise upon a contingency, they are liable to be confused with contingent remainders. 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 common 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 executory interest. How far assignable or transmissible. In the view of the common law, both contingent remainders and executory interests were only possihilities,* and therefore were not assignable inter vivos (Case in C. B. cited in 4 Eep. at p. 66) ; though, as being not bare possibilities, but possibilities * Tbe word possibility lias been obscured by its confused usage. But three kinds can be distinguished : — (1) Possibilities coupled with an interest ; as contingent remainders and execu- tory interests ; which, so soon as the person in whom they will vest, if they do vest, is ascertained, are both descendible and deviseable. (2) Hare 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 common law are descendible but not deviseable. (3) Absolutely bare possihilities, 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 practically to the same thing. But, in strictness, they did not succeed to the expectation, but to the heirship upon which it was founded. Such possibilities of devisees, if children of the testator, are practically made sometimes descendible by the Wills Act, 7 Will. 4 & 1 Vict. o. 26, s. 33. Digitized by Microsoft® ON THE DERIVATION AND SUCCESSION OF ESTATES. 67 coitpled with an interest, they mlglifc be devised under the Statutes of Wills. {Roe V. Jones, 1 H. Bl. 30 ; S. 0. in B. E. suh nom. Jones V. Boe, 3 T. E. 88.) They might also, at common law, he released {Lampet's case, 10 Eep. 46), and be bound by estoppel. {Weak v. Loiver, PoUexf. 54 ; JDoe v. Martyn, 8 B. & 0. 497; Doe v. Oliver, 10 B. & 0. 181.) Contracts, and assurances relating to them, if made for valuable consideration, might generally be enforced in equity ( Wright v. Wright, 1 Yes. sen. 409 ; Crofts v. Middkton, 8 De G. M. & G. 192) ; which remark applies even to such absolutely bare possibilities as the expecta- tions of heirs during the lives of their ancestors, and of devisees and legatees during the lives of their testators or possible testators. {Becldeij v. Neioland, 2 P. Wms. 182.) Now, by 8 & 9 Vict. c. 106, s. 6, both contingent remainders and execu- tory interests may be " disposed of " by deed.* Remainders and Reversions. Remainder and reversion are both relative terms, each depend- Nature of the ing upon the relation of an estate which is posterior in point of between time to an estate which is prior in point of time. The prior ®™' estate is in both cases styled the particular estate. The dis- tinction between a remainder and a reversion lies in the differ- ence in the relation borne by them respectively to the particular estate ;■ and this relation depends upon the circumstances under which the particular estate became separated from the reversion or remainder. * A present right of entry may alao be assigned by virtue of this enactment. {Jenkins v. Jones, 9 Q. B. D. 128.) In Sunt v. Bishop, 8 Eich. 675, and JInnt V. Remnant, 9 ibid. 635, a, doubt is expressed, whether a right of entry, which has accrued by the breach of a condition, can be assigned under tlie same enact- ment. In the former case, at p. 680, a distinction in this respect seems to be drawn between a right of entry which has accrued by breach of condition, and ' ' an original right where there has been a disseisin, or where the party has a right to recover lands, and his right of entry and nothing but that remains." The present writer humbly conceives that there is nothing in reason to support this supposed distinction, while authority is against it. Littleton expressly says, that entry and re-entry are the same thing. (Litt. sect. 347.) Digitized by Microsoft® 68 ON ESTATES IN GENERAL. A remainder is constituted by the act, expressly directed to that end, of a grantor or settlor, who simultaneously 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 successively 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 construction of law, when he merely parts with less than his whole estate, retaining in himself a residue which 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 ia 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 remainders 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 particidar estate over the remainder is due to the intent, expressed in the limitation, of the grantor or settlor ; but the priority in time of the particular estate over the reversion is due to the construction or operation of law. The rule is, that there can be no remainder where there can be no reversion. (3 P. Wms. 6th ed. 231, note A.) But this rule, as is there remarked, does not apply to limitations by which incorporeal hereditaments, such as a rent-charge, which have no existence apart from the limitation, are originally created. For example, a rent-charge might, at its creation, be limited to A for life with remainder to B in tail; though under such a limitation there could be no reversion, because a reversion must have existed before the particular estate, and, in the case sup- posed, nothing in the shape of a rent-charge existed before the particular estate. Digitized by Microsoft® ON THE DERIVATION AND SUCCESSION OF ESTATES. 69 The following definitions, by which remainders are distin- guished from reversions, wiE. be found instructive : — "A remainder is an estate limited to commence after the Eemainder 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 laiv. 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 Yiot. 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, Qiice incontinenti fiimt, 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 remainder or remnant of an estate in lands or tenements, expectant upon a particular estate created together with the same at one time." (Co. Litt. 143 a.)* r " ' 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 Reversion continue in him that made the particular estate, or where the particular estate is derived out of his estate." (Co. Litt. 22 b.) * Although Lord Coke correctly derives the word from remanere, his language strongly suggests the conclusion, that he took remainder to signify what is left over when a part has been cut ofE. "But," says Prof. F. W. Maitland, in a passage worthy of all acceptation, "if we look at the documents of the thirteenth " century, we soon see that the word remanere did not express any such notion ' ' of deduction or subtraction. The regular phrase ia that ' after the death of A, ' " or ' if A shall die without an heir of his body,' then 'the said land,' or ' the " said tenements shall remain to B,' that is, shall await, shall abide for, shall " stand over for, shall continue for, B. We may compare the then common " phrase Hoquela remanet,'' the parol demurs, the action stands over till someone " is of age or some other event happens ; or, to use a form of speech not yet " forgotten, the action ' is made a remanet.' " (Law Quarterly Review, vol. vi., p. 25.) Digitized by Microsoft® 70 ON ESTATES IN GENERAL. The second clause of this definition was not intended to give an alternative definition, but only to expand the meaning of the first clause. In this definition, the words doth always continue, are emphatic. The reversion is the same estate that was in the grantor before the creation of the particular estate. Reversions and remain- ders upon terma of years. The ambiguous nature of terms of years, gives an ambiguous meaning to reversions and remainders expectant upon terms of years. In so far as such a reversion, or remainder, does not give an immediate title to the actual or physical possession of the lands, during the continuance of the term, it may be re- garded as being in fact a reversion or remainder ; and in this sense such estates are commonly styled reversions and re- mainders. But for some purposes the question is not, who has an immediate title to the physical possession, but, who has an immediate title to the feudal seisin ; and for these piu'poses, 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. 89.) Kemainder upon a base fee. The remainder which may subsist upon a base fee has in aU essential characteristics the quality of a remainder, 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 remainders are created by act of parties, and reversions by operation of law ; for though the remainder upon the fee tail 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. The same Out of an estate in remainder, which is already in esse, other both remain- cstatcs may be derived. With regard to such estates the re- sion^"*^ '^'^^'^^' mainder itself will be a reversion ; but with regard to the estate out of which it was itself derived, it will be a remainder. Thus Digitized by Microsoft® ON THE DERIVATION AND SUCCESSION OF ESTATES. 71 the same estate may, in different relations, be both a remainder and a reversion. (1 Prest. Est. 123.) Several fees may, at the common law, be Hmited in the alter- Alternative native by way of remainder upon the same particular estate, in fee. upon such contingencies that not more than one of them can by possibility happen. {Loddington v. Kime, 1 Salk. 224, Ld. Eaym. 203 ; and see Fearne, Cont. Eem. 373 ; Doe v. BurnsaU, 6 T. E. 30 ; Be White and Hindle's Contract, 7 Ch. D. 201.) Of such fees, 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 Two invari- fl nip t*ii1p^ the regular determination of the precedent estate, and (2) to be relating to limited to take effect in possession immediately upon that "^emamders. determination. A remainder may neither be limited to take effect upon the determination of the precedent estate by for- feiture for breach of a condition, nor to take effect upon the expiration of an interval of time after the regular determination of the precedent estate. In both these respects remainders differ from executory These rules interests. An executory limitation may take effect upon the to executory 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. 1. The first rule, that every remainder must atcait the regular First Rule, determination of the precedent estate, follows from the rule of the remainder common law, that no one may take advantage of a condition, "^5'**^^^^^' except the person making it, or his privies in right and repre- determination sentation; that is — (1) the heirs, quoad estates descendible to dent estate. them, (2) the executors or administrators, quoad estates trans- missible 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 Yict. c. 35, s. 3, and the Conveyancing Act of 1881, ss. 10, 12) which have in certain cases enabled grantees and assignees of reversions to take Digitized by Microsoft® 72 ON ESTATES IN GENERAL. A distinctioa noted. advantage of conditions annexed to particular estates, contain nothing to alter the common law, so far as persons entitled in remainder upon a particular estate are concerned. But if a particular estate is at its hmitation 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 defeasaiice of the particular estate, and (2) cases in which a remainder is limited, without any reference to the condition, to commence upon the determination of the particular estate. In the former case, an entry made upon the tenant of the particular estate for breach of the condition will destroy the remainder ; but in the latter case, the limitation of the remainder makes the condition itself void. (Fearne, Cent. Eem. 270 ; 1 Prest. Est. 91.) But in the former case, though an entry made for breach of condition wiU. destroy the remainder, yet the remainder is not void in its inception ; and it is not destroyed by a breach of condition, unless an entry is made for the breach. If the person entitled to enter for the breach waives his right of entry, the particular estate continues in being; and upon its subsequent regular determination, the remainder will take effect. 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 determined by the happening of that event ; and a remainder may be as well limited over upon such a determinable estate, as upon the like estate when not determinable. (2 Bl. Com. 155 ; Foye v. ITijnde, 5 Via. Abr. 63, pi. 12.) Thus, a remainder may be limited after an estate to a woman durante i;iduitafe, 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.) Second Hule. And must take efPect immediately ■upon sach de- termination. 2. The second rule, that no remainder may he limited to talie effect upon the expiration of an interval of time after the determina- tion of the precedent estate, follows from the rule of the common law, that the immediate freehold may not, by any act of parties, be placecl in abeyance. ( Vide infra, p. 94.) Digitized by Microsoft® ON THE DERIVATION AND SUCCESSION OF ESTATES. 73 Possibility of Reverter. Reverter and reversion are synonymous terms, denoting an estate vested in interest though not in possession ; but the word reverter is sometimes loosely used to denote what is properly stjled 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 under consideration : — (1) the possibility that a common law fee may return to the grantor by breach of a condition subject to which it was granted, and (2) the possibility 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 com- mon law, no remainder can be 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 Two common common law fees in the same land. (Co. Litt. 18 a ; Willion v. cannot exist Berkeley, Plowd. 223, at p. 248 ; and authorities cited in the ^^l" ^^^^ margins.) In regard to a fee simple and a determinable fee, this proposition has never been disputed. In regard to a con- ditional 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 * Vide supra, p. 69, note. Although it would be historioally and etymo- logically incorrect to regard the word remainder as signifying what is left over when the particular estate has been subtracted, yet the dootriae of the relative quantum of estates has been now for several centuries firmly estabhshed in English law ; and it is quite usual, and not improper, to speak of a particular estate, or several successive estates, as having been carved or derived out of an original estate ; and the doctrine that all common law fees are, for the purposes of a grant, equal in quantum, is inconsistent with the hypothesis of a remainder or reversion subsisting in expectancy upon the determination of a common law fee. Littleton (sect. 11) says, "And note, that a man cannot have a more large or greater estate of inheritance than a fee simple ; ' ' upon which Lord Coke remarks : ' ' This does extend as well to fee simples conditional and qualified, as to fee simples pure and absolute. For our author speaketh here of the amplenesse and greatnesse of the estate, and not of the perdurableuesse of the same. And he that hath a fee simple conditional! or qualified, hath as ample and as great an estate, as he that hath a fee simple absolute ; so as the diversity appeareth betweene the quantity and quality of the estate." Digitized by Microsoft® 74 ON ESTATES IN GENEKAL. perhaps be detected. (See 2 Prest. Est. 299 ; ihid. 353 ; 1 Prest. Abst. 379.) This rule It is Conceived that no reason can be given, upon principle, conditional '^^7 Conditional fees should be distinguished in this respect fees. from other fees. The later authorities seem to concur with Lord Coke in the opinion, which is clearly expressed by him on several occasions, that no expectancy other than a possibility of reverter can exist upon a conditional fee. (Co. Litt. 22 a ; ihid. 827 a ; 2 Inst. 335 ; ibid. 336 ; Marq. of Winchester's Case, 3 E,ep. 1, at p. 3 b. See also his comment on Litt. sect. 11. Also, Co. Cop. sect. 12= Co. Law Tr. 181: "For if a condi- " tional fee, then a remainder over of it could not be limited.") The question was expressly decided in this sense by Lord Hardwioke in Earl of Stafford v. BucUey, 2 Yes. sen. 170 : a decision which, for all practical purposes, is conclusive ; though Preston shows some disposition to carp at it. (1 Prest. Abst. 379 ; 1 Prest. Est. 417, note.) 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 Bonis ; * while there did not exist Q. formedon en remainder in respect of conditional fees.f This seems to show that there could be no such remainder upon a conditional fee ; and if there could be no remainder, 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 *" "The writ whereby the gircr shall recover, when issue faileth, is common enough in the Chancery." (1 Stat. Rev. p. 43. And see 2 Inst. 336.) In the same page, Lord Coke denies that a forniedon en descender lay at the common law, though in Co. Litt. 19 a ; Hid. 20 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.) It is a plausible view, to be gathered from Hargrave's remarks, that the proper remedy was a writ of mart d'aunceslor, unless by reason of special circumstances, as where the issue per formam doni was by a second marriage of the father, and there had been like issue by the first marriage, whereby the heir per formam doni could not show himself as next heir to the father. t Several authorities mention that, in the opinion of some people, the remain- derman upon an estate for life might, after the death of the tenant for life, have had a, formedon en remainder at the 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 purpoEC. (See also Appendix II., infra.) Digitized by Microsoft® ON THE DERIVATION AND SUCCESSION OF ESTATES. 75 statute Be Bonis, is a strong argument to show that there could not previously have existed a reversion upon a conditional fee at the common law. Preston (2 Prest. Est. 351) has cited some remarks from Watkins on Copyholds, with reference to which he observes (p. 353) that " Mr. Watkins's observations tend strongly to " prove the existence of remainders [upon conditional fees] at the " common law." But these observations of Watkins about such remainders are only made by the way, in the course of an argument addressed to the solution of another question : — the perhaps insoluble question, how there can exist a custom to permit entails of copyholds, seeing that all customs must, in the eye of the law, have been in existence before the first year of Eic. 1, while the statute Be Bonis was not passed until the thirteenth year of Edw. 1. Watkins seems to conclude that, [OutMa sub- ject, see the since this is in fact impossible, it cannot be true that entails of chapter on copyholds exist by virtue of a custom to intail as affected by the infra.l ' 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 consequence, 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 manors where no custom of entail can be alleged to exist, a gift in tail will create a conditional fee. Preston also (2 Prest. Est. 324) cites a passage fiom Bracton (lib. 2, c. 6, fo. 18 b of eds. 1569, 1640 ; Vol. I., p. 46, of the EoUs ed. 1878), which expressly states that several successive conditional fees in remainder, one after another, may be limited at the common law. Professor E. W. Maitland has proved, in a deeply interesting article,* that this statement is well warranted by the then current practice ; and that in ancient documents, considerably prior to the statute Be Bonis, such limitations occur not unfrequently. There cannot, as he seems to admit, be any doubt that at the present day such limitations would be held void. * Law Quarterly Review, Vol. VI., p. 22. For some further re.narks upon thia subject, see Appendix-II., infra. Digitized by Microsoft® 76 ON ESTATES IN GENERAL. CHAPTEE X. MERGEE. Definition. Mehger is the Opposite of the process by which less estates are derived out of a greater, whereby one or more less estates 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 generally 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) following 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 suc- cessive pair fulfils the conditions above laid down, should meet together in the same person, aU 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.) Contingent A contingent remainder, not being in the eye of the common remain era. ^^^ ^^ estate, but Only a possibility to have an estate at a future time upon the happening of a contingency, did not suffice to prevent merger, if interposed between two vested estates, which were otherwise such that the one would merge in the other. {Vide infra, p. 125.) But there was in this respect an important distinction between cases in which the two vested estates came to the same hand Digitized by Microsoft® MERGER. 77 sutsequently to the creation of the contingent remainder, and cases in which thej came to the same hand eo instanti with the creation of the contingent remainder. In the former case, the merger was absolute, and thereby the contingent remainder was for ever destroyed. But in the latter case, the merger was not absolute, and the two estates united by it remained, according to the language in use, liable to open and let in the contingent remainder, provided that it became vested during what would have been the continuance of the precedent estate if it had not been merged. [Vide infra, p. 126.) Several successive contingent remainders have of course no more efficacy to prevent merger than a single one. For all purposes of merger, an undivided share of land is a Undivided separate tenement. When estates in undivided 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 whatever to show whether they refer to the same or to different shares, the presumption seems to be, that they refer to the same share. (3 Prest. Conv. 98, 99.) Merger has a very close resemblance in its operation to sm'- Distinctions, render ; and it is frequently confused with extinguishment. It would also appear to have been sometimes thought to resemble discontinuance and remitter. (3 Prest. Conv. 9 — 13.) A few remarks, by way of distinction, may therefore be here intro- duced. It is the general rule, that two estates will merge when they Surrender, meet in the same person, without the intervention of any inter- mediate 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 surrender. But this resemblance holds good only for the purpose of ascertaining the relative quantum of the relevant estates. Merger is not due to Digitized by Microsoft® 78 ON ESTATES IN GENERAL. May differ froaa merger in operation. 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 situation in which the surrender places the two estates. (Prest. Shep. T. 301.) Under special circumstances, the operation of merger and of surrender may be very different. Thus, if there be an estate for life in' one person, with the reversion in fee simple 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 destroyed, 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, and the joint tenants will become joint tenants in fee simple in possession. But if the tenant for life should grant his estate to one of the joint tenants, 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 piir autre vie, with the reversion in fee simple to the other joint tenant. (3 Prest. Conv. 24.) The merger would effect a severance of the joint tenancy in the reversion. (Co. Litt. 183 a.) Extinguish- ment. Suspension. Extinguishment is properly used to denote the annihilation of a collateral thing in the subject out of which it issues, or in respect to which it is enjoyed; as of a rent-charge, chief rent, common, profit a prendre, easement or seignory, in the land to which they respectively relate; or of an incumbrance, or an equitable estate, in the corresponding legal estate. It is necessary, in order that an extinguishment may take place, (1) that the right to the collateral thing and an estate in the land itself, shall come to the same 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 defeasible, 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 latter's determination or defeasance. (Co. Litt. 313 a, b.) Digitized by Microsoft® MESGEE, 79 A discontinuance, when that term is applied to estates in Disoontinu- land, was the result of certain assurances which, by the common law, had a tortious operation, whereby, under certain cii'cum- stances, one person might wrongfully destroy the estate of another ; or rather, interrupt and break off the right of posses- sion, 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 possession, destroyed (or rather, interrupted) both the estate tail itself, and all remainders, and the reversion, if any, expectant thereupon ; and obliged the persons lawfully claiming by virtue of those estates respectively, if they desired to prosecute their rights, to have recourse to a real action. The word discontinuance properly denotes this turning of an estate to a 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 more easily, aud 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 possession, though only as tenant at will, would suffice (at common law) to devest lawful estates. This capacity of a tenant in tail in possession to effect a discontinuance, 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 Bonis, and also the rights of remaindermen and reversioners, could be pro- secuted only by a real action brought upon a writ of formedon* * The ■writ was styled formedon en descender when brought by the issue, en remainder when brought by the remainderman, and en reverter when brought by the reversioner. On actions of formedon, see Booth, Eeal Actions, 139 — 166. (1) As to formedon en descender, since at common law an estate tail was a con- ditional fee, and the alienation of the tenant of a conditional fee, even before issue had, bound the issue if born subsequently, though it did not bar the reverter, it seems to follow that there could not possibly have existed any such writ at common law to enforce a right in the issue as against the ahenation of their parent, because the right in question did not exist. Such a writ could only have existed, if at all, to enforce the right in the issue as against a disseisor, or Digitized by Microsoft® 80 ON ESTATES IN GENERAL. The destruction of an estate formerly existing under a lawful title, and the simultaneous eoming iato 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 ; but such illustrations are perhaps better adapted to confuse than to enlighten. 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 possibility that the learning of the subject may be required in the investigation of old titles. Eemitter. The law of remitter is a very curious and entertaining branch of learning ; but it probably has now no practical importance. Eemitter might be defined as the opposite of discontinuance, being an act or operation of law, whereby a right of entry, or a right of action, might be turned to an actual estate without the necessity for making an entry or bringing an action, in fact. This occurred whenever the actual seisin, existing under a tortious title, accrued to a person having also in himself a right- ful 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. Eemitter gave to the person who was said to be remitted his rightful estate, or rather, the estate under his rightful title, to the same extent as he might have gained it by making an entry or bringing a real other person tortiously in possession. Lord Coke perhaps thought, that the writ lay at common law under special circumstances. (See Harg. n. 6 on Co. Litt. 19 a, and what is said in the note at p. 74, supra.) (2) As to formedon en remainder, it seems to be the better opinion that this did not lie at common law in respect to conditional fees ; and probably not in respect to anything else. [Vide supra, p. 74, note t.) Booth's language ahout the possibility of the exist- ence of a formedon en remainder in favour of the remainderman upon an estate for life, 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 Ufe, and then suggests that this evidence perhaps only shows that the writ could not be had in the lifetime of the tenant for life. (3) There was a possibility of reverter upon a conditional fee, and formedon en reverter was the proper remedy therefor at common law ; as is expressly stated by the statute Be Donis. Digitized by Microsoft® MERGER. 81 action, as the ease 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 dis- seisin 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 feoifee might have defeated the seisin acquired under the disseisin, by bringing a writ of entry siir 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 remitted 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 procedm-e, ques- tions of remitter were often of great practical importance. At The la-w of the present day, when no assurance can operate by tort, and now obsolete real actions no longer exist, the law of remitter seems to have ™ practice. no practical interest, except 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, as was expressly held by the Court of Appeal in Leach v. Jai/, 9 Ch. D. 42, see p. 44 ; and indeed this seems to be too obvious to need any authority ; and it is also true that the effect of an actual disseisin is to turn the estate of the disseisee 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 in relation to modem practice.* Remitter may be said to resemble merger, * It would appear from Agency Company y. Short, 13 App. Gas. 793, that, in the opinion of the Judicial Committee of the Privy Council, if a disseisor should go off the land without any intention of returning, this would be a remitter of the seisin in favour of the disseisee, without any entry made by him. But the decision does not necessarily rest upon this proposition, which may perhaps be regarded as of questionable authority. (See Appendix III., infra.) And even though it should be followed by the House of Lords, it does not afEect practice or pleading in the same way as the old law of remitter, but only introduces a new rule relating to the validity of titles under special circumstances. C.R.P. G Digitized by Microsoft® 82 ON ESTATES IN GENERAL. 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 If two estates, which would under the foregoing rules be en autre droit iin . iiici is not merged, capable of merger, come mto the hands of the same person by operation of law and not by act of parties, there will be no merger unless both the estates are held in the same right. For example, a term of years coming 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 Leeh Case, 3 Leon. 110.) Wlen estate en autre droit is merged. When the accession of the two estates is not by operation of law but by act of parties, it is the better opinion that at law, merger would ensue. (3 Prest. 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 distinction 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 existence of any distinction. The question is not now of any practical importance ; for it may confidently be predicted that, at all events with the aid of the Judicature Act, 1873, s. 25, sub-s. (4), which will shortly be discussed, the com'ts would never decide in favour of a merger under such circumstances. Distinction taken by Lord Coke. According to Lord Coke, though a man may have a freehold in his own right and a term of years en autre droit, he cannot have a term of years in his own right and a freehold en autre droit. (Co. Litt. 338b.) This distinction does not seem to be well grounded. (3 Prest. Conv. 278 ; Jones v. Bavies, 7 H. Digitized by Microsoft® MERGEB. S3 & N. 507.) Yet it is clear tliat Lord Nottingham thought there would he a merger at law; see 3 Swanst. at pp. 618, 619. But merger under such circumstances was not recognized in equity. {Thorn v. Newman, 3 Swanst. 603 ; Nurse v. Yencorth, 3 Swanst. 608, at p. 619.) Therefore, hy virtue of the above- cited enactment, there would now at all events he no merger at law. Of Estates Tail and Base Fees. There is no merger of the estate tail in a remainder, or the No merger in reversion, in fee simple, when they meet in the same person '^®^'™P<'; without the intervention of any intermediate estate. (3 Prest. Conv. 341 ; Wiscofs Case, 2 Eep. 60, at p. 61a.) One estate tail will not merge in another. An estate in tail or in a subse- -male may co-exist with another estate in tail female in remainder, both being vested, without the intervention of any intermediate estate, in the same person. (Litt. sect. 719, and Lord Coke's comment.) The rule is not confined to the particular kinds of estates 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 example, by the limitation of an estate in tail male or in special tail, in remainder upon an estate in tail general. (3 Prest. Conv. 246.) If the posterior limitation is absolutely included in the prior limitation, the posterior limitation is void for absurdity. (Co. Litt. 28b.) The rule which protects estates tail from merger is one of the Base fees, and consequences of the statute De Bonis, and it holds good only so tenant in " long as the estate tail is required to be in being for the purpose ^^^ ?^Si of seeming to the issue in tail the benefits designed for them by the statute ; and when that pm'pose 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 merger. (Co. Litt. 28 a ; 3 Prest. Conv. 345.) g2 Digitized by Microsoft® 84 ON ESTATES IN GENERAL, Enlargement The Fines and Recoveries Act, s. 39, provides, that whenever lieu of merger, after 28th Aixgust, 1833, a base fee in any lands, and the re- mainder or reversion in fee in the same lands, shall he 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 reversion had been vested in any other person. 36 & 37 Vict, c. 66. Merger no"W foUowR the rules of equity. Merger not f aTOured in equity. The Modern Law of Merger, and Merger in Equity. The Judicature Act, 1873, s. 25, sub-s. (4), enacts that after the commencement of the Act, there shall not be any merger by operation of law only of any estate, the beneficial interest in which would not be deemed to be merged or extinguished in equity. By virtue of 37 & 38 Yiet. c. 83, s. 2, this enactment takes effect as from 1st November, 1875. It has been said, "that mergers are odious in equity, and never allowed, unless for special reasons." (1 P. Wms. at p. 41.) But this must not be understood to mean, that equity never suffered a merger at law to effect any practical alteration in the rights of parties ; for such a proposition would be mani- festly 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 remainders 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. The following points are very material, in considering the practical result of the assimilation of merger at law to merger in equity. Trusts. Since the common law courts could take no notice of trusts, there might be a merger at law between two Digitized by Microsoft® MERGER. OO estates held in the same right, although one of them was held upon a trust. (3 Prest. Oonv. 285.) The eldest son and heir apparent of a man who was entitled Fraud, 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 cer- tain conveyances 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 provide portions for younger childi'en. It was held that the fraud was a ground for relief in equity. {Danby v. Danhy, Eep. temp. Finch, 220.) . If the above-mentioned distinction taken by Lord Coke as Lord Coke'a to estates en autre droit (namely, that though a man may as to en autre have a freehold in his own right and a term of years en '^'""''• autre droit, he cannot have a term of years in his own right and a freehold en autre droit) ever was the rule at law, it is the rule no longer. {Thorn v. Neivman, 3 Swanst. 603 ; and see Nurse v. Tericorth, 3 Swanst. 608, at p. 619.) . In Chambers v. Eingham, 10 Ch. D. 743, at p. 746, Lord Thedistiuc- Justice (then Mr. Justice) Fry seems obiter to have en autre droit, expressed the opinion, that even at law two estates of p^tLs^and cannot merge when one is held en autre droit, although ^°* °^ ^^'^^ they both come to the hands of the same person by act of parties and not by operation 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 ; because 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. Digitized by Microsoft® 86 Infants. Extinguish- ment. Estoppel by acquiescence. ON ESTATES IN GENERAL. 5. There is a dichun of Lord Eldon m Xovd Compton v. Oxcnde)i,.2 Yes. 261, at p. 264, -wMch 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. Kcmcys, 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 ques- tion. Here there is some likeness in principle between merger and extinguishment. 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 in- tention; and Toulmin v. Sfeere, 3 Mer". 210, as explained in Adams v. Angell, 5 Oh. D. 634, at p. 645, where note the words, "in the absence of any contemporaneous expression of intention." Cases of the type of Toulmin V. Steere seem to depend upon the question of the ex- tinguishment 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.* Something to the same effect is the doctrine, that if the legal fee and the equitable fee should come to the same hands, the latter is extinguished ; and if it should happen that the course of descent should not be identical, the descent of the legal fee will prevail. {Selby v. Alston, 3 Yes. 339; Re Boughs, Wood v. Douglas, 28 Ch. D. 327.) 6. The point actually decided in Brandon v. Brandon, 31 L. J. * Questions relating to the extinguishment of charges in the fee, or other estate charged, have nothing to do with merger properly so called, though they are often confused with it, and are often improperly included in the word. It may now be regarded as conclusively settled, (1) that upon a charge and the estate charged coming to the same hands, the charge will never be ex- tinguished contrary to the expressed intention of the party, and (2) that in the absence of any expressed intention, the intention may be inferred from consider- ing what would most have conduced to the party's benefit. Though there will never be an extinguishment contrary to the intention of the party, yet special circumstances may exist to prevent him in equity from setting up the charge against a subsequent incumbrancer. Digitized by Microsoft® MERGER. 87 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 pnrties, the two estates have dm-ing a long series of years been treated by the i^o^rt as bt-ing both in subsistence. The judgment contains dicta which Qiia:re&<^ to would seem to go the length of laying it down, that in equity merger depends wholly upon intention. Digitized by Microsoft® ON ESTATES IN OENEUAL. OHAPTEE XI. RULES or LIMITATION AT COMMON LAW. It has teen remarked atove, that terms of years were unknown to the common law, which recognized no estate other than estates of freehold. (Vide supra, p. 63.) 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 necessarily 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. 16, or, at all events, before the Statute of Grloucester, this usage is so obviously natural as to require no explanation ; and later writers long retained the language which had become the customary exponent of the law's meaning. The statutes which made the estate or interest of the termor for years practically indefeasible, contained nothing to disturb the old legal theory, that he had no seisin in him, but occupied the land only under a contract and in right of the seisin of the reversioner. Defimtion of Seisin may therefore be defined to be a possession of land founded upon the title given by an estate known to the common law; or, which is the same thing, by an estate of freehold. " Seisihts commeth of the French word seisin, i.e. possessio, saving that in the common law, seised or seisin is properly applyed to freehold, and possessed or possession properly to goods and chattels ; although sometime the one is used instead of the other." (Co. Litt. 17 a.) When greater complexity had been introduced into the relations of legal estates, and it became requisite to use a greater nicety of language in order to preserve accuracy, the vord seisin, which was originally used inter- Digitized by Microsoft® seism. RULES OF LIMITATION AT COMMON LAW. 89 cliangeaHy witli possession and in reference both to real and personal property, gradually became appropriated to tbe former, and the word possession to the latter. It is remarkable that the change should be assignable to the fifteenth century : about the epoch when the growing importance of terms of years might have given rise to confusion, if the verbal discrimination had not been made. {Vide supra, p. 55, note.) The word possession is now commonly used to mean any possession which is founded upon any title which the law, as now administered, will recognize and protect.* When a number of successive vested estates of freehold are The actual derived out of the same original estate, the tenants of all such estates, though only one estate can at one time be vested in pos- session, are all said to be in the seisin of the fee. 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. Any estate which, if vested in possession, would give the Mere freehold right to the immediate freehold, but which imports no inherit- from mherit- ance, is styled an estate of mere freehold. The only estates of ^°°®' this nature are estates for life (including tenancy in tail " after possibility") and estates ^jw autre vie. The seisin is quite independent of, and unaffected by, the In -what Benee .1 J! X i, £ mi, J2 J* ^ remainder existence ot any term or terms oi years. Inereiore, so iar as ^f freehold is the seisin is concerned, there can exist no such thing as a re- ^^l*^ *° subsist ' ° alter a term mainder of freehold expectant upon a term of years. The of years, existence of a prior term of years does not prevent the first vested estate of freehold from being an estate of freehold in possession. (Litt. sect. 60 : — " If the termour in this case entreth before any livery of seisin made to him, then is ^q freehold and also the reversion in the lessor.") Words and phrases which * " Seisin is a word of art, and in pleading is only applied to a freehold at least, as possessed for distinction sake is to a chatteU reall or personal!." (Co. Litt. 200 b, on Litt. sect. 324, q. v.) This applies not only to corporeal here- ditaments, but to all incorporeal hereditaments in which there may be estates of freehold ; that is, to all tenements intailable under the statute Le Bonis. On the phrase, " seised in his demesne as of fee," see Litt. sect, 10. Digitized by Microsoft® 90 ON ESTATES IN GENERAL. grammatically import futurity, such as "then," "when," "from and after," and the like, when they refer to the determination of a prior term of years, do not make the subsequently limited freehold contingent, or postpone the vesting of it until the expiration of the term ; but under such circumstances the free- hold is vested immediately. {Bomston's Case, 3 Eep. 19.) During the continuance of a prior term, the first estate of free- hold is properly described, not as being a remainder of freehold expectant upon the term of years, but as being the freehold in possession subject to the term. Eut 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 re- mainder. 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 subsequent contingent estate of freehold from being void in its inception, as being an attempt to create a freehold in futuro. The seisin By the common law, the tenant of the immediate freehold cannot be . placed in was the only person agamst whom a writ could be brought in a act'of'partiOT. ^^^^ action. Or from whom the lord could demand the feudal services incident to the tenure ; and in ancient times this was equivalent to saying that, during abeyance of the immediate freehold, 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, * Where the term is created by way of lease, and for the ordinary purposes of a lease, the use and occupation is of course always ia the lessee. But terms of years are often created in settlements, or under powers conferred by settle- ments, merely by way of seoiurity for jointures and portions ; and they do not then interfere with the use and occupation of the lands, unless some default is made in satisfying the charges for which they are a security. Similar terms were also formerly in common use for the creation of ordinary mortgages for securing money lent. Digitized by Microsoft® RTJI.ES OF LIMITATION AT COMMON LAW. 91 if it were taken to be valid, the immediate freehold would he placed in aheyance. The strictness of this rule is absolute : under no circumstances whatever, hy the common law, can the immediate freehold be placed in abeyance by any act of parties. (1 Prest. Est. 216.) From this rule some very important con- sequences are deduced, with regard to the limitation of estates at common law. But by unavoidable necessity, the immediate freehold might Sometimea be placed in abeyance by operation of law, though not by the abeyance by act of parties. In the case of a corporation sole seised of lands, °psi^ation of during the interval between the death of one incumbent (or other cause of a vacancy) and the accession of his successor, the immediate freehold is in abeyance. (Litt. sect. 647.) And on the death of a tenant piir autre vie, whose estate was barely limited to him by name (without 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. (Go. Litt. 342 b.) By the provisions of several statutes, the immediate freehold The seisin may perhaps, under certain circumstances, be placed in abeyance, placed in At common law a contingent remainder was destroyed, unless it ^^YT"^ ^^ became vested in interest either previously to, or eo instanti with, the determination of the precedent estate of freehold ; because the immediate freehold would otherwise have been in abeyance pending the contingency. The statutes above referred to pro- vide that, subject to certain restrictions, contingent remainders may take efPect, notwithstanding the determination, pending the contingency, of the precedent estate of freehold ; but they make no provision for the vesting of the freehold during the interval. (For an account of the said statutes, and remarks upon their operation, see pp. 127, 130, infra.) The impossibility, at common law, of causing any abeyance of the immediate freehold by any act of parties 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 Digitized by Microsoft® 92 ON ESTATES IN GENERAL. their operation, in respect to the liability of contingent remain- ders to destruction, has been restricted by the statutes above referred to. Exemption g^^ n must be bome in mind that the rules of limitation of executoiy . <> ■ . . , limitations, which depend upon the necessity for a continuous seism do not necessarily apply either to assurances taking effect by the Statute of Uses, or to wills, because limitations which, in a common law assurance, would place the freehold in abeyance, would not necessarily place it in abeyance if contained in an assurance by way of use or in a will. In the case of executory devises, the seisin will descend, during the unappropriated interval, to the testator's heir-at-law ; and in the case of springing and shifting uses, it may result to the grantor, during any such interval. At the present day, assurances at the common law rarely occur in practice ; and it follows that the practical appli- cation 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 indi- vidual or a corporation, are commonly granted in the shape of common law leases,* as distinguished 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 who aspires to possess more than an empirical acquaintance with his art. Moreover, the general rule against abeyance of the freehold remains in full force and validity ; and the existence of executory limitations is explained, not by the hypothesis (which would be untrue) that by their means an abeyance of the freehold can be effected, but by the theoretical devices which account for the vesting of the freehold, in wills and conveyances * Even these leases are not, strictly speaking', common laiv assurances ; for they are in practice made by grant under 8 & 9 Vict. c. 106, s. 2, whereas at common law they would need livery of seisin. But this point is not material to the present distinction, for such statutory grants seem to be amenable, in aU other respects, to the rules which govern common law assurances. In the same sense, it might also be said that conveyances in fee simple, expressed to be made " unto and to the use of" the grantee — which often occur in practice— are common law assurances, since they do not take effect by the Statute of Uses, But the form of such assurances does not offend against the present rules. Digitized by Microsoft® RULES OF LIMITATION AT COMMON LAW. 93 to uses, during any interval which is not specifically mentioned and appropriated by the instrument. Of the rules stated in this chapter, the first four depend upon The bearing the doctrine of abeyance of the seisin. The remaining two uponper- were designed to prevent the creation of what in modern times is P^^i^'i^^- styled " a perpetuity," by the limitation of remote estates to unborn persons as purchasers. The latter rules are the ancient counterpart at common law of the modern rule against per- petuities ; and they fulfil a function, in respect to legal limita- tions, similar to that of the rule against perpetuities in respect to executory limitations. Lord Brougham pointed out, in Cole v. Sewell, 2 H. L. 0. 186, at p. 232, that the rule forbidding abeyance of the seisin also directly tended to prevent the creation of perpetuities, by preventing the existence of any interval between the determina- tion of a particular estate and the commencement in possession of the remainder : — " 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 further 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 the assurance, or upon the happening of some future con- tingency other than the determination of a precedent estate of freehold, is void in its inception. (5«r- wiclc's Case, 5 Rep. 93, at p. 94 b; Buckler'' s Case, 2 Rep. 55 ; Boraston^s Case, 3 Rep. 19, at p. 21 a ; Hogg V. Cross, Cro. Eliz. 254 ; 10 Vin. Abr. 206 = Estate, B. pi. 10 ; ibid. 208, pi. 26 ; Plowd. 156 ; 2 Bl. Com. 165 ; 1 Prest. Est. 217.) Digitized by Microsoft® 94 ON ESTATES IN GEXEKAL. An estate of freehold so limited is often styled a freehold in futuro ; and the above rule is often summarized by the state- ment, 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 : — Three kinds (1) A Vested estate, (or rather, an estate which, by the terms of freehold „,,... in futuro. of its hmitation, purports to be a vested estate,) not preceded by another estate, but limited to commence after the expiration of a fixed interval, or upon the happening of a contingency ; (2) A vested estate limited subsequently to another estate, but with an interval of time to elapse between its com- mencement in possession and the determination of the precedent estate ; and (3) A contingent remainder not immediately preceded by a vested estate of freehold. In the recent case of Soddinjfon v. Robinson, L. E;. 10 Exch. 270, the validity of the above-stated rule was expressly ad- mitted; though, by a strained construction of the deed which was there in question, the legal consequences of the rule were avoided. But this admission of the rule's validity is subject to the extraordinary suggestion, which seems to have been made arguendo in that ease as to the effect of 8 & 9 Yiot. c. 106, s. 6, upon which the court pronounced no opinion. {Vide infra, p. 99.) Eeasonofthe The existence of this rule is intimately connected with the neotion with view taken by the common law of the common law assurances, as^an'^oer ^nd particularly of a feoffment. In the 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 referred, out of the feoffor. Unless, therefore, the feoffment purported, forthwith and for the whole of that duration, to vest the seisin in the feoffee, it would follow that, during some unappropriated interval, the actual seisin or immediate freehold would be placed in abeyance. Whether the supposed unappropriated interval had its ex- istence at the beginning, or somewhere in the middle, of the period for which the seisin was taken out of the feoffor Digitized by Microsoft® KULES OF LIMITATION AT COMMON LAW. 95 by the feoffment, makes no difference to the ultimate result. In either case, supposing the limitation to take effect, the actual seisin would, sooner or later, he placed in abeyance. There- fore, estates of freehold in futuro, unpreceded by any other estate, and remainders (as they may be called) in futuro, separated by an interval of time from the precedent estate, are at common law, both equally void in their inception. The case of a contingent remainder, provided that in its Application ° . . of the rule to inception it is preceded by an immediate estate of freehold, contingent differs from what is above styled a remainder in futuro ; because, though such a contingent remainder might by possibility place the immediate freehold in abeyance, the terms of its limitation do not exclude the possibility that it may take effect without causing any such abeyance. Therefore, while a remainder expressly limited in futuro is void in its inception, the con- tingent remainder is (at common law) void only in case the possible mischief should actually arise ; that is, in case the precedent estate of freehold should determine before the vesting of the contingent remainder by the happening of the contingency. The rules of limitation which are derived from the rule The rule against abeyance of the freehold, are not confined to assurances common law- made by feoffment, though their origin is closely connected with ^!f^^|X ^ the mode in which a feoffment is supposed by the law to freehold can be conTeyed. operate. They have always been held to apply also to all other assurances by which, at common law, estates of freehold may be limited or conveyed ; namely, as regards corporeal hereditaments, to fines, recoveries, releases, and confirmations by way of enlarge- ment ; 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 pm-porting to be created by feoffment. (JRoe v. Tranmarr, V/illes, 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 Digitized by Microsoft® 96 ON ESTATES IN GENERAL. rule does not apply thereto. (Boe v. Tranman; Willes, 682, 2 WHs. 75.) Exchanges. Jt js laid down in books of great authority (Shep. T. 295 ; Perk. sect. 265) that the rule is not binding upon common law exchanges, in the sense that an exchange may be made to tako effect after 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 elec- tion of the other party; and that upon election being made, the exchange is good : which approaches nearly to the doctrine of Perkins. Preston questions the first doctrine, but does not expressly deny it (1 Prest. Est. 217, note d) ; and in his addi^ tion to the Touchstone, he appears to accept the second doctrine there laid down. Common law exchanges probably never occur in modern practice;* and therefore the question is of no practical importance. The rule does not operate until the assurance is perfected. 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 feoff- * It is now the common practice to employ ordinary conveyances, one made by each party to the other, in order to efPeot exchanges. Such conveyances, except in the statement of the consideration, do not differ in form from ordinary conveyances upon sales. On common law exchanges, see Co. Litt. 51 h. ad but. Five things are enumerated as being necessary: — (1) that the parties should both be seised (or, in the case of terms of yeai'S, possessed) of estates of the like quantum and quality ; (2) that the proper word, excamUum, or exchange, should he used ; (3) both parties must enter on their respective parcels during their joint lives ; but an entry in law was sufficient in cases where an entry in deed could not be made ; which is what Lord Coke means when he says that entry or claim is necessary ; (4) if the exchange were of things lying in grant, it must be made by deed ; (5) if the exchange were of lands in the same county, it might at common law be effected by parol ; but, according to the common opinion, the Statute of Frauds made writing necessary, though it does not expressly mention exchanges ; and by 8 & 9 Vict. c. 106, a. 3, a deed is now necessary ; if the lands were in different counties, a deed, and according to Lord Coke and the Touchstone, an indenture, was necessary. Preston (Prest. Shep. T. 294) questions the necessity for an indenture. Digitized by Microsoft® RULES OF LIMITATION AT COMMON LAW. 97 ment, and does not under such circumstances commence infuktro. (1 Prest. Est. 222 ; 10 Vin. Abr. 205 = Estate, B. pi. 4 ; 13 Vin. Abr. 193 = Feoffment, T. 2, pi. 1.) Similarly, an assurance by deed, whicli needs no livery, takes effect from the delivery of the deed. Accordingly, in an assur- ance by lease or release, or in a lease made by grant under 8 & 9 Viet. c. 106, of lands for life or lives, if the estate limited should purport to be a freehold infuturo, but the deed (though previously sealed) should not be delivered until after the expi- ration of the preliminary interval, the deed will be good and the estate will take effect. (1 Prest. Est. 222.) The natural meaning of the words, " from the day of the From what date," is, "after the day of the date ;" and a lease of which the commences, commencement is so indicated, properly begins with the begin- ning of the next day. [Clayton's Case, 5 Rep. 1 ] Cornish v. Caivsjj, Aleyn, 75.) Therefore in the ease of a lease for lives of which the commencement is so indicated, if livery of seisin had been made on the day of the date, this would upon a strict construction amount to the limitation of a freehold infuturo and would be void. (10 Vin. Abr. 204 = Estate, B. pi. 1, 2.) If this doc- trine were enforced, there seems to be no reason why it should not apply to leases for lives made by grant, under 8 & 9 Vict. c. 106, s. 2, as well as to leases for lives made by livery of seisin. But it has been held in more recent cases, in order to avoid a result which must be contrary to the intention of the parties, that the above-mentioned expression will be deemed to include the day of the date. {Ratter v. Ashe, 3 Lev. 438, Ld. Eaym. 34 ; Freeman v. West, 2 Wils. 165.) In Boddington v. Robinson a lease which purported to create a Remarks freehold in futuro, having been drawn by an incompetent drafts- ^f°soddtn'gfm man, happened to contain some absurd and superfluous expres- "l- -Koi'nson, sions. The court, being very desirous to escape from declaring Exch. ^70. the lease void, 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 intention 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 pre- C.K.P. H Digitized by Microsoft® 98 ON ESTATES IN GENERAL. sumed to be delivered, on the 10th November, 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 from the 13th of November [sic] for the term of the aforesaid A. for the term of his natural life. This lease therefore 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 oertaiu 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 infuturo purporting to be created by what is for this purpose a common law assurance. The court held that the words contained in the premisses were sufficient expressly to pass the whole estate of A., and that they were not cut down by the words contained in the Mbendiim 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 infuturo. The reasoning upon which this conclusion was based seems to consist of two propositions. The first imports that an express estate contained ia the premisses of a deed, and which is capable of taking effect by virtue of the deed without any such extra- neous ceremony as livery of seisin, is not liable to be abridged or avoided by anything contained in the habendum : a proposi- tion which has for a very long time past been settled beyond question. ( Vide infra, p. 377.) The second proposition (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 propo- sition, 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, Digitized by Microsoft® RULES OF LIMITATION AT COMMON LAW. 99 administrators, and assigns," are "proper words of limitation" for granting the whole of the estate of the grantor in pni'scnti. But this statement seems to be very arbitrary doctrine. There exists no authority to show that those words, unaccompanied by the words, " during the life of the grantor," would have any such effect. And the last-mentioned words would have that effect, without any need for the mention of executors, adminis- trators, 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 himself no better right to enter upon the lands, after the grantee's death, than anybody else had. It is to be regretted that the arguments of counsel are not given in the above cited report. An extraordinary suggestion Suggestion as seems to have been made, in argument, that 8 & 9 Vict. c. 106, °_ loe s. i^ ' s. 6, has in effect repealed the rule of law now under considera- ^^^ arguendo ' ^ m Boadmgton tion, and that it authorizes the creation de novo of a freehold in '^- J^obinson. futiiro 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, contingent remainders and exe- cutory 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 signiii- canee, 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 consider this question, upon the ground that, in view of their opinion upon the other point, it was not material to the decision. The following reasons (if any be required in addition to the Reasons for apparent scope of the Act's language) for rejecting the sug- above™^ gested interpretation of 8 & 9 Vict. c. 106, s. 6, seem to be ™™«ofe'i a r ; ! suggestion. conclusive. If that interpretation were correct, its effect could hardly be restricted to the particular case which happened to suit the convenience of the defendant in Boddington v. Robinson. h2 . Digitized by Microsoft® 100 ON ESTATES IN GENERAL. The result would be that, independently of 40 & 41 Vict. c. 33, no reason would any longer exist, why a contingent remainder should he destroyed by the expiration of the precedent estate of freehold pending the contingency. But nobody has ever suggested that the last cited statute is superfluous, so far as regards contingent remainders created by instruments coming into operation after 1st October, 1845. In Braclcenbury v. Gibbons, 2 Ch. D. 417, which was decided more than thirty years after the passing of 8 & 9 Vict. c. 106, Yice- 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 Ee Lcchmere and Lloyd, 18 Ch. D. 524, the late Master of the Rolls, Sir G. Jessel, evidently made the same assumption, 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 re- mainders. (See also Cunliffe v. Brancker, 3 Ch. D. 393.) More- over, if such contingent remainders as are not within the protection of 40 & 41 Vict. c. 33, are by 8 & 9 Vict. c. 106, protected against destruction by expiration of the precedent estate, it is to be observed that neither statute makes them liable to the rule against perpetuities, and it is at least doubtful whether any such liability otherwise aifects them. Rule 2. — Any similar limitation of an estate of free- hold derived out of a remainder or reversion, expectant upon a particular estate of freehold, is likewise void in its inception. (Bartvick^s Case, 5 Rep. 93, at p. 94 b ; Btickler's Case, 2 Rep. 55 ; Sivyft v. Eyres, Cro. Car. 546 ; 10 Vin. Abr. 2i)Q^Estate, B. pi. 9 ; 1 Prest. Est. 219.) ' Such limitations, when they are to commence in possession after the expiration of a definite interval, are manifestly iden- tical in principle with limitations of a remainder in futuro, derived out of an estate in possession, leaving an unappropriated interval between the determination of the precedent estate and the vesting in possession of the remainder. To them applies the same criticism, that they not only contemplate ab initio the Digitized by Microsoft® RULES OF LIMITATION AT COMMON LAW. 101 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. The rule also applies to the limitation of a contingent re- mainder derived out of an estate in remainder or reversion, not supported by a precedent estate derived by the same instrument out of the same remainder or reversion. For the particular estate upon which the remainder or reversion is expectant, not having been created at the same time as the contingent re- mainder, will not suffice to support the contingent remainder. {Vide infra, -p. 109.) Rule 3. — Any similar limitation of an estate of free- hold in any incorporeal hereditament, already in esse at the time of the limitation, is yoid in its inception. (1 Prest. Est. 217.) This rule points out the distinction between the creation de novo of incorporeal hereditaments, and subsequent 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 subsequently 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 evident 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 would be the proper person against whom to bring it. But in respect to certain other incorporeal heredita- ments, such as an advowson in gross, the analogy of the reason against abeyance of the seisin of the land holds good; for during an abeyance of the seisin of the advowson, the claimant would have no one against whom to bring his action. If a Digitized by Microsoft® 102 ON ESTATES IN GENERAL. 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. Limitationa When an incorporeal hereditament, as a rent-charge, is created de novo not . , . . . ■withiQ the ae novo, it may be limited to commence at a future time ; and such future time may either be a specified time, or it may be ascertainable by the happening of a contingency. (See Plowd. 166, where the authorities are collected in the margin, note c. See also. Case of Sutton's Hospital, 10 Rep. 23, at p. 27 b.) Rule 4. — No estate of freehold, whether in corporeal hereditaments, or in incorporeal hereditaments already in esse, can be limited, or caused, to exist at intervals only and not continuously. [The Prince's Case, 8 Rep. 14, see p. 17 a; Corhefs Case, 1 Rep. 83, see p. 87 a, b; Prest. Shep. T. 127; 19 Vin. Abr. Adi = Statute, A. 2, pi. 6; 4 Com. Dig. 5; 1 Prest. Est. 218.) This rule applies even to grants by the Crown. (17 Vin. Abr. 79, pi. 5 ^ Prerogative of the King, Gr. b. 3, pi. 5.) 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 separation occurring 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. 228, No. 1.) But an incorporeal hereditament, as a rent-charge, may, at its creation, be limited to arise and fall into abeyance or extiuc- tion by alternate intervals ; just as, at its creation, it may be limited to arise after the expiration of a specified time. {Rex v. Kempe, Ld. Eaym. 49, 2 Salt. 465.) The visitorship of a college is suspended during a temporary union of the office with the headship of the college, and revives upon a severance. {Rex v. Bishop of Chester, 2 Stra. 797.) It seems to follow, that such a visitorship might be limited, upon its creation, by way of desultory limitation. Of this type is the curious limitation mentioned by Lord Hale in note 6 on Co. Litt. 27 a : — " The hospital of Saint Digitized by Microsoft® RULES OF LIMITATION AT COMMO^" LAW. 103 Katharine was founded by Queen Eleanor, wife of Hen. 3, reserving the patronage sibi et reginis Anglim pro tempore existen- tibiis, et eo titulo regina Thilippa uxor E. 3, Imhet patronatum." Such limitations are sometimes styled desultory limitations. See Desultory the case of Atkins v. Mountagiie, 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. Not only may a lease for years be limited at its creation so as to commence in fiituro, or to fall into abeyance at one time and to revive at another time ; but also, after its creation, it may be avoided by one person, being entitled to the reversion pro tempore, and may afterwards revive as against another. (2 Prest. Conv. 142, and the EaH of Bedford's Case, 7 Eep. 7, there cited. See also the 2nd resolution in Matthew Manning's Case, 8 Eep. 94, at p. 95 b.) For example, if A, B, and are successively tenants for life, and A and concur in making a lease (at common law, not under the powers of the Settled Land Acts) for 1,000 years, this is not binding upon B, who, if he should survive A, may therefore repudiate it ; but it will afterwards revive as against C, if he should survive B. The above cited case of Atkins v. Mountague, 1 Ch. Ca. 214, is Kemarka supported by the authority of Lord Hale. Tet it has some ^^° Mountague. features which prevent it from being regarded with unmixed satisfaction. Desultory limitations made upon the creation de novo of an incorporeal hereditament, are not unknown to the law ; but the other authorities, unlike Atkins v. Mouniague, 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 ia any of those ways which are requisite to the limita- tion 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 corporation sole. Nor could Lord Hale have supposed that the Queen Consort is a corporation sole ; for he expressly laid it down, that such a limitation of an advowson in esse would be bad ; whereas, if Digitized by Microsoft® 104 ON ESTATES IN GENERAL. 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. Descent of peerage among co- parceners. In a similar manner, a peerage, if descendible to females, will, by act of law, fall into abeyance upon a descent among co- parceners. The crown enjoys the undoubted prerogative, to revive any such dormant peerage 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.) Offices held in grand serjeanty. An office of honour, held by what, previously to 12 Oar. 2, c. 24, was tenure in grand serjeanty, does not fall into abeyance among coparceners ; but how, upon such a descent, it should be exercised, has been a matter of doubt. Lord Coke thought, 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 deputies in lieu of persons for any cause disqualified, see Co. Litt. 107 b. Rule 5. — If in a deed there are two limitations, one to an unborn person and the other (by purchase) to any issue of such unborn person, the second limita- tion is Toid. And all limitations subsequent to such void limitation are also void. (2 Prest. Abst. 114, 115 ; Fearne, Cont. Eem. 502, and Posth. Works, 215 ; Briidenell v. Ehves, 1 East, 442, at p. 453 ; Monypenny V. Bering, 2 De G. M. & G. 145, at p. 170 ; Hay v. Earl of Coventry, 3 T. R. 83, at p. 86.) If in a will Digitized by Microsoft® KULES OF LIMITATION AT COMMON LAW. 105 there are two sucli limitations, the prior limitation (whether it be executed, or executory) may be con- strued as a limitation in tail, provided 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 ; Parfitt t. Hember, L. R. 4 Eq. 443 ; Forsbrook v. Forshrook, 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 estate Cy prh tail, is made in order to give effect to the apparent intention of the testator, so far as the rules of law ■will permit ; and it is therefore commonly referred to as the cy prls doctrine. The quality of the estate tail is regulated by the quality of the issue v^ho are the subjects of the second limitation. The doctrine is not likely to be extended. (Butl. ubi supra.) This rule is independent of, and in addition to, the rule against perpetuities ; so that any limitation of a legal estate which contravenes the rule, is void, although such limitation may not be obnoxious to the rule against perpetuities. ( Whitby V. Mitchell, 44 Ch. D. 85.) Rule 6. — The limitation of a remainder to a cor- poration not in esse, or to the right heirs, as purchasers, of a person not in esse, is void. {Clwlmley' s Case, 2 Rep. 50, at p. 51 a, b; 2 Bl. Com. 170; Fearne, Cont. Rem. 250, 251.). The authorities declare that such a limitation is void in its inception, even though a corporation answering to the descrip- tion should be created, during the continuance of the precedent particular estate ; or though a person answering to the descrip- tion should come into being, and leave an heir at the time when the estate to arise under the limitation would fall into possession : wherein it differs from the limitation of a contingent remainder Digitized by Microsoft® 106 ON ESTATES IN GENERAL. to the heirs (though not yet in being) of a person the unborn son of a person in esse. ( Vide infra, p. 120.) esse, or to The maxim against double possibilities. This rule, as well as the foregoing, 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 ; ihld. 184 a ; 1 Eep. 156 b ; 10 Eep. 50 b.) This maxim has certainly been applied with very little consistency. 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 the man might die in his lifetime, and the husband of the woman in her lifetime, 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. {Buke of NorfoWs Case, 3 Ch. Oa. 1, at p. 29.) It does not clearly appear whether he meant to ques- tion the maxim altogether, 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 import, 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 occasion should arise; seeing that it only aflSrms 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 restriction 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. If, as in the older authorities, the maxim against double possibilities is regarded only in the light of a reason to support the two propositions above stated — (1) that a limitation to the issue of an unborn person, as purchasers, in remainder upon an estate for life to that person, is void ; and (2) that a limitation Digitized by Microsoft® RULES OF LIMITATION AT COMMON LAW. to the heirs of an unborn person, as purchasers, is void — its validity is unimpeachable, and has been expressly allowed by the Court of Appeal in the above cited case of Whitby v. Mitchell, 4:4: Ch. D. 85. But it does not foILow that we may treat the maxim as being itself a rule, and therefore as for- bidding every limitation in which an ingenious person can detect what he calls a double possibility. Lord Justice (then Mr. Justice) Kay went a good length in this direction in the case of Re Frost, Frost v. Frost, 43 Ch. D. 246. But this novel proposal ought not to be imported into the law, without more careful consideration than it appears hitherto to have received. 107 Digitized by Microsoft® 108 ON ESTATES IN GENERAL. CHAPTER XII. CONTINGENT EEMAINDERS. As has above teen remarked, for all purposes which regard the seisin, a term of years is not properly styled a particular estate, because it does not in any way affect the seisin, under the next estate of freehold ; and similarly, an estate of freehold cannot properly be said to subsist in remainder upon a term of years, because the subsistence of the term does not prevent the vesting of the seisin under the freehold during the term. But the consecutive relation of a term of years and the next estate of freehold, when they are contemporaneously created, bears a marked resemblance to the relation between a particular estate properly so called and a remainder expectant upon it, and in view of this relation a term of years is often styled a particular estate, and the next estate of freehold is often styled a re- mainder. These explanations are here repeated, because the facts in question need to be borne in mind during the perusal of the next following paragraphs. Must be sup- ported by estate of freehold in their in- ception. The particular estate preceding a vested remainder of freehold may be a term of years ; and in that case the seisin, during the continuance of the term, is vested in the remainderman. ( Vide supra, p. 70.) But the particular estate preceding a contingent remainder of freehold may not be a term of years ; because in such case the seisin would not be vested, but would be in abey- ance during the continuance of the contingency. {Goodright v. Cornish, 1 Salk. 22G.) Such a contingent remainder would be void in its inception, for want (as the common phrase goes) of a sufficient estate of freehold to support it. It is conceived that this is still the law. Executory- limitations But such a limitation, though void as a remainder at common Digitized by Microsoft® COKTINGENT REMAIxnERS. 109 law, and therefore necessarily void if contained in an assurance need no wMch takes effect only by the common law, may be good as an executory limitation, if contained 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 freehold Must also, by must, by the common law, be supported by an estate of freehold, law, be not only in its inception, but also throughout the pending of the p^ndS^^the contingency ; because, if any interval had been permitted to contingency, exist between the determination of the precedent estate* and the vesting of the remainder, the immediate freehold would have been in abeyance during such interval. Unless the remainder, by the happening of the contingency, becomes vested, either previously to, or at the same instant with, the determination of the precedent estate, it is (by the common law) destroyed. But this liability to destruction has been greatly modified by recent legislation, as hereinafter will be mentioned. The precedent estate must (it would seem) be created by the The precedent same instrument as the contingent remainder. If A be tenant ^g created for life with remainder in fee simple to B, the life estate of A ?y ^^^ '^^'^e ^ ' instrument. would not (at common law) support contingent remainders created de novo out of B's fee simple. Such contingent re- mainders will require a new precedent estate, created at the same time with them and derived out of the same fee simple. (Fearne, Cont. Rem. 301, vii.) But the cases seem only to prove, not that such a limitation would be held void, but that, in order to establish it, it would be construed as an executory limitation. The same doctrine applies to copyholds ; see 3rd resolution in Snowe v. Cicttler, 1 Lev. 135. Any determination of the precedent estate pending the Various contingency would at common law have destroyed the re- their destruction. * The phrase, precedent estate, may conveniently be used to denote a vested particular estate of freehold, immediately precedent, in the order of limitation, to a contingent remainder. Digitized by Microsoft® no ON ESTATES IN GENERAL. mainder, whether such determination were due to the natural expiration, or to the forfeiture, surrender, or merger of the precedent estate. But in order that a merger of the precedent estate in a subsequent vested remainder of inheritance, should absolutely destroy the contingent remainder, it was necessary that the merger should take place subsequently to the creation of the precedent estate. ( Vide infra, p. 126.) 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 remainder is to accelerate the next vested estate. {Goodright v. Cornish, 1 Salk. 226.) How far a devested estate "would support a conting-ent remainder. Determination of the precedent estate by natural expiration, or by forfeiture, or surrender, or (in general) by merger, is an absolute determination of such precedent estate. A contingent remainder was also destroyed at common law, if the precedent estate, instead of being absolutely determined, was 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, Cont. Rem. 287.) Thus, the disseisin of the tenant of the precedent estate would not alone have sufficed to destroy any subsequent contingent 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 contingent 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. The liability The above stated rules, that every contingent remainder of is independent freehold must in its inception be supported by a precedent estate e mo e ^^ freehold, and must vest at a time not later than the deter- mination of the precedent estate, are equally applicable to all contingent remainders, whether they be created by limitations taking effect by the common law, or by limitations which take effect under the Statute of Uses. (Fearne, Cont. Eem. 284 ; in which the remainder arises. Digitized by Microsoft® CONTINGENT REMAINDERS. Ill ibid. 324.) And also, if the limitation is by devise. {Mansell T. Mansell, 2 P. Wms. 678 ; see p. 682.) It was assumed in the last 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. {Cunlife V. Brancker, 3 Ch. D. 393.) The last preceding paragraph is not inconsistent with the above stated proposition, that a limitation which would be void ill its inception as a contingent remainder, may be good as an executory limitation if contained in an assm'ance by way of use or in a will. The words in italics are emphatic. If the limita- tion 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, pp. 112, 113.) 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 destruction. The foregoing rules were not applicable to contingent re- Equitable mainders limited out of an equitable fee, when the legal fee was remainders conveyed to trustees by the same instrument. (Fearne, Cent, ^ggt^^^^^" Rem. 304, 305 ; ihid. 321 ; 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 re- mainders 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 pre- cedent 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 extends 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. And an equitable contingent remainder, even though created before the coming into operation of the 40 & 41 Vict. c. 33, is not rendered liable to destruction by getting in the outstanding legal estate. {Re Freme, Freme v. Logan, [1891] 3 Ch. 167.) Digitized by Microsoft® 112 ON ESTATES IN GENERAL. Copyholds. In the case of copyholds, it is well settled that a premature determination, otherwise than by natural expiration, of the pre- cedent estate, would not have 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 contingent remainder would at common law have been destroyed. Effect of tHe Jf g, particular estate and any remainder or remainders be eniranomse- ... ment of copy- Subsisting in copyholds, and the copyholds are enfranchised by a conveyance, purporting to be in fee simple, from the lord to the tenant of the particular estate, the enfranchisement wHl enure to the benefit of the remaindermen, whose estates will thenceforward become freehold. But their estates, if contingent remainders, will lose the protection from destruction which they enjoyed so long as the freehold was in the lord. {Roe v. Briggs, 16 Bast, 406.) How far liability to destruction still exists. For some further discussion of the particular circumstances, under which a contingent remainder of freehold is liable to destruction at common law, vide infra, p. 124. The liability to destruction by reason of the 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 introduc- tion into settlements of trustees to preserve contingent remain- ders. The liability to destruction by reason of the natural expiration of the precedent estate pending the contingency has been greatly mitigated ; but it still affects contingent remainders created by instruments 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. 130.) No limitation is construed In construing all instruments under which executory interests Digitized by Microsoft® CONTINGENT REMAINDEIIS. 113 may arise, whether wills or conveyances to uses, it has lona- as executory , wmch can been the settled rule, that no limitation which is capable of take effect as taking effect at the common law shall be construed to take effect as an executory 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. 163, 154.) The fact that a limitation may, in the common 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. (Feame, Cont. Eem. 395 ; see also ihicl. 386 ; Smith on Executory Interests, p. 71, and cases there cited.) But a legal remainder cannot be subsequent to an executory AH limita- limitation. (Fearne, Cont. Eem. 503, v.) This seems to follow quent to an inevitably from first principles. A remainder, being a legal umSation, are limitation, could not possibly, by the rules of law, subsist as a executory. remainder in expectancy upon a Kmitation which itself violates the rules of legal limitations. But nothing hinders an executory limitation from being subsequent to a legal remainder. And though the whole of a series of limitations, if subsequent to an executory limitation, must, in their inception, be executory limitations, yet, if the first executory limitation should after- wards become vested, then, if the subsequent limitations are such that they are inter se capable of being related as particular estate and remainder, they are usually styled by those names, and they possess the essential characteristics of particular estate and remainder, although in their inception, since they would have been void at the common law, they were executory limita- tions. For example, a settlor might limit lands to the use of himself and his heirs until his marriage, and, after his marriage, to the use of himself for life, and after his death to the use of his sons successively in tail male, with divers remainders over. Here, since the limitations commence with a fee, all the subse- quent limitations must be executory. Nevertheless, if the marriage should in fact take place, nobody would scruple to say that the settlor was then tenant for life, with remainder (con- tingent, until the birth of a son) to his eldest son in tail male ; and their respective estates would possess all the essential C.B.P. 1 Digitized by Microsoft® 114 ON ESTATES IN GENERAL. characteristics of an estate for life and a contingent remainder. This usage is in accordance with the practice of the best autho- rities. For an example, see Feame, Cont. Eem. 459, where he speaks of " a limitation after an executory devise in tail being so limited as to take effect, either in lieu of the preceding executory devise, if that failed, or else as a remainder upon it, if that took effect" Applioatiou JJ the limitation is in favour of a class, as to some of whom 01 the rule to a class. it will be good in its inception if construed as a contingent re- mainder, while as to others it fails in its inception if construed as a contingent remainder, and can take effect, if at all, only as an executory limitation, this will not generally suffice to exempt the limitation from the above-stated rule ; and the limitation 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. {Festing v. Allen, 12 M. & W. 279, at p. 301 ; Rhodes v. Whitehead, 2 Dr. & Sm. 532 ; Brackenhury rf'tWule'^as ^- ^«^^''"«' 2 Ch. D. 417.) But in a wiU, if it is the clearly to a class. expressed intention of the testator that the whole of the mem- bers of the class shall take, this will enable the limitation to be construed as an executory devise, in order to let in those members of the class as to whom it woiild have necessarily failed in its inception if construed as a contingent remainder. {Re Lechmere and Lloyd, 18 Oh. D. 524 ; Miles v. Jarvis, 24 Ch. D. 633 ; Bean v. Bean, [1891] 3 Ch. 150.) The importance of this distinction is much lessened by the recent legislation, whereby the common law liability of contingent remainders to be de- stroyed has, in a great measure, been removed. In Re Lechmere and Lloyd, Jessel, M. H., expressed the opinion, that the case in Brackenhury v. Gibbons ought to have been distinguished from the case in Rhodes v. Whitehead, and that it did not, when properly considered, come within the latter principle, but rather within the principle laid down by himself in Re Lechmere and Lloyd. But he did not impugn the principle of Rhodes v. Whitehead, in respect to the cases to which it is applicable. General AH contingent remainders have this common characteristic, Digitized by Microsoft® CONTINGENT REMAINDERS. 115 that they depend for their vesting upon the happening of some character- event, which is such that by possibility it may happen neither during the continuance of the precedent estate nor eo instanti ■with the latter's determination. (Fearne, Cont. Eem. 9, Butl. note g.) For a succinct statement of the true criterion between con- tingent estates and vested estates, see p. 64, supra. From certain motives of convenience, contingent remainders Classification have been divided by Fearne, for the purpose of discussion, into Feame. the four following classes : — 1. Where the contingent event is the determination of the precedent estate in one, or some only, out of several possible ways ; 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 ascertainment of a person not yet ascertained. First Class of Contingent Remainders. A contingent remainder is of the first class, when "the re- Definition, mainder depends entirely on a contingent determination of the preceding estate itself " (Fearne, Oont. Rem. 5) ; that is to say, when the precedent 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 several specified ways. For example, A makes a feoffment to the use of B till C Example, returns from Eome, and after such return of C to the use of D and his heirs. (See 3 Eep. 20 a.) By this limitation B takes by implication an estate for his own Ufe, which is by the limita- tion made determinable upon the return of C. This estate may, therefore, determine in either of two ways : either by the death I 2 Digitized by Microsoft® 116 ON ESTATES IN GENERAL. of B or by the return of 0. But it is only in the event of the latter determination that the remainder of D is limited to take effect. This remainder, pending O's return, is contingent ; because if B's estate should be determined by B's death before the return of 0, J) would not be duly qualified by virtue of the remainder to enter upon the possession. In this class of contingent remainders, the remainder can never become vested during the continuance of the particular estate, because the event which is to vest the remainder will also determine the particular estate. The remainder can only become vested, if at all, eo instanti with the determination of the particular estate. Contingent remainders of the other three classes admit of becoming vested during the continuance of the particular estate ; except certain limitations by purchase to the heirs of a living person, coming under the fom-th class, where such person takes an immediately precedent estate for his own life. Such limitations are not only rare, but difficult to frame ; because in general a limitation to the heirs, subsequent to a limitation for life to the ancestor, does not take effect in the heirs by purchase, but, under the rule in Shelley's Case, by vesting a fee in the ancestor. But a limitation to A for life and after his death to his heir (in the singular) and the heirs male of the body of such heir, would give an estate in tail male by purchase to the person who, at A's death, could show himself to be his heir general. This, therefore, affords an example of the kind of limitation now in question. The definition The definition above given is not, as it stands, entirely satis- requires ' factory. Its terms, if taken literally, seem to include the estate modification. q| trustees to preserve contingent remainders ; which, both upon principle and authority, seems more properly to be included among vested estates than among contingent estates. This subject is further considered infra, p. 133. Second Class of Contingent Remainders. Definition. A contingent remainder is of the second class, when the hap- pening of an uncertain event, which has no connection with Digitized by Microsoft® CO^'TINGENT REMAINDERS. 117 the determination of the precedent particular 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. Eem. 6.) For example, if lands be limited to the use of A for life, Examples, remainder to the use of B for life, and if B shall die in the life- time 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 lifetime of A ; which event may never happen at all, for though B must die some day, he is not obliged to die in the lifetime of A ; and accordingly, so long as B is living, is not duly qualified to enter upon the lands by virtue of his remaiader, and the remainder is therefore contingent. If A should die in the lifetime of B, the prescribed event would thereby be made impossible ever to happen, and the remaiader to C would never be capable of taking effect. As a second example, suppose lands to be limited to the use of A for life or in tail, and if B should come to Westminster Hall on a specified day, then to the use of C in tail or in fee simple. Here also, unless and until B shall have come to Westminster Hall on the specified day, is not duly qualified to enter upon the lands by virtue of his remainder, and the remainder is therefore con- tingent. (Fearne, Cont. Rem. 7, 8.) Third Class of Contingent Remainders. A contingent remainder is of the third class when it is Definition, 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 possibility not happen during the continuance of the precedent particular estate. (Feaine, Cont. Eem. 8.) For example, if lands be limited to the use of A for life, and Examples. after the death of B to the use of C in tail, or 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 remainder is therefore contingent. This class may be said to differ from the second class in two Digitized by Microsoft® 118 ON ESTATES IN GENERAL. 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 impossible to happen during the continuance of the precedent estate; (2) the remainder is contin- gent only by reason of the rule of law which defeats a remainder upon the occurrence of any interval of time between the deter- mination of the precedent estate and the vesting of the remainder; whereas, in the second class, the happening of the uncertain event is expressly made a condition precedent to the vesting of the remainder. Distinguisli- ing character- istic. Exception from the Third Class. There is a certain class of limitations which, though in form they resemble limitations which come 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 freehold, but may be preceded by a chattel interest. This is, in fact, their dis- tinguishing characteristic. What limita- tions come within the exception. A limitation to A for twenty-one years, if B should so long live, and after the death of B to in tail, or in fee simple, would be an example of a contingent remainder preceded by a chattel interest. This remainder may be regarded as being of the same type as the third class of contingent remainders, being limited to take effect after an event which, though it must happen at some time, may by possibility not happen during the continu- ance of the precedent estate ; and Fearne treats it as coming under the third class. But it admits, at least equally well, of being regarded as an example of the limitation of a freehold in futuro, which is no remainder at all; namely, as being the direct limitation of an estate of freehold to C, without any pre- cedent estate at all, (for a term of years is not a precedent estate,) but subject to the contingency of B's death occurring before the expiration of the twenty-one years. Such a limita- tion, if contained in an assurance at the common law, would therefore be void in its iuception, as purporting to create a free- hold in futuro. But if, instead of being a term only of twenty- one years, the precedent term is so long that there is no proba- Digitized by Microsoft® 119 CONTINGENT REMAINDERS. bility, or no possibility, that B will be living at tbe time of its expiration, it is not true that the event, after the happening of ■which the estate limited to C is to take effect, may by possibility not happen during the continuance of the term of years. Therefore in such a case it is not true that the estate of C is liable to any contingency; for it is absurd to treat the happen- ing of the death of B before the expiration of (say) a hundred years, as though it were a contingency ; and therefore in such a case the words " after the death of B " are merely equivalent to the words " after the determination of the term." It follows that, under such circumstances, there is no more harm in a limi- tation to after the death of B than in a limitation to 0, after the expiration of a term of years ; which latter limitation, by the rule in Boraston's Case, 3 Eep. 19, is unquestionably a vested 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 vehement presumption, or a certainty, that it will not expire during a life then in being, are vested estates. (Fearne, Cont. Eem. 21.) A term of eighty years, or upwards, will suflBce for this purpose. Such a limitation, though preceded only by a chattel interest, is therefore good, even in an assur- ance at the common law. In wiUs and assurances by way of use, such limitations may be good quacunque via, either as remainders or as executory limitations. Cases have occurred in which it was thought to be material The case of to consider the application of this doctrine, although, by reason Beverley. that the limitation was contained in a will, there might be no question as to its validity ; because, if conformable to the rule against perpetuities, it would be valid as an executory devise, if void in its inception as a quasi-remainder. In Beverley v. Beverley, 2 Yern. 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 son and grandson, who were both in being a,t the date of the will, 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 prcecipe, the freehold during the life of the Digitized by Microsoft® 120 ON ESTATES IN GENERAL. son being (as they are reported to have said) in abeyance. This was a strange contention, because executory devises, which in form leave the freehold undisposed of, are held good upon the very ground that they do not in fact place the freehold in abey- ance, but leave it to descend in the meantime to the heir at law. However, it appears that in this ease, which is very badly re- ported, the legal estate was outstanding, and all the limitations were therefore equitable ; so that the court had no difficulty in holding the recovery to be good as an equitable recovery. But the court seems to have thought that a term of sixty years would not be long enough to prevent the words, "if he shall die during the term," (which, by the way, did not occur in the present will,) from importing a contingency. 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 ascertained, or may come into being, during the continuance of the precedent particular estate. (Fearne, Oont. Rem. 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 remainder cannot vest until the ascertainment, or coming into being, of a person to satisfy the description in the limitation ; and in the case of limitations to the heirs of a living person, such ascertainment can only take place upon his death ; because, Nemo est lieres riccnfis. 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 terms of the limitation, to take as 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 presumptive or apparent so long as his heirship remaina Digitized by Microsoft® CONTINGENT EEMAINDBKS. 121 only presumptive or apparent, because such a person may not, in fact, ever be the true heir at all, and therefore may never be qualified, under the terms of the limitation, to take the estate at all. Exceptions from the Fourth Class. In certain cases, a limitation of a remainder to the heirs of a Heir as living person, as purchasers, occurring in a will, has been held designata. to be a limitation, not to the heir of that person strictly accord- ing to the legal definition of an heir, but to his then living heir apparent, or heir presumptive. 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 ease of Burchett v. Durdant, 2 Vent. 311, Oarth. 154, sub nom. James v. Richardson, 2 Lev. 232, the limitation of a remainder " to the heirs male of the body of B now tivintj," was held to give a vested remainder to the then heir male apparent of the body 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 wid 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 contingent remainder, to the heirs male in the strict sense of the words, being preceded by no vested estate of freehold, would have been void in its inception ; and 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. Digitized by Microsoft® 122 ON ESTATES IN GENERAL. This judgment, having been reversed in the Exchequer Chamber, was afterwards restored and affirmed in the House of Lords. (3 Bro. P. 0. 60.) Remaps It ig material to observe, that in the last cited case the limita- upon Harbison . V. Beaumont tion, if construed as a contingent remainder, would have been V. White. '^oi'i *'* *^* 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 remainder, but whether the limitation should enure to the benefit of a persona designate!, or whether it should wait for the death of the aunt to ascertain the person entitled to the benefit of it. This circum- stance 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 remainder, this might have afforded a strong argument in favour of such construction. But since the limitation seems to be good quacunqiie via, 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 Good- right V. White, 2 "W. Bl. 1010, which is cited in this connection by Fearne. (Fearne, Oont. Eem. 212.) In that case a testator devised lands, subject to certain annuities, to his daughter Margaret for two years from his decease, with remainder to his son Eichard, if then living, for ninety-nine years if he so long lived, and subject to such ninety-nine years term he devised the premises to his son Eichard, his heirs male, and to the heirs of his daughter Margaret jointly and equally, to hold to the heirs male of Eichard lawfully begotten, and to the heirs of Margaret jointly and equally, and their heirs and assigns for ever. After the death of Eichard, Margaret entered upon the whole, and the son of Eichard brought ejectment for the whole. Margaret obtained a rule to defend only for a moiety. The plaintiff recovered a moiety only, apparently upon the ground that the other moiety had vested in the heir apparent of Margaret immediately upon the testator's death, subject. Digitized by Microsoft® CONTINGENT ItEMAINDERS. 123 of course, to the annuities and the terms of years. Here 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 executory devise. Fearne appears to have adverted to the distinction above taken, in the following words : — " We may observe, however, that there was not one of the last noticed cases, in which the ancestor took the legal estate of freehold. Those cases only operated by way of exception to the rule, Nemo est heres viventis ; and consequently made that a vested limitation which other- wise would, according to that maxim, have been contingent." (Fearne, Cont. Rem. 212.) It may certainly be doubted, whether the point attracted as much attention as it perhaps deserved. The language both of the counsel and 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 the Feame's body, coming within the Rule in Shelley's Case, as being excep- to the Rule in tions from the fourth class of contingent remainders. That q^^^ "^ ^ rule embraces all limitations, included 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 inheritance being an estate tail, or a fee simple, accordingly as the limitation to the heirs is in tail or in fee simple. In such limitations, as the phrase goes, the word /leh's is used only as a tcorcl of Umitcdion, not as a ivord 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 limitations to them as being exceptions from a class of contin- gent remainders. That expression seems more properly to denote Digitized by Microsoft® 124 ON ESTATES IN GENERAL. a species of remainders which, seeming to be contingent, are in fact Tested. It therefore seems to be the more appropriate course, to indicate the bearing of the rule in Shelley's Case upon the forms of limitation appropriate to the fourth class of con- tingent remainders, and to reserve that subject, which is suffi- ciently complex, for a separate statement. Division of the subject. Further Remarks on the Liability to Destruction. The causes, or methods, of the destruction of contingent remainders at common law, may conyeniently be divided into the following heads : — 1. Forfeiture ; 2. Surrender ; 3. Merger; 4. Tortious alienation ; 5. Turning to a right of action ; 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 importance. 1. forfeiture. By the common law, a tenant for life incurred a forfeiture of his estate by making any alienation which devested the remainders and reversion thereupon, as by making a tortious feoffment in fee simple ;* 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, as by levying a fine, suffering a common recovery, or, in a genuine action of recovery founded upon an adverse title in the demandant, by joining the mi^c on the mere right, that is, by presuming to defend the action himself instead, as was his * When the reversion or remainder was in the king, a tortious feoffment did not devest the king's estate, but it was nevertheless a forfeiture, (Co. Litt, 251 b.) Digitized by Microsoft® CONTINGENT REMAINDERS. 125 duty, of " praying aid " from the remainderman. 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 generally gave an immediate right of entry to the next remainderman having a vested estate. If such a forfeiture had been incurred by the tenant of the pre- cedent estate, an entry made by the next vested remainderman would at common law have destroyed all intermediate con- tingent remainders. (Fearne, Cent. E.em. 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 contingent remainders. If the tenant of the precedent estate had surrendered his 2. Surrender, estate to the next vested remainderman, such remainderman having an estate at least as great in quantum as the surrendered estate, the precedent estate would have been destroyed by the surrender, and all intervening contingent remainders would at common law have been destroyed with it. (Fearne, Oont. Eem. 318 ; and Butl. note /, at p. 321.) Unless the subsequent estate was an estate of inheritance, little would be gained by the destruction of the intervening contingent remainders. But if the subsequent estate was of inheritance, the destruction of the intervening 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, absolutely dispose of the inheritance pending the contingency. These are probably the cases referred to by the word surrender in the statute 8 & 9 Yict. c. 106, s. 8, hereinafter cited. The cases there referred to by the word merger are probably those discussed in the next follow- ing paragraph. Upon the distinction between surrender and merger, see p. 77, mpra. If either by conveyance, or by descent, the next vested estate 3. Merger. of inheritance came to the tenant of the precedent estate, the precedent estate was destroyed by merger, and all intervening contingent remainders were destroyed. (Fearne, Cont. Rem. Digitized by Microsoft® 126 ON ESTATES IN GENERAL. merger effected destruction. 317 ; ibid. 343 — 345.) But this is subject to tlie observations contained in the next following paragraph. In what cases The inheritance cannot, properly speaking, be conveyed to the effected no tenant of the precedent estate, as such, unless the precedent estate is already in being as a separate estate ; so that in all cases in which merger takes place by the conveyance of the inheritance to the tenant of the precedent estate, such merger is necessarily subsequent to the creation of the precedent estate. But it is possible, either by descent, or by the operation of the Eule in Shelley's Case, for the precedent estate and the next vested estate of inheritance to meet in the same person simul- taneously with the creation of the precedent estate. If a testator seised in fee simple should devise lands to his eldest son for life, with remainder in tail male to the successive sons of the eldest son, and the will should contain no further limitations ; then the estate for life and the next 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 Eule 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 testator'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, — all such contingent remainders, if the law of merger were suffered to apply strictly, would have been destroyed at the moment at which the settlement first came into operation ; thus to a great extent making the settlement nugatory in its incep- tion. In order to prevent this hardship, a modification was iatroduced into the law of merger. In any such case, when a merger takes place eo instanti with the creation of the precedent estate, it is not for all purposes an absolute merger ; and it did not, even at common law, destroy any intermediate contingent Digitized by Microsoft® CONTINGENT REMAINDEKS. 127 remainders limited by the same instrument ; but the estates united by the merger remained, 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 pre- cedent estate if it had not been merged. (Fearne, Cont. Eem. 36, Y. 6 ; ibid. 341—345 ; 3 Prest. Conv. 161 ; ibid. 374 et seq. ; Lewis Bowles's Case, 11 Eep. 79 ; Harg. n. 8 on Co. Litt. 28a.) The 8 & 9 Yict. c. 106, s. 8, enacts, that a contingent re- Destruction mainder existing at any time after 31st December, 1844, shall forfeitare, be, and, if created before the passing of the Act, shall be ^eTger now'' deemed to have been, capable of taking effect, notwithstanding prevented the determination, by forfeiture, surrender, or merger, of any preceding estate of freehold, in the same manner in all respects as if such determination had not happened. This enactment was in substitution for 7 & 8 Yict. c. 76, s. 8 ; which was repealed, as from its commencement, by 8 & 9 Yict. c. 106, s. 1. Certain assurances, namely, a feoffment, a fine, and a recovery, 4. Tortious were capable at the common law of what is called a tortious opera- precedent tion ; 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 reooveree. The estate so conveyed was not, either wholly or in part, the estate of the person making the assiu-ance, but a totally new estate, and the old estate of the person making the assurance* was absolutely destroyed. If the precedent estate upon which any contingent remainder depended was destroyed by this means, 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 October, Is now no longer possible. * But not the estate of the person entitled, upon the expiration of his estate, as the remainderman upon an estate for life, or becoming entitled as issue in tail upon his death. Such estates, were not destroyed, but were said to be devested or discontinued, accordingly as they were turned to a right of entry or to a right of action. Digitized by Microsoft® 128 ON ESTATES IN GENERAL. 1845, is prevented by 8 & 9 Yict. c. 106, s. 4 ; and fines and recoveries were abolislied by the Fines and Eecoveries Act, s. 2. Thus this cause of the destruction of contingent remainders has been indirectly removed by statute. 6. Turning of precedeLt estate to a mere right. The methods hitherto considered, by which contingent re- mainders may be destroyed, depend upon the destruction of the precedent estate, in such a sense that, after its destruction, it no longer has any existence, 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, as the phrase goes, discontinued, by being " turned to a right of action," in which case the person entitled by virtue of the estate, though he still retained a title, yet could only enforce that title by bringing a real action against the person in possession and obtaining judgment. 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 pending the contingency, any contingent remainders which depended for their existence upon the pre- cedent estate, would have been destroyed. This is commonly expressed by saying, that a right of action is not sufficient to support a contingent remainder. (Pearne, Cont. Rem. 286.) The subject contains some rather intricate learning, upon which, in the present state of the law, it is not necessary to enlarge. 6. Natural expiration of precedent estate pend- ing the contingency. The principle extends at the common law to a child en ventre m mere. For the purpose of taking by descent, a child en ventre sa mere has always been regarded as standing in the position of a child in esse; and it seems that in devises of lands under a special custom, before the Statutes of Wills, a devise of an immediate freehold to an infant en ventre sa mere was good. (3 Swanst. at p. 617.) But, by devises made under the Statutes of Wills, it is doubtful whether the infant could take, except by way of remainder ; and it is the better opinion that a child en ventre sa mere could not, at the common law, have taken by virtue of a contingent remainder, if the precedent estate of freehold had Digitized by Microsoft® CONTINGENT REMAINDERS. 129 expired before Ms birth* The law was so laid down by the Courts of King's Bench and Common Pleas, in the case of Reeve 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 dissatisfac- tion, 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 Statute in rGiisi of the Statutes Eevised, vol. 2, p. 85, given as 10 Will. 3, c. 20, posthumous 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, then 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. In Reeve v. Long, the limitations occurred in a will, and this fact may have been relied upon by the House of Lords as affording ground for a distinction. It is said that the language of the above-cited statute, which seems to point towards settle- ments effected by deed, was due to their reluctance to admit into it anything which might seem to throw doubt upon their decision in Reeve v. Long. (Butl. n. 3 on Co. Litt. 298 a.) An abortive attempt to remedy the hardship frequently 7 & 8 Vict, wrought by the destruction of contingent remainders through the natural expiration of the precedent estate pending the con- tingency, 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 Yict. c. 106, s. 1. * In old marriage settlements of the strict type, before the statute of WiU. 3 referred to in the next following paragraph, ti. limitation was inserted to the (intended) wife enceinte at the death of the husband, and her assigns, until the birth of one or more posthumous sons. (Booth's Opinion, dated 1761, printed at end of Prest. Shep. T., p. 529.) C.R.P. K Digitized by Microsoft® 130 ON ESTATES IN GENEEAL. Statutory protection of certain contingent remainders. The statute 40 & 41 Vict. c. 33, enacts, that every contiii<- gent remainder created by any instrument executed 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 limita- tion, had it not had a sufBcient estate to support it as a contin- gent remainder, shall, in the event of the particular estate determining before the contingent remainder vests, be capable of taking effect in 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 con- sequence of the observations made by the judges in the case of Cunliffe v. Brancker, 3 Oh. D. 393. Wiat contingent remainders are still liable to destruction. It will be seen that the common law doctrine of the destruc- tion of contingent remainders by the natural expiration of the precedent estate pending the contingency, is by no means obsolete ; since it still applies (1) to all contingent remainders created by any deed executed 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 the rules regulating the creation of executory interests. Immunity from destruc- tion implies subjection to rule against perpetuities Legal contingent remainders which are protected from destruc- tion by 40 & 41 Vict. c. 33, must therefore conform to the rule against perpetuities. And this doctrine applies also to contin- gent remainders which are protected from destruction by reason that the legal estate is outstanding in trustees or mortgagees. {Abbiss V. Burnei/, 17 Ch. D. 211.) As to the immunity from destruction of the last-mentioned contingent remainders, see p. Ill, supra. ' Their origin and nature. Trustees to preserve Contingent Remainders. The liability of contingent remainders to be destroyed by the premature determination of the precedent estate, — that is, by its Digitized by Microsoft® qOSTINGENT REMAINDERS. 131 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 continuance of the residue of his life. These limitations were introduced into practice in the seventeenth century. The common form of them, as stated by Butler (Fearne, Cont. Rem. 6, note d) is to the following effect : — 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 trust for him and to preserve the contingent re- mainders. The precedent estate contemplated by these limitations is in general an estate for life, though it might by possibility be an estate tail ; because the immediate object of the limitation was in general the preservation of the contingent remainders im- mediately following the limitation; and if an estate tail had preceded these, no precautions could prevent the destruction of any subsequent estates, whether contingent or vested, at the will of the tenant in tail in possession, if of full age.* It was not necessary that the limitation should expressly refer 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 possi- bility 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 * But it was qinte proper, before 8 & 9 Vict. o. 106, to insert trustees to preserve contingent remainders after an estate tail, in cases where further con- tingent remainders were limited after the estate tail ; because an estate tail does not necessarily endure for longer than the life of the donee, seeiag that he may die without issue ; and as he might also die without having barred the entail, there might possibly be the same practical need for the trustees, but the probability was of course much less. Digitized by Microsoft® 132 ON ESTATES IN GENERAL. precedent estate was not an estate for life, but a term of years determinable upon tbe dropping of a life : a further develop- ment of the device for preserving contingent remainders, upon which some remarks will be made shortly. The following form is given in Davidson, 4 Prec. Conv. 2nd ed. 333, as being suitable for insertion in a will, in any case in which, notwithstanding the provisions of 8 & 9 Vict. c. 106, s. 8, the conveyancer might wish to insert such a limitation : — From and after the determination of that estate by any means in his lifetime. To the use of [trustees] 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 preserve the contingent remainders expec- tant or dependent thereon. Limitationa Upon the construction of such limitations, when the restrie- and their tion, " during the life of the tenant for life," was omitted, so eirs simply, j^^j^ j-j^g limitation was to the trustees and their heirs simply, thus assuming the form of a limitation in fee simple instead of a limitation pur autre vie, see Leicis v. Rees, 3 Kay & J. 132, and the cases there cited. Such an omission of course could occur only through carelessness, not by design.* How these Under such a limitation as the foregoing, the trustees would limitationa preserved the evidently take an estate pur mitre vie ; and the question, whether such estate is vested or contingent, 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 con- tingent remainders (because they were not the immediate re- mainders upon his own estate) without the concurrence of the trustees ; and the courts of equity treated such concurrence on the part of the trustees as being generally a breach of trust. (Feame, Cont. Rem. 326 — 328.) By consequence, trustees so concmTing were personally liable for any damage which might ' * The result seems to he, that in general the trustees would take a fee simple, and that all the subsequent limitations would be equitable only. Digitized by Microsoft® remainders. QO>-TINGENT REMATNUEUS. 133 accrue from the breacli ; 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. Man- sell, 2 P. "Wms. 678, at p. 681.) But under special circum- stances, the court would permit, or even order, the trustees to concur in destroying contingent remainders. [Basset v. Clap- ham, 1 P. "Wms. 6th ed. 358, and cases there cited in notes.) The question whether the trustees took a vested estate, was The estate of obviously, before 8 & 9 Vict. c. 106, a question of the utmost was a vested practical importance ; because, if they had taken a contingent ®^*'**^- estate, their estate would have been nothing but one more con- tingent remainder, which would have been equally liable to destruction with all the rest. This question has led to some difference of opinion. But it was for all practical purposes set at rest for ever by the decision of the House of Lords in the case of Smith d. Dormer v. Packhxirst or Parkhiirst, commonly cited as Dormer v. ParMiurst, or Dormer v. Fortesciie, 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 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 settlements then in existence. (Smith on Executory Interests, p. 116 et seq.) It is conceived that, in this controversy, each side is partly in Review of tHe the right and partly in the wrong. The truth seems to be, «o°''^°^e^^y- that the definition of the first class of contingent 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 distinguishing vested estates in general from Digitized by Microsoft® 134 ON ESTATES IN GENERAL. 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. Parhlmrst seems to he suhstan- tially right in principle. In the definition given of the first class of contingent remainders (at p. 115, 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 precedent 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 remainder is capable of being destroyed, if the precedent estate should determine in what may be called the wrong way ; and this quality of contingent remainders supplied the principal motive which induced him to write his treatise. This distin- guishing characteristic is not possessed by the estate of the trustees, because, if the precedent estate should determine in the wrong Avay, that is, by the death of the tenant for life, the estate of the trustees will not be destroyed, but will simul- taneously determine by Us own natural expiration. 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 ad- vantage 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 determine by natural expiration eo instanti with the determination 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 Digitized by Microsoft® "was a term of years. CONTINGENT EEMA.INDEES. 135 expiration, may by possibility fail to become an estate in pos- session, by reason of its determination during the continuance of, or eo imtanti 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 following pro- Proposed viso should be added to the definition above given (p. 115) of the of Teame's first class of contingent remainders : — Provided always, that the ® ^^°'^' 2)recedent estate he eapahle of determination in at least one loay, which will neither vest the remainder nor cause it to determine hy its own natural expiration. In lieu of an estate for life to the person who was intended Oases in to take the first beneficial estate, a term of years was sometimes grst'^estate limited to him determinable upon the dropping of his own Hfe, followed by an estate to the trustees in the usual form to pre- serve contingent remainders.* This was the form of the limi- tations of the settlement in the above-cited case of Dormer v. Parkhicrst. 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 limita- tion to the trustees was not, strictly speaking, to prevent the * This practice, which was formerly not uncommon, of limiting a term of years determinable upon the dropping of his life, instead of an estate for life, to the person who was intended to take the first beneficial estate in the settled property, supplies the reason why an "estate for years determinable on the dropping of a life or lives," is specified in the Fines and Eecoveries Act, o. 22, as qualifying a person to be protector of the settlement. Probably the practice has now died out, and the limitation of an estate for life, either legal or equit- able, is universal. But the Settled Land Act, 1882, s. 58, sub-s. (1), (iv.), includes among the persons by whom the statutory powers of a tenant for life may be exercised, a ' ' tenant for years determinable on life, not holding merely under a lease at a rent." This provision was very necessary ; because there is no practical difference, so far as regards the enjoyment of the profits, between a tenant for life without impeachment of waste, and a tenant for a long term of years determinable upon the dropping of iis own life without impeachment of waste ; and therefore, if this provision had not been inserted, a means would have existed of evading the intention of the Act. Digitized by Microsoft® 136 ON ESTATES IN GENERAL. tenant of the precedent estate from destroying tlie contingent remainders, wMcli lie could not effectually 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 supporting estate having been taken away from the tenant for life, by turning him into a tenant for years, it became necessary to vest the supporting estate in somebody else ; which was effected by vestiag it in the trustees. A tortious feoffment was the only method by which the tenant of a precedent estate for years could have attempted to affect the contingent remainders ; but by this means he would have gained nothing, for the right of entry of the trustees would have preserved the contingent 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 Yict. 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 contingent remainders might prudently be inserted in the settlement, notwithstanding the provisions of the last-cited enactment. But no remainder properly so called, can take effect upon the determination of a precedent estate by a forfeiture ia this sense of the word. ( Vide supra, p. 71.) It would therefore seem that the forfeitures above referred to were such that the 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 effect only as executory interests, which did not require trustees to preserve them from destruction. In the 3rd Digitized by Microsoft® CONTINGENT EEMAINDEKS. 137 edition of the same work (vol. 3, p. 322) it is said that the prac- tice of omitting such limitations had then (1873) become well established ; though it was mentioned that writers of authority- recommended 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 protectorship of the settlement in the event of the extinguishment of the life estate. (See Lewin on Trusts, ch. Tiii..s. 1, § 18, 8th ed. p. 121 ; ch. svi. § 11, ibid. p. 383.) The trustees above described are very much in the nature of a device of conveyancers, designed to intercept 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 resemblance to the dower trustees in the old-fashioned limitations of uses to bar dower. These were designed, by the interposition of an estate which, by the rule recognized in Bonner v. Parkhurst, was a vested estate of freehold, but which generally conferred no positive privilege or active duty, to pre- vent 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 referred to under the phrase " bare trustee " in the Fines and Eecoveries Act, ss. 27, 31. But under certain circumstances Another kind trustees to preserve contingent remainders were needed in a pres™y'e^^ *° settlement, who differ in function and require to be distinguished coiit^gent . remamders. from the bare trustees above described. When contingent remainders were limited to the sons, or other issue, of a living person, who did not himself take a prior life estate, it was necessary to limit a prior estate to trustees, during the life of such person, to preserve contiagent remainders, lest the prior estates should all determine in the lifetime of the said person, before the birth of issue in whom the contingent remainders might vest, whereby such contingent remainders would have failed. Even if there were issue of the said person living at the date of the settlement, it would have been quite proper to insert trustees to preserve contingent remainders ; because such issue might all have died in the person's lifetime, and it would have been proper to provide for the possibility of the birth of other issue Digitized by Microsoft® 138 ON ESTATES IN GENERAL. sutsequently to the determination of all tlie prior estates. The difference in function between these trustees and the previously described bare trustees is obvious : the function of the trustees now being described was to guard against a destruction of the con- tingent remainders, by reason of the natural expiration of the pre- cedent estate pending the contingency. The present writer has met with an example of the insertion 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, or recently were, unwilling to rely for this purpose upon the provisions of 40 & 41 Yict. c. 33. Resemblance to the estate of dower trustees. The object of the insertion of a limitation to the dower trustee, in the uses to bar dower, according to the common 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, remainders ; and the form of limitation in common use was identical with the form used to create trustees to preserve con- tingent remainders. Whether such There are some grounds for doubting whether, subsequently are now valid. ^0 ^^ coming into operation of 8 & 9 Yict. c. 106, the limita-. tions 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 preserva- tion of contingent remainders is concerned, this question is of no practical importance. So far as dower trustees are concerned, it win remain a question of practical importance 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 conveyance, of a legal estate in fee simple under the form of a conveyance to uses to bar dower, in order to prevent the wife's dower from. Digitized by Microsoft® CONTINGENT EEMAINUEES. 139 attaching. At the present day the class must be a small one, rapidly tending towards extinction. The reasons for doubting the validity of the limitation are as follows: — Forfeiture can no longer be incurred, either by making a tortious feoffment, since 8 & 9 Yict. c. 106, s. 4, by which the tortious operation of feoffments made after 1st October, 1845, is prevented ; 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 hy 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 condition of forfeiture contained in the settlement, can now be incurred by a tenant for life in any way whatever, 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 merger of the life estate 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 inter- position of the estate of the trustees, if it exists, would prevent a surrender to any remainderman whose interest is subsequent to the contingent remainders. And a surrender cannot be made by a tenant for his own life to a tenant 7; ((r autre vie, so that no suiTcnder to the trustees themselves is possible, nor will an estate for a man's own life merge in an estate pur autre vie. (Shep. T. 305 ; 3 Prest. Conv. 225.) These objections are discussed with some minuteness in an acute and learned note contained in the third edition of David- Digitized by Microsoft® 140 ON ESTATES IN GENERAL. Bon's Precedents, vol. 3, p. 323, note (n), in which the opinion is expressed, that such limitations are still valid ; but the sug- gestion is made, that there can, at all events, he 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. Digitized by Microsoft® ( 141 ) CHAPTER 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 Terbally distinct limitations contained in the same instrument, 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 limitations to the heirs take effect, not in the heirs themselves, but in the ancestor whose heirs they are, is commonly styled the Rule in Shelley's Case, from the reported case of that name. (1 Rep. 93, Serj. Moore's Rep. 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 The word an estate of freehold limited to a specified person, and a subse- these ^Umita- quent limitation, whether immediate or remote, expressed to be *^°°.^ ^.7^°^^ made to the heirs, or to some class of the heirs, of the same not a -word of person. The prior estate and the subsequent limitation must both arise under or by virtue of the same instrument. Grammatically, the construction of the second limitation might be, to give a remainder by purchase to the specified heirs. And since the person whose heirs they are, or rather, are to be, is living at the date of the limitation, such a remainder, if taken by the heirs as purchasers, would be a contingent remainder of Fearne's fourth class, being a limitation in remainder to a person not yet ascer- tained or not yet in being. [Vide supra, p. 120.) 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 Digitized by Microsoft® 142 ON ESTATES IN GENERAL. account of the mention of the heirs only for the purpose of giving a corresponding estate to the specified ancestor. There- fore, it is commonly said, that in limitations coming -within the Eule in Shelley's Case, the word heirs is not a word of purchase but a word of limitation. We haye therefore the following essential features in these limitations: — (1) a prior estate of freehold; (2) a subsequent limitation, contained in the same instrument, expressed to be to the heirs, whether general or special, of the same person. In all such cases the general 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 ancestor. Thus, the mention of the heirs general will give him a fee simple; the mention 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. The ancestor If the subsequent limitation to the heirs follows immediately, Sther one without the interposition of any mesne estate, upon the prior estate, or two freehold, the freehold is generally merged in the inheritance, and the specified person generally takes an estate of inheritance in possession. If any estate sufiicient 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 freehold in possession and an inheritance in remainder. The last preceding paragraph assumes that the prior limita- tion 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 inherit- ance 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. With respect to merger, it must be borne in mind that, when two consecutive estates are created eo instanti and by the same instrument, merger will not always ensue. A limitation to two men and the heirs of their two bodies begotten, gives them a Digitized by Microsoft® THE RULE IN SHELLEY's CASE. 143 Joint estate for their lives, "with benefit of survivorship to the survivor, and to each an estate tail in a moiety ; and there is no merger of the estate for life in the estates tail. (Litt. sect. 283.) And when merger does take place its effect may be different from the effect of merger between two estates which at the time of their creation were not consecutive ; for under such circum- stances, the merged estates are, as the phrase goes, liable to open for the purpose of letting in contingent remainders. ( Vide supra, p. 126.) As Shelley's Case is one of the most important in the books, Shelley's Case and as its true bearing does not seem to be a matter of universal discussed, knowledge, some account of it may be not unacceptable to the reader. A consideration of the subjoined pedigree will mate- rially contribute to a right understanding of the case. It is stated by Lord Coke that the case was in ejectione firmcB ; and according to more modem usage it would be styled NicJiolas Wolfe d. Richard Shelley v. Henry Shelley. EDWAED SHELLEY m. JOAN. Tenants in special tail general, witli remainder to Edward Shelley in fee simple. The wife died in the husband's lifetime, thus leaving him sole tenant in tail. HENRY SHELLEY. EICHAED SHELLEY. Who died in his father's lifetime Under whom the plaiu- leaving a daughter, Mary, living, tiff claimed hy demise, and a son, Henry, the younger, en ventre m mere. \ I I 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 Barhamwick, in the county of Sussex, of which the lands in question were parcel. The wife died in the hus- band's lifetime, thus leaving him sole tenant in tail. Henry Shelley, the elder, afterwards died in his father's lifetime, leaving a daughter, Mary Shelley, living, and leaving his wife enceinte of a posthumous child, afterwards Henry Shelley, the Digitized by Microsoft® 144 ON ESTATES IN GENERAL. SBeUey'sCase. youDger, the defendant in the case. Before 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 behalf, in which he had covenanted that the said recovery should be to the use of himself for the 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 hody of himself laiofully begotten, and of the heirs male of the body of such heirs male 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 according to the recovery, upon the 9th October, the day on which Edward Shelley died ; and these proceedings 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. The first question which arises upon this statement 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 posthumous 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 referred to. {Vide supra, p. 128.) 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 limitation to the heir male by purchase in tail male, and that his posthumous nephew was disqualified to take by purchase, by reason that he was en centre sa mere 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, afterwards entered. Thereupon Nicholas Wolfe brought the present action against Henry Shelley, the nephew ; and at the assizes for the county of Sussex Digitized by Microsoft® THE RULE IN SHELLEy's CASE. 145 a special verdict was returned, upon wMoli the matter of law Shelley'eCase. was afterwards argued in the Court of King's Bench. The case being very important, hoth from the nicety of the points of law involved in it and from the magnitude of the interests at stake, it attracted much attention 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, judgment was given in the Coiirt of King's Bench in favour of the defendant, Henry Shelley, the posthumous 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 affirmative by the opinion of " the better and greater part of all the justices and 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 circumstances, a recovery is executed by the judgment of recovery, before execu- tion thereof by the writ of habere facias. The contention seems to have been, that, just as the heir, if he succeeds by descent to the reversion upon a term of years, is actually seised without entry, because the possession of the termor is adjudged in law to be the possession of the reversioner, so the recoveror, when the subject of the recovery is the reversion upon a term of years, might be actually seised by virtue of the judgment without any need for a writ of execution. This contention was unanimously overruled. (1 Eep. 106 b.) It is not material to the present purpose ; because it was held that the judgment was good, seeing that the law takes no account of fractions of a day, so that it was sufficient if the tenant in tail had been alive at any time on the day of the judgment ; and the judgment related back to the date of the return to the writ, and the execution related back to the judgment ; and therefore there was no need to resort to this C.R.P. I. Digitized by Microsoft® 446 ON ESTATES IN GENERAL. Shelley's Case, contention, in order to support the recovery. The third and fourth questions, according to Lord Coke, were as follows : — The third point. The fourth point. 3. If tenant in tail have issue two sons, and the elder dies in the lifetime of his father, leaving his wife privement enseint with a son, and then tenant in tail suffers a com- mon recovery to the use of himself 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 Jiabere facias seisinam 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 suffered, 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 Richard, 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 recovery. It will be observed that the third question merely states the whole of the facts, and then asks which party was in the right. If this can be regarded as the " statement of a point " in the case, such statements would present 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.) The fourth point dis- cussed. It will be convenient first to dispose of the fourth point, upon which no opinion seems to have been expressed by the judges. This point refers to a distinction laid down by Lord Coke, with respect to the interpretation of the word " heir " ; firstly, as a word of limitation, and secondly, as a word of purchase. Ac- cording to this rule, in limitations to special heirs, where they do not take by purchase, but only supply the measure of an Digitized by Microsoft® THE RULE IN SHELLEY S CASE. 147 estate tail to the ancestor, and therefore take, if at all, by descent, Shelley's Case. 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, imless he also wiites in himself the character 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 [the donee] dyeth, having issue a son and a daughter, the daughter shall inherit But in ca&e of a purchase it is other- wise : 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. [and] A. dieth [leaving a son and a daughter] the heire female can take nothing, hecause 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 recog- nised rule of law in Lord Coke's day ; but it has been shaken by some more recent decisions. (See Wills v. Palmer, 2 W. Bl. 687, 5 Burr. 2615 ; Goodtitle v. Burtenshaw, Feame, Cont. Eem. App. I.) In Shelley's Case, the heir general of Edward Shelley, at the time of his death, was Mary Shelley, the daughter of Eichard Shelley's elder brother ; so that, by the above-stated rule of law, Eichard Shelley, though the heir male of Edward Shelley, was incapable of taking under a limitation to the heirs male as purchasers, since he did not also unite in himself the character of heir general. This contention would have been fatal to Eichard Shelley's claim, who was constrained to claim by purchase ; since, if the estate tail was executed in Edward Shelley, so that Eichard 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 con- sequently that Eichard could take, if at all, only by descent ; and that the posthumously born nephew had the prior right. l2 Digitized by Microsoft® 148 ON ESTATES IN GENERAL. Shelley's Case, An attentive consideration of the arguments and judgment ^(^t'^^d^^^d*d ^^®^^ ^° show, that the decision went upon, and clearly esta- in the case. blished, these two distinct propositions, in relation to the rule now under consideration : — 1. When the ancestor by any assurance takes an estate of freehold, and by the same assurance an estate is limited, either mediately or immediately, to his heirs in fee or in tail, always in such cases the heirs are words of limitation, and not of purchase. (1 Rep. 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 ; that is to say, heirs general may be added to heirs general, heirs male to heirs male, and heirs female to heirs female. The arga. The plaintiff's counsel began by admitting that the recovery, plaintiff. after the death of the recoveree, could be executed 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, could have been executed in Edward Shelley ; and that his heirs male must necessarily take, under the limitation to them, by pur- chase. This last point was afterwards decided against them; upon the ground that the execution, when perfected, related back to the time when the recovery was suffered. (1 Rep. 106 b.) They proceeded to argue that, even though the recovery had heen executed in the life of Echcard Shelley, Richard must nevertheless have taken by purchase ; for that the rule now under consideration did not apply to the above-stated limitation. " For they said, that the manner 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 he words of limitation, then the subsequent ivords, Digitized by Microsoft® THE RULE IN SHELLEy's CASE. 149 viz., of the heirs males of the body of the said heirs males law- Shelley's Case, fully begotten, would be mid : for words of limitation cannot be added and Joiaed to words of limitation, but to words of purchase." (I Eep. 95 a, b.) The defendant's counsel began by arguing that the recovery The argu- was altogether void, for that execution could not be sued against defendant, the issue in tail after the death of the recoveree. (1 Eep. 96 a.) It will be observed that 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, which they contended to be invalid, was decided against them, as above mentioned. We may omit the argu- ment 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 immediately 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 ilie 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 subse- quent words would be void ; the defendant's counsel answered, That it is a rule in law, iphen 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 alicays in such cases {the heirs) are words of limitation of the estate, and not icords of purchase And, if it should be admitted, that in regard of the said sub- sequent 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 SheUey would be excluded to take anything by the limitation . . . . for by that means the plural Digitized by Microsoft® 150 ON ESTATES IN GENEEAL. Shelley'sCase. 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.) ment^"*^^" "'"* ^^ ^° ^® regretted that the third point, " the great doubt in the case," is stated in such wide terms ; because 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 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 icJiich 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. The rule is could not make whom they pleased inherit. Fourthly, because down in'the' ^^ uncle claimed the use by force of the recovery, and of the judgment. indentures, hy words of limitation and not of purchase. These were, as the 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 and import of Shelley's Case. He has been thus particular in stating the grounds of this conclusion, in view of the following strange remark by Butler : — " 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 expressed in the arguments in clear terms, as an acknowledged rule of law, and has thence received its appellation." (Butl. note on Fearne, Cont. Eem. 28.) If Butler's reputation were less securely established, this Digitized by Microsoft® THE HULE IN SHELLBY's CASE. 151 remark might almost suggest a suspicion, that the practice of talking ahout Shelley's Case without having read it, is not ■wholly confined to the present generation.* The Statement of the Rule. The following propositions will, under all ordinary circum- stances, sufiice to determine the question of the rule's apphoation to a particular case. It is to be observed that a great part of the subtleties with which this subject is congested, arose out of ill-constructed limitations, 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 ; Hid. 376 b ; 1 Eep. 104 a ; Fearne, Cont. Eem. 28 ; 1 Prest. Est. 266 ; ibid. 309.) Such freehold is not neces- sarily for the life of the ancestor, but may be determin- able in his lifetime; as an estate to a woman durante mduitate. (Fearne, Cont. Eem. 30, v. 1.) (2) The subsequent limitation may be either to the heirs general or special. (Fearne, Cont. Eem. 28 ; 1 Prest. Est. 263 — 266.) But the limitation to the heirs must be to the heirs of the person who has the prior freehold ; and not, for example, to the heirs to be begotten of the bodies of that person and his wife, or possible wife; which is a limitation in special tail by piu-chase. (See 1 Scriv. Cop. 146.) * It is possible tliat Butler may have been misled by a momentary confusion between Shelley's Case and Taltaruni's Case ; and that what was in his mind was the fact, 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 hke Butler makes a slip, he is Kkely 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 antiquity than that case, where, it will be observed, no question arose upon it for the deeision of the court ; hut it is only stated in the arguments, but in such precise and clear terms, that it has derived 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. Kem. 181, 182 ; 1 Prest. Est. 347.) Digitized by Microsoft® 152 ON ESTATES IN GENEEAI/. (3) Both estates must arise under the same instrument. (Fearne, Cont. Eem. 71, v. 13 ; 1 Prest. Est. 309.) (4) An estate taken by the ancestor by way of resulting use, is, for this purpose, an estate arising imder the same instrument. (Fearne, Cont. Eem. 41, v. 8 ; 1 Prest. Est. 309.) 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 ; Venahtes v. Morris, 7 T. E. 342, at p. 348.) But Preston questions this doctrine. (1 Prest. Est. 310.) (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 are not, interposed, the inheritance executed in the ancestor is remote or immediate. ( Vide supra, p. 142.) (7) The subsequent limitation may be contingent. In such a case it seems that, if the contingency upon which the vesting depends should happen in the ancestor's lifetime, the remainder will thereupon vest in him ; and that, pending the contingency, he has a contingent remainder. (Fearne, Cont. Eem. 34, v. 2 ; 1 Prest. Est. 267 ; ibid. 318, 319.) (8) In a devise, the word issue has, for this purpose, the same eif ect as the word heirs ; unless it appears 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 confusion, is ably collected.) The reasoning in the case of Boicen v. LeiHs, 9 App. Oas, 890, is almost as obscure as the language of the Digitized by Microsoft® THE RULE IN SHELLEY S CASE. will to whioh it refers. It migM he taken to mean tliat under a devise to T. during his life, and after liis decease to his legitimate child or children, T. takes an estate tail by virtue of the Rule in Shelley's Case, because child or children may mean issue generally, and issue may in a will be equivalent to heirs of the body. But the case seems rather to have been decided upon the ground, that T. took an estate tail by implication, by reason of a subsequent gift over in the event of his death without issue, the testator having died before the coming into operation of the Wills Act. These two possible grounds of the decision are not very clearly discriminated. (9) The further addition to the word heirs, or heirs of the body, of words of limitation to their heirs, or heirs of the body, 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 Eep. 93 ; Fearne, Oont. Eem. 181, V. 26 ; 1 Prest. Est. 347.) Even if the latter heirs are not identical with the former heirs, the rule seems to apply, unless there is a positive incongruity between them. (Eearne, Cont. Eem. 188, 184.) Thus, the rule will apply where the first limitation is to the heirs male of the body, if the second is to the heirs general of the body ; but not (it would seem) if the second limitation is to the heirs female of the body. If the word heir is in the singular, and words of limitation are added, the rule does not apply, and the heir takes by purchase. But in a will the word heir in the singular, without words of limitation, will be equiva- lent to the use of the word heirs, and the fee is executed in the ancestor. (Fearne, Oont. Eem. 178, v. 25.) (10) The rule applies to equitable as well as to legal limita- tions ; but the prior and the subsequent limitation must both b6 of the same quality in this respect. (Eearne, Oont. Eem. 52, v. 9 ; ibid. 57, v. 10 ; Venabks v. Morris, 7 T. E. 342.) It will make no difference if the prior equitable limitation is to a feme coverte for her separate Digitized by Microsoft® 153 154 ON ESTATES IN GENERAL. use, unless the settlement contains some further indica- tion of intention which is incompatible with the rule. (Fearne, Cont. Eem. 56.) Where the prior limitation is in form equitable, while the subsequent limitation is in form legal, it has been held that the rule will apply, if aU the limitations are made in fact equitable, by reason that the legal estate in the fee happens to be outstanding. (J?e White and Jlindle's Contract, 7 Ch. D. 201.) But it may be doubted whether this case is not at variance with the decision of Lord Cranworth in Coa^w y. Arnold, 4 J)e Gr. M. & Gr. 574. He seems to lay down the rule, that the limitations must be such as are capable of being aU translated into corresponding legal estates by getting in the legal estate ; and that if, on effecting the change, the limitations are such that the prior and posterior estates will not both become legal estates, the Rule in Shelley's Case does not apply to them while they remain equitable. (See p. 587.) This case was not cited in lie White and Mindle's Contract. (11) The rule applies to limitations of copyholds, as well as to limitations of freeholds. (Fearne, Oont. Eem. 60, V. 11.) (12) The rule does not apply where the subsequent limita- tion is an executory limitation. (Fearne, Cont. Eem. 276 ; 1 Prest. Est. 323.) In Be White and Hindk's Contract, 7 Ch. D. 201, at p. 203, Sir Eichard Malins, V.-C, stated obiter, that he " should be slow to admit " this proposition, if the ques- tion 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. This is iden- tical in principle with the reasoning upon which it is held that an equitable limitation cannot coalesce with a legal limitation. Moreover, the modern tendency of Digitized by Microsoft® THE RULE IN SHELLEy's CASE. 155 the courts does not seem to lean towards unnecessarily- extending the scope of the rule. (13) The rule does not apply to executory trusts, which do not make a settlement but only give directions for the making of a settlement at a future time, if the intention is clear that the heirs should take by purchase ; and in such cases the court will order the settlement to be made according to the intention. In executory settlements made in consideration of marriage, where a main part of the intention is usually the protection of the issue from the caprices or misfortunes of the parents, the intention that heirs shall take as purchasers is presumed. ( White V. Thornbiirgh, 2 Vern. 702 ; Trevor v. Trevor, 1 P. Wms. 622 ; Papillon v. Voice, 2 P. Wms. 471.) The question as to the origin, or true grounds, of the Rule in Origin of the Shelley's Case, has given rise to much speculation, into which it "^ ^' is not desirable to enter at length. Considering that, at the time when the rule arose, tenure was the mainstay of our poli- tical constitution, 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 permitted to take effect by way of remainder, would have enabled 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. * This is at all events the policy of the Statute of Marlebridge, 52 Hen. 3, cap. 6, enacting that the lord should not lose his wardship by a feoffment made in the tenant's lifetime to the tenant's heir, being within age ; and the language of the statute shows that this and other like devices for evading feudal burdens were then well known. This enactment was not merely levelled at covinous feoffments, where the feoffor continued afterwards in receipt of the profits, but extended to bondjide feoffments to the heir's use. (Bacon, Uses, p. 25, aclinit.) Digitized by Microsoft® 156 ON ESTATES IN GENERAL. CHAPTER XIY. EXECUTORY LIMITATIONS. Their origin. Fou a long time previously to the Statute of Uses, 27 Hen. 8, e. 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 practically to devise lands, by means of the creation of uses, would sub- sequently have been recovered through that construction of the statute which afterwards gave rise to the modern system of trusts. But the loss of a privilege 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 without due foresight of the consequences, 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.* Thus, within a short space of time there were introduced into our legal system two separate * It was probatly due to a fear lest the language of 32 Hen. 8, o. 1, might be held to extend to lands in tail, that it was expressly restricted to lands in fee simple by 34 & 35 Hen. 8, u. 5. (As to these statutes, see p. 200, infra.) Digitized by Microsoft® EXECUTORY LIMITATIONS. 157 methods, both unknown to the common law, by which legal estates in lands might be created and conveyed.* The language of the Statutes of Wills is exceedingly wide, permitting devises to be made by the owner " at his free will and pleasure " ; and there existed this reason for relaxing, in respect to devises, the severity of the common law rules relating to abeyance of the seisin, namely, that, in case the seisin was not completely disposed 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 un- appropriated interval, might be suffered 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 opposition, 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 conveyancing 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 relating to abeyance of the seisin ; and this accounts for only a part of the distinction 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 the common law to limit a fee simple upon the determination, or in defeasance, of another fee simple. {Vide supra, p. 73.) The introduction of this second element is explained by the operation of 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 * Under ouatoma to devise, some traces of executory devises are found prior to tte Statutes of Wills. In Fells v. Brown, Cro. Jac. 590, at p. 592, tlie court refers to a devise of laud to executors to sell, in case tie heir should fail to pay a given sum by a given day, as being what " hath always been allowed." But the subject did not attain to much practical importance until after the Statutes of WUls. Digitized by Microsoft® 158 ON ESTATES IN GENEKAL. not confine them within either of the ahoye-mentioned restric- tions, "which were applied by the common law com'ts 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 impossibility of limiting a future interest, to take effect after or in defeasance of a fee ; or (2) as regards the necessity for guarding against abeyance of the freehold, which had no application to uses before the Statute of Uses, because the freehold was unaffected by the use, and therefore an abey- ance of the use did not cause any abeyance of the freehold. Limitations of uses were allowed which, if they had been limita- tions of legal estates at the common law, would have violated one or both of the above-mentioned rules. When the Statute of Uses converted 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. The ultimate decision of the courts was, after some hesitation, in favour of their validity. This result, however, was not effected by permitting the freehold to be placed ia abeyance, but by recognising sundry hypotheses for supposing it to be vested in some person or persons during the unappropriated interval. In the case of vriUs the unappro- priated seisin was held to descend duriug the interval to the heir of the testator, and in the case of conveyances to uses it was generally held to result to the grantor. 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 execiitory 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 his- torical fact, by the circumstance that limitations 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 Digitized by Microsoft® EXECUTORY LIMITATIOKS. 159 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 similar executory limitation contained in a deed can be found in the books. Whatever may be the historical connection, in these respects, Every exeou- between executory devises and executory limitations contained tion offree- in a deed, it is certain that the most marked characteristic of lioi'ipj^li-io'i is ' possible in a both species is their freedom from both of the common law re- ■will, is also .... , ., ,., . . possible in a strictions above mentioned ; and that it has never been suggested deed ; and that in either respect, so far as regards dealings with the free- hold and inheritance of lands, there is any difference between executory devises and executory limitations contained in a deed, in the sense that anything can be done by the one which could not (by the use of appropriate language) have been equally well done by the other. But in respect to dealings with chattel interests, there is a wide Distinction as and important distinction between executory devises and other chattels real, 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 person, which, when it becomes executed in possession 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 Eep. 94 ; Lampet's Case, 10 Rep. 46 ; Feame, Oont. Eem. 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 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 bequests, are even possible, within certain limits, of personal chattels, so long as these are Digitized by Microsoft® interests. 160 ON ESTATES IN GENERAL. not things qim ipso ttsu consitmuntur. But sucli bequests lie out- side the scope of the present work. Differences in And although it is possible to effect by deed every limitation construction ... . > between wills of freehold or inheritance which could be effected by devise, it respecUo' ™ "^^^s not foUow that the construction of a limitation contained executory ^^ g^ ^^ must always be identical with what would be the inrATPfiT.o •^ construction of the same limitation if contained in a deed ; and important distinctions exist between the two cases. In the first place, the rule which requires proper words of limitation to create a fee was, even before the "Wills Act, applied much less strictly to wills than to deeds, and it sometimes happened that words which in a will would suffice to devise a fee would not suffice in a deed to limit anything beyond an estate of mere freehold. In the second place, the rule as to the abeyance of the freehold was, as respects deeds, got over by holding that during the unappropriated interval the use in general resulted to the settlor ; and if by reason of special circumstances there appeared to be an intention that the use should not result, the courts held that it would not result contrary to the intention, and came to the conclusion that in such cases, by analogy to the common law governing the limitation of estates, the abeyance of the use had the same effect to destroy the limitations as an abeyance of the freehold would have had at the common law. But in a wiU even an express declaration by the testator would not have availed to prevent the descent of the lands to his heir during any unappropriated interval. (Fitch v. Weber, 6 Ha. 145; Be Cameron, Nitron v. Cameron, 26 Ch. D. 19.) Thus it might possibly happen that in a deed a limitation by way of use might be held to be void under the rule relating to abeyance of the seisin, while it could never happen in a will that a devise could be held to be void for the like reason. {Adams v. Savage, 2 Salk. 679, Ld. Eaym. 854 ; Batvkij v. Holland, 22 Yin. Abr. 189= Uses, F. p. 11, 2 Eq. Ca. Abr. 753.) Though these cases seem, upon principle, to be open to adverse criticism,* it is probable that they would now be accepted for law. * "On a point in the Law of Executory Limitations." Law Quart. Key. Vol. I., p. 412. Digitized by Microsoft® EXECUTORY LIMITATIONS. 161 As a deduction from the foregoing observations we arrive at General the following general definition : — An executory limitation is a limitation of a future estate in lands, or of a future interest in chattels, or chattels real, which would be invalid, if made in an assurance 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 limita- No remainder can be exe- tion, though valid in a will or conveyance to uses, shall not be cutory. such as would be valid in a conveyance at the common law. In construing all instruments under which executory interests may arise, whether wiUs 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 an executory limitation. {Vide supra, ^p. 112.) In other words, since a re- mainder is the only future estate which can take effect at the common law, no estate shall be construed as an executory interest which is capable of being construed as a remainder. Two classes of executory limitations may therefore be dis- Two classes, tinguished, corresponding to two respects in which they differ from remainders at the common law : — (1) Devises and limitations of uses whereby a precedent fee, i. Limita- devised or limited by the same instrument, is followed upon a fee. by subsequent limitations. The subsequent limitations must be to arise upon the happening of a contingency.* They may either defeat the precedent fee up^on the hap- pening of the contingency ; or, if the precedent 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 determination of the fee. * Because it is impossible for a fee to be ao limited as to be determinable at a fixed period. {Vide mfra, p. 224.) C.R.F. M Digitized by Microsoft® 162 2. Limita- tions of a bee- holiinfuturo. ON ESTATES IN GENERAL. (2) Devises and limitations of uses, not less in quantum than a freehold, which are limited to take effect either upon a contingency or after the expiration of a fixed period, and which are such that, if they had heen legal limita- tions arising at the common law, they would have been void as tending to create a freehold infuturo. These two classes will be found to agree with a division proposed by Fearne, Cont. Eem. 399, 400. Fearne's language, which is confined to devises, is in effect as follows : — The first sort [of executory devises] is, where the devisor parts with his whole fee simple, but upon some con- tingency qualifies that disposition, and limits an estate on that contingency. The second sort of executory devises is, where the devisor, without parting with the immediate fee, gives a future estate to arise either upon a contingency, or at a period certain, unpreceded by, or not having the requisite con- nection with, any immediate freehold to give it effect as a remainder. Division into shifting and springing limitations. This partly corresponds with the division of executory limita- tions, accordingly as they do or do not defeat an estate pre- viously limited by the same instrument ; which is eminently convenient for many purposes of practical discussion. Those which defeat the estate are distinguished by the epithet shifting : those which do not, are distinguished by the epithet springing. When these epithets are used, the additional epithet, executory, may conveniently be omitted. Shifting limitations are styled shifting uses, when they occur in assurances made by way of use, and shifting 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 limi- Digitized by Microsoft® EXECUTORY LIMITATIOKS. 163 tations, which are to arise upon a contingency, with contingent remainders. The following examples will illustrate the dis- tinction between the two classes of executory limitations above noted, — (1) those which defeat a previously limited estate, and (2) those which do not. 1. In strict settlements of real estate, when they are made by a settlor in contemplation of his marriage,* the limita- tions regularly begin with a limitation to the use of the settlor and his heirs until the solemnization of the ia- tended marriage ; and afterwards to certain other speci- fied uses. These subsequent uses are in their inception executory limitations, for they would be void as re- mainders at the common law, since they are limited after a determinable fee. (See p. 230, infra, No. 10.) Here the precedent fee is a determinable fee, which, if it should determine at all, must determine within the time prescribed by the rule against perpetuities ; and the subsequent executory limitations are not in defeasance of the fee, but await its regular determination. If the precedent fee had been a fee simple, any subsequent limitation must necessarily (if valid) have been in de- feasance of it. 2. " One devises lands to his wife, tiU 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 con- tingent or executory devise to the daughter." (1 Eq. Ca. Ab. 188, pi. 8.) With regard to the devise of the' * In practice, strict settlements of real estate are not usually made in con- sideration of marriage, though, examples of such settlements do occur. The' more usual course is for the eldest son, tenant in tail, as soon as he comes of age, to concur with his father, tenant for life, in harring the entail and re- settling the family estates in strict settlement, giving to each successive ' incumhent (as he may be styled) power to jointure a wife or wives and to ■ charge the lauds with portions for younger children. When he marries, the ' marriage settlement does nothing to settle the lands, hut only exercises the '■ power of jointuring and charging portions. M 2 Digitized by Microsoft® 164 ON ESTATES IN GENERAL. fee to the son, it is to be observed, that tbe case occurred before the Descent Act, 3 & 4 Will. 4, c. 106 ; and that the fee simple to the son (which, by the rule in Boraston's Case, 3 Eep. 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 pur- chaser, and not by descent. ( Vide infra, p. 212.) " There- fore, at the time when the case was decided, the execu- tory devise to the daughter came under the class of springiag limitations, because it was not subsequent to, or in defeasance of, an estate limited by the same instru- ment. But as the law now stands, the fee to the son would pass by the will, and not by descent ; and there- fore the executory devise to the daughter would now come under the class of shifting limitations. Executory The benefit of an executory limitation, which purports to descendible^ Create a future interest of the quantum of a fee, is descendible in- and devise- ^ regular course of descent, if or so soon as the person is ascer- tained in whom it would vest if it should then become vested. (Watk. Desc. 13.) And all executory interests, not determin- able by the death of the party, have been held to be deviseable, since the case of Boe v. Jones, 1 H. Bl. 30 ; affirmed in B. E. sub notn. Jones v. Roe, 3 T. E. 88.* They are expressly made deviseable by the Wills Act, 7 Will. 4 & 1 Yict. c. 26, s. 3. 3Ttft assign- At the common law executory interests, as being, in the eye of ^atthecommon ^^® ^*^> ^0^ estates, but only possibilities to have an estate at a law. future time, were not assignable by act inter vicos. (16 Vin. Abr. 462 = Possibility, B, pi. 5.) As above mentioned, they imight be released to the person entitled subject to them ; and they might be bound by estoppel of the party entitled to the ibenefit of them. Also, in equity they might be assigned, and I contracts relating to them might be entered into, for valuable tconsideration. {Vide siqwa, p. 67.) * This doctrine had previously been denied. See Bishop y. Fountaine, 3 Lev. ■1427. Digitized by Microsoft® EXECUTORY LIMITATIOXS. 165 The Act to amend tlie Law of Real Property, 8 & 9 Yict. c. Now made 106, s. 6, enacts, tliat after 1st October, 1845, a contingent, an gtatute. ^ ^ 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. 99, supra. The words above cited are equally applicable both to contingent remainders and to executory inter- ests. The words permitting assignment before the ascertain- ment 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 several specified j^ersons. By the introduction of executory limitations, and the conse- How far quent emancipation of the limitation of legal estates from the limitations, rules of the common law, the obstacles opposed by the common quenttoestate law to the creation of what are somewhat vaguely styled per- ^^'^'.^^ ^^^- petuities, were made nugatory in practice. Moreover, the machi- nery of common recoveries, laboriously built up by the courts to promote freedom 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 limitation in defeasance of a fee taU might be barred by a common recovery, it was held by three judges of the Court of Eng's Bench, against the opinion of Doderidge, that an executory limitation in defeas- ance of a fee simple could not be so barred without the con- currence of the person entitled to the benefit of the executory limitation. {Pells v. Brown, Cro. Jao. 590.) If such person had been vouched, and had entered into the warranty, it was agreed that the executory limitation would be barred ; but this proceeding would merely have effected by matter of record what might equally well have been effected by release between the parties. The same doctrine is also applicable to estates imr autre vie. The opinion was expressed by Preston, that an executory limitation annexed to an estate pur autre vie, limited to a grantee and his heirs general, cannot be barred by the Digitized by Microsoft® 166 ON ESTATES IN GENEKAL. first taker; and this has recently been affirmed by judicial decision. ( 1 Prest. Ahst. 438 ; Be 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 inter- posing an obstacle to the alienation of property. How barred by fine. A claim arising under such an executory interest was as much within the language of the Statutes of Fines 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, Fines & Rec. 313.) But for this purpose it was necessary that there should be a non-claim of five years' duration after the claim under the executory limitation had become enforceable, that is, had vested in possession ; and thus the practical effect of a fine, in this respect, was merely to shorten the ordinary period for the limitation of actions to five years. This restricted power of barring executory limitations, other than executory limitations subsequent to an estate tail, was lost upon the abolition of fines by the Fines and Recoveries Act. It re- quires carefully to be distinguished from methods of barring executory limitations subsequent to an estate tail, or to a quasi- estate tail carved out of an estate 2mr autre vie. These took effect immediately, and without the expiration of any period of limitation. Certaiu executory Kmitations under certain circumatances now made Toid by statute. The Conveyancing Act, 1882, s. 10, enacts that, where there is a person entitled to land for an estate in fee, or for a term of years absolute or determinable on life, or for term of life, with an executory limitation over, contained in any instrument coming into operation after 31st December, 1882, on default or failure of all or any of his issue, whether within or at any specified period of time or not, that executory limitation shall be or become void and incapable of taking 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 aboTO-oited enactment. It was probably the aim of this enactment to assimilate these executory limitations, in respect to the period of time during Digitized by Microsoft® EXECUTORY LIMITATIONS. 167 which they are secured against destruction, to executory limita- tions 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 itself, can he, 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 equitable 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 un- doubtedly include an equitable fee simple ; but the Act of 1882 contains no provision for incorporating the definitions of words contained in the Act of 1881 ; and by separately defining, in almost the same language as the Act of 1881, the words " pro- perty " 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 limita- tions by which property might be " tied up " for indefinite periods of time, or else to devise some new restrictions for pre- venting this result, which should be applicable to the newly introduced limitations. This was effected by the introduction of the rule which is now commonly 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 wiU be observed that the Conveyancing Act, 1882, s. 10, though it affects the possible duration of certain executory limitations, does not interfere with their creation. Digitized by Microsoft® 168 ^N ESTATES IN GENERAL. The Rule against Perpetuities. General The rule affainst perpetuities fixes certain limits of time, remarks upon .. , the rule. within which every executory limitation, not being a limitation subsequent to an estate tail, must necessarily vest, if it vests at all, on pain of being otherwise void. The rule has never been considered to be binding upon limitations subsequent to estates tail, because such limitations have at all times since the inven- tion of executory limitations been liable to destruction, either by means of a common recovery or by the method provided by the Tines and Eecoveries Act. Such limitations are therefore not obnoxious to the mischief which the rule was designed to prevent. (See Nicolls v. Sheffield, 2 Bro. 0. C. 215 ; Heasman v. Pearse, L. E. 7 Oh. 276.) The terms of the rule do not import that the limitation 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 contingency which is such that, by possi- bility, it may never happen at all ; but it must be such that, if it does happen 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 possibly happen outside those limits. Much elaborate effort has been expended upon attempts to define a " perpetuity," and to found the reason of the rule now under consideration upon the definition. These labours seem to be superfluous. Without 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 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 period of vesting (as it may be called) prescribed by the development, ^ule against perpetuities, since it is in the nature of a remedy gradually devised by the discretion of the judges, to meet a new Digitized by Microsoft® EXECUTORY LIMITATIONS. 169 mischief arising out of the raising of legal estates by means of uses and devises, could not, from the circumstances of its origin, be clearly ascertained from the commencement. It will be sufficient 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 limitation, which must necessarily vest (if at all) during the life or lives of a specified person or persons 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 that " the ultimum 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 Oh. Ca. at p. 36.) (2) It is now 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. 0. 137, as explained by Preston, in his argument in Bengough v. Edridge, 1 Sim. 173, at p. 192; Cadell v. Palmer, 1 01. & P. 372, 10 Bing. 140.) This is now regarded as an axiom. In Cole v. Setcell, 2 H. L. 0. 186, at p. 233, Lord Brougham, while hinting some disapproval, and intimating that this rule had been established by oversight, admitted that it was settled law. The point cannot be said to have been indisputably settled until the decision of Cadell v. Palmer by the House of Lords in 1833 ; which is the same case under another name as Bengough v. Edridge, cited above, where Sugden obstinately maintained the contrary doctrine in opposition to Preston. (3) It would have been a very reasonable restriction, if some Digitized by Microsoft® 170 ON ESTATES IN GENERAL. connection had teen established between the person or persons in question and the property ; 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 property, or the life of the parent of a person taking a subsequent interest. But no such restriction seems ever to have been judicially suggested. In Thellusson v. Woodford, 11 Ves. 112, at pp. 145, 146, Lord Eldon plainly lays it down that the number of the lives, being lives simultaneously running, may be unlimited, and that the persons may have no connection with the pro- perty ; 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 has not been doubted, since the case of 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 mere 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 mere; and thus a second period of gestation is 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 mere 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 mere in the case, no extension of time is allowed upon the ground that there might possibly have been such a per- son. {Cadell V. Palmer, 1 CI. & F. 372, 10 Bing. 140.) Expressions 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 permitted term of twenty-one years. Such dicta seem to be erroneous. Digitized by Microsoft® EXECUTORY LIMITATIONS. I'M 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 limitations coming within the scope of the rule, may be postponed, as follows : — A life, or any number of lives, in being — the life of statement a person en ventre sa mere being considered for this ofvestFng" purpose a life in being — and twenty-one years after allowed by the dropping of the life, if only one, or after the drop- ping of the last surviving life, if there be more than one. And at the expiration of the aforesaid period, the executory interest may vest in a person en ventre sa mere. Not only must the title become vested in an ascertained class of specified persons within the prescribed period, but the shares in which the different persons are to take the property must also then be ascertained ; that is to say, the magnitude of the share to be taken by each member of the class must not depend upon an event which may happen beyond the period allowed by the rule ; otherwise the gift will be void for remoteness. [Curtis v. Lukin, 5 Beav. 147.) It is unnecessary to cite particular cases, to show that ese- Towhatsub- cutory devises, sprmgmg and shirtmg uses, and trusts executed, applies, are bound by the rule against perpetuities. That proposition is now an undisputed axiom of law. The rule also applies to trusts executory. {Duke of Marlborough v. Uarl Godolphin, 1 Eden, 404.) The rule also applies to nondescript equities, not amount- ing 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 proprietary interest. [London and South Western Railway Co. v. Qomm, 20 Ch. D. 562.) In the last-cited case, the case of Birmingham Canal Co. v. Carturight, 11 Ch. D. 421, was expressly overruled ; together with several earlier cases in which it had been doubted or denied that non- descript equities arising upon contracts are within the scope of the rule. Digitized by Microsoft® 172 ON ESTATES IN GENERAL. Collateral But it IS necessary that the equity should give a specific claim to some specific property. A general claim to damages, upon the breach of a personal covenant, stands out of all relation to the rule. {London and South Western Railiray Co. v. Gomm, 20 Ch. D. 562, at p. 580. See the judgments deliYered in the House of Lords in the case of WitJiam v. Vane, Appendix V., infra.) Eemarts Perhaps the distinction referred to in the last preceding para- upon Keppell . j. o x T. BaMey. graph may serve as an explanation of Lord Brougham's remarks in Keppell v. Bailey, 2 My. & K. 517, at p. 527, to the effect that the covenant in that case did not tend to a perpetuity. The covenant bound the covenantors to procure all limestone used upon certain works from a specified quarry. There was no proviso 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 interest. But in so far as the remarks of Lord Brougham were grounded upon the fact, that the covenantee could at any time release the covenant, they seem to be erroneous ; because the same argument would sufiice to prove, that no executory limitation can be void for remote- ness, 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 decision (now overruled, as above mentioned) in Birmingham Canal Co. v. Carttiright, 11 Ch. D. 421 ; see p. 433. It is worthy of observation that, although the general principle laid down by Lord Brougham in Keppell v. Bailey, namely, that covenants which do not run with the land at law ought not to be enforced in equity against a purchaser taking with notice of them, has been completely discredited by Tulh v. Moxhay, 2 Ph. 774, and the subsequent cases, yet the decision itself in Keppell V. Bailey might be supported, in accordance with the dis- tinction laid down by the Court of Appeal in Haywood v. Bruns- wick Permanent Benefit Building Society, 8 Q. B. D. 403 ; namely, that the principle of Tulk v. Moxhay does not apply to affirmative covenants, but only to prohibitive covenants. In Tnlh v. Moxhay the covenant was partly affirmative and partly prohibitive ; but the decree dealt only with the prohibitive part : a remarkable Digitized by Microsoft® EXECUTORY LIMITATIOXS. 173 ciroumstance, wliich seems to Kave slept unnoticed during the interval between the decision of that case and the case of Hay- ivood V. Brunswick 8fc. Socleiy above cited* But the whole principle of Talk 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 consolidation of mortgages, to have its wings clipped whenever it shall come before that august tribunal. The main exceptions out of the operation of the rule, seem to Exceptions , out of the be as follows : — rule. (1) Conditions in defeasance of a term of years. It has never been suggested that such conditions are within the scope of the rule, unless (which hardly seems to be the case) a loose remark thrown out obiter by Mr. Justice Buller, in Roe v. Galliers, 2 T. E. 133, at p. 140, amounts to such a siiggestion. Since such con- ditions have come almost daily before the courts during 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. 174, infra. (2) Covenants for the renewal, whether perpetually, or for certain turns only, of leases. (London 8f South Western Railway Co v. Gomm, 20 Oh. D. 562, at p. 679.) There is perhaps some diiBculty, upon principle, in explaining this exception ; but its existence is beyond aU * In London ^ South Western Exilway Co. v. Gomm, 20 Ch. D. 562, at p. 683, Jes3el, M. E.., observed that, "the covenant in Talk v. Moxhay was affirmative in its terms, but -was held by the court to imply a negative." This remark is not strictly true ; for the covenant contained an express neg-ative, namely, to keep the land " uncovered with any buildings." The doctrine that an afiirma- tive covenant implies a negative, introduces much uncertainty into the law, and is very liable to abuse. It might easily be so stretched as to destroy the dis- tinction between afSrmative and negative covenants. But it is quite possible that, upon the strength of the above-cited observation, the afSrmative covenant in Kepjpell v. Bailey would now be held to imply a negative. Digitized by Microsoft® 174 ON ESTATES IN GENERAL. doubt, and has repeatedly been recognized by the House of Lords. {Earl of Boss v. Worsop, 1 Bro. P. C. 281 ; Pendred v. Griffith, ibid. 314 ; Sivcet v. Anderson, 2 Bro. P. 0. 256.) Wben the covenant is for a perpetual re- newal, 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 in conveyances of the fee, and, upon the principle of Tulk v. Moxhay, 2 Ph. 774, "run with the land" in equity, though not at law. [London §• South Western Railway v. Gomm, 20 Ch. D. 562, at p. 583 ; Mackenzie v. Childers, 43 Ch. D. 265.) ■Whether the The question, whether a common law condition in defeasance common law ° of an estate of freehold, is within the rule against perpetuities, conditions m ^^ ^^ scnsc that it is void if it may defeat the estate at a time aeieasance oi ^ a freehold. more remote than is allowed by the rule, may perhaps, in view of the present disposition of the courts, which leans strongly in favour of the rule, be a question requiring to be treated with some degree of caution. The affirmative reply is open to the obvious objection, that the rules relating to common law con- ditions had been settled for some centuries before the rule against perpetuities had been thought of, and that there is not only 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, but their language by the clearest im- plication asserts the absence of any such rule. In the old common law authorities, down to and including Lord Coke, there are innumerable references to conditions in defeasance of a freehold, expressed simpliciter without any hint of a restriction within any period whatever ; and not only 'do such references invariably assume that the validity of such con- ditions had never yet been called in question upon this ground, but in some cases they afiirm, by the clearest implication, that the benefit of a condition of re-entry may be claimed at any distance of time by the heirs of the grantor. At a subsequent Digitized by Microsoft® EXECUTORY LIMITATIONS. 175 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 common law. Upon what principle can it be said, that the emergence of novel matter into the law had simultaneously 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 which the common law depends, is of much greater antiquity than the reign of Henry YIII. 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 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 acknowledgment, it is ap- plicable, 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 certain type. Much more than this is needed, in order to bring matters previously settled by the common law within the scope of the new nxle. Upon these grounds it is conceived, that there cannot 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 possibility of re- verter upon such a condition can neither, at the common law, be assigned inter vims nor devised. (Prest. Shep. T. 120.) And Suggestion as it might plausibly be maintained, that 8 & 9 Vict. c. 106, s. 6, menttfnd and the Wills Act, s. 3, by which such possibilities are made Revises, assignable and deviseable, tacitly and by implication impose upon assignments and devises of them, though not upon the Digitized by Microsoft® 176 ON ESTATES IN GENERA!,. conditions themselves, the liability to the rule against per- petuities. There exists no judicial decision, so far as the present writer is aware, that a strictly common law condition is subject to the rule against perpetuities. In Flower v. Sartopp, 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. E. 20 Eq. 186, the condition, or con- ditional clause, which was in dispute may be styled a common law condition, in the sense that, standing by itself it might import a condition at the common law ; and Jessel, M. E., 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 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 dictum, would be a slender foundation upon which to build an important conclusion of law. At p. 190 he' also added the further remark : — " Then it [the condition in question] is not, strictly speaking, limited as to time, except in this way, that it is limited to the life of the first tenant in tail ; of course, if unlimited as to time, it would be void for remote- ness under another rule." But this remark bears plain traces of confusion and mistake ; for the case contains nothing about any tenant in tail. Moreover, though the form of words referred to might at the common law import a condition, and may in this sense be styled a common law condition, yet the sub- sequent destination of the property, apparently not being in favour of the heir of the testator, could take effect, if at all, only as an executory limitation; and therefore the language of the learned judge may be explained by supposing that he was rather referring to the validity of the subsequent limitation than to the validity of the conditional clause re- garded as a condition. This is equivalent to saying (what seems, in fact, to be the case) that the learned judge was not referring to conditions at all, but to executory limita- tions. For the same reason, the expressions used by the same learned judge in London and South Western Railway v. Gomin, 20 Oh. D. 662, at p. 582, afford no indication of his opinion Digitized by Microsoft® EXECUTORY LIMITATIONS. 1~" upon the question now under discussion. He evidently thought that " a limitation to A. in fee, with a proviso that whenever a notice in writing is sent and 100/. paid by B or his heirs to A or his heirs, the estate shall vest in B and his heirs," would be within the rule against perpetuities. But, in the words imme- diately 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 distinguished from a common law condition. In one of its meanings, 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 exceedingly well into the words above cited ; and no doubt exists that such conditional limitations are subject to the rule against per- petuities. But this proves nothing about common law con- ditions. In Dunn v. Flood, 25 Ch. D. 629, the opinion expressed by Mr. Justice North, that a common law condition is subject to the rule against perpetuities, was obiter dictum. Not only is it not material to the decision, but it makes against the decision, so far as it goes. The decision was afterwards affirmed by the Court of Appeal, 28 Ch. D. 586 ; but nothing was said to support the obiter dictum. Moreover, casual remarks delivered obiter, whatever may be the learning and experience of their authors, cannot rationally be regarded as having sufficient weight to decide an obscure question of law which has never been properly considered. 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 reluctance. Therefore no convey- ancer could be advised, in the absence of express judicial deci- sion, to rely in practice upon the conclusion, that common law conditions are not within the rule against perpetuities. But every argument that can be derived from history and general principle seems to be in its favom\ The question as to the validity of a particular limitation is to Remoteness does not C.E.P. N Digitized by Microsoft® 178 ON ESTATES IN GENEKAL. depend upon the event. be decided at the time when the instrument under 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- tion may not vest until after the expiration of the period specified by the rule, it is void for remoteness ; and the subse- quent happeniug of any event whereby, if held to be valid, it would in fact have vested within the specified period, will not make it valid. Nor will the fact that a specified person, a married woman, was, at the date of the coming into operation of the instrument creating a power, past the age of child-bearing, sufSee to take out of the rule a ease which, upon the hypothesis that she might subsequently have had children, would have been within its scope. {Jee v. Audley, 1 Cox, 324 ; Re Sayer's Trusts, L. E. 6 Bq. 319 ; Re Baioson, Johnston v. Hill, 39 Ch. D. 156. The contrary view taken in Cooper v. Laroche, 17 Ch. D. 368, may safely be disregarded.) Limitations to a class of objects. If the limitation is in favour of the whole of a class, as to some of whom it would be good, but as to others it is void for remote- ness, the limitation fails as to the whole. (Pearls 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 instrument, 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. (Leake v. Robinson, 2 Mer. 363, at p. 390.) Not only must the class be incapable of being subsequently increased, but also it must be incapable of being subsequently diminished. (Blight v. Sartnoll, 19 Ch. D. 294 ; which case was appealed on another point, 23 Ch. D. 218, but no objection was raised upon the above-stated point.) Failure of limitation does not When a limitation is void for remoteness, any subsequent limitation to take effect after it is not accelerated, but is also Digitized by Microsoft® EXECUTORY LtMITATIONS. 179 void. (1 Jarm. Wills, 4th ed. 283, 284, and cases there cited, accelerate Also Earl of Chatham v. Tothill, 7 Bro. P. C. 453.) i^Ss!''* A subsequent limitation must, of course, he distinguished from an alternative limitation. In the case of alternative limitations, one of which, standing alone, would he good, while the other, standing alone, would he void for remoteness, the limitation will fail or take effect according to the course of events. (1 Jarm. Wills, 4th ed. 285.) If an ahsolute gift is followed hy a void provision, the bad- But a void ness of the latter does not affect the validity of the former ; and ^pon a^ therefore where a testator by his will first makes an ahsolute ^^^ol'^tf &'f*> •> 18 merely gift of chattels, and by a subsequent clause cuts this gift down inoperative, to a life interest followed by a limitation over which is void for remoteness, the absolute gift takes effect, unaffected by the attempted restriction. {Ring v. Sardwick, 2 Beav. 352 ; Taylor V. Frohisher, 5 De G. & Sm. 191 ; Goodier v. Johnson, 18 Oh. D. 441.) The same principle applies also to real estate. [Browne V. Stoughton, 14 Sim. 369 ; Turvin v. Newcomc, 3 K. & J. 16.) A restraint on anticipation superinduced upon an appointment to the separate use of a married woman will be bad, if the restraint may continue beyond the period allowed by the rule, although the interest of the married woman may vest in due time ; and in accordance with the principle above stated, the married woman will take freed from the restraint. {Coojjer v. Laroche, 17 Oh. D. 368.) If the right to a fund, or share in a fund, vests within the Similarly, time limited by the rule, but the will contains a direction, that direction as the fund shall not be paid over until a time which, if it were ^^ a^vested* the time of vesting, would make the gift void for remoteness, fnnd. this direction is itself inoperative {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. Cr. & Ph. 240 ; and see Curtis v. LuMn, 5 Beav. 147, at pp. 155, 156.) When an executory limitation arises under the exercise of a Special „ powers are N 2 Digitized by Microsoft® 180 ON ESTATES IN GENERAL. within the rule. special power of appointment, the time from ■which the period- prescribed by the rule begins to run, is the date of the coming into operation of the original instrument creating the power, not that of the instrument by which the power is exercised. Therefore nothing 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 Brown and Sibly's Contract, 3 Oh. D. 166.) This rule does not apply to general powers, be- cause in their nature they are incapable of operating as a restraint upon alienation.* And a special power is not void in its incep- tion, 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 prima facie in part good and in part bad, the appointment will be upheld, so far as it keeps within the limits of the rule. {Stark v. Dakyns, L. E. 10 Ch. 35. See also Re Teague's Settlement, L. E. 10 Bq. 564 ; Re Cimynghame' s Settlement, L. E. 11 Eq. 324.) Powers of sale and exchange. Doubts have sometimes been expressed, whether the common powers of sale and exchange usually found in strict settlements might not be void, if appearing to be exerciseable indefinitely ; and Fearne, and other eminent conveyancers, sometimes ex- pressly restricted the exercise of such powers within the period of lives in being and twenty-one years afterwards. (2 Prest. Abst. 159.) In 1805 Lord Eldon, in Ware v. PoMtt, 11 Ves. 257, at p. 283, made some remarks which would abundantly justify this precaution ; but it was subsequently decided that unlimited collateral powers of sale, which, so far as they might be exerciseable at a time later than the terms of the rule would permit, are subsequent to an estate tail, and are therefore liable * This doctrine, that a general power is not liable to remoteness, applies to a general power exerciseable by a married woman in respect to her separate estate. {Rous V. Jackson, 29 Ch. J). 621 ; Ee Flower, Edmonds v. Edmonds, 55 L. J. Ch. 200.) Digitized by Microsoft® EXECUTORY LIMITATIONS. 181 to be defeated by a bar of the entail, are valid. ( Waring v. Coventry, 1 My. & K. 249 ; WalUs v. Freestone, 10 Sim. 225.) And it was decided in Boyce v. Hanning, 2 C. & J. 334, and Lantubery v. Collier, 2 K. & J. 709, that, apart from any argument founded upon the existence of an estate tail, the power is valid in its inception, and can be exercised at any time before the ultimate remainder or reversion in fee simple becomes vested in possession. 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 in strict settlements, have in a great meastire been superseded in prac- tice. It is certain that the common powers of sale and exchange have not, in general practice, been expressly restricted, as to their exercise, within the limits of time imposed by the rule. This amounts to indisputable proof, that such express restriction is not, at all events, necessary to give validity to an exercise of the power which in fact takes place within those limits. And it is to be observed that, as a collateral power is spent as soon as the fee simple becomes vested in possession, and as this must happen within the time allowed by the rule unless the fee simple is preceded by a limitation in tail, therefore such an exercise of the power must always be capable of being theo- retically justified upon one or the other of the above stated grounds. It has sometimes been said, that gifts to charitable uses are charitable exceptions from the rule against perpetuities. ( Yeap CJieah Neo "^^^' V. Ong Cheng Neo, L. E. 6 P. 0. 881, see p. 394. See also Thomson v. Shakespear, 1 De G. F. & J. 399, at p. 407.) But it seems to be clear that a gift merely made to charitable uses by way of executory limitation, if it be such as might by possi- bility not vest in interest within the specified time, is void, like any other executory limitation. (See Chmnherlayne v. Brockett, L. E. 8 Ch. 206, at p. 211.) The language above referred to seems only to mean, that gifts to charitable uses are valid, notwithstanding that the charitable use may exhaust the whole fee simple or absolute interest in the thing given. (See Re Button, 4 Exch. D. 54.) Somewhat in a similar spirit it seems to have been said, or Digitized by Microsoft® ■'■°2 ON ESTATES IN GENERAL. intended to be said, that a claim of user wMch would be bad simpliciter, may be made good by the fact that the hereditament, out of which the use arises, is lawfully vested in a corporation by way of mortmain. {Goodman v. Mayor of Saltash, 7 App. Cas. 633, at p. 669.) There seems, however, in this respect to be a distinction between gifts to charitable uses, and dispositions whereby a gift is, upon the happening of a contingency, shifted from one charitable body to another. It has been decided that dis- positions of the latter character are not within the rule ; and that, when charitable uses have once been validly established, the property may be transferred from one body to another at any period of time however remote, and the objects of the charity may be varied. (Chrisfs Hospital v. Grainger, 1 Mac. & G. 460 ; Re Tyler, Tyler v. Tyler, [1891] 3 Ch. 252.) Ongin of the The rule against perpetuities was fixed by reference to what, existing at the time when the rule was invented and consolidated, 8u£LT)6 might by possibility happen as the result of legal limitations. At the common law, there could be no remauider of inheritance except a remainder in fee simple ; and such a remainder could subsist in expectancy only upon an estate for life or pur autre me. After the statute Be Bonis, 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 iatroduee into legal limitations some restriction analogous to that applied by the rule against perpetuities to executory limitations. ( Vide supra, pp. 105, 106.) Under the legal rule, when estates tail had lost their inalienable quality by the invention of common recoveries, 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 ptirchasers. Under such a limitation it might possibly happen that the tenant for life would die, leaving an infant son. The tenant for life and the vested remainderman or reversioner in fee simple could not (after the invention of trustees to preserve contingent remainders) make a good title during the existence Digitized by Microsoft® EXECUTORY LIMITATIONS. 183 of the remainder 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 alienation during his infancy. Thus, the fee simple of the property might be so settled as, by possibility, 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 in being and twenty-one years afterwards " of the rule against perpetuities. With regard to the further allowance, 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 mere as being in esse for all purposes. But this was an extension beyond the utmost 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 mere, a remainder in fee tail limited in favour of such child would have been destroyed. ( Vide supra, p. 128.) Thus it will be seen that the doctrine of executory limitations, though restrained by the rule against perpetuities, 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 aU contributory accidents. Whether the rule against perpetuities applies (apart from The rule does express statutory enactment) to legal limitations made by way the vesting of remainder, is one of those questions which ought never to remainders, have arisen. It implies an anachronism which may be said to trench upon absurdity. The argument from history and prin- ciple 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 discussed with the greatest assiduity, before the rule against perpetuities had ever been heard of. Digitized by Microsoft® 184 ON ESTATES IN GENEEAL. 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 rule against perpetuities was framed with reference to the possible effect of legal limita- tions, 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 common than estates upon condition, the absolute failure of the old common law authorities, down to and including 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 should 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 : — Opinion of " As to the question of remoteness, at this time of day, I was Sugden. Very much surprised to hear it pressed upon the court, because it is now perfectly settled, that where a 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 con- tingent remainder, and then, by the rule of law, unless the event upon which the contingency depends happen so that the remainder may vest eo instauti [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 comparatively 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 execu- tory 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 objection to a remainder, and endeavoured to avoid remote possibilities ; but since the establishment of the rule as to per- petuities, this [kind of language in reference to legal limita- tions] has long ceased, and no question now ever arises vdth Digitized by Microsoft® EXECUTORY LIMITATIONS. 185 reference to remoteness ; for if a limitation is to take effect as a springing, shifting, or secondary use, not depending on an estate tail, and if it is so limited that it may go beyond a life or lives in 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 deter- mination 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 estate 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. That objec- tion, therefore, cannot be sustained against the validity of a contingent remainder." (Sir Edward Sugden, in Cole v. Seicell, 4 Dr. & W. 1, at p. 28.) The judgment of Sir Edward Sugden in that case was afterwards 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 contingent remainder grounded upon the rule against perpetuities, 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. It is in accordance with the view above advocated, that the Contingent statute 40 & 41 Vict. c. 33, which exempts siibsequently-created protected by contingent remainders in general from their liability, at the ^*^'"*s must ° ° -^ ' comply with common law, to be destroyed by the determination of the pre- the rule, cedent estate pending the contingency, extends this exemption only to such contingent remainders as comply with the rule against perpetuities. ( Vide supra, p. 130.) In CattUn v. Brown, 11 Ha. 372, at p. 374, Sir William Page- A solitaiy Wood, Y.-C, is reported to have said : — " I apprehend, how- contrary! ^ ever, that a contingent remainder cannot be limited as depending on the termination of a particular estate, whose determination will not necessarily take place within the period allowed by law"; by which he appears to have meant, the period prescribed Digitized by Microsoft® 186 ON ESTATES IN GENEKAL. by law for the vesting of executory limitations. This observa- tion seems strongly to support what was said above, that objections of this kind are really objections against the duration of the precedent estate, not against the vesting of the remainder. This opinion seems to be hardly sufBcient to counterbalance the weight of previous authority ; especially as it is manifestly repugnant to principle. The year 1853, as Sir George Jessel, M. E., observed (on another point) in Re Macleay, L. Ei. 20 Bq. 186, at p. 191, was rather a modern time at which to alter the law of real property. Since the publication of the first edition of this work, Mr. Justice (now Lord Justice) Kay, in Re Front, Frost v. Frost, 43 Ch. D. 243, not only expressed the opinion, that legal con- tingent remainders are within the rule against perpetuities, but announced that, if it had been necessary, he would have decided the case upon that ground. The ground upon which the learned judge professed to decide the case is perhaps not of such a kind as to strengthen the authority of this dictum. In conclusion, it must be borne in mind that judges are very ready to extend the rule against perpetuities; and that, though the historical argument against extending the rule to legal limitations cannot easily be answered, it can easily be disre- garded. Restrictions upon Trusts, or Directions, for Accumulation of Income. How far No distinction was drawn by the rule against perpetuities, is aUowed, in- between the right to suspend the vesting of an estate or interest, [The TheUusson Act, 39 Sf 40 Geo. 3, c. 98.) inction was drawn by the rule against pei he right to suspend the vesting of an estate o: of the"Acf '^ ^^^ ^^ right to dispose of the intermediate income before its vesting ; and therefore, independently of statute, the law per- mitted a settlor to direct accumulation to be made during the whole of the period for which he was permitted to suspend the vesting of an executory interest. {Per Lord Cranworth, V.-C, Will of Mr. in Wilson v. Wilson, 1 Sim. N. S. 288, at p. 298.) Taking advantage of this rule, Mr. TheUusson fixed on the lives of all his sons and grandsons born in his lifetime or living at his death, including any then en ventre sa were, — for such seems to be the Digitized by Microsoft® TheUusson. EXECUrOKY LIMITATIONS. 187 construction of Ms will, — as the period during which his pro- perty (amounting, it is said, to 5,000/. per annum in land, with personal estate to the value of 600,000/.) 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. According to the common mode of calculating the rate of increase, property would be multiplied more than a hundred- fold in the course of a century of unintermitted accumulation. This rate would give, in the present instance, a sum approach- ing to one hundred millions as the amount finally to be divided. It will indeed be observed that Mr. Thellusson's directions kept well within what is now the acknowledged limit independently of statute ; for he might, without infringing upon the rule against perpetuities, have substituted, for the contingent addi- tion arising from possible infancy, a 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 Yes. 227, afterwards affirmed in Dom. Proc. 11 Ves. 112. In consequence of this decision, the statute 39 & 40 Acoumula- Geo. 3, e. 98, commonly called the Thellusson Act, was passed restricted to prevent such abuses of the letter of the law for the future. 7 ^ ^ "^ ^• This Act does not at all affect the rule- against perpetuities, but deals only with the period during which an accumulation 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 * This was not indisputably settled at the date of Mr. Thellusson's -will ; and probably the conveyancer by ■whom it was drawn advisedly refrained from going to the utmost limit. Digitized by Microsoft® 188 ON BbTATES IN GEMEllAL. be suspended, must now by virtue of tbe Act, with certain ex- ceptions to be presently noticed, be confined within some one of the following Kmits : — (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 mere, at the time of the settlor's death ; or (4) During the minority, or respective minorities, of any person or persons ^Yho under the settlement would, for the time being, if of full age, be entitled to the income directed to be accumulated. The Act applies equally to settlements of real and of personal property. The several periods for accumulation permitted by the Act are alternative, not cumulative ; and the settlor cannot adopt more than one of them. ( Wilson v. Wilson, 1 Sim. N. S. 288 ; Jagger v. Jagger, 25 Oh. D. 729.) 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 sa mere, at the time of the settlor's death. But this latitude of selection is compensated by the condition, that in the fourth case the minors must be prospectively entitled to the income. If an interval is directed between the testator's death and the commencement of the accumulations, this will not enable the process of accumulation to be continued after twenty-one years have elapsed from the testator's death. {Webb v. Webb, 2 Beav. 493.) How far It is now settled that any provision which exceeds these limits, acc^ulation without transcending the limits allowed previously to the Act, are void for jg j^q^ y^j^ /^j f^ig |j^(; ^g good for such a period of accumulation as might lawfully have been directed, being void only for the residue. [Griffiths v. Vere, 9 Yes. 127 ; Longdon v. Simson, 12 Yes. 295 ; Ilaleg v. Bannister, 4 Madd. 275.) But if the period prescribed for accumulation should exceed Digitized by Microsoft® excess. EXECUTORY LIMITATIONS. 189 the limits allowed previously to the Act, that is, should extend beyond the time prescribed for the vesting of executory interests by the rule against perpetuities, the direction for accumulation ■will be void in toto. {Lord Southampton v. Marquis of Hertford, 2 Ves. & B. 54; and see Lealio v. Robinson, 2 Mer. 363, at p. 389 ; Marshall v. Holloway, 2 Swanst. 432.) With regard to such part of the accumulations, directed to be What made by will, as may be void under the Act, there is an intes- of surplus tacy, unless the property from which the accumulations arise is tions. absolutely vested, subject only to the direction for accumulation. (Weatherall \. Thornbiirgh, 8 Oh. D. 261.) So far as such sur- plus 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 settlement made by deed, there will, upon the same principle, be a resulting trust of all such void accumulations to the settlor. (Re Ladi/ Rosslyn's Trust, 16 Sim. 391, see pp. 394, 395.) If there is a residuary bequest of the personal estate, the surj)lus accumulations will fall into this residue. [Haleij v. Bannister, 4 Madd. 275 ; Ellis v. Maxivell, 3 Beav. 587 ; G'Neill v. Lucas, 2 Keen, 313 ; Attorney- General v. Poulden, 3 Ha. 655 ; Jones v. Maggs, 9 Ha. 605.) If the residue is settled by way of succession, the surplus accumula- tions form part of the corpus. {Cratrleyr. Crawley, 7 Sim. 427.) If there is a residuary devise, the surplus 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 WiU. 4 & 1 Vict. c. 26, s. 25. The excepted cases, to which the Act's restrictions do not Exceptions , J n n from the Act's extend, are as foUows :— restrictions. (1) The Act does not extend to any provision for payment First of debts, (Sect. 2.) of debts, whether of the settlor or of any other person. (2) The Act does not extend to any provision for raising Second portions for any children of the settlor, or for any ^^"^^ ^°^' oliildren of any person taking any interest under the Digitized by Microsoft® 190 ON ESTATES IN GENERAL. Third exception. Ireland and Scotland. settlement. (Sect. 2. See on this subject, Morgan v. Morgan, 4 De G. & Sm. 164, at pp. 171—174.) If this second exception should he construed literally, 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 excep- tions, refers to a freehold interest, or at least to a long term for years, in the property, the income of which is directed to be accumulated, or to an interest ia the funds accumulated, considered as a certain corpus, analogous to a corporeal here- ditament ; 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 otherwise, 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 recon- struction than of interpretation. There is nothing (as the learned author in effect admits) to suggest a freehold interest rather than a term of years ; and there is nothing in the Act's language to suggest a long term of years rather than a short one. (3) The Act does not extend to any direction touching the produce of timber or wood upon any lands or heredita- ments. (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 Scot- land. English leaseholds, and of course, a fortiori, English freeholds, are bound by the Act, irrespectively of the testator's domicil. {Frehe v. Lord Garhery, L. E. 16 Eq. 461.) Digitized by Microsoft® ( 191 ) Part III. THE NATURE AND QTJANTDM OE ESTATES. CHAPTEE XV. OF A FEE SIMPLE. In the language of the English law, the word fee signifies an estate of inheritance as distinguished from a less estate;* 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 quantwn, and the most Its quantum absolute in respect to the rights which it confers, of all estates known to the law. It confers, and since the begianing of legal history it always has conferred, the lawful right to exercise over, upon, and in respect to, the land, every act of ownership which can enter into the imagination, including the "right to commit unlimited waste ; and, for all practical purposes of ownership, it differs from the absolute dominion of a chattel, in nothing ex- cept the physical indestructibility of its subject. Besides these rights of ownership, a fee simple at the present * "Feodum is the same that inheritance is." (Litt. sect. 1.) Lord Coke ex- pressly admits that the usage here adopted is the more correct, though he has not chosen to adhere to it. " Of fee simple, it is commonly holden that there be three Hnds, viz. fee simple absolute, fee simple conditional!, and fee simple qualified, or a base fee. But the more genuine and apt division were to divide fee, that is, inheritance, into three parts, viz. simple or absolute, conditional! and qualified or base." (Co. Litt. 1 b.) Also in the next page he says: — "And therefore, seeing fee simple is hmreditas legitima vel pura, it plainly confirmeth that the division of fee is by his [Littleton's] authority rather to be divided as is aforesaid than fee simple." Digitized by Microsoft® 192 THE NATURE AND QUANTOM OF ESTATES. day confers an absolute right, both of alienation inter rkos and of devise by will* Practical These remarks must be understood in their general applica- tion, which refers to an individual tenant, as distinguished from an ecclesiastical corporation, (lay corporations, when entitled to hold lands in fee simple, having generally the same powers and rights Q^ individual owners,) seised absolutely to his own use, in possession, free from incumbrances ; in which last word must for this purjDOse be included easements and profits d prendre. The legal powers of a trustee are practically restricted by the terms of the trust ; those of an ecclesiastical corporation, partly by the common law, and partly by numerous statutes ; and those of the owner of a servient tenement, by the rights of the owner of the dominant tenement ; and a similar restriction must be made in respect to profits a prendre. At the common law, a condition may be annexed to an estate of fee simple, by a breach of which, if it is a negative condition, or by the performance of which, if it is a positive condition, a right of entry accrues to the grantor or his heirs ; and if an entry be made, the estate to which the condition is annexed is destroyed ; whereby the fee reverts to the grantor or his heirs, in the same manner in all respects as before the grant of the estate subject to the condition. But the benefit of a common law condition cannot be reserved to a stranger ; nor is the estate subject to the condition destroyed, until an entry has been made in pursuance of the right of entry. (Litt. sect. 347, and Lord Coke's comment.) Moreover, the existence of executory limitations, which are of recent origin in comparison with the common law, renders it possible at the present day to vest an estate in fee simple in a tenant, subject to a liability to be defeated, or shifted to another owner. The liability to defeasance by executory limitation differs in two respects from the liability to defeasance by a com- mon law condition, — (1) the benefit of an executory limitation * For some remarks upon the restrictions afEeoting alienation inter vivos, during the interval between Magna Carta and 12 Car. 2, c. 24, see p. 21, supra. Some remarks upon the history of alienation by ctnise will be found at the end of this chapter. Digitized by Microsoft® OF A FEE SIJIPLE. 193 may be reserved to a stranger ; and (2) an executory limitation takes effect without an entry made by the person entitled to the benefit of it. The possibility of the existence of the above-mentioned re- strictions and liabilities must be taken into account, while enumerating the powers and privileges of a tenant in fee simple. These restrictions and liabilities (except trusts, which are generally destroyed by an alienation of the legal estate to a purchaser for value without notice of the trust) cannot be got rid of by alienation or devise, but continue to affect the estate in the hands of the assign or devisee. The subject is further com- plicated by the fact, that courts of equity to some extent inter- fere with the common law rights of a tenant in fee simple, when his estate is subject to an executory limitation, for the benefit of the person entitled thereunder. Upon this last point, some remarks will be found at p. 196, infra. The quantum, or extent of the possible duration, of the estate Its limitation is accurately measured by the express limitation to the grantee persons, as and his heirs simply. No greater duration than this can be con- distinguished t -' o from corpora - ceived for an estate as distinguished from absolute dominion. It tions. is impossible for a failure of heirs to take place by the actual (as distinguished from the constructive) non-existence (as dis- tinguished from the non-appearance) of any person standing in any of the required degrees of relationship to the tenant ; for failure of heirs even by reason of bastardy, is in this sense only a construction of law and not a fact of nature. Such a failure can take place only by some of the means previously enumerated under the title escheat. These the law does not presume, not even a mere failure of heirs* without attainder ; and it therefore presumes that a fee simple will in fact endure for ever. In this respect the quantum of a fee simple is greater than the quantum of all modified fees, which, though they may endure for ever, are not presumed by the law so to do, and upon which there is * ' ' For the law doth not expect the determination of a fee by his dying with- out heirs." Pells t. Brown, Cro. Jao. 690, at p. 592. Attainder, as has been remarked above, does not now cause corruption of blood or failure of heirs. See 33 & 34 Vict. c. 23, n. 1. fl.K.P. O Digitized by Microsoft® .194 THE NATURE AND QUANTUM OF ESTATES. a possibility of reverter, or, in the case of fees tail and base fees, a remainder or reversion, instead of an escheat* The Tvord heirs neoea- eary in express limitations. Before the coming into operation of the Conveyancing Act of 1881, the word /iCiVs, accompanied, it would seem, by the posses- sive pronoun, was necessary to be used in the express limitation of all fees, or estates of inheritance, to a natural person or per- sons, as distinguished from a corporation. (Litt. sect. 1.) Lord Coke also lays stress upon the copula and. (Co. Litt. 8 b. See also MaUory^s Case, 5 Eep. Ill, at p. 112 a, where it is stated, in the first resolution by the court, that "if a feoffment be made to A to have and to hold to him, or to his heirs, then he has but an estate for life, for there want precedent words to direct the words in the disjunctive.") But it does not appear, from Lord Coke's observations, that the copula was necessary, except in so far as it might be necessary to prevent the limi- tation from being void for uncertainty. And in Wright v. Wright, 1 Yes. sen. 409, at p. 411, Lord Hardwicke seems to have thought that, even in a deed, the word or would be treated as a clerical error for and, and be construed accord- ingly. At the common law, the proper words, and the only words that can with perfect safety be used expressly to limit an estate in fee simple, are the following : — To A and his heirs ; or, if there be several grantees. To A, B, &c., and theik heirs. In practice, the additional words, and assigns for ever, are, and long have been, in common use ; but it is beyond doubt that, though harmless, they are, and always were, superfluous. {Broohnan v. Smith, L. E. 6 Exch. 291, at p. 306. This case was affirmed on appeal, L. E. 7 Exch. 271.) The doctrine of Hargrave, note 4 on Co. Litt. 8 b, that, " according to many authorities, heir may be nomen coUectivum, as well in a deed as a will, and operate in both in the same * Upon the Bubordination, in point of quantum, of different speoiea of fees, see 3 Prest. Conv. 169, 170. But in a certain sense, all common law fees are equal; in that the grant of a modified common law fee exhausts the whole estate of the grantor, even though seised in fee simple absolute. See Lord Coke on Litt. sect. 11. But his language implies that there is some distinction between them, in point, as he styles it, of " perdurablenesse." Digitized by Microsoft® OF A FEE SIMPLE. 195 manner as heirs In the plural number," is stated by Preston to be founded upon a mistake : the authorities cited by Hargrave referring only to limitations contained in wills. (2 Prest. Est. 9.)* In the limitation of a fee simple, the word /leirs always bears its general meaning, when standing alone and unqualified by words to restrict it to heirs of the body. Its significance is not liable to be restricted to any particular class of heirs, by reason merely of the fact that, under the special circumstances of the case, only a particular class of heirs is capable of an actual inheritance by virtue of its use. A limitation to a bastard and his heirs gives a fee simple, not a modified fee ; although only the heu-s of his body are, under the circumstances, capable of inheriting. (1 Prest. Abst. 273 ; 2 Prest. Est. 358, 359.) And similarly, even at common law, of an alien, and a man attainted of felony ; though at the common law they could have no heirs. (Co. Litt. 2 b.) The limitation of an equitable fee simple requires the same words of limitation as a legal fee simple. {Mcyler v. Meyler, 11 L. E. Ir. 522.) But, it must be observed, (1) that the limitation, where it was Cases of necessary, was not always necessarily express ; and (2) that all ^ rmpUe'dt" limitation whatsoever was, in some cases, unnecessary. limitation. (1) Informal limitation by words of direct and immediate reference would sufiice. Thus a father might infeoff his son. * In 1 Roll. Abr. 832, K. pi. 1, it is stated so to have beeD held in Clarke and Dayes, per Popham and Fenner ; on Tvliicli Preston : " In tins case, wMoh. is Cheek and Say, the question arose on a will, and the opinions of Popham and Tenner were extra- judicial." (2 Prest. Est. 9, note.) On Cheek v. Day, see Fearne, Cont. Rem. 150. But in Dubber v. Trollop, Cas. temp. Hardw. 160, Lord Hardwicke appears to adopt the opiaion of Popham and Fenner, as stated by EoUe. {See p. 161.) See also G'Keefe v. Jones, 13 Ves. 413. But there the limitation was in a will, and to the testator's next heir at law, and was held to be equivalent to a devise to his right heirs. By special custom, a copyhold in fee may be granted without the word heirs. (2 Prest. Est. 67.) It seems that a rent-charge in fee might be granted out of a manor, by any words implying a right to receive the rent-charge in perpetuity. (18 Vin. Abr. 472, pi. 1 = Merit, A. pi. 1.) o2 Digitized by Microsoft® 196 THE NATURE AND QUANTUM OF ESTATES. halendum to Tn'm and his heirs, and the son afterwards infeoff the father " as fully as the father infeoffed him." (Co. Litt. 9 b.) (2) In some cases no limitation was required. Thus, one of several coparceners, or one of several joint tenants, seised in fee simple, might release to another without words of limitation. (Co. Litt. 9 b ; ibid. 273 b ; Litt. sect. 304.) On a partition between two coparceners seised in fee simple, a rent granted by one to the other for equality of partition, without words of limitation, was in fee simple. (Prest. Shep. T. 101 ; Co. Litt. 10 a.) By a bargain and sale for valuable consideration, the fee simple might pass without limitation (10 Yin. Abr. 235 = Estate, K. 2, pi. 2 ; as also by a fine come ceo, and a fine siir concessit (Shep. T. 4; 1 Salk. 340; 2 Prest. Est. 51, 52) ; and by a recovery. (Co. Litt. 9 b ; 2 Cruise, Fines & Rec. 15.) Statutory •words of limitation. Sect. 51 of the Conveyancing Act of 1881 enacts, that in deeds executed after the 31st December, 1881, it shall be suffi- cient, in the limitation of an estate in fee simple, to use the" words in fee simple without the word heirs. Both the quantum of the estate, and also the privileges of user (as distinguished from the right, or capacity, to ahenate)' which it confers, are the same when it arises by implied limita- tion, or without limitation, as when it arises by express limita- tion. And, generally, it may be said that the rights of a tenant in fee simple, both at law and in equity, are independent of the method by which his estate arises. But this proposition is sub- ject, in equity, to some modification, when his estate is liable to be defeated by an executory limitation. Restrictions It was formerly thought that a tenant in fee simple, whos& equity, when estate is liable to be defeated by an executory limitation, stood the estate is jjj equity in no better position, as regards the right to commit executory waste, than a tenant for life punishable for waste. (Robinson v. limitation. Litton, 3 Atk. 209 ; Stansfield v. Habergham, 10 Yes. 273.) But it has more recently been decided that, in the absence of express provision, he is practically in the same position as a tenant for life without impeachment of waste. {Turner v. Digitized by Microsoft® OF A FEE SIMPLE. 197 ■Wright, 2 De G. F. & J. 234 ; see p. 246.) Such a tenant in fee simple may be made punishable for waste by an express provision contained in the instrument under which his estate arises, (make v. Peters, 1 De G-. J. & S. 345.) Since the liability to defeasance by executory limitation fol- lows the estate into the hands of an assignee or deTisee, it implies a disability to alienate for an unincumbered fee simple. But a tenant in fee simple, with an executory limitation, gift, Statutory or disposition over, on failure of his issue, or in any other event, has, when his estate is in possession, the powers conferred upon a tenant for life under a settlement by the Settled Land Act, 1882. (See sect. 58, sub-s. 1, ii., of that Act.) These include powers of sale, exchange, and partition. The effect of sect. 58, sub-s. (2), and sect. 20, seems to be, that estates limited by assurances executed by virtue of these statutory powers, will be valid as against all persons claiming any estate to which the settlor, who created the fee simple subject to the executory limi- tation, was entitled at the time when the instrument, under which such fee simple arises, came into operation ; but are sub- ject to all charges and assurances made for money actually received between that time and the exercise of the statutory power. An executory limitation, in defeasance of a fee simple, if it be to take effect on default or failure of all or any of the issue of the person entitled, subject thereto, will now, by the Conveyancing Act, 1882, s. 10, become void so 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. Except in the case of a gift in frankalmoigne, the use of the The limitation word successors is necessary, by the common law, for the limita- °* ^^'^^ simple •^ ' '' ' to corpora- tion of a fee simple to a corporation sole ; and without it only tions. an estate passed for the life of the existing incumbent. (Co. Xiitt. 94 b.) It is uncertain whether, by virtue of the Con- veyancing Act of 1881, s. 51, the limitation can now be effected by the use of the words in fee simple. The mention of heirs in that enactment suggests that its application is confined to cases where the use of the word heirs was formerly necessary ; and, therefore, that it has no application to corporations. Digitized by Microsoft® 198 THE NATUKE AND QUANTUM OF ESTATES. In the case of corporations aggregate, a distinction formerly existed between corporations of which not only the head, but also the body, were persons capable in law, as a dean and chapter, and corporations of which all the members, except the head, were dead in law, as an abbot and his convent. The former always took, and still take, a fee simple, by a mere grant to the corporation under its corjDorate name, without the use of the word successors or of any words of express limitation. (Co. Litt. 94 b.) Corporations of the latter kind no longer exist in England. Words of succession were needed in order that they might take a fee simple, to the same extent as in the case of a corporation sole. But it seems that, in the case of all corpora- tions aggregate having a head,* whether the body consists of persons capable in law or dead in law, the grant of an immediate estate, during a vacancy of the headship, is void ; but the grant of a remainder is good, provided that a new head be appointed during the continuance of the particular estate. (Co. Litt. 264 a.) On the sufficiency of the word frankalmoigm to pass a fee simple under appropriate circumstances, tide supra, p. 11. EestrictioDs The nature of an estate is practically ascertained by the ecclesiastic^ privileges of ownership and alienation which it confers. At corporations. ^]^g common law these were identical in the case of individual owners and of lay corporations. The rights of ecclesiastical corporations, who are only seised in right of their churches, were less absolute. They could not levy a fine, or bar their successors by non-claim on a fine levied by others. (Cruise, 1 Fines & Eec. 288.) Ecclesiastical corporations sole could not alienate, except subject to certain precautionary consents ; alienations by bishops needing confirmation by the dean and chapter, and alienations by parsons needing confirmation by the patron and ordinary ; and being, without such confirmation, good during the life only of the existing incumbent. (Co. Litt. * A head is not a necessary constituent element of a corporation aggregate. (1 Bl. Com. 478.) He mentions " the Collegiate Church of Southwell in " Nottinghamshire, -which consists only of prebendaries, and the governors of "the Charterhouse, London, who have no president or superior, but are all of " equal authority." Digitized by Microsoft® OF A FEE SIMPLE. 199 44 a.) Their power at common law to alienate (including power to lease) has heen greatly abridged by numerous statutes. That a fee simple limited to a corporation was, as regards the Quantum of quantum of the estate, not precisely identical with a fee simple taken by a limited to a grantee and his heirs, appears from the fact that, as ''°^°^^^^°^- above mentioned, upon the dissolution of a corporation there was a reverter to the donor, not, as upon a failure of the heirs of an individual grantee, an escheat to the lord. But the donor is deprived of his reverter by the alienation of the corporation; and for this reason Preston speaks of corporations as having a fee simple for the purpose of alienation, but only a determinable fee for the purpose of enjoyment. (1 Prest. Abst. 272.) By reason of the existence of this possibility of reverter, a condition against alienation annexed to a fee simple is said to be good in a limitation to a corporation ; though bad in a limitation to an individual. (Shep. T. 130 ; 2 Doct. & Stu. c. 35.)* At common law a fee simple conferred no power to devise by History of will. (Co. Litt. 111b.) But a local custom to devise was devise bywill good, and existed in the city of London and in many ancient boroughs. (Litt. sect. 167, and Lord Coke's comment.) Lands in the city of London might be devised by the owner, although he was not a citizen. (Dy- 255 a, pi. 3 ; where note the usage of the word "foreigner.") The custom does not extend to a remainder, or reversion, in expectancy upon a fee tail; be- cause, by the common law there could be no such remainder or reversion ; and the statute De Donis, though it makes such remainders and reversions capable of existence, does not enlarge the extent of the custom. (4 Com. Dig. 119.) The 32 Hen. 8, c. 1, explained and amended by the 34 & 35 The statutes of "^Vills Hen. 8, c. 5, enabled tenants in fee simple generally to devise * On the connection between the existence of a possibility of reverter and the validity of an absolute condition in restraint of the alienation of a fee simple, see Co. Litt. 223 a ; where it is said that the king may still impose such a condition, because he may reserve a tenure in fee simple to himself. Digitized by Microsoft® 200 THE NATURE AND QUANTUM OF ESTATES. the whole of their lands held by tenure in socage, and two- thirds of their lands held by tenure in knight service ; with certain disabilities affecting the tenants of the king in capite, holding by knight service ut de corona ; that is, directly of the king through the king's grant, and not mediately through an Honour coming to the king's hands by forfeiture or escheat. {Vide supra, p. 4, note.) These statutes are commonly referred to as the Statutes of Wills. Their provisions, which are exceed- The statutes ingly prolix, are thus summarised by Lord Coke : — " These statutes take not away the custome to devise whereof Littleton [sect. 167] speaketh : for though lands devisable by custome be holden by knights service, yet may the owner devise the whole land by force of the custome, and that shall stand good against the heire for the whole. But the devise of lands holden by knights service by force of the statutes is utterly void for a third, and the same [the third part] shall descend to the heire. If he hath any lands holden by knight service in capite [that is, ut de corona], and lands in socage, he can devise but two parts of the whole ; but if he hold lands by knights service of the king, and not in capite [that is, ut de honore'], or of a meane lord, and hath also lands in socage, he may devise two parts of his land holden by knights service, and all his socage lands. If he holds any land of the king in capite, and by act executed in his lifetime he conveyeth any part of his lands to the use of his wife or of his children, or payment of his debts, though it be with power of revocation, he can devise by his will no more, but to make up the land so conveyed [to] two parts of the whole. And if the lands so conveyed amount to two parts or more, then he can devise nothing by his will. But if he hath land onely that is holden in socage, then he may devise by his will all his socage land." (Co.-Litt. Ill b.) The last words show that, upon the abolition by 12 Car. 2, c. 24, of all lay tenures (at the common law) except socage, complete power was acquired to devise all lands held in fee simple. The statute took effect retrospectively, as from 24th February, 1645. Ever since that date, a legal fee simple has conferred upon its owner, during his ownership, an absolute and unfettered power of devise; but subject, as to the estate in the hands of the Digitized by Microsoft® OF A FKE SIMPLE. _ , §01. devisee, to any incumbrances, restrictions, and liabilities, to ■which it was subject in the hands of the testator. The sub- sequent statutory alterations and amendments of the law of devise, do not seem in any way to enlarge the power to devise previously possessed by a legal tenant in fee simple. These statutory alterations and amendments refer, partly to alterations in respect to ceremonies necessary for the due execution of a will, partly to fixing the time, from which a will is supposed to speak, at the date of the testator's death instead of the date of the execution of the will, and partly to rendering deviseable certain estates and interests other than legal estates in fee simple. The Statutes of Wills were repealed by the Wills Act, 7 Will. 4 & 1 Yict. c. 26, s. 2. But sect. 3 of that Act con- fers upon every person not under special disability, power to devise all real estate to which he shall be entitled at the time of his death ; and by virtue of the definition clause, the words real estate extend to any estate, right, or interest, other than a chattel interest, in any hereditaments, notwithstanding that he may become entitled thereto subsequently to the execution of his will. The same enactment expressly includes within its provisions " all rights of entry for conditions broken, and other rights of entry." This language is undoubtedly sufficient to include the possibility of the reverter of an estate of fee simple, upon breach (or performance, as the case may require) of a con- dition. It is at least doubtful whether the language of the Wills Whether the Act is sufficiently wide to include the possibility of reverter reverter upon expectant upon the determination of a determinable fee. Eut abiefee^sn' it is not improbable that, if the question should arise, such deviseable. a possibility would be held to pass Tmder a will clearly showing an intention to devise it. The question is not likely to arise in practice, because the only kind of determinable fee which occurs in practice, is the kind specified at p. 230, infra, No. 10 of the list there given ; and this kind of determinable fee is in practice always so limited, as to be replaced by a series of Digitized by Microsoft® 202 THE NATURE AND QUANTUM OF ESTATES. estates, created by the vesting of a series of executory limita- tions, in case the intended marriage should take place, while it would ipso facto be converted into a fee simple absolute, in case either party to the intended marriage should die without having been married to the other. In neither case, therefore, could the title under the possibility of reverter give rise to a question of practical importance. Digitized by Microsoft® ( 203 ) CHAPTEE XVI. THE DESCENT OF A FEE SIMPLE. It ought always to be borne in mind, but it is in fact often The same forgotten, that the word heir has no meaning except in reference have^veral to an estate to which the person so designated might possibly succeed distinct heirs. hy inheritance. The same man, if he should be seised as piir- chaser in fee simple of lands subject to difierent customs of descent, may leave several distinct heirs. If he should die intestate, leaving sons, his heir, as to lands which are subject to no special custom, is his eldest son ; his heir, as to borough- english lands, is his youngest son ; and his heir, as to gavelkind lands, will be composed of all his sons taking together aa coparceners. And other special customs may lawfully exist, affecting lands in particular manors or boroughs, which may multiply still further his capacity for leaving distinct heirs. ( Vide supra, p. 17.) Special customs affecting the descent of lands held for a fee Why special simple, are much more commonly found, in connection with desceSTare copyholds held for a customary fee simple, than in connection 1"°''® common ^ •' ./ 1. 7 jj^ connection with lands held for a fee simple by common law tenure. The ■«'ith copy- causes of this greater frequency are twofold. In the first place, custom is the life of copyhold tenure, and peculiarities of custom in connection therewith have always been much more common than in connection with common law tenure. In the second place, customs affecting copyhold tenure have a much stronger tendency to be remembered and preserved in practice, because the manorial incidents of copyhold tenure are generally more valuable, and better worth insisting upon, than the manorial incidents of freehold tenure. To this must be added the effect! of the statute of Quia Emptores, which is gradually to extiuguislr the tenure of freehold lands held for a fee simple of mesne lords, and to concentrate all such tenure in the crown. The severance Digitized by Microsoft® 204 THE NATURE AND QUANTUM OF ESTATES. Rules of descent un- afFected by questioDS of domioil. of lands from their local tenure, tends to cause circumstances of local custom connected therewitli to fall into oblivion. It may easily happen that several generations may elapse without the occurrence of a descent ; and in such a case, when next a descent takes place, it may easily be assumed, without inquiry, that the law regulating the descent is the general law relating to the descent of a fee simple. But in the case of copyholds, where the fact of the tenure is preserved in memory by the entries on the court rolls, and where the particular lands are parcel of a class, which may be a large one, all of which are well known to be subject to the same customs, the accident that a particular parcel has not for a long time been the subject of a descent, has comparatively little tendency to cause oblivion of the special custom of descent, if any such custom is applicable. The rules of descent are not dependent solely upon the rules of personal status, in respect to questions of legitimacy, and of consequent qualification to inherit. Thus, the law of a man's domicil of origin is conclusive as to his legitimacy in respect to personal status, but such legitimacy is not conclusive in respect to his right to inherit under the law of descent. A person may, in respect to personal status, be legitimate though not born ex Jttstis nvptiis ; but, in relation to the law of descent, birth ex justis nuptiis is an indispensable requisite to heirship. (Co. Litt. Th; Re Bon's Estate, 4 Drew. 194.) In that case a son of Scotch parents, bom out of wedlock, but made legitimate under the law of Scotland by the subsequent marriage of his parents, had died seised by purchase of land in England after the coming into operation of the Descent Act. On his death intes- tate and without issue, the father claimed to be entitled to inherit to him, by virtue of sect. 6 of the Act. It was held that he was not so entitled, although, in respect to personal status, the son to whom he claimed to inherit was legitimate. The father's claim must have been based upon the contention that in sect. 6 the word " issue " is not restricted to the sense of " inheritable issue," according to the meaning of these words in English law ; and this contention, if acceded to, might equally well have justified the further conclusion, that the word issue there includes natural issue, or bastards in the usual meaning of the term. When a word has several meanings, one only of Digitized by Microsoft® THE DESCENT OF A FEE SIMPLE. 205 ■whict Is appropriate to the context, then, so soon as that meaning is rejected as being too narrow, it becomes a mere question of caprice where the line is to be drawn for excluding any of the others. On the Distinction between Seisin in Deed and Seisin in Late. By the common law, upon the death of a person entitled to an The bearing estate in fee simple, the lands (unless subject to a special tinotion upon custom of devise) necessarily descended to the person next 'descents, entitled as heir. After the passing of the Statutes of Wills, 32 Hen. 8, c. 1, and 34 & 35 Hen. 8, c. 5, the effect of which was completed by the conversion of all lay tenure into socage by 12 Car. 2, c. 24, such descent was liable to be prevented by a devise to a stranger ; but even then if a devise were made to the person who would have taken as heir if no devise had been made, such heir took by descent and not by the devise. (Watk. Desc. 270.)* The question arises, given the rules for ■ascertaining the heir to a specified person, from what specified person ought heirship to be deduced upon a descent cast ; and by the common law, the person from whom heirship was deduced was not the person last entitled, but the person who, under the title, had last had seisin in deed of the lands. (Co. Litt. 11 b.) Such person was accordingly, at the time of a descent cast, said to be the stock (more properly, the i-oot) of descent. A seisin in late did not suffice to make the person so seised the stock of descent. (Ibid.) This rule of descent has been superseded by the Descent Act, 3 & 4 Will. 4, c. 106, s. 2, which enacts that in every case descent shall be traced from the purchaser, that is, from the person who last acquired the land otherwise than by descent ; whereby it has now become super- fluous to inquire, who last had seisin in deed of the lands. By this change in the law, the importance of the distinction between seisin in deed and seisin in law has been much diminished; but it is even now not without some practical interest, and a correct apprehension of it is very necessary in examining old titles. * But if a man having seyeral daughters and no sous, devised to one of them, she took the whole by devise, and not partly (as coparcener) by descent and ■partly by devise. {Iteadiiiff Y.Saiotterne, 'Li.'Ra.jm. 829, lSalk.242, Comb. 123.) Digitized by Microsoft® ;206 THE NATURE AND QUANTUM OF ESTATES. ^^^^i" ™ j Preston (Oro. Jac. 593 ; 10 Yin. Abr. 233) make no mention of any such limitation ; hut there is no doubt as to its validity. In strict settlements of real estate, when they are made by a settlor in contemplation of his marriage, the limita- tions regularly begin with a limitation to the use of the settlor and his heirs until the solemnization of the intended marriage. Thereby the settlor takes a determinable fee, which ■ftill ipso facto become a fee simple if either of the parties to the intended marriage should die before its solemnization. Since a determinable fee limited in this form must necessarily determine, if at all, within the time pre- scribed by the rule against perpetuities, it admits of, and it is in practice always followed by, sundry execu- tory limitations to take effect upon its determination, that is, upon the solemnization of the marriage ; and therefore such a determinable fee will not, before the solemnization of the marriage and during the joint lives of the parties, admit of enlargement into a fee simple, except by the release of these executory limitations ; and these, being partly in favour of the issue of the marriage, who by hypothesis are not in being, cannot be released. Therefore, in order to prevent the inconvenience which would result during the lives of the parties from the making of the settlement, in case the intended marriage shotild not be solemnized, it is proper to insert into the settlement a proviso that, in case the marriage shall not be solemnized within a specified time (usually twelve months) after its date, the uses of the settlement shall be void and the lands shall revert to the use of the settlor in fee simple. It is not necessary that the marriage should be the marriage of the grantee himself. See Lord Nottingham's observations in Howard v. Duke of Norfolk, 2 Swanst. . 454, at p. 461. 11. Till 0. returns from Borne. (Fearne, Cent. Pem. 12; and Butler's note at p. 13. See also the observation of Ser- Digitized by Microsoft® DETERMINABLE FEES. 231 jeant'Maynard, in the Btike of Norfolk's Case, 3 Cli. Ca. Examples of 1, at p. 46, that a limitation, To one and his heirs males, feea™"^ till such a one returns from Rome, is good ; which is an example of a determinable fee tail.) 12. Till A. [the grantor] makes I. S. [a stranger] baili/ of his manor. (Lord Hale, in Co. Litt. 42 a, note 6.) In the case cited, the limitation was not to the grantee and his heirs, and it therefore passed no fee, but only a deter- minable estate for life. There is no reason to doubt that the clause would be valid in the limitation of a fee. 13. Until B. [the grantee] go to Rome. (Shep. T. 125.) 14. Until he [the grantee] be promoted to a henefiee. {Ibid.) 15. Until such time as [the grantee] his heirs, executors, or ad- ministrators, shall make default in payment of any of the said sums : — viz., certain instalments each of 201., one such to become payable at Michaelmas in every year, until the total sum of 800/. should have been paid. (1 Leon. 33.) This form occurs in a security taken by the Exchequer in Queen Elizabeth's reign, from a crown debtor. The form next following was a part of the same limitation. 16. Until [the Queen] her heirs and successors shall have received of the issues and profits [of the lands] such sums of money, parcel of the said debt, as shall then be behind and unpaid. (1 Leon. 33.) The ultimate limitation was to the crown debtor in fee simple. The limitations, to the crown upon default in payment of the instalments, and to the debtor upon satisfaction of the debt out of the rents and profits, are of course not remainders, but executory limitations. 17. Until B. [the grantee] pay to A. [the grantor] 20/. (Shep. T. 125.) 18. Until the feoffor pay 100/. to [the feoffee'] or his heirs. (Co. Litt. 248 a ; and see 10 Eep. 41 b.) 19. Donee et quousque I. S. shall pay to the feoffor,* or to his * The woTd. feoffor seems in the first- cited passage of Dyer to he twice printed for feoffee. The mistake makes no difference to the nature of the limitation. In Dy. 298 h, pi. 30, the words are, " imtil such time as the said feoffor should pay to the feoffee or his heira one hundred pounds." Digitized by Microsoft® .232 THE NATURE AND QUANTUM OF ESTATES. Examples of heirs, one thousand pounds. (Dy. 300 b, pi. 39. Corn- fees, pare ibid. 298 b, pi. 30.) Upon the view taken in equity of sucb limitations, see Blagrave v. Clunn, 2 Vern. 576 ; Thomasin v. Mackworth, Carter, 75. 20. For, during, and until any son that the feoffor shall beget of the body of his said imfe shall accomplish the age of ticcnty- one years. (Dy. 300 b, pi. 39 ; Cocltet v. Sheldon, Serj. Moore's Eep. 15. See also Lethieullier v. Tracy, 3 Atk. 774, Ambl. 204 ; Spencer v. Chase, 10 Vin. Abr. 203, 9 Mod. 28 ; Dy. 124 a, pi. 38 ; where a similar limitation occurred in a will.) The form of the limitation in Dyer and Moore was. To the use of the wife, until, &e. ; which only gave her a determinable estate for her own life. Had it been, To the use of the wife and her heirs, until, &c., she would have taken a determinable fee. 21. That they, or the survivor of them, or the heirs of the sur- vivor, should, out of the lands by the rents, issues and profits, or by the sale of the whole or so much as should be necessary, raise so much as should be sufficient for the payment of debts, legacies, and funeral expenses ; and then, &c. {Bagshatc v. Spencer, 1 Yes. sen. 142. This devise gave a legal fee to the devisees ; per Lord Hardwicke, at p. 144.) This case seems to have escaped the diligence of Sir G. Jessel, M. R., in Collier v. Walters, L. E. 17 Eq. 252 ; where he is reported to have said, at p. 261, that he had looked at an enormous number of cases to see if he could find any authority for a devise to trustees and their heirs until the payment of the testator's debts, and had not succeeded in finding any. 22. In trust to pay his sister E. W. an annuity of 100^. till his debts and legacies icere paid ; and after, &c. {Wellington V. Wellington, 1 W. Bl. 645. The estate of the trustees is styled a " base fee, determinable on the payment of the testator's debts and legacies out of the profits of the estate;" seep. 647. And see Murthicaite v. Jenkinson, 2 B. & C. 357.) 23. Tn trust, till the rents and profits of [the lands] shall raise Digitized by Microsoft® DETERMINABLE FEES. 233 and pay the several legacies and bequests mentioned in the Examples of testator's will. {Shields v. Atkins, 3 Atk. 560.) fees. 24. To the use of certain persons until they made a good and sufficient lease [of the lands] by indenture for a term of forty years. {Lusher v. Banbong, T)j. 290 a.) 25. "William, Earl of Bath, in 6 Jao. levies a fine with pro- clamations, and "declares the uses of this fine to William, Earl of Bath, and to his heirs, until he otherwise sliould or did dispose of the same." {Earl of Bath's Case, Carter, 96. See also Clere's Case, 6 Hep. 17.) If this limitation had occurred in an assurance made at the common law instead of under the Statute of Uses, it is conceived that the addition of the words in italics would have had no more efEect than the common, but superfluous and nugatory, addition of the words, and assigns, to a limi- tation in fee simple. 26. " One devised land in London to the prior and convent of B. ita quod reddant annuatim decano et capitulo Sancti Fault 14 marks ; and if they fail of payment, that their estate shall cease, and that the said dean and chapter and their successors shall have it." (1 Eq. Ca. Ah. 186, pi. 3 ; Dy. 33 a, pi. 12.) The gift over was held to he 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 recog- nized by the courts. But even if executory devises had then been recognized, this gift over seems clearly to be void for remoteness. When the future event which if it should happen will de- The distino- termine the estate, is an act to be done by the grantee, or determinable depends upon the will of the grantee, as his marriage, the doing l™ifc^tioiis of the act under such circumstances bears a close resemblance to tiona upon the breach of a condition that the grantee shall not do the act. These eases of determinable limitation are therefore liable to be confused with limitations upon or subject to a condition, giving a right of entry upon a breach by the grantee ; from which they nevertheless differ very widely. (1) In the limitation of a determinable fee, the doing by the grantee of the act which is Digitized by Microsoft® 234 THE NATURE AND QUANTUM OF ESTATES. 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. (" The estate is determined without entry or claim." 10 Eep. 42 a. See also Anon., 2 Mod. 7 ; Plowd. 242.) But where an estate is limited in fee simple, and the limitation contains no qualification, but, externally to the limitation, though in the same deed, or in another deed de- livered 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 ijyso 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) Conditions which are annexed to or are in defeasance of a fee simple, are subject to the common law, and are governed by the learning of common law conditions ; because the-statutes by which the common law learning applicable to conditions annexed to estates has been modified, are restricted to condi- tions annexed to estates which are less than a fee. (See 32 Hen. 8, c. 34, s. 1 ; 22 & 23 Yict. c. 35, s. 3 ; the Convey- ancing Act of 1881, ss. 10, 12.) The rule against perpetuities forms no part of the common lav/ ; 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. 174.) A modem In Re Macliu, 21 Ch. D. 838, the question seems to have been thought not free from doubt, whether a determinable fee could be limited to A. and his heirs until A. shall he declared a hanh-upt. The learned judge expressly declined to give an opinion upon the question ; and at p. 843, he seems not to have distinguished the particular question of this particular limita- tion, from the general question "whether an estate in fee simple can be subject to a conditional limitation, or not ; " by which he seems to have meant, whether the limitation of a determinable fee is valid. The limitation upon which the dis- cussion arose, was held to be a limitation subject to a condition, and not a conditional (or determinable) limitation ; and the Digitized by Microsoft® DETERMINABLE FEES. 235 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. All modified fees confer upon the tenant the same absolute Alienation of right of user, and to commit unrestrained and unlimited waste, fees, as a fee simple. They do not necessarily confer the same right of alienation and devise. 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 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 limita- tion at common law, such as has formed the subject of this chapter ; but those words are there expressly confined to deter- minable limitations of estates for life, estates piw autre vie, and terms of years " determinable on life." Digitized by Microsoft® 236 THE NATUKE ANB QUANTUM OF ESTATES. CHAPTEE XVIII. CONDITIONAL FEES. The law relating to conditional fees which 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 Yery obscure subject of research. The most eminent authorities are sometimes at variance, and the living tradition of modem 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 species of their limita- estate limited upon or subject to (that is, defeasible upon breach ^°'^- of, or to be confirmed, or enlarged, upon performance of) a condition ; the nature of the estate, and the nature of the con- dition, 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 creating a con- ditional fee are restricted to a single type, which always takes the form of a limitation expressed to be to the heirs of the hody 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 hody ; (2) To the heirs male of the body; (3) To the Mrs/cwa/e of the body ; Digitized by Microsoft® CO^JDITIONAL FEES. 237 (4) To the heirs of the body of the donee ly a particular wife (or husband) : the person designated 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 par- ticular wife (or husband) ; (6) To the heirs female of the body of the donee by a particular wife (or husband) ; (7) To the heirs of the bodies of two persons lawfully married, or by possibility capable of lawful marriage, 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 hei7's female of the bodies of two such persons as aforesaid. The phrase heir male imports not only that the heir must be Nature of a male, but also that he must be able to deduce his descent solely ^^'^^ spe^ia through males. And similarly of heir female. (Litt. sect. 24, and Lord Coke's comment.) Any similar restriction to a single sex, if attempted, in a deed The special or on a feoffment, to be imposed upon the heirs general, as by heir of the limitation to the heirs male, is void, and the 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 percat. (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 wiU create an estate in tail male ; the words, " of his body," being supplied by construction of law. (Co. Litt. 27 a ; Baker v. Wall, Ld. Eaym. 185.) This is therefore 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 period so In what sense early as to be almost beyond the reach of history, construed by jg oonditionaT. the courts as being in the nature of a condition ; and the limita- tion as being therefore in the nature of a limitation upon condif'on. Digitized by Microsoft® 238 THE NATUEB ASD QUANTUM OF ESTATES. And 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 hy its performance would confirm, or enlarge, the estate, and 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 prescribed class was bom {post prolem suscitatam) this was held to be for some purposes a per- formance 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 sui'vivor of two donees, by another wife or husband ; 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. (Co. Litt. 19 a.) The descent of But this fulfilment of the condition, by having issue of the fee. 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, after birth of the prescribed issue, did not aliene, but suffered the estate to descend, it followed the pre- scribed 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. Litt. 19 a ; and Harg. n. 4 thereon.) That is to say, the special hsa: per formam doni is not necessarily Digitized by Microsoft® CONDITIONAL FEES. 239 identical with the heir general. This proposition involves an anomaly, seeing that by this means the course of descent by the 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 mentioned 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 a 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 dispute in regard to conditional fees ; and it undoubtedly admits of no dispute so far as fees tail are concerned. (Litt. sects. 21 — 25.) The heir (of the prescribed class) coming in by descent, 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 limited to the The possible heirs (whether general or special) of the body of a donee by a descent is particular wife or husband, or to the heirs of the bodies of two ^^^^^^1°^^ persons lawfully married, or capable of lawful marriage, had a fee than for remarkable characteristic, particularly referred to in the preamble to the statute Be Bonis by which conditional fees were converted into fees tail ; namely, that, a/ier isnue of the prescribed kind had been born, the estate might, in default 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 class would prac-^ tically convert what might be. styled a gift in special tail at the common law into a gift in general tail at the common law. This Digitized by Microsoft® 240 THE NATTJEE AND QUANTUM OF ESTATES. proposition is deduced by Lord Coke as a conclusion from the doctrine, (1) that, the survivor being the wife, her second hus- band, after birth of issue by her, should be tenant by the curtesy (2 Inst. 336 ; the 4th resolution in Paine's Case, 8 Eep. 34, at p. 35 b) ; and (2) that, the survivor being the husband, his second Tvife should have dower. {Ihid. at p. 36 a.) Accord- ing 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 Be Bonis, conditional fees were deprived of this peculiar quality ; and the descent of such con- ditional fees, which were transmuted by the statute into what are now styled estates in special tail, was thenceforth restricted solely to the issue of the donee or donees. Certain fees limited upon condition, classed by Preston with conditional fees. With conditional fees as above defined and discussed, Preston has also classed limitations made to a man and his heirs generally, if he shall have heirs of his body. (2 Prest. Est. 292.) This usage is not peculiar to Preston ; for distinct traces of it may be found in 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 condition. 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 con- ditional fees properly so denominated." (2 Prest. Est. 292.) Erom 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 condition, and also that Preston fully admitted the difference between them and conditional fees properly so called. The condition annexed to this kind of limitation, is an express condition properly so called; and (unlike 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 pur- poses, by birth of the prescribed issue, whereby the estate becomes ipso facto a fee simple absolute. Since these limitations differ so widely from conditional fees properly so called, it does not seem to be expedient to class them together. It is superfluous to say that these limitations do not occur in praotice. Digitized by Microsoft® ( 241 ) CHAPTEE XIX. QUALIFIED FEES SIMPLE. There remains another kind of limitation allowed by the com- mon law, in the nature of an express modification of a fee simple, and giving rise to an estate of inheritance, which, siace, in the opinion of Preston, it is undoubtedly valid, requires to be mentioned ; and the recent case of Blake v. Hynes, which is referred to at the end of this chapter, shows that its possible occurrence in practice is a matter which needs to be considered. It may conveniently be styled a qualified fee simple. It clearly appears from Litt. sect. 354, as explained by Lord Their nature PI ^^^ mode of Coke s comment, that, by the common law, a fee may be ex- limitation, pressly limited to a man and the heirs of any ancestor, in the paternal line,* whose heir he is. Littleton declares that a limi- tation must be made in this form, by a feoilee who is seised in fee simple, subject to a condition to re-infeofB " many men " — plusors homes — jointly in fee simple, in case all of them should die before any feoffment has been made pursuant to the condi- tion. 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 directions, we should arrive at a limita- tion to a man and his heirs ex parte 2Mternu, so as to exclude altogether from the succession the heirs ex parte materna ; who, * Some remarks ■will be found at p. 249, infra, upon the question whether the person named as the purchaser is necessarily the heir, in the paternal line, of the person named as the ancestor. It cannot he stated with confidence, that the authority of Littleton and Lord Coke is in favour of the validity of these limita- tions, unless this restriction is inserted ; but they make no express mention of the restriction, when treating of the subject. C.R.P. R Digitized by Microsoft® 242 THE NATURE AND QUANTUM OF ESTATES. 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 patenici. The fact that, by the common law, a seisin in fee simple, which had been acquired by descent from a father who had come to the estate by way of purchase, excluded the heirs of the son ex parte materna, supplies the motive which induced Littleton to prescribe the adoption of this limitation under the 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 in 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 hy him, it would still be necessary to make the 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 the 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 a later enactment, 22 & 23 Vict. c. 35, s. 19, has now introduced a possibility that, under peculiar circumstances, persons might inherit who are not of the blood, this contingency contaios nothing to affect Littleton's directions. If that contingency should happen, its effect will be precisely the same in whatever way the limitation is made. There seems to be no sufficient reason to suppose that the Descent Act has in any way affected the validity of these limi- tations at common law. And it will presently be shown, by what are conceived to be irrefragable arguments, that this statute expressly provided a new method of limitation, by which precisely such a fee as that described by Littleton could be limited ; so that, if the statute had, in this respect, any effect at all, its effects were, at all events, restricted to prescribing a new method of limitation, without affecting the validity of the estate. Digitized by Microsoft® QUAMFIED FEES SIMPLE. 243 The further question, whether the validity of these limitations was affected by the 22 & 23 Yiot. c. 35, s. 19, remains to be considered ; and some remarks upon this point wiU be found at p. 254, infra. Here the course of descent does not differ, so long as the The course of 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 the specified ancestor ; but in a certain sense* it may be said that the quantum of the estate differs, 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 paternd ; but in the case of more remote descendants, such classes of ancestors less often required 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 sub- stituted for another as the root of descent. When we say that the descent is restricted to the heirs ex parte paternd, we only mean that the descent 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 considerable 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) * 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. 250, infra. r2 Digitized by Microsoft® 2il THE NATUKE AND QUANTUM OF ESTATES. and conditional fees. He remark?, that a passage of Black- stone, 2 Bl. Com. 222, may seem to throw doubt upon the existence of this species of estate ; but expresses the opinion, " That the authority of Littleton, and of Lord Coke, establish in the most decisive manner the certainty of its existence." (1 Brest. 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 t. Hynes rather suggests the conclusion, that Littleton's observations may have arisen from the tradition of an ingenious device actually used 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. DistingTiished The rare occurrence of this species of estate, if it ever has fees? ° ^^ actually occurred, has prevented it from receiving much notice. The present vsriter is not aware of any authorities other than those above cited,* who have made it the subject of express dis- cussion ; and this remark is meant to be exclusive of Black- stone, as will presently be shown more at large. Though it has * Preston cites Fleta, lib. 3, o. 3, as giving a definition of these fees. (1 Brest. Est. 449, note g.) There is, however, nothing about them in that chapter; — a fact which will surprise no one who is familiar with the inaccuracy of the references in Preston's works. Those deeply -learned treatises seem to have been issued from the press unoared for except by the printer's devil. There is probably something about these qualified fees somewhere in Fleta ; but the present ^^-riter, 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 exhaustive search would hardly have repaid the trouble. Keta's definition, 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 the author styled Pleta concurs with Littleton and Lord Coke, his authority seems to be superfluous : in so far as he goes beyond them, he does not seem to be entitled to extraordinary veneration. Reeves, 3 Hist. Eng. Law, 342, 343, refers to Litt. sect. 354, as being an example of the ey prh performance of a condition, when the literal performance of it had become impossible. He does not appear to have adverted to the peculiarities of the consequent estate, or to any question in controversy with ■ respect to it. Digitized by Microsoft® Qt'AHFlEU FEES SIMPLE. 2lO 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 * since it is limited by restriction to a parti- cular class of the heirs, and not by reference to the happening of a future event. It still more evidently differs from a conditional fee, because, 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 manifestly 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 effected, 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 deiined in these pages, too obviously for the difference to require particular mention. The passage of Blackstone above referred to, as seeming to Supposed throw doubt upon the validity of qualified fees simple, is in denvedfrom reality foreign to the purpose. Blackstone is endeavouring to ^i^<=^s*™e. account, upon principles of archaic feudalism, for the rule of the 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 hlood of the original purehaser. 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 pur- chase, and this had descended upon his son as heir-at-law, and the son had subsequently died intestate, leaving no (known) heir ex parte paterna, then the lands would (at the common law) escheat to the lord sooner than pass to the heirs ex parte materna. (Litt. sect. 4.) These last-mentioned heirs are among the heirs of the person last seised, but they do not fulfil the other pre- scribed condition, that they must be of the blood of the first purchaser. Blackstone remarks, that this feature of the law of * Preston, though he thought that, for purposes of alienation, this kind of fee has the quality of a determinable fee, nevertheless recognises a material difference between them. (1 Prest. Est. 468.) Digitized by Microsoft® 216 THE NATURE ANU QUANTUM OF ESTATES. descent was entirely unknown to the Jews, Greeks and Eomans, and that it is almost (he might probahly have omitted this last word with perfect safety) peculiar to our own laws and those of a similar original. (2 Bl. Com. 220.) In endeavouring 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 ; and his doctrine is not perfectly intelli- gible and consistent with itself. He lays it down that, when feuds first began to be hereditary (and it is difficult to guess within several centuries what epoch is here referred to) no one could inherit except the issue of the purchaser; but that, at some subsequent period, "in process of time, when the feudal rigour was in part abated," it became the custom, in the grant of a feud which was in fa,Citfeudum novum (by which Blackstone means, a feud acquired by purchase) to express that it should be held lit feuduni antiquum, that is to say (as Blackstone under- stands 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 heirs, of any degree of remoteness, acquired their right of succession; because, even under the strictest rigours oifeudum novum, after a descent once cast, some collateral heirs of the person last seised were let into the succession ; 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 imported into the original grant to the purchaser, that he should take upon the same terms as if the feud had in fact descended upon him from his ancestors indefinitely, without specifying any one in particular, collateral ancestors of any degree of remoteness might be brought into the succession. Blackstone sums this up as follows : — " Of this nature 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/eudum novum, to be held tit 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 afeudum novum to be held ut antiquum, as a feud whose antiquity is indefinite : Digitized by Microsoft® QUALIFIED FEES SIMPLE. 247 and therefore the collateral kindred of the grantee, or descen- dants from any of his lineal ancestors, by whom the lands might possibly have been purchased, 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 ad- mission 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 then- ingenuity may amuse, would scarcely at the present day be gravely proposed as resting upon a historical basis. And it is evident, that Black- stone had not in his eye any such limitation as is now being considered, and that his remarks, whether well or iU-grounded, contain nothing which is opposed to its validity. The question is not, to adopt Blackstone's phraseology, whether a fee can now (independently of the statute De Bonis) be limited iit feudum novum ; but whether, granting that every fee must be limited ut feudum antiquum, the precise degree of the antiquity may lawfully be specified. Blackstone's contention, that where no precise degree is specified, the degree is, for certain purposes, taken to be indefinite, would not prove that the degree may not, for certain purposes, and in a certain sense, be precisely defined. But the strongest objection against founding any argument against the validity of quahfied fees simple upon these remarks, is to be found in the natm-e of the remarks themselves. Whether it was judicious in a lawyer, when writing a treatise for purposes of practice, to enter upon vague speculations (for which no sufficient 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, chiefiy relating to foreign feudal notions, as indicating the existence 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 Blaokstone 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 writing them nothing was Digitized by Microsoft® 248 THE NATURE AND QUANTUM OF ESTATES. further from liis thoughts than the validity of qualified fees simple. The question is not whether Blackstone has indi- vidually pronounced against their validity, ahout which he was manifestly not thinking at all, hut whether his fanciful per- quisitions into feudal antiquities, if they seem to make against the validity of qualified fees simple, can rationally be regarded as having any weight for such a purpose. This question seems to answer itself. Second objeo- A more serious objection against the validity of these limita- from Lord tioDS, under certain circumstances, is perhaps to be found in the ° ^' following passage of Lord Coke : — "If a man giveth lands to a man, 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. Litt. 13 a.) This language may be held to import that if, in a ease resembling that above supposed by Littleton, the per- sons to whom the re-feoffment must be made should 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. However this question may be answered, in cases where the last survivor happened to be a woman, it of course imports nothing against the validity of such limitations when the last survivor is a man. Preston understands Lord Coke in the sense above stated ; and expresses the opinion, that in case the last survivor should be a woman, the limitation should be made to the son and his heirs simply, that is, for a fee simple absolute. (1 Prest. 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 ; and he 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 law. The course is bounded only, and not diverted or turned out of its proper channel," (1 Prest. Est. 474.) He seems to assume that Digitized by Microsoft® qualifie:5 fees simple. 249 only males are to be included under Littleton's expression, plusors homes. The meaning of this distinction may be explained as follows : In the limitation of a qualified fee simple two persons are, in diilerent senses, regarded as purchasers, namely, 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 paternal 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 hypo- thesis that the person to whom the limitation is made is for all purposes the purchaser. But if, in specifying the ancestor, any divergence from the paternal line were permitted, the com- mencement of the descent according to the terms of the limita- tion would be different 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 com- mencement of the descent, which does not exist when the specified ancestor is in the male line. It would be a task of much difficulty successfully to impugn Whether the this view, apparently supported by the general rule laid down necessarily to by Lord Coke, which is accepted in that sense by Preston ; and *^ternal Une^ this is the reason why the present writer, in framing the defini- tion given at p. 241, ante, inserted the words, i)i the 2}aternal line. But the present writer, after mature consideration, cannot help entertaining a suspicion, that when Lord Coke wrote the above cited passage about the heirs ex parte materna, he had forgotten all about qualified fees simple : a subject upon which, so far as the present writer is aware, he touches nowhere except in his commentary upon Litt. sect. 354. It may perhaps not be impossible that, if the point had been brought to his attention, he might have been willing to allow an exception to the general rule, in a case where the limitation was made in pursuance of a condition which could not be performed otherwise than by a limitation to the heirs ex parte materna. Another question remains which would be of the greatest Alienation of practical importance if these limitations were more frequently simple! met with. Digitized by Microsoft® 250 THE NATURE AND QUANTUM 01" ESTATES. Preston's opinion. 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. Preston has repeatedly expressed the opinion, that the grantee, or the inheritor, of a qualified fee simple has, for the purpose of alienation, only a determinahle fee ; that he cannot convey a fee simple ; and that the estate, in the hands of an assignee, will determine, if and ivhen the particular class of the heirs of the grantee, to whom it was originally limited, shmild 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.) Examination of Preston's opinion. These propositions are so startling that, in spite of the autho- rity of Preston, some hesitation in accepting them is perhaps not wholly inexcusable. Lord Coke, as we have seen, informs us, that Littleton's design in prescribing this form of limitation under the above- mentioned circumstances, was to prevent the inheritance from descending upon any persons who would not have been inherit- able if the re-feoff ment 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 thought that its adop- tion 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 con- euiTcd 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 j)arte mafernd of Digitized by Microsoft® UTJALIFIED FEES SIMPLE. 251 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 was, in this respect, before 22 & 23 Viet. c. 35, placed in the same position as a qualified fee simple, by the mere fact of a descent. But it has, of course, never been suggested by anyone that the heir, succeeding by inheritance to a fee simple absolute, could not alienate for a fee simple absolute. The account given by Lord Coke of Littleton's motive makes it very difiicult to doubt that, when he prescribed or invented the limita^ 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-feofPment had been actually made during the lifetime of one or more of the plusors homes specified in the condition. Moreover, it is difficult to see how, unless by the legal fiction which deems an estate ^z«' 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 possibility 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 corruption of blood) by attainder, the heirs general of any specified person whatever are indefinite in nimaber. And if a pedigree should accidentally be cut short in this way, it would be cut short for the purposes of a limitation in fee simple absolute, precisely in the same way and to the same extent 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 posi- tion as the heirs general of any other person, and that a limita- tion to a bastard and his heirs gives rise to a fee simple absolute. {Vide supra, p. 195.) This seems also to be a reason for concluding that Preston's doctrine of the determinable quality, for purposes of alienation, of a qualified fee simple, even though it were admitted, would Digitized by Microsoft® 2o2 THE NATURE AMD QUANTUM OF ESTATES. 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 sufBcient 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 lawfully in possession 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 fee would, for all practical purposes, be generally in exactly the same position as the grantee of a fee simple absolute. Conclusion Por the foregoing reasons, the present writer humbly conceives against Pres- ,-ni,i. ■, . . pit ton's opinion, that Preston s doctrine upon this point cannot safely be relied upon; and that, if it could possibly become a question of practical importance, it might not improbably be overruled. Littleton's There also seems to be no sufficient reason to suppose that, if tation seems the form of limitation prescribed by Littleton is valid by the feoted™y the common law, its validity was affected by the Descent Act, 3 & 4 Descent Act. -^^^i^ 4^ (,_ 106. It is true that sect. 2 of that Act provides, that in every case descent shall be traced from the purchaser ; and that by sect. 1, "the purchaser" is defined to mean, "the person who last acquired the land otherwise than hy descent, or than by any escheat, partition, or enclosure, by the effect of which the land shall have become part of or descendible in the same manner as other land acquired by descent." But the language of the rest of the 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 heirs simply ; and that the effect of the Act, so far as qualified fees simple are concerned, is only to regulate the way in which the descent 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 conveyancers of a legal means to fulfil a lawfully imposed obligation, which had been provided by the common law. Moreover, it would be difficult to contend, that the above- Digitized by Microsoft® QUALIFIED FEES SIMPLE. 2-53 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, without at the same time admitting that it has the like effect upon the well-known and universally recog- nized limitations in fee tail, to a man and the heirs of the locly of a specified ancestor. ( Vide infra, p. 270.) And it is hardly possible to suppose that the Act was designed, by the use of general language which admits of a diSerent interpretation, to effect a partial repeal of the statute De Bonis. Here the reader may remark that Blaokstone, in the passage cited at p. 245, 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. In settlements, especially when made by will, an ultimate Analogous limitation is not unfrequently found, to the right heirs of a to heirs as specified person who does not, by the same instrument, take any pi^rchasers. precedent estate of freehold. The absence of a precedent estate of freehold prevents the Rule in Shelley's Case from applying ; and the limitation will therefore give an estate of inheritance to the heirs as purchasers. What is the exact quantum of this estate, at the common law, is a question that perhaps admits of doubt. Fearne seems to have thought that the estate is, at common law, a fee simple 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. Rem. 192.) Preston admits this to be the opinion gene- rally 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 Digitized by Microsoft® 254 THE NATURE AND QUANTUM OF ESTATES. the purpose of alienation, the estate is a fee simple absolute. (1 Prest. Est. 458.)* The Descent During the interval -which elapsed between the cominff into Act prescribes .(.it-, a novel form operation of the Descent Act, 3 & 4 Will. 4, c. 106, and the for q^afified coming into Operation of the 22 & 23 Vict. c. 35, s. 19, there fees simple, gg^ jjg qq doubt that the limitation of a qualified fee simple ■was possible. Sect. 4 of the Descent Act provides, with respect to limitations to the heirs of any ancestor of any person coming in as purchaser, " The descent .... shall be traced as if the ancestor named in such limitation had been the purchaser of such land." It follows that the precise form of limitation prescribed by Littleton might, by virtue of the above cited provision, 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. The validity of this form of limitation is independent of the question, whether such an estate could have been limited at the common law ; and it is free from the restriction to which, in Preston's opinion, such limitations, when made at the common law were subject, namely, that the person taking as purchaser must be the heir in the paternal line of the person named as the ancestor. Effect of 22 & The question remains to be considered, what is the effect upon B. 19. ' ' ' these limitations of 22 & 23 Vict. c. 35, s. 19 ; and in consider- ing this question it is important to bear in mind the distinction between limitations made at the common law and limitations owing their validity only to the Descent Act, sect. 4. As to Umita- The above cited enactment provides that where there shall be tioDS under . . the Descent a total failure of heirs of the purchaser, or where any land shall Act be deseendible as if an ancestor had beenjmrchaser thereof, and there shall be a total failure of the heirs of such ancestor, then the descent shall thenceforth be traced from the person last entitled to the land as if he had been the purchaser thereof. This provision undoubtedly deprives qualified fees simple, when limited under the provisions of the Descent Act, of one of their peculiar characteristic features ; namely, the occurrence of an * In Moore v. Simkin, 31 Oh. D. 95, Pearson, J., appears to have agreed with Fearne's opinion. Digitized by Microsoft® QUALIFIED FEES SIMPLE. 255 escheat* rather than that there should be a descent to any person not of the blood of the person named as ancestor. But the above cited provision contains nothing to interfere ■with the other peculiar characteristic of a qualified fee simple ; namely, that, so long as heirs of the specified ancestor are in existence and known, the descent shall be traced from such ancestor. It follows that, until a question of escheat arises, "the above cited provision contains nothing to interfere with the validity of qualified fees simple when limited under the pro- visions of the Descent Act. This consideration is very material to the contention of the respondent in the ease of Blake v. Synes, shortly to be mentioned. The effect of 22 & 23 Yict. c. 35, s. 19, upon limitations at ¥ *« l^i'^^" _ -^ _ _ tions at tno the common law, cannot be greater than its effect upon limita- common law. tions under the Descent Act ; and therefore, apart from questions of escheat, such limitations seem to be not affected by the Act. And it might plausibly be contended that in this respect there is a distinction between limitations at the common law and limita- tions under the Descent Act; and that the former are not affected by 22 & 23 Vict. c. 35, s. 19, in any way. For by s. 20, the preceding section is directed to be read as a part of the Descent Act, which seems to apply only to fees simple absolute ; and though sect. 19 undoubtedly applies to qualified fees simple limited under the Descent Act, to which its language is ex- pressly made applicable, it does not follow that this is true also of a species of limitation, not included in the Descent Act, to which the language of sect. 19 is not expressly declared to apply. On a former occasion the present writer expressed some doubt Remarks whether the species of limitation now under discussion had ever ^°BiakeY^^^ occurred or would ever occur in practice. In May, 1884, the ^v"^^- question of its validity for the first time was raised, in a case before the House af Lords on appeal from Ireland, Blake v. * Or a reverter to the grantor, in case the above cited opinion of Preston is correct, that on the determination of the estate there is a reverter and not an escheat. Either hypothesis will equally well suit the present argument. Digitized by Microsoft® 256 THE NATURE AND QUANTUM OF ESTATES. Blake •^. Hynes, reported before the Irish Courts in L. E. (Ir.) 11 Eq. ^^""' 417, on appeal, 11 L. E. Ir. 284. The material circumstances in the case of Blake v. Hynes were as follows. Oolumhus O'Flanagan died in 1857, leaving a will which was duly proved ; and his real and personal estate was subsequently administered 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 proceedings 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 declared valid, of the testator's will, the right of his co-heirs 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 proceed- ings out of which the appeal to the House of Lords arose were instituted in 1873, under the Lunacy (Ireland) Eegulation Act, 1871, s. 65, for the administration of her real and personal estate. At the time of her death her heirs general 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 general of the original testator Columbus 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 intents and purposes as a purchaser; in which case, upon her death intestate, it would have descended to her heirs general; or whether, by virtue of the said Order, the lands must bo held to descend as though the original testator, Columbus 'Flanagan, had been the last purchaser ; in which case the moiety in dispute would pass to Eoderick O'Connor as being his heir general at the time of Jane Lowell'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 heirs general. This decision was unanimously reversed by the Court of Appeal 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 Digitized by Microsoft® QUAI.TFIEn FEES SIMPLE. 257 in dispute passed to Eoderick O'Connor as the heir general of Columbus O'Flanagan. Hitherto the question as to the validity of a limitation at the -^^^e v. Ji'UttBS common law in the form above styled a qualified fee simple, was not explicitly raised ; and the Lord Chancellor of Ireland appears to have assumed that such a limitation was impossible ; but the learned judges referred to the Descent Act as having just introduced such limitations. The Lord Justice Fitzgibbon, in the course of his judgment, made the following remarks : — " If conveyances had been settled [with a view to carry into "effect 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. Under the fourth " section of the Inheritance Act, if not otherwise, this object " might have been attained by a deed ; and, no deed having " been completed, we must see that the lands shall go as if a " limitation of them had been carried out in accordance with " the substance of the compromise which conferred, and of the " decree which declared, Jane Dowell's rights." 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 question of the validity of the limi- tations under discussion was explicitly raised. The question was argued before the House, and the respondent's counsel rested their argument 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. The question was not very fully argued ; for the distinction between limitations at the common law and limitations under the Descent Act was not gone into, though some remarks are said to have been made by a noble and learned lord upon some supposed effect of the Descent Act upon limitations at the C.K.P. s Digitized by Microsoft® 258 THE NATURE AND QUANTUM OF ESTATES. common law ; and no notice appears to have been taken of the restriction to whicli, in the opinion of Preston, limitations at the common law are subject, namely, that the person coming in as purchaser must be the heir in the paternal line of the person named as the ancestor. Digitized by Microsoft® ( 259 ) CHAPTER XX. FEES TAIL, OR ESTATES TAIL. A FEE TAIL is simply a conditional fee at the common law, Definition, modified in certain respects by the statute Be Bonis Condition- alibus, or Stat. West. 2, 13 Edw. 1, cap. 1. The list given above, of limitations applicable to a conditional fee, does not contain every limitation 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 woiild be likely to induce anyone to limit a fee tail to heirs female,* 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.t * See Harg. n. 1 on Co. Litt. 25 a, where he makes mention of an attempt to prove in argument that limitations in tail female are invalid. In Goodtitle v. Burtenshatv, Feame, Cont. Rem. App. No. I., a limitation occurred to the heirs female, and in Chambers v. Taylor, 2 My. & Cr. 376, a limitation oceorred to the heir female, but in both cases as purchasers. Prom some remarks made by Lord Coke (Co. Litt. 377 a) it may perhaps be inferred that limitations in tail female, in remainder upon a limitation 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 limi- tation to effect the probable intention, is a limitation in tail general, in remainder upon a limitation in tail male. (See also Co. Litt. 25 b.) t In Earl of Zetland v. Lord Advocate, 3 App. Cas. 505, at p. 523, Lord Blackburn ohiter expressly states his opinion that limitations in tail female are valid. s2 Digitized by Microsoft® 260 THE NATUKE AND QUANTUM OF ESTATES. On the opera' tion of the statute Be Donis. The modifications introduced by the statute into a conditional fee, refer chiefly to the power of the donee, or tenant in tail for the time being, by alienation to bar the succession of his issue and the reverter of the donor. It was observed above, that at the common law the issue could be so barred even before their birth, but that the donor's reverter could not be barred until after the birth of inheritable issue. The statute De Donis enacted that in future no such alienation should be a bar either to the succes- sion 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 disaffirming the supposed per- formance of the condition, preserved the fee to the issue, while 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 Be Bonis would 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 restraining aliena- tion, must further be added its effect in preventing 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 law did not permit. 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 examples are men- tioned 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 haviag 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 follows : — Ponu of the statute. ' ' That the will of the giver, aooording to the form in the deed of gift mani- festly expressed, shall be from henceforth observed ; so that they to whom the land (tenementum) was given under such condition, shall have no power to aUene Digitized by Microsoft® FEES TAIL, OR ESTATES TAIL. 261 the land [tcnemenium) so given, but that it shall remain unto the issue of them to whom it was given after their death, or shall revert unto 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*]. " Neither shall the second husband of any such woman " [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 laud [tene- mentum) was so given, it shall come to their issue, or return unto the giver, or his heir, as before is said." The effect of the first paragraph is t6 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 is made Tenant in tail 1 • / 1 \ • )• 1 -i! / after pOBsi- either to a donee and his (or her) issue by a particular wiie (or bility. husband), or to two persons and their 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. (F«cfe si«pra, p. 239.) The survivor is, therefore, now styled tenant in tail after possibility of issue extinct; or, for brevity, tenant in tail after possiUlity. The statute also, after prescribing a form for the new kinds of writ of formedon, which were needed to give effect to its provi- sions, continues as follows : — And if a fine be levied hereafter upon such lands [siiper hujusmodi tenemento) , it shall be void in the law ; neither shall the heirs, or such as the reversion belongeth unto, though they be of full age, withia England, and out of prison, need to make their claim. It will hereafter be seen that this last enactment was deemed * Per hoe, quod nullus sit exitus omnino, vel si aliquis exitusftierit, per mortem dejiciet, herede hujusmodi exitAs deficiente. The English version (1 Stat. Kev. p. 42) is here unintelligible. t As above mentioned, forfeiture by attainder of high treason was restored by statute, and finally abolished by 33 & 34 Vict. c. 23, s. 1. Digitized by Microsoft® 262 THE NATURE AND QUANTUM OF ESTATES. to be repealed, or superseded, by 4 Hen. 'T, c. 24 ; and it was expressly superseded by 32 Hen. 8, c. 36. ( Vide infra, p. 279.) Classification of Estates Tail. It will appear, upon viewing the limitations which are appli- cable to the creation of conditional fees {supra, p. 236), 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 The restriction of the line of descent to a single sex, is indi- cated by the addition of the epithets male or female respectively, and the absence of such addition indicates the absence of restriction. Special tail. 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 in- heritable under the gift, is indicated by the epithet spedaL The absence of such restriction is sometimes indicated by the addition of the epithet general, but more commonly by the absence of any epithet. Suggestion as Lord Goke, in his translation of Littleton, indifferently uses general'&Tid.^ ^ the phrases general tail and tail general, and the phrases special special. f^i^i g^j^(j ^^jY 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 wiU. be adopted in the following pages. ®.s a ° § ^ '« '^ ^ g -" "^ -- m +:' °5 « -t? r^ g a, p oi H Thus we have the following divisions of fees tail : — Tail Gtenerai, ; when the heir per formam doni is designated as the heir of the body simply, and therefore coincides with the heir general in the direct line of descent. ^^ ~S ^ .~S '^ Tail Special, or tail male and tail female ; when the heir per formam doni is restricted to the heir male, or the heir female, and therefore does not necessarily coincide with the heir general in the direct line. Digitized by Microsoft® FEES TAIL, OR ESTATES TAIL. 263 S o O l-s § , Co c3 PI ■ o C common law may be styled the mdividual character of the assurance. In and statutory- respect to the general mode of their operation, or the general source from which they derive their efiicacy, fines are divided into fines levied at the common law, and fines levied by virtue of the statute. In both cases, the importance of the assurance depended upon the degree in which it operated as a bar to all claims which were not prosecuted within certain limits of time after the completion of the fine. By the common law the title conferred by a fine was a bar to the claims of all persons, whether parties or privies to the fine or not, who, not being under disability, did not prosecute their claims within a year and a day. (See 8 Eep. 100 a, ad init.) This bar by non-claim was abolished by 34 Edw. 3, c. 16, called the Statute of Non-claim, and was restored with modifi- cations by 1 Eic. 3, c. 7 ; which statute was soon rendered practically obsolete (though it was not expressly repealed until 1863) by the first Statute of Fines, 4 Hen. 7, c. 24. The last-mentioned statute enacted that, proclamation of the The first fine having been made as therein mentioned, the fine should be pines. a final end and conclude as well privies as strangers to the same, except persons under specified disabilities, other than parties to the fine ; saving to all persons other than the parties, such right as they might have at the time of the fine, so that they should Digitized by Microsoft® 278 THE NATURE AND QUANTUM OF ESTATES. pursue their title by way of action, or lawful entry, within five years next after the proclamations ; and saving to all other persons such right as might subsequently accrue to them, so that they should pursue their title within five years of its accruing. The provisions last specified are commonly referred to as the Jirst saving and the second saving respectively. The statute also allows to persons under disability, other than married women parties to the fine, five years from the cessation of the disability diuring which to prosecute their claims by action or entry ; but enacts that if they should not pursue their remedy as aforesaid, they and their heirs should be concluded for ever, in like form as parties or privies to the fine. It also saves to all persons, not being parties or privies, the right (which esisted at the common law) to avoid the fine upon an averment partes finis nihil habuerunt, if none of the parties had an estate of freehold in the lands. The theory of After the Statute of Non-claim, a fine levied merely at the surances by commou law, without the proclamations enjoined by the statute, tenant m tail, operated only by way of estoppel, and therefore it bound only the parties thereto and the privies in estate of the parties. At the common law, the issue in tail were not regarded as being privy in estate to any preceding tenant in tail, and the estoppel of the latter was no estoppel to the former. In other words, the issue in tail were not, as such, bound by a fine levied at the common law by their ancestor in the entail. (1 Prest. Oonv. 213.) The only fines that would bind the issue in tail were fines levied with proclamations by virtue of the statute ; and this operation was derived from a strained judicial construction, subsequently confirmed by legislative enactment. It seems to have been inferred from the above -stated pro- visions that the issue in tail, though not parties, were privies within the meaning of the statute. A majority of the judges in the year 19 Hen. 8, held, in accordance with this opinion, that by a fine levied with proclamations by a tenant in tail under the statute,- the issue in tail were immediately and finally barred, nor were allowed any time to prosecute their claim upon the death of the tenant in tail by whom the fine was levied. (Dy. 2 b, pi. 1.) In that case, the five years mentioned by the Digitized by Microsoft® THE ALIENATION OF FEES TAIL. 279 statute had in fact expired during the lifetime of the tenant in tail ; and it does not quite clearly appear from Dyer's report, ■whether the judges who held that the issue in tail were barred hy the fine, thought that this lapse of the five years was material. But it would rather seem, that they considered the issue in tail to be immediately barred, as being privies within the meaning of the statute, and as not being within the saving clauses. Though this decision was manifestly repugnant to the pro- vision of the statute Be Bonis, " if a fine be levied hereafter of such lands, it shall be void in the law," its principle was ex- pressly affirmed by the second Statute of Fines, 32 Hen. 8, The second e. 36 ; which enacts, that aU fines levied with proclamations, Finea. whether before or after the Act, by any person of full age, of any hereditaments intailed to him or any of his ancestors, in posses- sion, reversion, remainder, or in use, should be, immediately after the fine levied, engrossed, and proclamations made, deemed to all intents and purposes a sufficient bar for ever against such person and his heirs claiming the same hereditaments or any parcel thereof only by force of any such entail. Some remarks upon the operation of fines as against strangers, will be found at p. 360, infra. A warranty was a covenant real annexed to an estate of free- The bearing hold, arisiag either by implication of law, or by express contract. uporTcomiuon (Prest. Shep. T. 181.) As an express contract, a warranty could be created only by the use of the word warrantizo or warrant. (Litt. sect. 733.) The benefit of the warranty (if the estate of freehold was also of inheritance) descended to the heir of the warrantee, and the burden to the heir of the warrantor. The warranty conveyed no estate, but, so far as it was effectual, operated as a bar to prevent the heir of the warrantor from enforcing a claim to the lands as against the heir of the war- rantee. The epithets lineal and collateral, as applied to warran- ties, do not refer to the lineal or collateral descent of the heir of the warrantor from his ancestor; but solely to the question, whether his claim by inheritance, or (under an entail) by quasi- inheritance, to the lands, and his liability to the warranty, were both derived, or might possibly be both derived, from the same Digitized by Microsoft® reoovenes. 280 THE NATURE AND QUANTUM OF ESTATES. ancestor through the same line of descent, or not. In the former case the warranty was lineal, in the latter collateral. (1 Prest. Abstr. 410, 411.) The person to be bound must in either case be the heir of the warrantor, in order that the burden of the warranty might descend upon him ; and in order to con- stitute a lineal warranty, it was necessary that the heir, in deducing his title, might possibly be obliged to name the warrantor in his pedigree.* Thus a warranty made by the donee in tail would necessarily be lineal in respect to all the issue in tail ; and the warranty of any subsequent tenant in tail would be necessarily lineal to all the issue in tail inheritable after himself. The only point in the intricate learning of warranties which requires to be noticed, is, that a lineal war- ranty, if accompanied in its descent by assets, but not otherwise, was a bar to the issue in tail, notwithstanding the statute De Bonis, in respect of the estate tail. (Litt. sect. 712 ; Co. Litt. 374 b.) The efficacy of a common recovery, as an assur- ance by tenant in tail, depends upon this proposition. Warranties no"w ineffec- tual. Warranties made after 31st December, 1833, are, by the Statute of Limitation, 3 & 4 Will. 4, c. 27, s. 39, made ineffec- tual (as to lands in England) to toll or defeat any entry or action for the recovery of land. By the Fines and Eecoveries Act, s. 14, all warranties of lands (in England) made after the same date by any tenant in tail, are made absolutely void against the issue in tail, and all persons whose estates are to take effect after the determination or in defeasance of the estate tail. The Irish Fines and Ee- coveries Act, 3 & 4 Will. 4, c. 92, s. 11, contains a similar provision as to lands in Ireland. Taltarmn's TaUarum's Case seems to have been to the following' purport. Case M. 12 . . . Edw. 4, pi. Humfery Smith, being actually seised of certain lands by 25, f. 19 a. * It was sufSoient for the purpose of making tlie warranty lineal, that the warrantor should occupy a prior place in the pedigree, so that a descent might possibly be deduced from him ; although in fact, by reason of the particular order in which deaths occurred, the descent might happen not to be so deduced. Thus, the warranty of an elder brother was lineal to a. younger brother, in respect to lands descending from the father, although it should so happen that, by the death of the elder brother without issue in the father's lifetime, the lauds descended \o the young;er son directly from the father. Digitized by Microsoft® THE ALIENATION OF FEES TAIL. 281 descent, as tenant in tail general, made a feoffment thereof to one Tregos in fee simple. By this feoffment he discontinued both bis former estate tail and also all remainders, and the reversion, if any, subsisting thereupon ; so that all persons claiming under any of such discontinued estates, could thenceforward prosecute their respective claims only by means of a real action. Tregos then enfeoffed Humfery Smith and Jane his -wife in special tail general, with remainder to Humfery Smith in fee simple. Jane the wife died, leaving, as the report states, Humfery Smith sole tenant in tail after possibility of issue extinct. One Taltarum, upon some claim of title not material to be stated, had some time before the bringing of the present action, sued a writ of right against Humfery Smith ; and the proceedings had upon this writ were precisely identical with the proceedings which in later times were followed in a common recovery with single voucher. Humfery Smith vouched to warranty one Richard King, who appeared and admitted the warranty, and subsequently made default. Judgment was thereupon given, that the demandant, Taltarum, should recover the lands against Humfery Smith, and that the latter should recover lands of equal value against the vouchee Eichard King. It would appear, so far as the rambling obscurity of the report allows anything to appear, that in the present case the question at issue was, whether a person claiming under the original entail, which had been discontinued by Humfery Smith's feoff- ment to Tregos, was barred by this recovery. And it appears to have been held, that he was not barred ; upon the ground that Humfery Smith (who was really seised under the tortious seisin acquired by his own feoffment to Tregos) had not been seised by force of the original entail, which was now sought to be barred, at the time when the recovery was suffered. From this the inference was deduced, that if Humfery Smith had been so seised by force of the original entail, the recovery would have been a good bar to the issue in tail claiming thereunder. And this inference, being acted upon in practice, was subsequently recognized by the courts, and became the foundation of common recoveries. A common recovery was a collusive action of recovery, not The nature of Digitized by Microsoft® 282 THE NATURE AND QUANTUM OF ESTATES. a common Compromised, but prosecuted to judgment by the demandant or recoveror against the tenant or reooveree.* In its most usual form, as an assurance by a tenant in tail, it was brought by a collusive demandant against a collusive tenant, called the tenant to the prmcipe, or writ sued out for the purpose of sufEering the recovery, to whom an estate of freehold had been conveyed by the person in whom the immediate freehold in the lands was vested, in order to enable him to defend the action; for a common recovery was obliged to conform in all essential points to the real action which it collusively represented, and by the common law no action of recovery was well grounded unless brought against the actual tenant of the first estate of freehold in the lands sought to be recovered ; for default of which the recovery might \>b falsified, or set aside, upon a plea of non-tenure. (Booth, Eeal Actions, p. 29 ; iUd. p. 80.) Statutory The common law rule which required that the tenant to the jirtscipe. prcecipe should be the person actually seised of the first estate of freehold, was found to be very inconvenient in places where it was the custom to let out lands on leases for lives at a rent ; in which case the concurrence of the lessees was necessary, in order to make a tenant to the prcecipe. By 14 Geo. 2, c. 20, ss. 1, 2, it was enacted, in effect, that all common recoveries suffered or to be suffered without the concurrence of such lessees, should be as valid and effectual as if they had concurred, provided that the person next in remainder or reversion should convey an estate for life at least to the tenant to the prcecipe. Form of the The tenant to the prcecipe admitted the claim of the demandant, a'rMovery.^ "^ ^ut vouched to warranty {vocatit ad warrantizanduin) the tenant in tail, who admitted the warranty, but vouched over somebody else, always a man of straw, usually the crier of the court, who was therefore styled the common vouchee. The demandant then "craved leave to imparl" {petiit Ucentiam interloquendi) ; which being granted, the demandant and the common vouchee * The terms plaintijf and defendant are properly restricted to personal and mixed actions ; the corresponding terms in real actions being demandant and tenant. (Co. Litt. 127 b.) Digitized by Microsoft® THE ALIENATION OF FEES TAIL. 283 left the court together. Afterwards the demandant came into court without the common vouchee ; and the latter, having been solemnly summoned and failing to appear, was adjudged " to have departed in contempt of the court and made default." (See the form of the record, 2 Bl. Com. Appendix, No. V., at p. xix.) Thereupon the demandant recovered the intailed lands against the tenant to the prcecipe, who recovered lands of equal value against the tenant in tail, who recovered a similar recom- pense in value against the common vouchee.* The recompense in value supposed to be recovered from the common vouchee, had the same effect in law as actual assets to make the warranty good against the issue in tail. (1 Rep. 94 b.) And since the recompense, if it had really been recovered, would have descended according to the descent of the lands for which it was a substi- tute, the remainderman or reversioner was equally within the benefit of the recompense, and was held to be equally barred by the recovery.! The above stated reasons were originally brought forward, at the time when common recoveries were introduced into practice, to explain their operation in barring remaindermen and rever- sioners. Afterwards, when their use for this purpose had become general, their operation was extended to cases which did not fall within the original reasons ; for example, a tenant in tail, who had previously levied a fine and thereby destroyed his estate as an entail, was allowed to bar the remaindermen and reversioner by a subsequently suffered recovery. In 1744 the following definition was given by Lord Chief Justice Willes : — " A common recovery is a conveyance on record, invented to give a tenant in tail an absolute power to dispose of his estate, as if he were tenant in fee simple." {Martin V. Strachan, Willes, 444, at p. 451.) The recovery above described is styled a recovery with double DouUe and voucher ; and this was the form most commonly used. Reco- ^^omsher. veries might also be suffered in a similar form, mutatis mutandis, * This exactly corresponded with the judgment on a writ of formedon, if the defendant vouched a stranger to warranty. (See 2 Fitzh. Abr. 87a, pi. 257.) t ' ' And the reason of a common recovery barring the remainders is, because he in remainder is entitled to enjoy the recompense." (5 T. R. at p. 108, note.) Digitized by Microsoft® 284 THE NATURE AND QUANTUM OF ESTATES. The last known case in which a re- covery was suffered with single voucher. Kecovery with treble voucher. Importance of the voucher. with single vouclier only, or with more than two vouchers. In a recovery with single voucher, the tenant in tail was himself sued as tenant to the prcecipe, and he vouched to warranty the common vouchee without having been himself vouched. A recovery with single voucher gave a secure title only when the tenant in tail by whom it was suffered was actually in posses- sion, and was not also entitled in right to the lands under any other estate tail which had been devested or discontinued. The right under any such devested or discontinued estate tail would be barred by a recovery with double voucher, but not by a recovery with single voucher. (Cruise, 2 Fines and Rec. 245.) In a case in which an estate tail was subject to a conditional limitation over in the event of any attempted alienation by the tenant in tail, Fearne advised that he should bar the entail by suffering a recovery with single voucher, in order to avoid all question as to whether he might incur a forfeiture by previously executing any assurance for the purpose of making a tenant to ih.Q prcecipe. (Fearne, Posth. Works, 336.) A recovery was sometimes suffered with treble voucher,* when one estate tail had been derived out of another estate tail, and both entails were in existence at the same time and in different persons. By separately vouching both the tenants in tail, both the entails were undoubtedly barred ; and it was immaterial in what order they were vouched. (1 Prest. Conv. 127.) It seems, however, that the more usual practice was to suffer a recovery with only double voucher, and to vouch the two tenants in tail jointly, though in theory it might be doubtful whether a joint voucher was a sufficient bar to both entails. [Ibid. 128.) That it was the warranty, not the mere judgment of recovery, which constituted the bar, is proved by the fact, that a judgment * Probahly in practice treble voucher was used only in cases of settlements made by a father, tenant for life, and a son, tenant in taU, where those estates had been created upon the barring of an entaU under a former settlement, and it was known, or suspected, that the former bar had not been perfectly effectual, but had amounted only to a discontinuance. This state of circumstances would fulfil the conditions specified in the text. The necessity for the additional voucher was referred to the necessity for a further " recompense in value " to go in the line of the earlier entail. (See 1 Prest. Conv. 119.) Digitized by Microsoft® THE ALIENATION OF FEES TAIL. 285 ■without voucher, obtained hy default of the tenant in tail, did not prevent the issue in tail from prosecuting a writ of formedon after his death. (Litt. sect. 688.) But such a covenous judg- ment was an estoppel to the parties themselves. Sect. 2 of the Fines and Recoveries Act enacts, that no fine Fines and re- shall be levied or common recovery suffered, except those then abolished, pending, after 31st December, 1833. As an assurance by a tenant in tail, a fine had this advantage Effect of fine over a recovery, that by virtue of the provisions of the 32 Hen. 8, tail. c. 36, it could be levied without the concurrence of the tenant of the immediate freehold, while a recovery could not be suffered without obtaining either his concurrence or, in case the imme- diate freehold was in the hands of a lessee for lives at a rent, the concurrence of the statutory substitute provided by 14 Geo. 2, c. 20. Any estate tail, though in remainder, or contingency, or to arise by way of executory limitation, was barred by a fine (with proclamations) levied by the person entitled thereto. (1 Prest. Abstr. 402.) This clearly appears by the above-cited language of the statute; and it indicates a second advantage in a fine ; for it is the better opinion that a recovery by a person entitled to a contingent or executory interest in tail, had no operation to bar the issue in tail. (2 Prest. Abst. 98 ; 1 Prest. Conv. 142.) But a fine barred only the issue in tail ; so that a fee simple could not be obtained by it, unless one of the parties had also a remainder, or reversion, in fee simple expectant upon the estate taU. By a mere bar of the issue in tail, a base fee was created, which endured so long as there was in existence either the donee in tail or any issue who might have inherited under the entail. ( Vide infra, p. 298, No. 1 of the list there given.) A recovery barred as well the estate tail as also all re- Effect of a mainders, and the reversion, expectant thereupon ; and destroyed all executory limitations, determinable limitations, and condi- tions, annexed thereto, and all collateral powers by which the estate tail might have been defeated, whereby the person entitled to the benefit of the recovery obtained as large an estate as Digitized by Microsoft® 286 THE NATURE AND QUANTUM OF ESTATES. Tenant in tail after possibility. Woman tenant in tail ex provisione viri. Wiere the entail is pro- tected by statute. could by possibility have been made by the settlor who created the estate tail.* But a recoTcry had no effect upon estates derived out of, or upon charges existing as incumbrances upon, the estate tail. (1 Prest. Conv. 141 ; 3 Prest. Abstr. 137. t) Tenant in tail after possibility of issue extinct could not suffer a common recovery ; nor can he at the present day make any disposition under the Pines and Eecoveries Act. (See sect. 18.) But he has, when his estate is in possession, the powers conferred upon a tenant for life under the Settled Land Act, 1882. (See sect. 58, sub-sect. 1, vii, of that Act.) By 11 Hen. 7, c. 20, recoveries by women tenants in tail ex provisione tiri are made void. This Act is repealed, except as to settlements made before 28th August, 1833, by the Fines and Eecoveries Act, s. 17. But by sect. 16 of the same Act, the same assent is made necessary to the validity of any dis- position made under the Act by any such woman tenant in tail, as would have been necessary, by virtue of the repealed statute, to a fine levied or recovery suffered by her. By the 34 & 35 Hen. 8, c. 20, no recovery suffered by any tenant in tail of lands whereof the reversion or remainder is in the king, shall bind the heirs in tail. Nor can such a tenant in tail, or any tenant in tail who is by any other Act restrained from barring his estate tail, make any disposition under the * 1 Prest. Est. 426 ; 1 Prest. Abstr. 393 ; 3 Prest. Abstr. 137 ; 1 Prest. Conv. 2 ; ibid. 17. Not necessarily, as is commonly said, a fee simple. He remarks, howerer, that the point has never been actually decided. But it seems to be too obviously true to need decision. It is also to be observed that the language of the Fines and Recoveries Act, s. 15, "which enables a tenant in tail (subject to certain conditions) to dispose of the intailed lands as against the issue in tail, and also all persons whose estates are to take effect after the deter- mination or in defeasance of the estate tail, does not affect persons claiming by title paramount to that of the settlor. An estate tail may be derived out of a determinable fee ; and ia such a case the estate tail itself, or any base fee into ■which it may have been converted, and also any estate, though purporting to be a fee simple, created by any disposition made by the tenant in tail under the Act, wiU, ipso facto, cease and determine upon the determination of the deter- minable fee out of which they were derived. [Cessante statu primitivo, cessat derivativus. Vide supra, p. .) t CapeVs Case, 1 Rep. 61. The reason was, that the fee simple obtained by the recovery, was the same estate as the fee tail of the person sufEering the re- covery. So a fee simple obtained by a modern disentailing assurance, is only a continuation of the estate tail. (See Zord Lilford v. Att.-Gen., L. R. 2 H. L. 63.) Digitized by Microsoft® THE ALIENATION OF FEES TAIL. 287 Fines and Eecoveries Act. (See sect. 18.) But when his estate is in possession, any such tenant in tail can exercise the powers conferred upon a tenant for life under the Settled Land Act, 1882 ; and, in case the reversion is in the crown, so as to hind the crown hy such exercise. (See sect. 58, suh-sect. 1, i, of that Act.) The analogy of fines and recoveries has heen to a considerable Modemdisen- extent followed by the Fines and Eecoveries Act, which enables aneea. 3 & 4 every tenant in tail, whether in possession, remainder, contin- ^ • > ^• gency, or otherwise, after 31st December, 1833, by any assur- ance (other than a will) by which he could have made the disposition, if his estate were an estate at law in fee simple absolute, to dispose of for an estate in fee simple absolute, or for any less estate, the lands intailed, as against all persons claiming the lands intailed by force of any estate tail vested in the person making the disposition, and also, with the consent of the person (if any) who under the Act is protector of the settle-' ment, as against all persons, including the crown, whose estates are to take effect after or in defeasance of any such estate tail. (See sects. 15, 34 and 40 of that Act.) Such consent is not needed, if the tenant in tail is also entitled to an immediate remainder or reversion in fee. (Sect. 34.) Here the word fee means /cc simple. The estate tail will not be barred, except in so far as the disposition effectually passes an estate to the grantee. In cases where the grantee has power to disclaim the estate, his subse- quent disclaimer will prevent the disposition from having any effect under the Act. {Peacock v. EastJand, L. R. 10 Eq. 17.) , The phrase, u-lwse estates are to take effect after or in defeasance The utmost of the estate tail, is not applicable to persons coming in by title disentailing paramount ; and therefore the utmost operation of every dis- ='^'='^™''<=^- entailing assurance is confined to barring estates arising under the settlement, together with the reversion, if any, upon such estates. It follows, that no greater estate can be gained by any' disentailing assurance, than could by possibility have been made, by the settlor by whom the estate tail was created. In this- respect, the operation of a modern disentailing assurance is exactly co-extensive with the operation of a common recovery. Digitized by Microsoft® 288 THE NATURE AND QUAMITM OF ESTATES. The disentailing assurance (assuming, of course, that it pur- ports to convey the lands for a fee simple) will have this, its utmost possible operation, in each of the following cases : — (1) If the tenant in tail by whom it is made is tenant in tail in possession ; or (2) If, though not in possession, he is entitled to the imme- diate remainder, or reversion in fee simple upon his estate tail ; or (3) If, though he is neither in possession nor entitled to the immediate remainder or reversion in fee simple, the disentailing assurance is made with the consent of the protector of the settlement. Such consent must be given either by the same assurance, or by a deed to be executed on or before the day on which the assurance is made. (Sect. 42.) In all other cases the assurance will bar only the estate tail, and thus create a base fee. The Protector of the Settlement under the Fines and Recoveries Act. General In general, the protector of the settlement is the owner of the the protector. ^^^ estate for years determinable on the dropping of a life or lives or other greater estate — such estate not being held ixnder a lease at a rent — which is prior to the estate tail, and is subsisting under the same settlement, or is confirmed or restored by the same settlement. (Sects. 22, 25, 26.) It has not actually been decided, but if the case should arise it probably will be decided, that where the prior estate which qualifies the protector is held by one person upon trust for another, the person entitled to exercise the powers of protector is the cestui que trust, and not the trustee. (See Re Ainslie, Ainslie v. Ainslie, 33 W. E. 148.) This case is to be distin- guished from the case where all the estates are equitable ; when the protector of the equitable estate tail is the equitable tenant for life. {Re Budson's Contract, 8 Ch. D. 628.) Digitized by Microsoft® THE ALIENATION OF FEES TAIL. 289 The protector retains his powers, notwithstanding any in- cumbrances upon, or absolute disposition of, his estate, and not- withstanding his bankruptcy or insolvency. (Sect. 22.) An estate by the curtesy taken by a husband in respect of Estate by the ■^ J J i: curtesy, and any estate created by the settlement, may be a prior estate by resulting within the meaning of the preceding paragraph. (Sect. 22.) So also may an estate which yests in the settlor by way of resulting use. {IMd.) But no tenant in dower, and (except in the case provided for Tenants in by sect. 31) no bare trustee, or heir, executor, administrator, or trustees, assign, can be protector ia respect of any estate taken in any tors^'adrnMs- of such capacities respectively. (Sect. 27.) trators, and '■ s. J \ / assigns The case of a bare trustee in sect. 31 refers only to settle- excluded, ments made before 28th August, 1883. The mention of the heir, executor, and administrator seems to refer to an estate taken either by special occupancy or by virtue of the "Wills Act, 7 WiU. 4 & 1 Yiot. c. 26, s. 6, upon the death of the owner of an estate piir autre vie who in his lifetime had been protector. The enactment respectiag the assign imports that no person who is protector can, by any absolute disposition of his estate made after the commencement of the Act, convey the protector- ship to an assignee ; which supplements the provision of sect. 22, that the protector shall continue to be protector although his estate may have been absolutely disposed of. As to assignments of the prior estate, made before the commencement of the Act, see sect. 29. In ascertaining which estate qualifies the protector, ia any case coming within the foregoing provisions, the estate which is thereby excluded is deemed to be non-existent, and the next subsequent estate (being such as to fulfil the relevant conditions) is the qualifying estate. (See sect. 28.) If there are concurrent owners of the prior estate, each is sole Concurrent ownGrs protector to the extent of such undivided share as he could dispose of. (Sect. 23.) The settlor may by the settlement appoint any number of Special pro- persons in esse, not exceeding three and not being aliens, to be pointed by C.R.P. u ^^**'°'^- Digitized by Microsoft® 290 THE NATURE AND QUANTUM OF ESTATES. Trustee of executory- settlement may appoint protector. Disclaimers and appoint- ments must be by deed inroUed. During- a total vacancy of the special protectors, the general protector may act. protector ; and may insert a power to fill up vacancies occurring by death or retirement. (Sect. 32.) The person who would otherwise (as owner of the prior estate) he the protector, may he one of such persons. {Ibid.) Any person or persons who may be appointed under such a power of filling up vacancies, jointly with any person continuing in the ofiBce of protector, seem together to constitute the protector. (Ibid.) If a settlor directs a settlement to be made instead of mating it, the trustee upon whom devolves the duty of making the settlement is the settlor for the purposes of sect. 32 of the Act ; and the court wHl not, without good reason, interfere with his discretion to appoint a protector. (Per ShadweU, Y.-C, Bankes V. Le Despenccr, 11 Sim. 608, at p. 527.) A person so appointed may relinquish the ofiice by deed inrolled in chancery within six calendar months after its execu- tion. (Sect. 32.) During a partial vacancy the survivors may act. [Bell V. HoUly, L. E. 15 Bq. 178.) New appointments under the power must likewise he made by deed inrolled. (Sect. 32.) If a total vacancy of the persons so appointed shall take place by death or relinquishment, the person who would otherwise be protector, may, during such vacancy, act as sole protector, unless the settlor shall otherwise direct. (Sect. 32. And see Clarke V. Cliamherlin, 16 Oh. D. 176.) Where settlor excludes the general pro- tector and appoints no substitute. Married woman pro- tector. If the settlor declares in the settlement that the person who, as owner of a prior estate, would be entitled to be protector, shall not be protector, but omits to appoint any person to be protector in his stead, then the Court of Chancery (now the Chancery Division) is the protector, as to the lands in which such estate is subsisting and during the continuance of the estate. (Sect. 33.) As to the transfer of Jurisdiction, see 36 & 37 Yict. c. 66, ss. 16, 34. Husband and wife jointly are the protector, in respect of an estate which would have qualified the wife, if sole ; unless it is settled, or agreed or directed to be settled, by the settlement, to her separate use, in which case she alone is the protector. (Sect. 24.) The Married Women's Property Act, 1882, does not seem Digitized by Microsoft® THE ALIENATION OF FEES TAIL. 291 to make the concurrence of the hushand as protector unneces- sary, in any case in which it would have been necessary if that Act had not been passed ; because the only cases specified in the Fines and Recoveries Act, s. 24, in which the concurrence of the husband is not required, in respect of a prior estate which would have qualified the wife, if single, to be the protector, are cases in which the prior estate is by the settlement either settled, or agreed or directed to be settled, to her separate use. But the question does not appear to have been foreseen, and it must be answered with some caution. The concurrence of a husband who is ixader disability or living Husband's apart from his wife, may be dispensed with by an order of the how may be Court of Common Pleas (now the Queen's Bench Division) ^'^fj^'^'^'^'^'^ unless the Lord Chancellor, or the Court in Lunacy, is protector of the settlement in lieu of the husband. (Sect. 91.) As to the transfer of jurisdiction, see 36 & 37 Yiot. c. 66, ss. 16, 34 ; and the Order in Council, dated 16th December, 1880, for the consolidation and union of certain Divisions of the High Court of Justice. Special provision is also made for the following cases of Special cases ,,,.,., of disability. disability : — (1) If the protector is a lunatic, an idiot, or a person of Lunatic. unsound miud, the Court in Lunacy is protector in his stead. (Sect. 33. And see, as to the jurisdiction, 15 & 16 Yict. c. 87, s. 15 ; 14 & 15 Yict. c. 83, s. 13.) If one protector out of several becomes incapable, it is at least questionable whether the Court can act in lieu of such person without the concurrence of the others. {Bankes v. Le Despenccr, 11 Sim. 508, at p. 528.) (2) If any person — (i) being protector, is convicted of treason or Traitor or „ , felon. felony; or (ii) not being the owner of a prior estate, is Wben special protector (that is, has been appointed protector by mfant ^^^^'^ the settlor, under sect. 32) and is an infant ; or (iii) if it is uncertain whether any such last- or his exist- mentioned person is living or dead : then uncertain. the Court of Chancery is protector in such person's tj2 Digitized by Microsoft® 292 THE NATURE AND OUANTUM OF ESTATES. stead. (Sect. 33.) Though the ease of a person con- victed of treason or felony is only referred to in the section, and no express provision is made to meet it, the section extends to such cases. {Re Wainewright, 1 PhUl. 258 ; Re Gravenor, 1 De G. & Sm. 700.) Where the prior estate has been assigned, or mortgaged, before 31st Dec. 1833. An assignment, or mortgage, of a prior estate made before 31st December, 1833, v^ill make the assignee, or mortgagee, protector, if and so long as it makes him the proper person, if this Act had not been passed, to have made the tenant to the 2Jrcecipe for suffering a common recovery. (See sect. 29.) The " proper person " here contemplated is, in general, the person actually seised of the immediate freehold ; but, in cases where the lands are held by a lessee for lives at a rent, the " proper person " seems to be either the person actually seised of the immediate freehold, or (until after the repeal, in 1867, of the next-cited statute) the person who, by 14 Greo. 2, c. 20, s. 2, was enabled, in such cases, to make a substituted tenant to the prcecipe. [Vide supra, p. 282.) The Act gives no fresh power to de- stroy charges and convey- ances of remainders and rever- sions in fee, made before 31st Dec. 1833. If the owner of a remainder or reversion in fee simple upon a fee tail, has charged or conveyed away such remainder or rever- sion before 31st December, 1833, and is the person who would, by the preceding rules, be the protector of the settlement, and would be enabled to concur as such protector in barring such remainder or reversion, but could not have effected the same end without having become such protector, then the person who, if the Act had not been passed, would be the proper person to have made a tenant to the prcecipe, is the protector of the settle- ment. (Sect. 30.) But for this provision, it might have happened, that incum- brances of remainders and reversions upon an estate tail, would have been prejudicially affected by the barring of the estate tail, together with the remainders and reversions, under the Act, under circumstances in which they would not have been affected if the Act had not been passed. Bare trustee, Under a settlement made before the passing of the Act, ni°nt''made^" namely, 28th August, 1833, a bare trustee is protector if and Digitized by Microsoft® THE ALIENATION OF FEES TAIL. 293 SO Ions' as he would have been the proper person, if the Act before 28th ° J:' Jr- I- ' August, 1833. had not been passed, to make the tenant to the prmcipe. (Sect. 31.) The obscure phrase " bare trustee " was probably meant to Meaning of refer only to trustees to preserve contingent remainders, in cases where the preceding tenant for life under the settlement took only a term of years without impeachment of waste, determin- able upon the dropping of his own life. In such a case the immediate freehold would be in the trustees, and they would, in general, have been the proper persons, if the Fines and Recoveries Act had not been passed, to make the tenant to the prcecipe for suffering a common recovery. The same phrase is also found in the Charitable Trusts Act, 1853, 16 & 17 Vict. c. 137, s. 50, the Vendor and Purchaser Act, 1874, 37 & 38 Vict. c. 78, s. 5, and the Land Transfer Act, 1875, 38 & 39 Vict. c. 87, s. 48, where its meaning is scarcely elucidated by the dicta contaiaed in the cases of Christie V. Ovington, 1 Ch. D. 279, and Morgan v. Sioansea Urhan Sanitary Authority, 9 Oh. D. 582. Assurances not operating under the Act, and Assuranoes by way of Mortgage. No disposition made under the Fines and Eecoveries Act by a tenant in tail (except a lease for not more than twenty-one years, to commence in possession or within twelve months from the date, at a rent not less than five-sixths of a rack-rent) has any operation under the Act, unless it is inroUed in the Court of Chancery (now the Chancery Division) within six months after its execution. (Sect. 41.) It follows that the operation of any assurance by tenant in tail, wanting inrolment, remains the same now as it would have been before the Act. It is now clearly settled that by such conveyance, if purport- Assurances ing to convey the whole estate of the tenant in tail, the assign egect^ under takes a base fee, liable to be determined, after the death of the ^^^ -f^* create a voidable tenant in tail, by the entry of the issue in tail. {Machil v. Chrk, base fee, Digitized by Microsoft® 294 THE NATURE AND QUANTUM OF ESTATES. 2 Salk. 619, Ld. Eaym. 778, 7 Mod. 18, overruling Took v. Glascocls, 1 Wms. Saund. 260. See also Ooodright v. 3Iead, 3 Burr. 1703; Doe v. Rivers, 7 T. E. 276; Doe v. Whichelo, 8 T. E. 211.) The words in Litt. sects. 613, 650, wHch seem to import that the assign takes an estate pur autre vie only, must be understood to mean, that his estate is liable to be determined upon an event which would ijiso facto determine an estate pur autre vie. (See 3 Eep. 84 b ; Stone v. Newman, Cro. Car. 427, at p. 429.) That the estate of the assign is of inheritance, is proved by the fact that his wife was entitled to dower out of it, during its continuance; that is to say, until the base fee was in fact defeated by the entry of the issue in tail. (3 Eep. 84 b ; 10 Eep. 96 a.) A defeasible base fee, created in manner aforesaid, by means of lease and release, might be confirmed by a fine levied by the releasor after the death of the releasee. {Doe v. Whichelo, 8 T. E. 211. See also, as to a recovery, Stapilton v. Stapilton, 1 Atk. 2 ; though the question rather referred to the validity of a covenant to suffer a recovery than to the effect of the recovery if suffered.) Assurances There was a strong disposition on the part of courts of equity mortgage. to restrict the effect of any assurance made by way of mortgage, to the purposes of the security, and not to permit it to have any effect upon the rights of the persons entitled to the equity of redemption, unless there was very clear evidence of an intention to affect those rights.* The question, therefore, was always liable to arise, when a tenant in tail was a party to a mortgage, whether the legal estate conveyed by the mortgage deed should be deemed to be on foot for all purposes, or whether, upon the redemption of the mortgage, the estate tail should be deemed to be revived in equity. In order to prevent these questions from arising, sect. 21 of the Act provides, in effect, that if the estate conveyed by the mortgage deed is an estate pur autre vie, or a term of years, or where a mere charge is created without any estate to support it, such estate or charge shall in equity take * Many of the cases upon this subject are cited in Phmley t. Felton, 14 App. Cas. 61. Digitized by Microsoft® THE ALIENATION OF FEES TAIL. 295 effect only for the purposes of the mortgage, but that, in any other case, the estate created by the mortgage deed shall take effect for all purposes whatsoever, and notwithstanding that a contrary intention may be expressed or implied in the deed. Modern Statutory Powers. There is no doubt that a tenant in tail, whether legal or The Settled equitable, has power, by virtue of sect. 46 of the Settled Estates Act, 1877, to make such leases of the settled land as are therein specified. But that enactment confers upon a legal tenant in tail no power which he might not exercise by virtue of the Fines and Recoveries Act, without being fettered by the restric- tions imposed by the Settled Estates Act. These restrictions were designed with a view to leases granted by the other persons having less estates than a tenant in tail, who are empowered to grant leases by the same enactment. A tenant in tail, when his estate is in possession, has the The Settled powers conferred upon a tenant for life under a settlement by i882. ' the Settled Land Act, 1882. This provision includes a tenant in tail after possibility of issue extinct ; also a tenant in tail who is restrained by statute from barring his estate tail, and although the reversion is in the crown, but not a tenant in tail so restrained in respect of land purchased with money provided by parliament in consideration of public services. (See sect. 58, sub-s. 1, i, and vii, of the Act.)* * These statutory powers are in practice exercised only by tenants in tail who, by reason of special circumstances, are precluded from barring the entail, and by trustees and committees on behalf of tenants in tail who are infants or lunatics. The special circumstances which might preclude a tenant in tail from exercis- ing the power to bar the entail conferred by the Fines and Recoveries Act, are in practice twofold. (1) Many estates have been settled by private Acts of Parliament, in which is inserted a clause prohibiting the tenant in tail for the time being from barring the entail ; Digitized by Microsoft® 296 THE NATURE AND QUANTUM OF ESTATES. A list of the last-mentioned powers will be found at the close of Chapter XXIII., infra. Although these powers comprise a power of sale, and the tenant in tail may, by virtue of sect. 20 of the Act, execute assurances which are effectual to pass to a purchaser the land discharged from all the limitations, powers, and provisions of the settlement, and from all estates, interests, and charges sub- sisting or to arise thereunder, it must not be supposed that the provisions of the Settled Land Act, 1882, in any degree render superfluous or obsolete the provisions of the Fines and Re- coveries Act. Assurances executed by a tenant in tail by virtue of the Settled Land Act, 1882, have no operation to bar the entail, so far as the benefit of ownership conferred by it is concerned ; but only transfer its operation, by virtue of sect. 22, to the proceeds of the sale, and the investments representing the same. (2) Wien tlie remainder or reversion upon an estate tail was vested in the crown, a recovery suffered by the tenant in tail would not, at the com- mon law, have barred the crown's estate ; and by the Act to embar feigned recoveries, 34 Hen. 8, c. 20, such recoveries were made void also as against the heirs in tail. It was at one time a not uncommon practice for tenants in fee simple to surrender their lands to the crown and to take back only an estate tail, the reversion in fee simple remaining in the crown. The law distinguished between these cases, in which the reversion came to the crown practically by the disposition of a settlor, and cases in which the reversion remained in the crown by reason of a hon&fide grant of a fee tail d^ novo by the crown ; and cases of the latter class only, which are presumed by the law to be intended as a reward for public services, were held to be within the Act to embar feigned recoveries. (Co. Litt. 372 b, 373 a.) And if a reversion came hack to the crown after having once been severed, it was no longer within the protection of the Act. {Earl of Chesterfield'' s Case, Hard. 409.) The Act did not extend to Ireland. (Lord Nott. MSS. cited Butl. n. 3 on Co. Litt. 372 b.) Therefore, in Ireland base fees upon which the reversion is in the crown are much more common than in Kngland. Digitized by Microsoft® ( 297 ) CHAPTER XXII. BASE FEES. The earliest (not to say the only) attempt to define the term The general base fee with which the present writer is acquainted, is that a base fee. given by Plowden ; * and his definition is substantially as follows : — A base fee is a fee descendible to the heirs general, upon which subsists a remainder or reversion in fee simple. Here the descent to the heirs general distinguishes it from a fee tail, where the descent is to the heirs of the body ; and the existence in expectancy upon it of a remainder or reversion, distinguishes it from all other fees that descend to the heirs general. The conditions laid down by this definition can only be ful- filled t by the conversion of a fee tail into a fee descendible to the heirs general, by some method which does not destroy the remainder or reversion previously subsisting upon the fee tail. For no fee descendible to the heirs general which arises by mere limitation, can have subsisting upon it any remainder or rever- sion. (Co. Litt. 18 a.) From these considerations it follows that a base fee is either — (1) The estate taken by the grantee, under any assurance by a tenant in tail which is effectual to bar the issue in tail (or, at least to put the issue in tail, even after his right has accrued in possession, to a right of entry), but is ineffectual to bar the remainders (if any) or reversion expectant upon the estate tail ; or * " A third estate in fee may be called a base fee, and that is, where A. has a good and absolute estate of fee simple in land, and B. has another estate of fee in the same land, which shall descend from heir to heir, but which is base in respect of the fee of A., as being younger than the fee of A., and not of absolute perpetuity as the fee of A. is." Plowd. 657. He proceeds to specify the case of a tenant in tail attainted of high treason. t Xfnless the case mentioned at p. 305, infra, with reference to sect. 65 of the Conveyancing Act of 1881, is an exception to the rule. Digitized by Microsoft® 298 THE NATURE AND QUANTUM OF ESTATES. (2) When an estate tail is barred to the same extent, but by the mere operation of law without the execution of any assurance, a base fee is the estate taken by the person entitled to the benefit of such legal bar. It is believed that the following attempt is the first ever made to give a complete list of the methods by which a base fee may now arise, or might formerly have arisen : — List of Base Fees. (1) Before the Fines and Eecoveries Act a base fee in lands might have arisen by the operation of a fine with pro- clamations, levied by a tenant in taU, who was not also entitled to the remainder, or reversion, in fee simple expectant on the estate tail. The operation of the fine barred not only the issue of the person by whom it was levied, but aU issue inherit- able under the entail. (1 Prest. Est. 437, 438.) (2) A base fee in lands may now, under the Fines and Eecoveries Act, arise by the operation of an assurance made by a tenant in tail, which is insufficient to bar the estates subsequent to the estate taU, but is sufficient to bar the issue in tail.* {Vide supra, pp. 287, 288.) (3) Closely analogous to the foregoing, are base fees created by statutory assurances executed by the commissioners in bankruptcy with regard to the property of bankrupt tenants in tail. * It is conceived that if the tenant in tail has power to har not only the estate taU, but also the subsequent estates — that is, if there is no protector, or if the tenant in tail is entitled to the immediate remainder or reversion in fee simple — then he is unable to create a base fee. The base fee is created, by operation of law, whenever the tenant in tail purports to convey a fee simple, but, by reason of the law, the assurance is void except as against the issue in tail. A tenant in tail, having absolute power as above mentioned, cannot adopt this device, because the assurance would effectually convey a fee simple ; and if he should convey to the use of another person and his heirs, so long as the tenant in tail should have heirs of his body, this would not be a base fee, but a determinable fee. On the distinction between these two estates, ride infra, p. 302. Digitized by Microsoft® BASE FEES. By virtue of 21 Jac. 1, o. 19, s. 12, a bargain and sale, hj deed indented and inroUed within six months in one of the superior courts at "Westminster, executed by the commissioners, or the majority of them, of any real estate of which any bankrupt was seised for an estate tail, in possession, reversion, or remainder, would have barred all claims to the same extent as the bankrupt might have barred them. Therefore in cases where the bankrupt might have conveyed a fee simple, such bargain and sale would convey a fee simple. But where he could have barred the estate tail, without having power to bar the remainders and reversion, such bargain and sale would create a base fee. (1 Brest. Abst. 172—174.) Before this Act there was no power to make intaUed property available for the benefit of the creditors, further than for the life of the bankrupt. This enactment was repealed by 6 Greo. 4, c. 16, s. 1 ; but a similar provision was made by sect. 65 of the last- cited Act, which was repealed by the Fines and Ee- coveries Act, s. 65, provision being made, in sects. 56 — 73, for the extension of the powers given by the last- mentioned Act to cases of bankruptcy. Those sections are incorporated into the Bankruptcy Act, 1883, by sect. 56, sub-s. (5) thereof. (4) Although a rentoharge is not a subject of tenm'e, and therefore is not a tenement in the strictest sense of the word, yet for some purposes it is in law accounted a tenement ; and a rentcharge which is ah-eady in esse under a limitation in fee simple, is a tenement within the meaning of the statute JDe Bonis, and admits of being intailed by virtue of that statute. A tenant in tail of a rentcharge under such an entail might formerly, by suffering a common recovery, have obtained a fee simple of the rentoharge, in all cases in which, if the estate tail had been an estate in lands, he might have obtained a fee simple of the lands. But a tenant in tail of a rentcharge may also be made de novo upon the limi- tation of the rent itself, and without the creation of any Digitized by Microsoft® 299 300 THE NATURE AND QUANTUM OF ESTATES. remainder over in fee simple. Such a tenant in tail stands in a different position from that of a tenant in tail subsisting under an entaU of a rentcharge which was in esse as a fee simple before the making of the entail. By suffering a common recovery, he did not acquire a fee simple, but only barred the issue inheritable under the entail ; that is to say, he acquired a base fee ; and, upon a failure of issue so inheritable, the rent became extinguished in the land. (Butl. n. 2 on Co. Litt. 298 a ; 1 Prest. Conv. 3.) (5) It is conceived that, at the present day, any disentaihng assurance executed by a tenant in tail of a rentcharge created de novo as above mentioned, which purports to create a fee simple, would create a base fee. (6) At the common law, before the passing of the Act to embar feigned recoveries, 34 & 35 Hen. 8, c. 20, a base fee in lands might have arisen by the operation of a common recovery suffered by a tenant in tail, when the remainder, or reversion, in fee simple expectant on the estate tail, was vested in the crown. Under such circumstances the recovery would have barred the issue in tail, but not the crown, by reason of the crown's prerogative. (Dy. 32 a, pi. 1.) The last-mentioned Act enacted, that such a recovery should not bind the heirs in tail, nor can such tenants in tail now make any disposition under the Fines and Eecoveries Act. (For some remarks upon this Act, ride supra, p. 295, note.) (7) During the interval which elapsed between the 26 Hen. 8, c. 13, whereby fees tail were made liable to forfeiture for high treason, and the 33 & 34 Yiot. c. 23, whereby forfeiture was abolished, a base fee in lands would have arisen, in favour of the crown, upon the attaiuder of a tenant in tail for high treason, which endured so long as there was in existence either the donee in tail or any issue capable of haviag inherited under the entail. Digitized by Microsoft® BASE FEES. 301 {Wakmgham's Case, Plowd. 547, see p. 557; Sione v. JSfeicman, Oro. Car. 427.) (8) Before the extinction of villenage, if lands had been given in fee tail to a villein, the lord of the villein would have acquired, by entry upon the lands, a base fee contermi- nous with what would have been the duration of the fee tail if it had remained in the villein and his heirs in- heritable under the entail. (Co. Litt. 18 a.) If the lord had subsequently enfranchised the villein, the enfranchisement would not have affected the duration of the base fee. {Ibid. 117 a.) (9) Similarly if, before the Naturalization Act, 1870, 33 Yict. c. 14, s. 2, lands had been given in fee tail to an alien, and had been seized on the part of the crown after office found, a base fee would have been vested in the crown. If the alien had subsequently been made a denizen, this would not have affected the duration of the base fee. (Co. Litt. 117 a.) The last-mentioned Act enacts, that real and personal property of every description may be taken, acquired, held, and disposed of by an alien in the same manner in all respects as by a natural-born subject. This kind of estate, therefore, endures so long only as there is in existence either the donee in tail or any issue inheritable by force of the entail. It has also been suggested (Plowd. 657) that, under certain circumstances, a base fee might arise — (10) When the issue in tail was outlawed for felony, and in the lifetime of his ancestor obtained a pardon. The result would of course be the same upon an attainder by judgment. In such a case it has been suggested that the heir of the donor could not enter, because there was still living issue of the donee ; and the issue could not lawfully enter under the entail, for want of inheritable Digitized by Microsoft® 302 THE NATURE AND QUANTUM 0¥ ESTATES. blood, which was not restored by the pardon. In the case referred to by Plowden, the issue entered; and some thought that he had gained by his entry a base fee conterminous with the entail, but others thought that he had gained only an estate for his own life. Base fees of any of the kinds above described are not properly said to be liable to be determined, — which phrase properly refers to the voluntary assertion of a hostile claim, — though they are determinable upon the happening of the event which would have determined the estate tail in which they had their origin. There exists one other species of base fee, which is not only determinable in the latter sense, but is, in the proper sense of the phrase, liable to be determined : — (11) Any assurance made by a tenant in tail which purports to convey his whole estate, but is not effectual to bar the issue in tail of their right, will create a base fee liable to be determined by the entry of the issue in tail after the death of the tenant in tail who made the assurance. {Vide supra, p. 293.) Determinable fee conter- minous Tvitli base fee. A doubt suggested. Disoiiesion of tbe question. An estate of the like duration with a base fee may arise as a determinable fee, by an express limitation to A and his heirs so long as B shall have heirs of his body. ( Vide supra, p. 229, No. 9.) But it may be doubted whether, if B is living at the date of the limitation, it can take effect in possession until the death of B ; because. Nemo est heres viveiitis. If this view is well founded, such a limitation during the life of B must be by way either of executory limitation or of contingent remainder. The authorities do not lend much countenance to this view. The language of the " apprentice of the Middle Temple " in Plowden, v/ho was probably Plowden himself, implies, if it is to be construed strictly, that an estate in possession might be created under such a limitation during the life of B. He lays it down that, " if land is given to a man and to his heirs, as long as J. S. shall have heirs of his body, then he to whom the land is given has a fee simple, but his estate is determinable Digitized by Microsoft® BASE FEES. 308 upon the death of J. S. ■without issue, for then the fee is ended, and the feoffor shall have the land again." (Plowd. 557.) This language seems to suppose J. S. to he living at the date of the limitation ; and if the determinahle fee had heen granted by way of contingent remainder, it is not true that the feoffor ■would necessarily have " had the land " upon the death of J. S. ■without issue ; because this event might possibly have happened during the contiauance of the precedent estate. Therefore Plo^wden's language seems to imply that, in his opinion, such a limitation, though in possession, made during the lifetime of the person ■whose heirs are mentioned, -would be good. It is possible that Plo^wden's attention was not directed to the point. But the same assumption seems also to have been made by Watkins, in his -work on Descents, at p. 211 ; -where he dis- cusses a different question ; namely, ■whether the fee (which he loosely styles a base fee) ■would determine absolutely by the death of B ■without issue born but leaving his ■wife enceinte, or •whether a subsequent birth of issue would revive it as against the person entitled in reverter. Here also, as in Plo^wden's case, it is not absolutely certain that Watkins' attention ■was directed to the point ; but the inference in favour of this -vie^w is much stronger, by reason both of the greater clearness of his language and of the more direct bearing of the point upon the question ■which he is discussing. The other authorities seem to afford no clear inference. The argument drawn from the maxim, Nemo est heres viventis, \hoTxg\i. prima facie it is a very strong one, cannot be regarded as conclusive ; because, in the limitation of conditional fees, the •words heirs of the body -were, for some purposes, used to denote the issue during the lifetime of the ancestor. In so far as they imported a quasi- condition, the condition "was fulfilled by the birth of issue during the ancestor's lifetime : a usage which bears a close resemblance to the use of the words in the limita- tion of this kind of determinable fees. At the same time, there seems to be no doubt that a limitation " to A and the heirs of the body of his father," will, if the father is living, create an estate tail by way of contingent remainder, expectant upon an estate for life in A, which cannot vest until the father's death ; Digitized by Microsoft® •^04 THE NATURE AND QUANTUM OF ESTATES. when it will vest in the person who at that time can bring him- self within the description, as heir to the body of the father, and he will take as tenant in tail by purchase. (3 Prest. Conv. 77—79.) Merger. At the common law, a base fee would merge in the remainder or reversion in fee simple, both estates being vested in the same person without the existence of any intermediate estate. (3 Prest. Conv. 240.) Whence it followed that if a tenant in tail, having also an immediate remainder or reversion in fee simple, by a fine vested in himself a base fee, the latter estate was destroyed by merger, and all incumbrances affecting the re- mainder or reversion were let in. They were technically said to be accelerated. But a purchaser could not, under the old practice, rely upon this as a valid objection against a title in fee simple depending upon a fine levied by a tenant in tail, without showing that the reversion was in fact affected by some incumbrance. (1 Prest. Abst. 7.) By virtue of the Fines and Recoveries Act, s. 39, enlargement is now, in the case of a base fee, substituted in lieu of merger. ( Vide supra, p. 84.) On the descent of It will be observed that the theory of base fees, as outlined in Plowden's definition, assumes the truth of the proposition, that when a base fee and a reversion in fee simple thereupon subsist at the same time in the same land, (which can only be effected by operation of law and not by mere limitation or conveyance,) the base fee descends "from heir to heir"; which language, since there is nothing to suggest special heirs, must mean that it descends to the heirs general. Preston has remarked that when an estate tail was turned to a base fee by a fine, the descent of the base fee followed the common law, descending to the heir general, not to the special heir. (1 Prest. Abst. 372 ; ibid. 404.) If the cases cited by him {Beaumont's Case, 9 Eep. 138, 2 Inst. 681, and Baker v. Willis, Cro. Car. 476) should seem hardly to establish this propo- sition, it seems nevertheless to follow from the fundamental rule, that the common law heir can be displaced only by means of Digitized by Microsoft® BASE FEES. 305 special limitations referring to the heirs of the body ; * because, in the case supposed, no such limitation existed. The same doctrine seems necessarily to apply to all base fees which arise without express limitation. It will not necessarily apply to base fees arising by express limitation, including base fees created by the alienation of a tenant in tail in remainder, with- out the consent of the protector of the settlement under the Fines and Eecoveries Act, ss. 15 and 34 ; because a base fee so created might by possibility take the form of a fee tail vested in another person. But limitations in this form do not occur in practice; and perhaps the estate arising under them might with greater propriety be styled a fee tail derived out of a fee tail, than a base fee. Such a secondary fee tail would of course be liable to be determined by the determination of the primary fee tail out of which it was derived. It is remarkable that the question of the descent of base fees, arising by the barring of fees tail, has been little noticed. It seems to have been tacitly assumed, without the necessity for explicit mention, that when the law, whether mediately or immediately, devests a fee tail by barring the issue in tail, the novel fee thus created will, in the hands of the person entitled to the benefit of the bar, follow the ordinary com'se of descent prescribed by the common law, namely, to the heir general, t Sect. 65 of the Conveyancing Act of 1881, amended by whether a sect. 11 of the Conveyancing Act, 1882, enacts, that the residue be^afeTs^ple of any such long term of years as is therein specified may be absolute. enlarged into a fee simple, by virtue of the Act, in the manner therein prescribed. It is perhaps not clear what will become of * ' ' The rule of the common law is, you shall not make a person heir, or give him the character or the rights of an heir, hy a special limitation, unless he be the heir by the rule of law. The statute Be Bonis gave the donor, •with reference to estates tail, the power of making special heirs inheritable under the entail." (1 Prest. Est. 475.) t Compare the resolution of the judges, that the Isle of Man, though no part of the kingdom, yet, being granted under the Great Seal of England to Sir Jcjhn Stanley and his heirs, was descendible according to the course of the common law. (Co. Litt. 9a; 4 Inst. 284.) Impropriate tithes of gavelkind lands do not descend in gavelkind, but by the rules of the common law. {Boiighmn v. Sandys, 2 Sim. 95, at p. 154.) O.K. P. X Digitized by Microsoft® 306 THE NATURE AND QUANTUM OF ESTATES. Reasons for tte afSrma- tive conclu- sion. the reversion upon the term under such oiroumstances. On the one hand, two fees simple cannot, by the common law, subsist at the same time in the same lands ; whence might be drawn the inference, that the reversion is absolutely destroyed. On the other hand, the rule of the common law, that a reversion in fee cannot be expectant upon another fee, may be suspended by force of a statute, and it has iu fact been suspended by the statute De Bonis. The question does not appear to have been foreseen. The answer which, by the analogy of the law, it ought to receive, is doubtful ; and the answer which it will in fact receive cannot be predicted with confidence. If the rever- sion is not destroyed by the enlargement, the fee simple ob- tained by the enlargement will subsist as a base fee. No other example can be suggested of a base fee which is a fee simple absolute. This fact might perhaps be thought to aiford a sufii- cient reason for holding that the reversion is destroyed by the enlargement. But the case is by no means analogous to the enlargement of a base fee effected by sect. 39 of the Fines and Recoveries Act ; because in the case of a long term it is expressly enacted by the Conveyancing Act of 1881, s. 65, sub-s. (4), that the fee simple acquired by enlargement shall be subject to all the same covenants and provisions relating to user and enjoyment as the term would have been subject to if it had not been so enlarged. It is possible that, in the view of its framers, this provision was intended to apply only to covenants and pro- visions imposed upon the term subsequently to its creation ; and no doubt the modes in which such long terms have commonly arisen, make it improbable that hitherto such covenants and provisions have been imposed upon them at the time of their creation. But the enactment contains nothing thus to restrict its meaning ; which cannot, without gratuitously importing into it something which it does not in fact contain, be made to exclude covenants and provisions imposed upon a long term at the time of its creation. The present writer has been informed that, in reliance upon these considerations, the enactment has been used by some conveyancers as a device whereby to annex to a fee simple certain covenants which would not " run with the land " at the common law. If this view (which seems to be more than plausible) should be supported, the person formerly entitled tp Digitized by Microsoft® BASE FEES. §07 the reversion, and his heirs, will be entitled to the benefit of such covenants ; and this might afford a reason for holding that the reversion remains still on foot, notwithstanding the enlarge- ment of the term. Enlargement of Base Fees. If a tenant in tail created a base fee by levying a fine, he At the com- nevertheless retained the power, by suffering a common recovery, to bar the remainders and reversion.* (2 Prest. Abst. 46.) The present writer apprehends that the effect of such a recovery was to enlarge the base fee into as great an estate as the tenant in tail could, before the fine, have obtained by a recovery ; that is, in general, a fee simple, t Since the 28th August, 1833, a base fee has ipso facto become Under the enlarged, by virtue of the Fines and Recoveries Act, s. 39, Kecoveriea whenever the base fee, and the remainder or reversion in fee simple, have been united in the same person, without any inter- mediate estate. The estate gained by the enlargement is as * In Barton v. Lever, Cro. Eliz. 388, it was lield that such a subsequent, recovery, when the fine had "been erroneous, was a bar to a writ of error by the issue in tail to reverse the fine ; and the reason given by the Court, at p. 389, was, that the recovery would have barred the entail itself, and therefore would bar the writ of error. This doctrine seems in reason to be equally applicable to the remainders and reversion. The proposition in the text is expressly stated, though formerly doubted, to be settled law, by Lord Hardwicte, in Solinson v. Gee, 1 Ves. sen. 251, at p. 253 ; and Feame, Posth. Works, 442, makes the same statement. t Because the effect of a recovery was to enlarge the estate tail, or rather, to free it from all restrictions : not to substitute for it the ultimate reversion in fee simple which existed before the recovery ; which is the reason why it let in all prior incumbrances made by the tenant in tail. And as the tenant in tail him- self and all the issue in tail were for ever precluded by the fine, so that the recovery could not enure to the benefit of the tenant in taU as recoveree, while it precluded all subsequent claimants, the result seems to be, that the title under the base fee became for ever unimpeachable ; which is the same thing as to say, that it was enlarged into a fee simple. Fearne seems to have been of opinion, that after the death of the tenant in tail who had himself levied the fine, the issue in tail could not suffer a recovery, (Feame, Posth. Works, 442 — 466.) But he admits that the courts woxdd be very likely to decide in favour of the recovery. x2 Digitized by Microsoft® 308 THE NATURE AND QUANTUM OF ESTATES. large an estate as the tenant in tail, witli the consent of the pro- tector, if any, might have created by any disposition under the Act, if such remainder or reversion had been vested in any other person ; that is, in general, a fee simple. When a base fee has been created by a disposition under the Act, the power of disposition by which the remainders and rever- sion could have been barred, remains still capable of being exercised by the person who would have been tenant in tail if the estate tail had not been barred, but, by sect. 35, only with the consent of the protector, if any. It follows that such person (with the consent of the protector, if any) might enlarge the base fee into as large an estate as could by possibility have been created under the Act at the time when the base fee was created. The tenant in tail who created the base fee is not prevented from enlarging it merely by the fact that he has conveyed it away to another person. [Banhes v. Small, 36 Ch. D. 716.) Under tie same Act, in case of bank- ruptcy. By virtue of sect. 67, the commissioner in bankruptcy has power, by a disposition for value, to enlarge a base fee, vested in the person who would have been tenant in tail if the estate tail had not been barred, when such person becomes bankrupt, pro- vided that there exists no protector of the settlement. By virtue of sect. 58, where there exists a protector, the commissioner with his consent can enlarge the base fee. By virtue of sect. 60, a base fee created by a disposition, under the Act, of a commissioner in bankruptcy, is qjso facto enlarged, in case at any time during the contiauance of the base fee there should cease to be a protector of the settlement. By virtue of sect. 61, a base fee vested in the person who would have been tenant in tail if the estate tail had not been barred, is ipso facto enlarged, if sold as therein mentioned, in case such person becomes bankrupt, and during the continuance of the base fee there ceases to be a protector of the settlement. These powers exeroiseable by the commissioners in bankruptcy seem to have been transferred to the Chief Judge in bankruptcy by the Bankruptcy Act, 1869, s. 128 ; and to be now vested in the bankruptcy judge of the High Court by the Bankruptcy Act, 1883, s. 94. Digitized by Microsoft® BASE FEES. 309 The Statute of Limitations, 3 & 4 Will. 4, o. 27, s. 23, is as Under „ , statutes of tollows : — Limitation. That when a tenant in tail of any land or rent shall have made an assurance thereof, which shall not operate to har an estate or estates to take effect after or in defeasance of his estate tail, and any person shall by rirtue of such assurance, at the time of the execution thereof, or at any time afterwards, be in possession or receipt of the profits of such land, or in the receipt of such rent, and the same person, or any other person whatsoever (other than some person entitled to such possession or receipt in respect of an estate which shall have taken effect after or in defeasance of the estate tail), shall continue or be in such possession or receipt for the period of twenty years next after the commencement of the time at which such assurance, if it had then been executed by such tenant in tail or the person who would have been entitled to his estate tail if such assurance had not been executed, would, without the consent of any other person, have operated to bar such estate or estates as aforesaid, then at the expiration of such period of twenty years such assurance shall be and be deemed to have been effectual as against any person claiming any estate, interest, or right to take effect after or in defeasance of such estate tail. It was the apparent intention of this enactment, ipso facto to enlarge a base fee, whenever and so soon as any person had, under the base fee, been in possession for twenty years after the date at which there ceased to be a protector of the settlement. This enactment was repealed, but substantially re-enacted, with the substitution of ticelve years for twenty, by the Real Property Limitation Act, 1874, 37 & 38 Vict. c. 57, s. 6. The scope of these enactments does not seem to be restricted Extended to the enlargement of base fees, which is, in effect, to make any enactments." assurance, purporting to convey a fee simple, valid as against the persons claiming after or in defeasance of the estate tail : they seem to be equally efficacious to make valid, in like manner, other assurances purporting to convey any less estate. For example, if a tenant in tail should, during the life of the protector and without his consent, jDurport to make a lease for 1,000 years, then, unless the estate tail should determine before the expiration of (formerly twenty, now) twelve years after the death of the protector, the lease would become ipso facto valid, for the whole of the term, as against not only the issue in tail, (against whom it would be valid in any case,) but also as against all persons claiming after or in defeasance of the estate tail. Digitized by Microsoft® 310 THE NATURE AND QUANTUM OF ESTATES. Specific per- formance of covenant to enlarge. The Court of Appeal has decided, in Bankes v. Small, 36 Ch. D. 716, that the coiirt has jurisdiction, as against the covenantor, to decree specific performance of a covenant to enlarge a base fee at a future date, entered into hy a tenant in tail at the time when he created the base fee. As above men- tioned, it makes no difference, for the purpose of enlargement, whether the base fee remains in the hands of the (former) tenant in tail who created it, or whether it has been conveyed to another person. If the covenantor should die before the arrival of the time specified, there would of course be no jurisdiction to decree specific performance of the covenant against any of the subse- quent issue in tail. Moreover, it is conceived that the decree could be enforced only by attachment for contempt, in case of disobedience ; and that the court has no jurisdiction to appoint another person, under the Supreme Court of Judicature Act, 1884, 47 & 48 Vict. c. 61, s. 14, to execute the requisite deed on behalf of a recalcitrant covenantor. Digitized by Microsoft® ( 311 ) CHAPTEE XXIII. AN ESTATE FOR THE LIFE OF THE TENANT. Under the phrase tenant for term of life, Littleton includes both a tenant for the term of his own life and a tenant for the term of another's life, or pur autre tie. (Litt. sect. 56.) But the latter tenancy is distinguished by some peculiar characteristics, which make its separate treatment desirable. To these, says Lord Coke, may be added a third, namely, for the lives of the tenant himself and of another person or persons, which limitation creates a single estate of freehold. (Oo. Litt. 41 b.) If the other person or persons die ia the lifetime of the tenant, this estate becomes thenceforward an estate for his life simply ; but otherwise this estate becomes subject, at his death, to the peculiar characteristics of an estate pur autre vie. The following is a complete list of estates for life or lives : — Division of estates for 1. An estate for the life of the tenant himself, including ^^ °'" ^°^ ° lives. (i) Estates arising by express limitation ; (ii) Estates arising only by implication ; (iii) The estate of tenant in tail after possibility of issue extinct ; (iv) The estate of a tenant by the curtesy ; and (v) The estate of a tenant in dower ; 2. An estate for the life of another person, or pur autre vie ; 3. An estate for the joint lives of several persons ; and 4. An estate for the life of the longest liver of several persons. Every tenant for life has by the common law, as incident to Eight to his estate, and without express grant, the right to take in ^* °^^^^- reasonable measure three kinds of estovers — housebote (which Digitized by Microsoft® 312 THE NATURE AND QUANTUM OF ESTATES. includes firebote), plouglitote, and haybote; unless lie be re- strained from taking them by special covenant. (Co. Litt. 41 b.) Such a covenant did not make the cutting of estovers waste, but only rendered the tenant liable in damages on the covenant. (Dy. 198 b, pi. 53.) To cut timber so far as may be necessary for these purposes, is not waste ; provided, of course, that the timber is in fact so used accordingly. (Co. Litt. 53 b.) If the tenancy arises under a settlement, the tenant's rights of user are always expressly provided for by the settlement; and in practice the tenancy for life is commonly declared to be without impeach- ment of waste. If the tenancy arises under a lease, the rights of the tenant are in practice provided for in the lease. Tenant for By the common law, a tenant for life under a settlement has settlement, as ^0 rights of usor, or power to deal with the land, other than from^tenant'^ those possessed by a lessee for life holding merely under a lease for life under at a rent. But modern social arrangements have firmly esta- a lease at a - . . . rent. blished a very great difference, as to their relation to the land, between a tenant for life under a settlement and a lessee for life or lives at a rent ; of whom the former is in practice the bene- ficial owner of the property, whose interest, either with his ovra. consent or by the settlement of an ancestor, has been cut down to a life estate, while a tenant for life under a lease at a rent, is merely a farmer holding under a lease for life instead of a lease for years. This distinction in status was recognized by 14 Geo. 2, c. 20, which enabled the consent of a tenant under a lease to be dispensed with on occasion of suffering a common recovery. (Vide supra, p. 282.) The same distinction has been enforced by several subsequent statutes, and most strongly by the Settled Land Act, 1882 ; by which extensive powers of alienation, enfranchisement, exchange, partition, leasing, and for other purposes, are conferred upon every person beneficially entitled to possession (which in that Act includes receipt of income) of settled land under a settlement, as defined in sect. 2, sub-s. (1) of that Act. The definition there given of a settlement accords with the usual meaning of the phrase ; and the definition of a tenant for life obviously includes a legal tenant for his own Ufe, beneficially entitled in possession. A list of these statutory powers will be found at p. 320, infra. The following remarks Digitized by Microsoft® AN ESTATE FOR THE LIFE OF THE TENANT. 313 will, in the absence of express mention, be restricted to such points connected with estates for life as do not seem to be affected by the statutes above referred to. An estate for life may arise iu any of the following ways : — How tenancy (1°) By express limitation to a grantee during his life ; (2°) By implication of law ; where a grant is made to a grantee by name, either without any words of limita- tion, or accompanied by words intended to take effect as words of limitation, but not by law capable of so taking effect as to limit any greater estate ; (3°) By the assignment of an estate pur autre vie to cestui que vie ; and (4°) By operation of law, on the arising of a husband's right to curtesy, or of a widow's right to dower. Any conveyance, otherwise valid and capable of taking effect, Estate for life which nominates a grantee, but neither limits nor purports to tiou"^ limit any estate, will, in the absence of any further indication, operate by implication of law to pass an estate for the life of the grantee. (Co. Litt. 42 a ; see also Litt. sect. 283.) Similarly, if the limitation is /or term of life, without saying for whose life (Co. Litt. 42 a.) But, in the latter case, an estate for the life of the grantor will pass, if the grantor might rightfully grant that estate, but could not rightfully grant for the life of the grantee. (Ibid. See also 183 a.) And the implication of law upon which the estate arises is liable to be rebutted by the manifesta- tion of a contrary intention. For example, if the words which would generally give rise to the implication should be in the premisses of a deed, the habendum may rebut the implication and expressly limit an estate for years, or at will ; and this restriction of the implication may be effectual, even though the habendum itself should be technically void as a limitation, and therefore not capable of taking effect otherwise than as a manifestation of intention. (See the 1st resolution in Buckler's Case, 2 Eep. 55. For further observations upon the relation between the premisses and the habendum, see p. 377, infra.) The addition to the name of a grantee of any words designed to serve as words of limitation, not being such as, either by the Digitized by Microsoft® 314 THE NATURE AND QUANTUM OF ESTATES. common law or by sect. 51 of the Conveyancing Act of 1881, are appropriated to the limitation of a fee, will not enable the assurance to pass any estate of inheritance ; and in general, wiU not enable the assurance to pass any greater estate than would have passed by the mere nomination of the grantee. But it has been held, by the Court of Exchequer, that the addition to the name of the grantee of the words, " his executors, adminis- trators, and assigns," in the premisses of a deed, will, when the grantor has an estate for his own life, expressly pass the whole estate of the grantor to the grantee, so as to make the habendum, if purporting to grant a less, or an impossible, estate, void for the inconsistency. (Soddington v. Robinson, L. E. 10 Bxch. 270.) For some remarks upon this case, see p. 97, mprci. Curtesy. To entitle the husband to be tenant by the curtesy of the wife's lands of inheritance after the death of the wife, the following circumstances are necessary : — (1) That the wife be seised during the coverture of an estate of inheritance to which issue of the marriage may possibly succeed as heir to the wife (Litt. sects. 35, 52) ; (2) That the estate be, or become during the coverture, an estate in possession ; (3) That seisin in deed (less properly styled actual seisin) be obtained during the coverture ; and (4) That issue be born alive. For some remarks upon the distinction between seisin in deed and seisin in law, see p. 205, supra. If the lands be subject to the custom of Kent, the curtesy is of a moiety only, and ceases on the re-marriage of the husband ; but such curtesy attaches without birth of issue. (Co. Litt. 30 a ; ibid. Ill a : and see on the subject generally, Eob. Grav. bk. ii. ch. 1.) Special custom may assign a different proportion, or the whole, to the husband. Digitized by Microsoft® AN ESTATE FOR THE LIFE OF THE TENANT. 31'5 The rule, that seisin in deed must be acquired during the As to seisin in coverture, applies in its full rigour only to lands. As regards other realty of which there is curtesy, a seisin in law suffices if circumstances make seisin in deed impossible : thus, of a rent, if the wife dies before it becomes due, or of an advowson, if she dies before the church becomes vacant. (Oo. Litt. 29 a.) Entry is not necessary to acquire seisin in deed of land, if there be a tenant for years of the land ; because his possession is the pos- session of the husband and wife, even before the receipt of rent from him. (Harg. n. 3 on Co. Litt. 29 a ; and see p. 206, supra.) Lord Coke (Oo. Litt. 40 a) refers the necessity for actual seisin to Littleton's words (sect. 52), that the issue must be such as may by possibility inherit as heir to the tvi/e : descent being traced before the Descent Act, 3 & 4 Will. 4, c. 106, from the person last seised. It would seem to follow, if he is right, either that there is now curtesy only of lands coming to the wife by purchase, or else that actual seisin has ceased to have any rele- vancy to the matter. In Eager v. Furnivall, 17 Ch. D. 115, it seems to have been assumed that the alteration of the rules of descent has not affected the necessity for actual seisin ; but the point was not raised. It was also assumed, that a seisin in law of lands would suffice, when a seisin in deed could not by any possibility be had. It is to be observed, that, in Eager v. FurnivaU, the im- possibility arose out of a peculiar state of circumstances caused by sect. 33 of the Wills Act, and was an absolute impossibility ; whereas, upon an actual descent at the common law, there could never be an absolute impossibility to obtain seisin in deed, but only a certain degree of difficulty which, however great in prac- tice, could not in theory be said to be insuperable. With regard to tenure, there is this difference between curtesy and dower, that tenant by the curtesy holds immediately of the superior lord, while tenant in dower holds immediately of the heir, and is attendant on him for one-third of the services. (Watk. Desc. 104, 105.) The Court of Chancery allowed to the husband a right, analo- Equitable gous to curtesy, which may be styled equitable curtesy, in """^ ^^^' Digitized by Microsoft® 316 THE NATURE AND QUANTUM OF ESTATES. Effect of a separate use for the wife. respect of equitatle estates having the same nature and quantum as legal estates which confer the right. (Harg. n. 6 on Co. Litt. 29 a.) The phrase equitahle estates here includes an equity of redemption, see Casborne v. Scarfe, 1 Atk. 603 ; also trust money held upon trust for investment in land, see 8weetap23le v. Bindon, 2 Yern. 536. The doubt expressed in the last-cited ease, whether curtesy should he allowed if the trust arose under marriage articles, is disposed of by Cunning/mm v. Moody, 1 Ves. sen. 174. If the wife is entitled to her separate use, not only as regards the income but also as regards the corpus, this does not prevent the right of the husband from attaching, though it will be defeated by the wife's alienation, whether inter vivos or by wUl. [Cooper V. Macdonald, 7 Ch. D. 288 ; overruling Moore y. Webster, L. El. 3 Eq. 267.) An express declaration contained in the settlement, that the husband " shall not be tenant by the cur- tesy," will exclude his right altogether ; even though the legal estate be in the wife. {Bennet v. Davis, 2 P. "Wms. 316.) So far as alienation is concerned, the power of a wife entitled for an estate of inheritance to her separate use, to defeat her husband's curtesy, seems to be the same as the power of a hus- band under the Dower Act, 3 & 4 Will. 4, c. 105, to defeat his wife's dower. But it does not appear that a wife could, by a mere declaration of intention, without making any disposition of the estate, defeat her husband's curtesy. The Married By the Married Women's Property Act, 1882, ss. 2, 5, all Property Act, property of women married after the commencement of the Act, ^^^^' and property of women married before that date, the title to which shall accrue after that date, is placed upon a novel footing. But it does not appear that these provisions make any further change in the law affecting curtesy, than to put all curtesy (except of estates the title to which may have devolved upon a married woman before the Act's commencement, which remain unaffected) upon the same footing as equitable curtesy in cases where, before the Act's commencement, the wife was entitled to both income and corpus to her separate use. The Act seems to aim at raising a separate use for a married woman by implica- tion of law and without the intervention of a trustee : which Digitized by Microsoft® AN ESTATE FOR THE LIFE OF THE TENANT. 317 has not necessarily any wider operation than a separate use raised by contract. But the question does not appear to have been foreseen ; and, so far as regards estates belonging to women married after the Act's commencement, and estates coming to women previously married by a subsequently-accruing title, it must be answered with some caution. A tenant by the curtesy is enumerated among the persons statutory upon whom, when their respective estates or interests are in P"^®"^ ■ possession, the statutory powers of a tenant for life are conferred by the Settled Land Act, 1882. (See sect. 58, sub-s. 1, viii, of that Act.) But sub-s. (2) of the same section enacted, with regard to each of the persons thereinbefore mentioned, that the provisions of the Act referring to a settlement, and to settled land, should extend to the instrument under which such person's estate or interest arises, and to the land therein comprised. The enactment seems therefore to have no meaning in relation to tenants by the curtesy, because the estate of a tenant by the curtesy does not arise " under " any " instrument," but by virtue either of the common law or of a special custom. The Settled Land Act, 1884, s. 8, enacts that, for the purposes of the Settled Land Act, 1882, the estate of a tenant by the cur- tesy shall be deemed to be an estate arising under a settlement made by his wife. This enactment does not say when the settlement shall be deemed to have been made, or what it shall be deemed to comprise. Probably the date of the supposed settlement will be taken to be the date of the marriage, and it will be taken to comprise the estate of inheritance under which the tenancy by the curtesy arises. Bower. There formerly existed three kinds of dower other than dower Various at the common law ; includiag under the phrase, dower at the com- dower. mon laiv, dower out of lands held by common law tenure, but of which, by special custom, some other proportion than one third part is assigned for dower. Two of the three, dower ad ostium ecclesice {she monasterii) and dower ex assensu patris (Litt. sect. 38), were abolished by the Dower Act, 3 & 4 Wni. 4, Digitized by Microsoft® 318 THE NATURE AND QUANTUM OF ESTATES. Dower at the common law. By special custom. Freebencli. Joint tenants and tenants in common. "Wife of mort- gagee not entitled to dower after redemption. c. 105, 8. 13. The tMrd kind, dower de la pluis beak (Litt. sect. 48), wMch depended for its existence upon the distinction between tenure in chivalry and tenure in socage, was practically abolished with the abolition of tenure in chivaby by 12 Car. 2, c. 24. Dower at the common law is of a third part of all tenements of which the husband was solely seised, whether in deed or in law, at any time during the coverture, for an estate of inheritance to which issue of the wife by the husband might by possibility inherit; but such issue need not be born. (Litt. sect. 36.) The wife is dowable of a fee tail, even though it should be determined by the death of the husband without issue. (Perk, sect. 317.) By local custom dower may be of a half, or the whole. (Litt. sect. 37.) In that case, it is more properly styled dower by local or special custom. (2 Bl. Com. 132.) If the lands be subject to the custom of Kent, the dower is of a moiety, and ceases on re-marriage or fornication. (Hob. Gav. pp. 205, 206.) But dower by special custom must be carefully distinguished from dower out of lands held by customary tenure for customary estates of inheritance, usually sijle^freehench. A wife is not dowable of a fee of which the husband was seised as joint tenant with others. (Co. Litt. 31 b.) But the undivided shares of tenants in common are, for all purposes except physical possession, separate tenements, of which they respectively are solely seised ; and therefore dower may be claimed of such undivided shares. And for this purpose the estate of a coparcener is a separate tenement, and dower may be claimed of it. (3 Brest. Abst. 368.) Although the husband was allowed equitable curtesy of equitable estates, the wife was not allowed equitable dower. {Chaplin v. Chaplin, 3 P. Wms. 229; Godwin v. Winsmore, 2 Atk. 525.) This doctrine applied to an equity of redemption. (2 Bac. Abr. 715.) But by the Dower Act, 3 & 4 Will. 4, c. 105, as hereinafter mentioned, dower may now be claimed of equitable estates of inheritance in possession. For some time after that the right of the mortgagor to redeem a mortgage in fee simple had been established in equity, it was considered that, when the mortgagee's estate had become absolute at law by default of payment on the stipidated day, Digitized by Microsoft® AN ESTATE FOE THE LIFE OF THE TENANT. 319 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 becoming abso- lute at law. This was one reason of the introduction of mort- gages 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. {Bay v. Pung, 5 Madd. 310, 5 B. & Aid. 561.) The Statute of Uses, 27 Hen. 8, c. 10, contained, inter alia, Jointures, certain provisions to enable husbands to bar dower by assigning a jointure ; as to which, see Co. Litt. 36 b. These were repealed by the Statute Law Revision Act, 1863. The dower of all women married after 1st January, 1834, is Provisions of T-r-r 3 & 4 Will 4 now regulated by the Dower Act, 3 & 4 Will. 4, c. 105, which- c. i05. ' gives the wife, in addition to her common law dower, a right 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, incum- brances, contracts, and engagements to which his land is subject or liable (sect. 5) ; and subject also to any conditions, restric- tions, and directions contained in his will (sect. 8) ; and it enables the husband wholly to defeat her right to dower, whether at the common law or by virtue of the statute, by any of the following means : — 1. By absolutely disposing of the lands in his lifetime. How husband ,„ . . , may defeat (beet. 4.) dower. 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 en- titled to dower out of such land. (Sect. 6.) Digitized by Microsoft® 320 THE NATURE AND QUANTUM OF ESTATES. 4. By a like declaration contained in any deed executed 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 copyholds. {Powdrelly. Jones, 2 Sm. & Giff. 407; Smith v. Adams, 5 De G. M. & G. 712.) Tenant in dower is perhaps the only " limited owner " upon whom no powers are conferred by the Settled Land Act, 1882. Statutory Powers. Settled Es- tates Act, 1877. Certain powers of leasing are conferred upon a tenant for life, beneficially entitled to possession or receipt of rents and profits, by the Settled Estates Act, 1877, 40 & 41 Vict. c. 18, s. 46 ; but it is not probable that these powers will in future be often used in practice. Larger powers of leasing are conferred by the Settled Land Act, 1882, 45 & 46 Yict. c. 38, 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 gene- rally 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. Settled Land Acts. The following powers are, by the Settled Land Act, 1882, 45 & 46 Yict. c. 38, conferred upon, or made exeroiseable by, a variety of persons, or classes of persons, described or enumerated in sect. 2, sub-s. (5), sect. 68, sub-s. (1), and sects. 60—63,* of * The proTisions of sect. 63 are amended by 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. Digitized by Microsoft® AN ESTATE FOR THE LIFE OF THE TENANT. 3^1 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.) (1) A power to sell the settled land, or any part thereof, or Sale. any easement, right, or privilege of any kind, over or in relation to the same. (Sect. 3, sub-s. i.) But the principal mansion house, and the lands usually occupied therewith, could not be sold, or leased, under the provisions of the Act of 1882, without the consent of the trustees or an order of the court. (Sect. 15.) This enactment was repealed by the Settled Land Act, 1890, 53 & 54 Yict. c. 69, s. 10, sub-s. (1) ; but re-enacted, and made applicable also to exchanges, by sub-s. (2) ; subject to the declaration contained in sub-s. (3), that ■ where a house is usually occupied as a farm-house, or where the site of any house and the pleasure grounds and park and lands (if any) usually occupied therewith do not together exceed 25 acres in extent, the house is not to be deemed a principal mansion house " for the present purpose. (2) A power, where the settlement comprises a manor, to sell Eelease of the seignory of any freehold land within the manor, or enfrancMae- the freehold and inheritance of any copyhold or cus- ™™ ' tomary 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 copyholds, parcel of the manor, and release the tenure (thereby extinguishing the services) of freeholds, held of the manor. An enfranchisement may be made with or without a Settled Land re-grant of any right of common or other right, easement, ° ^' or privilege theretofore enjoyed with the land enfran- chised. (Sect. 4, sub-s. 7.) Eights 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. 4ol.) They are not extinguished in equity. {Sfi/nnt v. C.R.F. Y Digitized by Microsoft® 322 THE NATURE AND QUANTUM OF ESTATES. Settled Land Acts. iExohange. Partition. SMf ting of incum- brances. Leasing. Staker, 2 Yem. 250.) Nor will an enfranchisement efEeoted under 4 & 5 Vict. o. 35 (see s. 81), and 15 & 16 Yict. 0. 51 (see s. 45), deprive the tenant of any com- monable right to which he may be entitled. (3) A power to make an exchange of the settled land, or any part thereof, for other land, including 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, sub-s. 8.) As to exchanges affecting the principal mansion house see the Act of 1890, s. 10, cited above, under para. (1). (4) A power, where the settlement comprises an undivided 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 entirety, 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, to charge an incumbrance affecting land sold, or given in exchange or on partition, on any other part of the settled land, whether abeady 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 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 exceeding 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 circumstances, a building or mining lease may be made for any term, or may be granted in perpetuity. (Sect. 10.) But the principal mansion house, and the lands usually occupied therewith, could not, under the Act of 1882, be Digitized by Microsoft® AN ESTATE FOR THE LIFE OF THE TENANT. 323 leased without the consent of the trustees or an order of Settled Land the court. (Sect. 15.) See now the Act of 1890, s. 10, cited above under para. (1). Leases made under the statutory 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 being had to any fine 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. (7) A power (sect. 12) : — Confirmation (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, per- formance 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 consideration, a sur- Accepting render of any lease, whether made under the Act or ^^^^'^ ^™- not ; and such surrender may relate to the whole, or any part, of the land comprised 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.) (9) A power to license copyholders of any manor comprised Licences to in the settlement, to make any such leases of their copy- hoiS°°^^* Tf 2 Digitized by Microsoft® .324 THE NATURE AND QUANTUM OF ESTATES. Settled Land Acts. Appropria- tion of streets, &c. Cutting timber. Contracts. Sale of qnasi- heirlooms. money by mort^as-e. hold lands as the tenant for life is by the Act empowered to make of freehold land. (Sect. 14.) It is conceived 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 residents on the settled land, any parts thereof for streets, gardens, or other open spaces, with drains, fencing, paving, or other works necessary 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 trustees or an order of the court, to cut and sell timber ripe and fit for cutting. (Sect. 35.) (12) A power to make, vary, or rescind, with or without consideration, and accept surrenders of, contracts for carrying into effect any of the purposes of the Act. (Sect. 31.) (13) A power, where personal chattels are settled on trast to devolve with land so as ultimately to vest in some person attaining an estate of inheritance therein, to sell such chattels on obtaining an order of the court. (Sect. 37.) (14) Under the Act of 1890, s. 11, money may be raised by mortgage for the discharge of incumbrances. The only purposes for which, under the Act of 1882, money might be raised by mortgage, were (1) for enfranchisement, or for equality of exchange or partition, by sect. 18 ; and (2) for the payment of costs ordered to be paid by the court out of the settled property, by sect. 47. 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 operation to the money, investments, lands, or other net proceeds, obtained by exercising the power. Thus the Act does not in general destroy the settlement, but only alters the subject upon which it operates. Digitized by Microsoft® ( 325 ) CHAPTER XXIV. ESTATES PTJR AUTRE VIE. So far as regards its quantum, an estate pur autre vie may be limited to endure (1) during tlie life of a single person; or (2) during the joint lives of several persons ; or (3) during the life of the longest liver of several persons. In the following remarks the word life will, for brevity, be used to include lives. Every tenant piir autre tie has, by the common law, the same right to estovers as a tenant for his own life. (Co. Litt. 41 b.) By the common law, a tenant pxir 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, sub-s. (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 tenant for life Tinder a settlement. So far as regards its origin, an estate pur autre vie may arise Methods ty „ . , 1 ■which the m any oi three several ways :— estate may arise. (1) By express limitation, which is either to a grantee simply, during the life of cestui que vie, or to a grantee and his heirs, during suoh life. When the Statute of Frauds had (as hereinafter men- tioned) cast the estate, in default of a devisee or special occupant, upon the executors or administrators of a deceased tenant pur autre vie, a practice sprang up of limiting the estate to the executors or administrators instead of to the heirs. Digitized by Microsoft® 326 THE NATURE AND QUANTUM OF ESTATES. (2) By the assignment to another person of an existing estate for life, which latter estate may have arisen either by act of parties, or by operation of law, as curtesy or dower ; and the assignment is, like the express limitation above referred to, either to the grantee simply, or to him and his heirs, or to him and his executors or administrators, during the life of cestui que tie. (3) By operation of law, when, before the abolition of for- feiture by 33 & 34 Vict. c. 60, an estate for the term of the life of an attainted 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 tenant 7J»7' autre vie, cast upon the general occupant in manner hereinafter mentioned ; or, since that' statute, when the estate is cast upon the executor or administrator of a deceased tenant pur autre vie. For the purpose of creating an estate pur autre vie by assign- ment, the estate of tenant in tail after possibility of issue extinct does not differ from an estate for life. (3 Brest. Oonv. 171, 172.) The assign is punishable for waste. (Co. Litt. 28 a ; 2 Inst. 302.) Heirs as "When an estate pur autre vie arises either de novo by express oooupants. limitation, or by the assignment of an existing estate for life, the omission to specify the heirs in the grant has still an im- portant influence upon the transmission of the estate upon the death of the tenant pur autre vie in the lifetime of cestui que vie. It will be observed that, in external form, the limitation to a grantee and his heirs, during the life of cestui qui vie, resembles the limitation of a determinable fee. But because the event which is to determine the estate is not such as may by possi- bility never happen, no fee arises. In a determinable limitation, the determining 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. Digitized by Microsoft® ESTATES PDK AUTRE VIE. It follows, that the word heirs when used in this sense is not properly a word of limitation. By virtue of the grant, the heir of the tenant pur mitre ne has, on the death of his ancestor in the lifetime of cestui que rie, 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 occu- pancy which formerly existed upon 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 jmr 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 properly words of limitation, but only words nomiaating a succession of special occupants. [Loio 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.* But when the heir is not named in the grant, he has no better G-eneral title by occupancy than any one else ; and, by the common law, if the possession was vacant at the death of the tenant jnir 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 occu- pancy, and he was styled the general occupant.f (Co. Litt. 41 b.) If the possession was not vacant, the law cast the freehold, with * ' ' Such estates certainly are not estates of inheritance. They haTe 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 y. Luxton, 6 T. E. 289, at p. 291. Lord Hardwicke, in Ripley v. Waterworth, 7 Ves. 425, at pp. 437, 438, says: — " for though he is described as heir, he does not take it as such, but as a special occupant named in the grant." In Seymor^s Case, 10 Rep. 95, at p. 98 a, they are said to be descendible, but not of inheritance. See also Nwihen v. Carnegie, 4 Drew. 587, at p. 590. t " 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 death of the tenant, than the possession of land held for any other estate ; and the cases in which any one could ' ' hap it ' ' and acquire a title subsequently to the death of the tenant ^!J)' autre rie, must have been extremely rare. The aim of sect. 12 of the Statute of Frauds was to make the lands assets for the payment of debts, not, as has often (but absurdly) been said, to prevent " scrambling for the lands." 327 Digitized by Microsoft® 828 THE NATURE AND QUANTUM OF ESTATES. 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. The object of this general occupancy was to prevent a vacancy, or abeyance of the freehold. (Bacon, Uses, 38.) There was no general occupancy of copyholds, because the seisin of them is in the lord. {Zouch v. Forse, 7 East, 186.) But there might be special occupancy of a copyhold. {Doe v. Martin, 2 W. Bl. 1148.) And a custom of a manor that, on the death intestate of tenant pur ant re tie during the Kfe of cestui que fie, the copyhold shall go to the latter for life, is a good custom. {Doe v. Goddard, 1 B. & 0. 522.) Who may be »pticial occu- pants. Though the heir took as special occupant by the nomination of the grantor and not by inheritance, it seems to be the better opinion that the heir alone, and not the executor or adminis- trator, could be named as special occupant in the grant. (Harg. n. 4 on Co. Litt. 41 b ; Com. Dig. tit. Estates, F. 1 ; Lord Eedesdale in Camphell v. Sandys, 1 Sch. & Lef. 281, at p. 289. See, however, 1 Sugd. Pow. 8th ed. p. 193, note.) If the heir and the executor are both named in the grant, the heir has the special occupancy. {Atkinson v. Baker, 4 T. E. 229.) Effect of naming the heirs of the body as special occu- pants. The heirs of the body may be named as special occupants ; and the naming of them affects the quantum of the estate, which is less than the quantum of a similar estate limited to the heirs general. If a tenant for his own life makes a lease to the immediate reversioner and the heirs of his body during the life of the tenant for life, this will be no surrender. (3 Prest. Oonv. 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 the 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. Whether per- After the Statute of Frauds, as hereinafter mentioned, the sentativer' question, whether the executor or administrator might be named may be special ^g special occupant, had no practical importance so far as free- occupants. ^ ^ _ hold lands are concerned ; because, if there was no special Digitized by Microsoft® ESTATES PUR AUTRE VIE. 329 occupant, he would take the estate by force of the statute. And he would take it as an estate of freehold. {Oldham v. Pickering, 2 Salk. 464 ; this point is stated more fuUy in Garth. 376.) Before the case of Eipki/ v. Watenvorth, 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 oblivion. The question is now purely a matter of historical criticism. Of things which at the common law lie in grant, and of which Occupancy of therefore no possession could be taken, there was no general heredita- occupancy. (Co. Litt. 41 b.) But of such things there might ™™*^- at the 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.) It was held that neither an executor nor an administrator could be special occupant of a rent, in Salter v. Butler, Telv. 9, Cro. Eliz. 901. In Northen v. Carnegie, 4 Drew. 587, it was laid down, apparently obiter, that an executor may be special occupant both of land and of incorporeal hereditaments. The tenant pur autre vie had, at the common law, an absolute Assignable at right of alienation inter vivos, whether his heir was entitled as la-w. special occupant or not ; and, in the latter case, the estate of the assign was not affected by the death of the assignor. (Co. Litt. 41 b ; Uttij Dale's Case, Cro. Eliz. 182.) Estates piur autre vie were not made deviseable by the Statutes of Wills, 32 Hen. 8, c. 1, and 34 & 35 Hen. 8, c. 5. * In Sipley t. Waierworth there could be no doubt that the executor was entitled to the estate, either as special occupant, or, if an executor cannot be a special occupant, then under the Statute of Frauds, as mentioned below. The question was, whether he held the estate for the benefit of the heir, or for the benefit of the residuary legatees. Lord Eldon decided that, in either case, he held the estate for the benefit of the latter ; therefore it was not necessary to express any opinion as to the means by which he came to the estate. Digitized by Microsoft® 330 THE NATURE AND QUANTUM OF ESTATES. Made deviae- able by the Statute of Frauds. And distri- butable as By the Statute of Frauds, 29 Car. 2, c. 3, s. 12, it is enacted that any estate puv autre vie shall be deviseable ; and, if no de- mise 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 admi- nistrators 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 tenancy by general occupancy for the future impossible. (Harg. n. 5 on Co. Litt. 41 b.) But Preston has suggested that general occu- pancy might still be possible, during the interval between the death intestate of a tenant pur autre tie and the grant of admi- nistration. (1 Brest. Conv. 44.) In Oldham v. Pickering, 2 Salk. 464, Carth. 376, it vcas 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 com- pelled to make any distribution. In consequence of this decision, it was enacted by 14 Greo. 2, c. 20, s. 9, that (if there be no 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 Wills Act, 7 Will. 4 & 1 Yict. c. 26, s. 2 ; but they are substantially re-enacted and extended to copyholds and incorporeal hereditaments by sects. 3 and 6. Quasi-entails of estates ^Mr autre vie. This kind of estate, though a tenement, is not intailable by virtue of the statute Be Bonis, not being a hereditament. {Gh'ey 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 pur autre vie does not, as a mere chattel or chattel interest does, vest absolutely in a tenant in tail by purchase. (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 inherit- Digitized by Microsoft® ESTATES PUR AUTRE VIE. able tenement, any person entitled as quasi-tenant in tail in possession can, without otherwise barring the quasi-entail, con- vey the whole estate by any assurance which would pass an estate piir autre vie. (Fearne, Oont. Rem. 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 wiU. (See Doe v. Luxton, 6 T. E. 289, at p. 293.) But quasi-remainders limited over upon the quasi-estate tail cannot be barred by will. {Dillon v. Dillon, 1 Ball & B. 77 ; Camphell v. Sandys, 1 Soh. & Lef . 281 ; Allen v. Allen, 2 Dr. & "War. 307.) And a quasi-tenant in 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 wHl descend 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 during the life of cestui que vie, unless previously displaced by any such conveyance as aforesaid. 331 Digitized by Microsoft® '^"2 THE NATURE AND QUANTUM OF ESTATES. OHAPTEE 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 coneurrent and simultaneous interests. Moreover, several persons may take the same estate concurrently by descent ; either at the common law, in the case of a descent to several sisters, or the representatives of several sisters ; or by a descent in gavel- kind among several brothers, or their representatives; or by other special custom, among several brothers and sisters, or their representatives. The several individuals so entitled will, according to the nature of the relation subsisting between their interests, be (1) joint tenants, (2) tenants in common, (3) parceners, also styled coparceners, or (4) tenants by en- tireties. This arrangement is the most convenient for the purpose 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 the arrangement 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 sur- vivors may retain the whole estate ; and assurances, especially devises, are frequently made to beneficial owners as tenants in common. Coparcenary is not common, because the descent of lands is not common ; and in the majority of the cases which happen, the descent is not among coparceners. Tenancy by entireties, from the circumstances under which it arose, was always rare ; and recent legislation may perhaps have made it for the future impossible. ♦ Digitized by Microsoft® OV OONCUURENT OWNERSHIP. 333 Some remarks upon cross remainders are added to the remarks made upon tenancy in common, by reason of the intimate prac- tical connection between the two subjects. (1) Joint Tenancy/. Littleton's definition of joint tenancy is founded upon the Definition mode in which an estate is limited to joint tenants. If lands limitation, are limited to several persons by name, habendum to them for life, or lives, those persons are joint tenants during that life or those lives. (Litt. sect. 277.) They have an estate jmr autre me in joint tenancy. Similarly, if lands are limited to several persons by name, habendum to them and their heirs, those persons 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-mentioned limitation. ( Vide supra, p. 196.) 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 tenancy. Estates tail, 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 expressly conferred upon heirs in tail by the statute De Bonis, 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 limi- tation 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 Digitized by Microsoft® 334 THE NATUEE AND QUANTUM OF ESTATES. 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 married at the time when the limitation took effect, they would, at the common law, be tenants by entireties. As hereinafter mentioned, it is uncertain what is the operation, in this respect, of the Married Women's Property Act, 1882. Jus accre- scendi. Does not necessarily confer equal adrantag-e upon all. The distinguishing characteristic of joiat tenancy is styled JUS accrescendi, or the right hy survivorship. Upon the death of one out of several joint tenants, the survivors hold the whole estate, and nothing passes to the representatives iu title (whether real or personal) of the deceased tenant. (Litt. sect. 280.) But the practical advantage of the/us accrescendi is not neces- sarily equal for each of the joint tenants; for two men may have a joint estate for the life of one of them ; iu which case, if that one who is cestui que vie should die in the lifetime of the other, the estate is determined, whereas, if the other should die in the lifetime of cestui que vie, the latter has the whole estate, and becomes thenceforward sole tenant for his own hfe. (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 their interest and title. Joint tenants must claim an equal interest by the same title and in the same right. (Co. Litt. 189 a ; ihid. 299 b.) There- fore they can only take by purchase. And under limitations at the common law, they must all take simultaneously. But ia limitations by way of use, if the use is declared jointly to several persons, some of whom are not yet ascertained or not yet iu being, such last-mentioned persons, if and when they are ascer- tained 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 Brest. Abst. 56.) Digitized by Microsoft® OF CONCURRENT OWNERSHIP. 335 The identity of the interest and title of joint tenants is com- monly analysed into the "fourfold unity" of interest, title, time, and possession. (2 Bl. Com. 180—184.) This analysis has perhaps attracted attention rather by reason of its captivating appearance of symmetry 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 distinction 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 learning of uses and devises, an indispensable requisite. Joint tenants are said to be seised per my et per tout ; which I'or purposes expression properly refers to tico only, two being taken as a type their interests or pattern for two or more. In one sense each has notliing, and ^'^^ separate. in another sense each has the whole, nihil per se scparatim 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 his aliquot share, and can thereby sever the joint tenancy and turn it to a tenancy in common.* Herein joint tenants differ from tenants by entireties, who are seised per tout only, and not per mij ; and of whom, accordingly, neither can prejudice the right by survivorship of the other to succeed to the whole in severalty. (2 Bl. Com. 182.) * With regard to the question, •whether a partial alienation, that is, an aliena- tion of the joint tenant's share for less than his whole estate, will completely sever the joint tenancy, or will only suspend it during the continuance of the less estate, there seem to be some distinctions, according to the estate of the joint tenants. If one joint tenant in fee makes a lease foy life or lives of his share, it seems to be at least the better opinion, that this is a complete severance ; and that, if he should die during the lease, the reversion in his share will descend to his heir instead of accruing to the other joint tenants. But there seems to be no reason for extending this doctrine to the case of a lease for years made by a joint tenant in fee simple. If a joint tenant of a term of years makes a lease of his share for a less term, this is a complete severance. See tiitt. sect. 302 and Lord Coke's Comment, and Si/Hi's Case, Cro. Eliz. 33. But in order that a grant by one joint tenant may bind his fellows, it must be the grant of an estate, and not the grant of a mere incumbrance or burden on the estate, such as a rent-charge or a right of common ; for it is the maxim of the law, that though alienatio rei priefertur Jiiri accresoendi, yet jits acerescendi prafertur oneribus. (Co. Litt. 185 a.) Digitized by Microsoft® 336 THE NATURE AND QUANTUM OF ESTATES. EflEeot of severance on a lease for Kves. The following point is practically important. When two or more persons are joint tenants for their lives, whether by express limitation or by implication of law, 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 Lord Coke, that a sever- ance of the joint tenancy of a lease for lives is beneficial to the lessor. In the limitation of a fee simple 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 free- hold for lives, with a contingent remainder in fee simple to the survivor. (Butl. n. 1 on Co. Litt. 191 a.) Partition. At the common law, one or more joint tenants could not be compelled by the other or others to make partition. (Litt. sect. 290.) Voluntary partition between them can be made only by deed. (Co. Litt. 169 a ; ihid. 187 a.) By the statutes 31 Hen. 8, c. 1, and 32 Hen. 8, c. 32, the same right of parti- tion as appertained at common law to coparceners, is given both to joint tenants and to tenants in common. By the Partition Act, 1868, 31 & 32 Yict. c. 40, and the Partition Act, 1876, 39 & 40 Yict. c. 17, the Court is empowered, subject to certain conditions, to substitute a sale for an actual partition. (2) Tenancy in Common. Is a sole ownership. A tenancy in common, though it is an ownership only of an undivided share, is, for all practical purposes, a sole and several tenancy or ownership ; and each tenant in common stands, towards his own undivided 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 Digitized by Microsoft® OF COXCUERENT OWNERSHIP. 337 convej an undivided hereditament ; and he cannot so convey by release.* (2 Prest. Ahst. 77.) A title by tenancy in common may be claimed by prescrip- tion. (Litt. sect. 310.) This proves the severalty of the interest. A man who, in his official capacity, is a corporation sole, as a bishop, m^y be tenant in common with himself, in respect of his two capacities, as an individual and a corporation. (Co. Litt. 190 a.) Tenancy in common may arise in any of the following How it may- arise. ways : — (1) By express limitation. At the common law a gift or limitation contained in the premisses 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 declaring 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.) (3) Similarly, by severance, through alienation, without 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 * "One tenant in conunon may inf eoffe his companion, but not release, because the freehold is severall. Joyntenants may release, but not infeofEe, because the freehold is joynt ; but coparceners may both infeoffe and release, because their seisin to some intents is joynt, and to some severall." (Co. Litt. 200 b.) But any kind of assurance by a joint tenant is construed to be a release. [Eustace T. Scawen, Cro. Jac. 697 ; Chester v. Willan, 2 Wms. Saund. 96, where see the notes, on the general doctrine as to construing words, whenever it can possibly be done, so as to give effect to the intention.) C.R.P. Z Digitized by Microsoft® 338 THE KATUEE AND QUANTUM OF ESTATES. 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 ; Boe v. Quartley, 1 T. E. 630.) (ii) Under a limitation, in the form of an estate tail, to two persons neither married nor capable of lawful marriage, or to three or more persons, they will take in common. {Windham's Case, nU supra, resolution 4.) Other instances might be specified ; but in the present state of the law, they are not material in practice. The shares may be unequal. There is nothing in the nature or origin of tenancy in common to import any necessity that the shares taken by the different tenants must be equal ; because they hold by several, or different, titles, not by a joint title. (Litt, sect. 292.) Their shares will, accordingly, be unequal, whenever the cir- cumstances 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 tenancy. When the origin of a tenancy in common is by the severance of a joint tenancy, or by a change in the title of coparceners, the shares wiU in their inception be equal ; but inequality may be subse- quently introduced, by more than one of such equal shares becoming united in the same hands. Cross re- mainders : how con- nected with tenancy in common. The subject of cross remainders is intimately connected with tenancy in common ; because the cross remainders are neces- sarily, and the particular estates upon which they are limited may be, and frequently are, limited by way of tenancy in 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. Digitized by Microsoft® OF CONCURKENT OWNERSHIP. 339 The particular estates upon which the cross remainders depend In separate may either he estates tail in separate parcels of land, or may he undivided estates tail in several undivided 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 hetween them ; or having one parcel only, may limit that parcel in tail to several persons as tenants in common, with cross remainders between them of their several undivided shares. When cross remainders are limited in respect of undivided shares of the same parcel, these shares are in practice always equal, and the limitation of the remainders is also in equal shares. The following remarks will he confined to equal cross remainders between equal undivided shares of the same parcel. Cross remainders between two persons only present no To two difiBculty to the imagiaation. Lands are limited as to one undivided moiety to A in tail, with remainder to B in tail ; and as to the other undivided moiety to B in tail, with re- mainder to A in tail. The general result of a similar limitation, when made to To more than more than two persons, expressed in somewhat colloquial 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, uhether 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 sub- sisting 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. The more formal definition given by Preston is as follows : — Preston's "Cross remainders, as between three or more persons, are several remainders limited to each of three or more persons, in lands, or 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 immediate estate, /i ^ Digitized by Microsoft® 340 THE NATURE AND QUANTUM OF ESTATES. 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 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 re- mainder 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. 96.) 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 posses- sion in his own aliquot undivided share ; and the others will be remaiaders, of successively increasing degrees of remoteness, in fractions of the other aliquot shares.* Cross re- It is Settled law, that in a deed cross remainders cannot arise implication, by implication, but only by express words. (Cole v. Levingston, 1 Vent. 224 ; Doe v. Dorvell, 5 T. E. 518.) In a wiU cross remainders may arise by implication ; but a stronger ground of * Suppose a single parcel of land to be limited in equal shares between n persons as tenants in common in tail general, -with cross remainders between them. Then the original share of each is _; and upon the extinction of the first stock, each « 1 obtains, as an accruing share, And as the whole is always divided n{n — l) equally, it follows that, after the extinction of r stocks, the total share of each is ; and therefore, after the extinction of (?'-l-l) stocks, the accruing share of n — r J each is Therefore the series of accruing shares, consequent {n — r)[n — r—\) upon the successive extinctions, is as follows : — 1 1 1 1 n(n-\)' («-l)(ra-2)' [n-2)(n-i) {n-r){n -r~\)' Where the last fraction represents the share accruing by the (r-^l)''' extinction. Each, therefore, in addition to his original share, -, has a series of fractional n shares in remainder, each remainder being of a different order of remoteness, depending respectively upon the extinction of the stocks successively, the fractions being shown by the above series. These remainders are all vested ; because the mere fact that, so far as coming into possession is concerned, they might be defeated by the previous occurrence of death without issue, does not make them contingent ; for every remainder is to this extent liable to be defeated ; and if this alone could make a remainder contin- gent, there could be no such thing as a vested remainder. Digitized by Microsoft® OF CONCURRENT OWNERSHIP. .341 presumption, 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 Cooh v. Gerrard, 1 "Wms. Saund. 170, at p. 185 ; Poioell v. Howelh, L. E. 3 Q. B. 654 ; Re Ridge's Trusts, L. E. 7 Oh. 665 ; Hannajord v. Hannaford, L. E. 7 Q. B. 116 ; Hudson v. Hudson, 20 Ch. D. 406.) On the question, whether cross remainders should be inserted among the limitations of an executory settlement, see Surtees v. Surtces, L. E. 12 Eq. 400. Although in a deed express words are required to create cross What express remainders, yet any words will suflBce which distinctly express Efficient! the intention, and the expression, " with cross remainders be- tween them in tail," is quite sufficient for the purpose.* That expression is used in the short form of marriage settlement contained in the Fourth Schedule of the Conveyancing Act of 1881, which circumstance may be regarded as giving to it some legislative sanction ; but such sanction seems not to be neces- sary, t (3) Coparcenari/. Parceners, or coparceners, are two or more persons who together Definition and constitute a single heir ; as the daughters, where there is no heir facteristioaT male, in respect to common law lands, and the sons, in respect to gavelkind lands. (Litt. sects. 241, 265. As to gavelkind, see more at large Eob. Grav. 138 et seq.) The same rule holds of sisters, aunts, and other groups of female kinsmen in the same de- gree, 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 coparcenary extends to collateral * " No teolinical precise form of words is necessary to create cross remainders : it is sufficient to say that there shall be cross remainders ; though, in the verbose- ness of conveyancers, an abundance of words is generally introduced in deeds for this purpose." [Per Ld. Kenyon, C. J., in Doe v. Waineioright, 5 T. R. 427, at p. 431.) t Section 57 of the Act, which declares the sufficiency of the forms in the Fourth Schedule, is restricted by the words, "as regards form and expression in relation to the provisions of this Act," and therefore cannot be taken to ajBfeot any expression relating to cross remainders, because the Act contains no provi- eions relating thereto. Digitized by Microsoft® 342 THE NATURE AND QUANTUM OF ESTATES. descents (Eob. Grav. 115), this is not necessarily true of gavel- kind lands situated elsewhere ; and a custom to that effect must be proved as a special custom. (Co. Litt. 140 a, b.) The rule of representation holds good in descents in coparcenary ; so that the issue of a person who, if living at the time of the descent, would have been a parcener, will take in coparcenary along with the other like persons. But such issue, as respects the amount of their share, take per stirpes and not per capita. (Go. 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 accrescendl ; but upon the death of one parcener, a descent takes place of her aliquot share. And one parcener may at common law convey to another by an assurance proper to convey a several estate, as a feoffment. (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 position of heir, is of course styled the heir and not a parcener. (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 ancestor. 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. If one daughter (or other presumptive coparcener) should die in the lifetime of her father, her issue, if any, take by representation the share which she would have taken if she had survived the father. If, after inheriting as Digitized by Microsoft® OF CONCURRENT OWNERSHIP. 843 coparcener, she should die leaving issue, such issue take her share. This rule of the common law is not altered by the Descent Act. ( Vide infra, p. 344.) Of course, the mode in which the issue will take, is regulated by the ordinary canons of descent. If there are several sons, and the lands are descendible at the common law, the eldest son takes the whole share ; but if the lands be subject to the custom of gavelkind, all the sons take equally. One parcener was, even at the common law, entitled as against Partition, 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 purchase to make an alteration in the course of descent. (2 Prest. Abst. 471 ; ibid. 431.) This rule extends even 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 partition is descendible in the same manner as the land. (Co. Litt. 169 b.) Yoluntary partition might be made between parceners by mere parol agreement, or by drawing lots, or by reference to the award of arbitrators agreed upon beforehand by all the parties. (Litt. sects. 243, 244, 246.) Lands which had been given in frank-marriage 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 writ of partition at the common law, a writ was directed to the sheriff, ordering him to make the parti- tion by the oath of twelve lawful men of the county. (Litt. sect. 248.) But the men of this inquest must be chosen from the neighbourhood of the lands. (Co. Litt. 168 b.) The Court of Chancery from very early times exercised juris- diction in respect to partition, when 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 jurisdic- Digitized by Microsoft® 314 THE NATURE AND QUA^T^M OF ESTATES. tion, 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, >. 24. Suits for partition were also frequently instituted and entertained under the court's equitable jurisdiction, when this had grown into general recog- nition ; and under this jurisdiction a decree for partition was regarded as a matter of right, upon proof of title. (2 Com. Dig. 762.) Descent. At the common law, upon the death of one parcener, her whole share descended to her issue. (Litt. sect. 280 ; Co. Litt. 164 a.) This rule is not altered by the Descent Act. {Cooper t. France, 19 L. J. Ch. 313 ; Paterson v. Mills, 19 L. J. Ch. 310.) (4) Tenancy hy Entireties. Definition and mode of limitation. Tenancy by entireties occurs, at the common law, when a gift or conveyance, which, if made to two strangers, would create a joint tenancy, is made to a husband and wife during the cover- ture. (Litt. sect. 291, and Lord Coke's comment;* 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 hus- band and wife. (Litt. sect. 291.) It is equally applicable to estates in fee simple, in fee tail, for the lives of the paiiies, and 2mr autre vie. (2 Prest. Abst. 39.) Distingnislied from joint tenancy. It constitutes the most intimate union of ownership known to the law. A husband, being tenant by entireties of freeholds with his wife, cannot by any alienation bar her right by sur- vivorship in any part. (Co. Litt. 326 a ; Doe v. Parratt, 5 T. R. 652, at p. 654.) They are accordingly said to hold per * Lord Coke does not use the phrase " hy entireties." He speaks of cases in ■which " the hushand and -wife sAaH /((«'« Momoieifics." That is to say, he regards tenancy hy entireties as heing a species of joint tenancy, with the distinguishing characteristic that it confers no power of severance. This accords with the definition above given. Digitized by Microsoft® OF CONCUKKENT OWKBRSHIP. 345 tout et non per my. (2 Bl. Com. 182.) The same rule formerly applied also to forfeiture. (Co. Litt. 187 a.) '. Preston affirms that this kind of tenancy is applicable to a As to chattels 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 tenancy 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. The case of Martin v. Moiclin, 2 Burr. 969, seems to show. Equities of that in a tenancy by entireties of an equity of redemption, the and personal 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 posses- sion ; and the wife has no equity to a settlement thereout. (Ward V. Ward, 14 Ch. D. 506; Godfrei/ 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 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 entireties, as between themselves, of an undivided share ; and might, as regards the owners of the other undivided shares, be either tenants in com- mon or joint tenants. It is difficult to say what is the effect, upon tenancy by The Married entireties, of the Married "Women's Property Act, 1882, 45 & 46 Property Act, Yict. c. 75. This is one of the questions, which seem to have ^' escaped the attention of the legislature when that statute was enacted. In Be March, Mander v. Harris, 24 Ch. 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 ; Digitized by Microsoft® 346 THE NATURE AND QUANTUM OF ESTATES. but upon special grounds which do not affect the above-stated opinion. (27 Ch. D. 166.) Preston was of opinion that, by express words, a husband and wife might, at the 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 presumed 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 implication, of law. Where, at the common law, an express intention was required to prevent tenancy by entireties from arising, an express intention wiU now be required in order that it may arise. Though the Act enables certain things to be done, which could not be done at the 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 the common law was not due to intention, but was due solely to the incidents of what may be called the proprietary status of cover- ture, and if Mr. Justice Chitty was right in thinking that this status has no longer any existence, then it would follow that this tenancy can no longer be created. The former seems to be the more plausible view.* * Since the publication of the first edition of this work, Mr. Justice (now Lord Justice) Kay, in lie Jtipp, Jiipp-v. Buckwell, 39 Ch. D. 148, at pp. 1.53, 154, expressed his dissent from the above-stated opinion of Mr. Justice Chitty. Digitized by Microsoft® ( ^4:7 ) Paet 1Y. on ASSUEMCES. CHAPTER XXYI. ASSURANCES IN GENERAL. Assurances (other than wills and testaments) are commonly General re- ,..,,., ,-1,1 1 1 marks on the aivided into assurances operating by the common law, and influence of assurances operating by the Statute of Uses. But it must be ass^ancer'' remembered that many of the latter assurances derive part of their operation from the common law. It must also be remem- bered that the Statute of Uses, though its influence upon assurances in general 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) Modem disentailing assurances and assurances by married women and their husbands derive their operation partly from the Fines and Recoveries Act. And because that statute, for the purpose of barring an entail, only super- adds inrolment to the assurances otherwise appropriate to the conveyance of a fee simple, it follows that dis- entailing assurances may also derive part of their opera- tion 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 bargainee for a year under the lease, so soon as his possession was executed by the statute, being capable at the 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 ejfect as a common law lease, instead of as a bargain and Digitized by Microsoft® 348 ON ASSURANCES. 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 conveyances by corporations, who, not being capable of being seised to a use, could not, by means of a bargain and sale, raise a use capable of being executed by the statute* For the same reason, corpora- tions not unfrequently conveyed freeholds in possession by feoffment, appointing an attorney under their common seal to give livery of the seisin. The 4 & 5 Yict. c. 21, s. 1, enabled an assui-ance to be made by a single deed, having the same operation as the two deeds formerly used in assurances by lease and release. 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 statutory operation as a conveyance of estates of freehold in possession. This Act was in force from 15th May, 1841, tm 7th August, 1874, having been repealed by the Statute Law Eevision Act, 1874 (No. 2). But it was seldom used in practice, after the coming into operation of 8 & 9 Yict. o. 106, on 1st October, 1845. The present writer has met with an example of its use in a deed dated August, 1852. (3) During the time that 7 & 8 Yict. c. 76, remained in force — from 31st December, 1844, to 1st October, 1845 — another statutory method existed of conveying estates of freehold in possession. This was not confined to a release, and was not expressed to be made in pur- suance of the Act. (4) The last-mentioned Act was repealed by 8 & 9 Yict. c. 106, which, without repealing 4 & 5 Yict. c. 21, prac- tically superseded it by providing a more convenient form of assurance. Sect. 2 enacts that after 1st October, 1845, all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold * Conveyances effected by means of a common law lease, followed by a release of the reversion, have been known so far back as the reign of Henry IV. (2 Sand. Uses, 74.) Such a conveyance was a good performance of a condition to make a feoffment. (5 Vin. Abr. 143, pi. 4 = Condition, Q. a, pi. 4.) Digitized by Microsoft® ASStlRAXCES IN GENERAL. 349 thereof, be deemed to lie in grant as well as in livery. All modern assurances made by the owners of estates of freehold in possession, except a feoffment and a bargain and sale inroUed, depend for their validity upon this statute. Conveyances of estates of freehold in possession, taking effect by virtue of any of the above-mentioned statutes, 4 & 5 Yict. c. 21, 7 & 8 Yict. c. 76, or 8 & 9 Yict. c. 106, owe all their efficacy to the particular statute and at the common law would be wholly inoperative ; unless by reason of peculiar circumstances they can be construed to take effect by some means foreign to their purport. (See the notes to Chester v. Willan, 2 Wms. Saund. 96.) Sect. 49 of the Conveyancing Act of 1881 declares, that the use of the word grant is not necessary in order to convey tene- ments or hereditaments, corporeal or incorporeal. 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. UntH the coming into operation of 8 & 9 Yict. c. 106, the word grant was neither necessary nor appropriate to pass corporeal hereditaments. Since that date, corporeal hereditaments (which phrase includes cor- poreal tenements) have been numbered among things lying in grant ; and the word grant has been appropriate to pass them, but not necessary. [SJiove v. Pincke, 5 T. R. 124 ; Haggerston V. Hanhury, 5 B. & 0. 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 difficult to given any reason for preferring this substitute. Before the coming into operation of 8 & 9 Yict. c. 106, remainders and reversions were capable, at the common law, of being conveyed by grant ; but that mode of assurance was not commonly used in practice, because 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 either by lease- and release or by bargain and sale inrolled. (2 Brest. 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 restric- Digitized by Microsoft® §50 ON ASSURANCES. tions, 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 enlargement is in no way dependent upon the concur- rence of any person entitled in reversion. (6) Sect. 15 of Lord Cranworth's Act, 23 & 24 Yict. c. 145,- enables the person exercising the power of sale conferred by the Act upon mortgagees, to vest in the purchaser all the estate and interest which the mortgagor had power to dispose of ; but, in the case of copyholds, only the beneficial interest. This enactment was repealed by the Conveyancing Act of 1881. Its meaning and effect are doubtful ; but if its language has any meaning and effect, it seems to have created a statutory power, by which mortgagees were sometimes enabled to convey a greater estate than was vested in them.* The above-mentioned enactments, and also all enactments 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 Vict. cc. 119, 124 ; Lord Cran- worth'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 dispensing, either wholly or partially, with the actual expression by the parties of something which they were competent to effect without any legislative assistance. General Excepting only their capacity of being executed into legal. the'natMTof estates, uses were in all respects the same before the statute as * The language might without any straining be taken to import, that a mortgagee by demise for a long term might convey the fee simple, On the other hand, it might be so -whittled a-w-ay as to import no more than an "all the estate" clause, or a covenant for further assurance. In Siaitv. Hillman, 19 "W. R. 694, it -was held by Lord KomiUy, M.R., that the seotion enabled a mort- gagee by demise to convey the property for the -whole of the original term ; and in Me Solomon and Meagher's Contract, 40 Ch. D. 608, it -was held by the Court of Appeal that under the section an equitable mortgagee in fee simple might convey the legal fee. Digitized by Microsoft® ASSURANCES IN GENERAL. afterwards. Our early jurists regarded the legal estate in fee simple, and the conterminous use, as being two separable things, commonly found together, a.nd prima, facie presumed to be united in the legal tenant ; but capable of separation, and haying 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 conveyances thereof as the person having the use should think fit. The following propositions were clearly established from early times : — (1) Regarded as a descendible entiiy, 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 analogous to a common law fee simple, descended to the heir general ; (ii) the use of gavelkind lands descended accordiag to the custom of gavelkiad; and (iii) of borough-english lands, according to the custom of borough-english ; (iv) other peculiar 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. And it was as impossible to change the course of the descent of the use as to change that of the legal estate. (1 Prest. Est. 448 ; Eob. Gav. 98, 99.) So far as the law permitted new estates to be created and taken by way oi purchase, the use (like the legal estate) could of coiirse be made to go to any person whatsoever ; but by pur- chase only, not by descent, unless such person was the next ia the order of descent prescribed by the law. (2) The person entitled to the use {cestui que use) might alienate the use, by conveyance inter vims. (3) So also he might devise the use, before the Statutes of Wills, although the use was of lands which were not themselves deviseable. Digitized by Microsoft® ■351 352 ON ASSURANCES. (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 enabled 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 estate. This statute never had any extensive operation. For an instance of its use in practice, see Dy. "^83 a, pi. 30. In all essential characteristics these uses resemble what we now call equitable estates, differing from them mainly by reason of the greater complexity of limitation to which the ingenuity of conveyancers has gradually subjected the latter. This greater complexity has proceeded pari passu with the increasing com- plexity in the limitation of legal estates ; and both these develop- ments 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 effect It seems strange that the legislature, when it enacted that of Uses. 11S6S should be transformed into legal estates, 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. The result has been 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.* Origin of Moreover, since it was decided soon after the passing of the trusts. statute, that no use could be limited upon a use (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 * "And because uses were so subtle and ungovernable, as hath been said, they have with an indissoluble knot coupled and married them to the laud, whiuh of all the elements is the most ponderous and immoveable." 1 Rep. 124 a. Digitized by Microsoft® ASSURANCES IN GENERAL. 353 use, in order to restore the old system of equitable estates or trusts: a device wMoh gave occasion to Lord Hardwioke's celebrated remark, that " a statute made upon great considera- tion, 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 doctrine relating to uses upon a use, which only imports, when it is rightly understood, that a use is not a hereditament within the meaning of the statute, has been subjected to much petulant, if not ignorant, censure. In the opinion of the present writer, it has been well defended by Rowe, in his edition of Bacon on Uses, note 74, p. 134. The question, whether the Statute of Uses applies to wills, AVTiefter the has given rise to much difference of opinion. The objection u^es applies (Butl. n. 1 on Co. Litt. 272 a, YIII. 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 pos- session, made by virtue of 8 & 9 Yict. c. 106, s. 2, are also not within the statute. But since it is the unquestioned fact that the intention of the testator by 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 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 following 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 c.R.r. A A Digitized by Microsoft® 354 ON ASSURANCES. person 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 the indication of inten- tion 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 f alfibnent of their trust. This doctrine of cutting down the estate taken by trus- tees has no application to settlements effected by deed. (Cooper V. Kynoch, L. E. 7 Ch. 398.) The form of sect. 1 of the statute. 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 : — " That where any person or persons .... at anytime hereafter shall .... be seised, of and in any .... hereditaments, to the use confidence or trust of any other person or persons or of any body politic, by . . . any . . means whatso- ever, . . in every such case all and every such person and persons and bodies 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 nse trust or confidence of or in the same." Principal points. The statute is expressly made applicable both to uses then in existence and to those subsequently created. The following propositions respecting the uses which are contemplated by it, foUow naturally from its language, and have always been taken as indisputable ; unless the case of Solland 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 body politic ; as is shown by the repeated omission of body politic when speaking of the person seised and the repeated mention of body politic when speaking of cestui que use. A corporation cannot be seised to a use. (Bacon, Uses, 42, 67 ; and Eowe, note 113, p. 178, see p. 184; 1 Eep. 122a, 127a; Fulmerston v. Steward, Plowd. 102, at p. 103 ; and see at p. 538; Shep. T. 508 ; 1 Bl. Com. 477 ; 2 Brest. Conv. 255, 256 ; 2 Sand. Uses, 27, note.) But a natural person Digitized by Microsoft® ASSURANCES IN GENEKAL. 355 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 successors in their corporate capacity. (Bacon, Uses, 64.) But though a corporation cannot be seised to a use within the meaning of the statute, it may be seised upon trust, and will be compelled to execute the trusts. (See Case of Sutton^ s Hospital, 10 Eep. 23 ; Mayor of Coventry V. Att.-Gen., 7 Bro. P. C. 235.) This is now regarded as an axiom. 3. Since the person is seised, his estate must be of freehold. 4. But the quantum of the interest contained in the iise is not necessarily equal to a freehold. 5. The person seised cannot in general be identical with the person entitled to the use. The common forms, haben- dum unto and to the use of the grantee do not take effect by the Statute of Uses, but by the common law. {Doe V. Passingham, 6 B. & C. 305 ; Orme's Case, L. E. 8 C. P. 281.) 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 seisia which would be in the grantee by the common law without it, nevertheless avails to make any subsequent use limited upon it, incapable of being executed by the statute. Such a subsequent use would be a " use limited upon a use," and would take effect, if otherwise valid, as a trust. [Doe v. Passingham, 6 B. & 0. 305.) And in certain cases, in which it is held that there is " a direct impossibility or impertiaency 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 ; A a2 Digitized by Microsoft® 35G ON ASSUUANCES. (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 he seised to the use of himself and another jointly ; (4) If a feoffment he made to a hishop and his heirs to the use of himself and his successors. This, if a case in point, is not precisely on a level with the other instances, hecause the moiety of the use is here en autre droit. The uses ahove specified are executed hy the statute. But if A be infeoffed to the use of B for life, and afterwards 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 Bos. & P. 192, treats it as having 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 exceptions. Assurances operating under the statute. 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 hy ichat methods, can a use be so connected icith a seisin, that the person having the seisin can be said to be seised to the use within the meaning of the Statute of Uses ; so that tlie use will he 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 conveyance 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 provieo, if valid as uses, imports that the declaration of Digitized by Microsoft® ASSURANCES IN GENERAL. 357 uses is subject to restriction. Any use whicli 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. These propositions explain the meaning of the common 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 which a Assurances ,.,„ ,, f T Witt trans- seism may be, or might formerly have been, conveyed to another mutation of person within the meaning of the first of the foregoing propo- P°^^^^*^°''" sitions : — 1. A fine ; and 2. A recovery ; untQ these assurances were abolished by the Pines 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 derived the old assurance by lease and release. 5. Since the 8 & 9 Yict. c. 106, a grant of the seisin : which is the method now almost universally used by absolute owners. And under this head may also be placed con- veyance executed by tenants for life by virtue of the statutory powers conferred by the Settled Land Acts ; which conveyances, so far as regards their form, are usually similar to conveyances executed by absolute owners. Digitized by Microsoft® 358 ON ASSURANCES. The seisiu being conveyed by any of the aforesaid methods, the uses declared thereupon, if otherwise valid, are within the statute. Assurances without transmuta- tion of possession. The assurances which may take effect by the statute without transmutation of the possession, — that is to say, by which, under peculiar circumstances, a person may raise or declare a use, capable of being executed 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 consideration of blood or marriage : commonly styled, for brevity, a covenant to stand seised. Digitized by Microsoft® ( 359 ) CHAPTER XXVII. OF FINES AND RECOVERIES. Since fines and recoveries now not only are obsolete, but do not exist, it is unnecessary to add much to the remarks above made upon the operation of these assurances when levied, or suffered, by tenant in tail. (See Chapter XXI., supra.) These assurances were reckoned among the " common as- surances of the realm " ; and the use of them was by no means confined to their operation to bar estates tail. By reason of The effect of the statutory title gained against strangers to the fine under the ^ fing_ 4 Hen. 7, o. 24, and 32 Hen. 8, c. 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. The operation of a fine, levied with proclamations by force of Three rulea the statutes 4 Hen. 7, c. 24, and 32 Hen. 8, c. 36, was regulated fines. ° by these cardinal principles : — (1°) Since strangers might, at the common law, avoid a fine upon a plea partes finis nihil hahuerunt, 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 entitled to an estate of freehold in the lands. But any estate, whether in possession, remainder or Digitized by Microsoft® 360 ON ASSURANCES. reversion, would support a fine ; and, generally, even thougli it had been gained by disseisin or tort. (2") A fine would not bar any estate which was not so far devested as to be turned to a 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, su£Bce. 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 ihid. 135.) (3°) When several distinct rights, under several distinct titles, by virtue of which he might impeach the fine, 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 Pines & Eec. 237.) How fines It foUows from these principles, that any person having any mant titles. such possession of land as would qualify him to make a feoff- ment, though a tortious feoffment,* could simultaneously convey a sufficient estate to support a fine against the plea partes finis nihil hahuerunt, and also sufficiently devest the estates rightfully subsisting under the former seisin, which was displaced by the feoffment. A fine so levied would therefore bar aU those estates (so far as regards persons not under disability) upon the expira- tion of five years after the completion of the fine. The bar would not be complete, as against persons under disability, until the expiration 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 remainderman was not bound to take advantage of the forfeiture, t Upon the determination of the particular estate, whether for life or years, a new right accrued to the * Upon the tortious operation of a feoffment, see p. 371, infra. t Per Lord Hardwicke, in Kemp v. Wesilirook, 1 Ves. sen. 278. Digitized by Microsoft® OF FINES AND KECOVERIES. 361 remainderman ; and, by consequence, a new period of five years within wMch it might be prosecuted. (See Fermor's case, 3 Eep. 77 ; Whalei/ v. Tankard, 2 Lev. 52, 1 Vent. 241 ; Brandlyn V. Ord, 1 Atk. 571 ; Cruise, 1 Fines & Eec. 239.) Uses might be declared upon the seisin obtained by means Uses declared of a fine or a recovery, in the same way as they might be recovery. 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. The uses were in practice commonly declared previously ; but they might be declared subsequently, at any time during the Kves of the parties. {Bowman's Case, 9 Eep. 7.) 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 declare the use. (Ibid.) Owing to the last-mentioned circumstance, a doubt at one time existed, whether a tenant to the prcecipe could be made by levying a fine without any declaration of use ; for it was thought that the seisin might be forthwith devested out of the tenant to the prcecipe 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 contrary to the intention of the parties. {Attham v. Anglesea, 11 Mod. 210, 2 Salk. 676.) Since a married woman might always, at the common law, be Knesand rGcovsriGB BiS joined as a co-defendant with her husband in an action at law, assurances it follows that she could concur with him in levying a fine or ^^me™ suffering a common recovery ; because, for all technical purposes, these stood in exactly the same position as the actions at law which they simulated. Before the Fines and Eecoveries Act, a fine was the assurance commonly used by married women to release dower or convey estates of inheritance. A recovery had Digitized by Microsoft® 362 ON ASSUKANCES. Origin of ** separate examina- tion." the like effect ; but it was not cominonly 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 efPectual without proclamations (3 Prest. Abst. 133) ; because it was sufficient for these purposes that the parties should 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 82 Hen. 8, c. 36, or to the doctrine of non-claim ; and, at the common law, even after the Statute of Non-claim, 34 Edw. 3, c. 16, a fine bound the parties themselves, including the married woman, by estoppel. For the same reason, a recovery was for these purposes effectual, although it was suffered without a proper tenant to the 2:)rwcipe. The separate examination of married women arose from the provision of the statute Modus levandi fines — " And if a woman covert be one of the parties, then she must first be examined by four of the said justices ; and, if she doth not assent thereunto, the fine shall not be levied." (2 Inst. 510.) And when a married woman joined in suffering a common recovery, she was always separately examined by the practice of the Court. (Cruise, 2 Fines & Eec. 179.) Assurances by married women under the custom of London. It may also be remarked that, by the Custom of London and of many other cities and boroughs, married women might bind their real property by deed inroUed, with acknowledgment. (See, for a very similar custom of the town of Denbigh, Dy. 363 b, pi. 26.) This custom 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 under 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 assurance made by virtue of the Fines and Recoveries Act. Digitized by Microsoft® ( 363 ) CHAPTER XXVIII. OF A FEOFFMENT. A FEOFFMENT, the most venerable of assurances, survives to this Fanctiou of day, but is now little used. It is believed that certain old cor- tj^e o^ommon porate bodies still retain, at all events to some extent, the ^*^' ancient practice of conveying by feoffment.* It is the only assurance (not being matter of record, as a fine or recovery) by vrhich, at the 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, f Under the following special circumstances the immediate free- in f^hat cases hold might at the common law be acquired without livery of fre^ehoS^ ^*^ seisin and without any assurance of record : — might pass " without (1) The tenant of the immediate freehold might surrender ^^^' to the immediate remainderman or reversioner. (Co. Litt. 60 a.) Before the Statute of Frauds, the surrender might have been effected by mere parol, without any writing. {Ibid. 338 a.) By the Statute of Frauds, s. 3, a surrender must be by deed or note in writing, signed by the surrenderor or his agent lawfully autho- rized by writing; and by 8 & 9 Vict. c. 106, s. 3, a * The present writer remembers that ahout a dozen years ago he drew a power of attorney to deliver seisin on behalf of a corporation. t " In a feoffment, the livery is the material part, and transfers the posses- sion." (BaddeUy\. Leppingwell, 3 Burr. 1533, at p. 1544.) Digitized by Microsoft® 364 ON ASSURANCES. 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, such exchange might have been by mere parol. (Litt. sect. 62.) A deed is now necessary. (See 8 & 9 Yict. c. 106, s. 3.) (4) Partition between coparceners might be effected without livery. (Doct. & Stu. 17th ed. p. 23.) For example, by drawing of lots. (Litt. sect. 246.) A deed is now necessary. (See 8 & 9 Vict. c. 106, s. 3.) (5) Lands or tenements which are appurtenant to an office, would pass in possession on a grant by deed of the office. (Co. Litt. 49 a ; Shep. T. 90.) (6) Similarly of lands or tenements which are appurtenant to a corrody. (Co. Litt. 49 a.) The last two instances are not, strictly speaking, examples 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 customary freeholds. (Co. Litt. 49 a.) But though the assignment of dower forthwith gave the wife an indefeasible claim, this can hardly be called an imme- diate claim, and still less can the assignment be said to have vested in her an immediate freehold ; and as to customary free- holds. Lord Coke's opinion that the mere omission of the words " at the will of the lord," in a grant of lands held by copy of court roll, is enough to show the lands to be properly freeholds, must now be regarded as quite exploded. ( Vide supra, p. 29.) XJeage of the Any livery of the seisin for an estate of freehold is commonly ^°^ ■ styled a feoffment; but in strict propriety 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 Digitized by Microsoft® OF A FEOFFMENT. 365 possession will at the common law pass bj 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 laiv. Livery in deed (or actual livery) is made upon the land itself, Eequisites to and in the absence* of every person, other than the feoffor or feoffors, having any lawful estate and possession in the thing whereof livery is made. (Shep. T. 213.) But it seems that a lessee for years may be present, if assenting to the livery (Dy. 33 a, pi. 13) ; 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 servant should assent. (Eoll. Abr. Feffment, 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. Tayhr, 5 B. & Ad. 575.) It seems that the ceremony in which livery in deed consists The ceremony- may be merely the utterance by the feoffor of express words, deed, 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 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 livery of seisin, though they are not necessary to * It seems to have been held in Metteforde' s case, Dy. 362 h, pi. 20, that the presence on the land of the reversioner, if he raises no objection, would not, at the common law, have hindered a tenant for years from making a (tortious) feofE- ment. Bat 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 void. The authority of the Touchstone is express, that the persona 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 feoffors. Preston, in his additions to the text of Sheppard, seems to support this view, as to freeholders ; but he remarks that a mere assent by lessees for years is sufficient. Digitized by Microsoft® 366 ON ASSURANCES. 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.) Eemarksupon The reports of Sharp's Case, 6 Eep. 26, Cro. Bliz. 482, Serj. Moore's Eep. 458, if they all refer to the same case, are utterly at variance.* According to Moore, a certain man, in- tending to deliver seisin of a house and land, merely [solenient) delivered a deed of feoffment within the house ; which was held to 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 account of the facts, if he is referring to the same case, is expressly contradicted by both of the other reporters. They affirm that the man who meant to make the feoffment used words which, in the apprehension of ordinary 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 the 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 effect livery of seisin. Towards 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 for an estate pur autre vie. * Lord Coke's editors seem for several generations to have 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 and names are different, being in Lord Coke Sharp v. Swan, 42 Bliz., and in Croke Sharp v. Sharp, 38 Eliz., both in the Common Pleas. 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 case is given as 38 & 39 Eliz., Sharps v. Swaine, in the King's Bench. Digitized by Microsoft® OF A FEOFFMENT. 367 In practice the safest course is undoubtedly to make a sym- Course to be bolical delivery, upon the land or in the house, of some appro- practice. priate object in the name and as a symbol 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. lOS, hereinafter mentioned, the livery must now be evidenced. Feoffor or feoffee may both, or either, be represented by their Livery by, or respective attorneys, duly appointed for the purpose by deed, attorney. (Co. Litt. 48 b.) A parol attorney will not sufSce. An infant may appoint an attorney to receive livery of seisin on his behalf ; and this 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 deed only Livery in law. in being made in sight of the land instead of 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 ; though such danger is not essential to the validity of livery in law. (Co. Litt. 253 a.) But livery in law passes no estate without entry by the feoffee When it during the joint lives of himself and the feoffor. Such entry seisin, 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 eninj in laic 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 hke manner as entry by deed. (Litt. sect. 419 ; Townsend v. Ash, 3 Atk. 336, at p. 340.) The law imagines such an intimate union between different Parcels in the parts of the same county (Finch, Law, p. 79) that livery of * By 9 Geo. 1, o. 29, s. 1, infants not having guardians and femes covert are empowered, by writing under hand and seal, to appoint an attorney to take admittance to copyholds. This is repealed by 11 Geo. 4 & 1 Will. 4, c. 65, s. 1, but re-enacted by s. 4. Digitized by Microsoft® 368 ON ASSURANCES. seisin of one parcel suffices to give seisin of all other parcels in the same county, to which the livery relates. (Litt. sect. 61.) S°nr^"*^ ^y At the common law, a feoffment made hy an infant, proprid manu and not by attorney, is voidable only and not void ; and the age of the infant is not material. (13 Yin. Abr. 174= Feoffment, E, pi. 1, 2 ; 1 Prest. Abst. 323.) Customary ]3y ^q custom of the countv of Kent, an infant, whether feoffments ty '' . . infants. 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 indefeasibly alienate them by feoffment ; at all events for valuable consideration. (Eob. Grav. 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 fail as a customary feoffment, it would be in the position of a feoffment made by an infant at the common law. The alienation is not necessarily for a fee simple, but may be for a fee tail, or for life. (Eob. Gav. p. 280.) But (independently of 8 & 9 Vict. c. 106, s. 4) a feoff- ment made by an infant could not have any tortious operation. (Eob. Gav. pp. 279, 280.) It is doubtful whether this custom extends to lands taken by the infant oth erwise than by descent. {Ibid. pp. 277, 278, and p. 279, note c.) But infants so rarely take lands in fee simple by purchase, that the question is of little practical importance. The custom is construed strictly ; and therefore the infant must deliver seisin 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 infant. But such feoffments are expressly excepted from 8 & 9 Yict. e. 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 * In Dy. 262 b, pi. 33, ibid. 301 a, pi. 41, the age mentioned is sixteen years. Digitized by Microsoft® OF A FEOFFMEKT. 36d ■borouglis elsewhere. (Eob. Grav. p. 287. See Co. Litt. 110 b, and Harg. n. 2 thereon.) In respect to lands not within the county of Kent, its existence would require to be specially proved. At the common law, a deed, or charter of feoffment, was Livery s«c!(«- necessary only in the case of a feoffment made to a corporation carta. aggregate. (Co. Litt. 94 b.) But though livery of the seisin was itself the feoffment, and nothing else than livery was generally necessary to a perfect feoffment, yet the limitation of the estate or estates for which the livery was made might be contained in a deed, executed for the purpose previously to the feoffment; and if the livery were afterwards made without any formal limitation, but expressed to be made with reference and according to the deed {secundum formam, or formam et effectum, cartm), such livery would enure to effect the limitations con- tained in the deed. If livery of seisin be made secundum formam cartce, the opera- How the tion of the livery, so far as regards the quantum, of the estate trols the passed by it, is controlled by the import of the deed ; so that l^^®^?- (1) if the deed should limit an estate which cannot pass, or which cannot be created, by livery of seisin, as a remainder de novo in fee simple 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 secundum 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 remainder 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 entered into possession by virtue of his term ; 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. Litt. 49 b.) And for this purpose the C.K.P. K n Digitized by Microsoft® 370 ON ASSURANCES. 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 free- hold. {Ihid.) Statutory requisitea. Writing. Deed. Signing not essential to the deed's validity. 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 Yict. o. 106, s. 3, a feoffment, other than a feoffment made under a custom by an infant, is void unless evidenced by deed. Except in special cases by virtue of special enactments, a deed does not need signing in addition to sealing and delivery. [Taunton v. Pepler, Madd. & Geld. 166 ; Cherry v. Seining, 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 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 endeavoured to be uj)held by perjury and subornation of perjury," against which the statute is aimed, were common 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 Brest. Shep. T. 256, note 24; 3 Brest. Abst. 61 ; Ateline v. Whisson, 4 Man. & Gr. 801 ; Cooch v. Good- man, 2 Q. B. 580, at p. 597.) 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. Digitized by Microsoft® OF A FEOFFMENT. 371 By the common law, any person haying actual possession (not Tortious necessarily actual seisin), of lands, could, hy a feoffment, give to feoffment at any person, other than the person having the next or the imme- *^^<=°™'^°'^ diate estate of freehold in the lands,* an immediate estate of freehold, having any quantum. If the feoffor was actually seised, and the estate which passed by the feoffment was no greater than the estate of the feoffor, the feoffment took effect rightfully ; hut if the feoffor was not actually seised, or if the estate which passed by the feoffment was greater than his estate,t 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 oioi 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 necessarily a feoffment in fee simple ; and it might in fact be for a less estate. In such a 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 feoffment became vested in the feoffor by way of a tortious reversion upon the tortious par- ticular estate created by the feoffment. The tortious operation of feoffments made after 1st October, '^°^ P'^<=- vented by 1845, IS prevented by 8 & 9 Vict. c. 106, s. 4. statute. The possession of a termor for years, or tenant at will, or by Who could sufierance, sufficed to enable the termor, or tenant, to make a tortious tortious feoffment ; and thus to convey an immediate estate of '^° "^ ' freehold which fulfilled many 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. Sorde, 1 Burr. 60, J in which Lord * If the feoffment had been made to the person lawf uDy seised in possession, it would have been Toid, as purporting to give him what he already had ; upon the principle of the maxim, Quod memn est, amplitis esse metim non potest. (Co. Litt. 49 b.) 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. 3.53.) t ' ' Where a greater estate passeth by livery than the particular tenant may lawfully make." (Co. Litt. 251 a.) Upon the whole subject of disseisin hy tortious feoffment, see Litt. sect. 611, and Butl. u. 1, thereon. J The history of the case was briefly as follows : — A, being tenant in tail in remainder, and being entitled also to the benefit of certain outstanding terms, in 1710 brought an action of ejectment against the tenant for hfe, and recovered judgment, apparently on the ground of the outstanding terms. Going into 1! b2 Digitized by Microsoft® 372 ON ASSURANCES. Mansfield, striving after an unattainable equity (to f^ri ysviaQoci ^uvocTov 5i^»iju,Evof) did his best to throw the law into confusion,' see Butl. n. 1 on Co. Litt. 330 b. possession under this judgment, he made, as was alleged, a feoffment to a stranger, in order that he might serve as the tenant to the pracipe, and suffered a common recovery. He appears at the time to have believed himself to be tenant in tail in possession, and to have intended the feoffment to take effect by that title. But it was afterwards decided that he was only tenant in tail in re- mainder, and therefore the feoffment could only take effect, if at aD, by tort. The question was, whether the recovery was valid. In 1752 an action of ejectment was brought in the King's Bench to impeach the title under the recovery ; but it was held that the action was barred by the Statute of Limitations ; which fact made it unnecessary to decide the question of law. This action is reported 1 Burr. 60 ; and upon this occasion Lord Mans- field delivered himself of those disquisitions, which no one has ever been able to understand. A writ of error was brought to the House of Lords, briefly reported 1 Burr. 126, more fully 6 Bro. P. C. 633 ; when the judgment of the King's Bench was affirmed upon the same ground. In 1777 a right accrued in possession to a reversioner, who had title on the hypothesis that the recovery was bad, and he brought a fresh action of ejectment in the King's Bench to impeach the title under the recovery, which action is reported 2 Cowp. 689. Lord Mansfield, who had fully stated his opinion in the action of 1752, took no part in the action of 1777. The first question considered was whether A, at the time when he suffered the recovery, had been tenant in tail in possession or tenant in tail in remainder ; because, if tenant in tail in possession, he would of course have had the right to suffer the recovery. The Court held that, upon the true construction of the title, he was tenant in tail in remainder ; and no more needs to be said upon this head. Then the question arose, whether there had been a good tenant to the prceeipe ; for in default of a, good tenant to the prceeipe, the recovery was of course irregular. It seems to have been contended, that when A went into possession under the judgment which he obtained in his action of ejectment in 1710, this entry was a disseisin of the tenant for Ufe, whereby A obtained a freehold by dis - seisin. This contention, which seems to be absurd, was overruled by the Court. Then came the question, whether the tortious feoffment had vested an estate of freehold (by tort, of course) in the feoffee. There seems to be good ground for the decision at which the Court arrived. There seems to have been no sufficient evidence that any feoffment was ever really made ; for it is certain that the feoffor remained in possession after the alleged feoffment, and there was nothing, except the common -form indorsement on the deed, to show that the feoffee ever received livery in fact. The Court was j nstified in treating this part of the proceeding either as a mere sham, pretended to be gone through for the sake of giving foundation to a fraudulent - recovery, or else as a feoffment which, being intended to take effect by right, could not take effect by wrong. Moreover, assuming that an estate of freehold acquired by disseisin is techni- cally a sufficient qualification for the tenant to the prtecipej it does not follow, if . such an estate by disseisin has been created by the fradulent act of the recoveree, that the recovery must be good. The conclusion seems to be more than plausible, that such a recovery would be void under the general law relating to fraud and covine. If a tenant in tail in remainder had been allowed to manufacture a tenant to the prceeipe by tort, this would have been nearly the same thing as to allow him to suffer a recovery without any tenant to the prceeipe at all. The Court, perhaps unfortunately, did not confine their attention to these grounds, but served up a watered version of Lord Mansfield, who had entered into long disquisitions relating to the original nature of feoffments, the nature of feoffments at that day, the law relating to disseisin in general, and the . doctrine of disseisin at the election of the person disseised. This has given rise to the impression, that Lord Mansfield, and (following him) the Court of King's- Bench, considered the law relating to the tortious operation of feoffments to be inequitable, and fit to be pruned away by modern enlightenment. Digitized by Microsoft® OF A FE0FFME5JT. Of 'J If a tortious feoffment was made by any person other than a' it.s effect, tenant in tail actually seised, the person rightfully entitled (or made by any other person acting in his name, even though without his ^^^^^^^ ^ assent) might at common law destroy the tortious estate of the seised. 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 tech- ^^^^ *°l^^'l- nically said to be tolled by descent cast. Entry was tolled by a descent east in fee tail (when the disseisor 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 Entry now after 31st December, 1833, shall toll any right of entry. This descent, enactment made the learning of descents cast, and also of con- tinual claim whereby rights of entry might be protected there- from, equally obsolete. A feoffment, made by a tenant in tail actually seised, operated Disoontinu- as a discontinuance of the estate tail, and devested all remainders, and the reversion, expectant upon it, unless they were vested in the king. (Stone v. Neu-nian, 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 the 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 Right of needful action to recover the seisin was a real action. An action to real action. of ejectment [ejectione firmcB) would not suffice. (2 Brest. Abst. 328.) There were two degrees of remoteness in a right of action, the Digitized by Microsoft® j74 o^ assurances. first being said to he founded upon a rig/d of possession, and the second being styled a mere right ; and there were two kinds of real actions corresponding thereto, possessory actions, grounded vipon writs styled ivrits of entry, and droitural actions, grounded upon writs styled icrits of right. Aright 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 possession, forthwith turned the right of the issue in tail to a mere right, without passing through any intermediate stages. assTiranci under' S of Uses. reoffiment as The feoffment hitherto contemplated is a strictly common law under Statute conveyance. But uses capable of being executed by the statute may be declared upon the seisin of the feoffee ; and in such case the conveyance takes effect partly by the common law and partly by the statute. Digitized by Microsoft® ( 375 ) CHAPTER XXIX. OF A RELEASE. A RELEASE has Several 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 enlarging an estate {enlarger V estate), when a remainderman 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. A mere interesse termini does not qualify the person entitled WLo may thereto (the intended lessee) to take a release (Litt. sect. 459) ; ^^^m^g^?^^^^ for there does not exist a reversion upon an interesse termini. '■'<^^tate. (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 sufficiently qualified to take a release, without being or having been in possession, 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 upon a tenancy at sufferance, which is a bare possession without any privity of estate. (Co. Litt. 270 b ; Butler v. Duckmanton, Cro. Jac. 169.) The general principle which sums up and explains the foregoing observations is this, that the releasee must have in him a vested estate or interest to which the releasor is privy. By a release in fee, the estate of the particular tenant is its effect. enlarged, and, if his estate is only a chattel interest, 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 acquired. Digitized by Microsoft® 370 ON ASSURANCES. Lease and Upon the foregoing proposition was founded the now obsolete assurance by lease and release. The lease was a bargain and sale for a year, which, being made by a person having the seisin in him, raised a use capable of being executed without trans- mutation of the seisin, whereby the bargainee acquired a lease for a year, and was held to be constructively in possession under the statute without actual entry. Thereby he became qualified at the 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, accordingly 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 remained 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 declared upon the seisin of the releasee, these (if otherwise 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. * This mode of assurance is said to have teen invented by Serjeant Moore not long after the passing of the Statute of Uses. (2 Bl. Com. 339.) It was not accepted without much opposition ; see 2 Prest. Conv. 208 ; Rowe, Bac. Uses, p. 146, note 87. A sufficient reply to the technical objections urged against it seems to be found in the sixth resolution in Jseham v. Morrice, Cro. Car. 109, at p. 110 ; which decided that, when a lease had been made under the statute, the reversion would pass by a grant before entry by the lessee. From this it follows that the reversion would pass to the lessee himself by release. The distinction between the common law lease and the lease under the statute is, that in the former case, until the lessee enters, the lease has no existence as a lease, but only as an inleresse termini, a possibility to come into existence, and is not sepa- rated from the reversion, or rather from that which, when the lease comes into existence, will be the reversion ; see Lord Cote on Litt. sect. 459 ; but in tlie case of a lease under the statute, the lease is immediately and before entry sepa- rated from the reversion. Digitized by Microsoft® ( 377 ) CHAPTEE XXX. OF A STATUTORY GKANT. The several stages by whioli the form of assurance by lease and All heredita- release was superseded, have been traced above ; the last of S^^rant ^ ^ them being the 8 & 9 Vict. o. 106, s. 2, which enacts that, after 1st October, 1846, all corporeal tenements and hereditaments shall, as regards the conveyance of the immediate freehold thereof, be deemed to lie in grant as well as in livery. The disuse in practice of feoffments, and the abolition by the Eelation above-cited statute of the necessity for livery of seisin, is con- premisses of a nected with some remarkable modifications in the practical effect ^^eed and the . habendum. of conveyances, so far as regards the relation between the pre- misses and the habendum. The following statement 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. It must be borne in mind that in early times deeds contained no recitals, and that the premisses are deemed to commence with the operative words. A careful examination of the authorities seems to establish the following propositions : — (1) Effect must be given to every part of the premisses ; and therefore, though the hahendum may enlarge an estate expressly contained in the premisses, and capable of taking effect, it may not make void any such estate, or abridge any such estate, unless the abridgment is consistent with the expressions contained in the premisses. (Co. Litt. 299 a ; Lilley v. Whitney, Dy. 272 a, pi. 30 ; Carter y. Madguid-, 3 Lev. 3-39 ; Germain v. Orchard, 1 Salk. Digitized by Microsoft® 378 ON ASSUKANCES. True criterion ■whether habendum may control pre- misses. 346, 3 Salk. 222 ; Goodtitle v. Gihbs, 5 B. & 0. 709 ; Boddington v. Robinson, L. E. 10 Exch. 270.) It follows from the above-stated proposition, that the habendum cannot in general abridge any estate contained in the premisses, unless such estate either is not expressly contained, or else is not capable of taking effect ; because such abridgment would not in general be consistent,' in such a case, with the expressions in the premisses. And it accordingly appears, from an examination of the autho- rities, that all the usually cited cases in which the haben- dum has been held to abridge an estate in the premisses, 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. (2) Where an estate in the premisses arises, not expressly, but by mere implication, an express estate in the habendum, if repugnant, may abridge the implication of the pre- misses. {Buclder'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 referred to as being an example of repugnancy between the habendum 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 unnecessary, but even improper, that the premisses should contaiii any mention of the estate to be granted (Shep. T. 75), there is no reason, under such circumstances as above mentioned, to suppose that any estate by impli- cation 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 express estate in the habendum, we should more properly say that there is no estate in the premisses at all. (3) Where, under the old law, an estate was contained in the premisses, which could not take effect without livery of seisin, and such livery was not duly made, then, if an estate was contained in the habendum which could take Digitized by Microsoft® OF A Statutory gkant. '379 effect without livery of seisin, the latter estate would take effect by mere delivery of the deed, though the former would not. {Bakhdn's Case, 2 Eep. 23.) In these cases also there is little propriety in speaking of the hahendum 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 capable of taking effect. It follows that, strictly speakings the habendum does not control the premisses in any 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. Moreover, the introduction into common practice of assurances by which an immediate freehold can be con- veyed without making livery of seisin, such as a bargain and sale inroUed, a lease and release, or a grant under 8 & 9 Vict. c. 106, has rendered impossible, in modern practice, 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 conclusion seems to follow, in all cases like those above referred to, that in modern assm-ances by grant, the hahendum, though it may enlarge, yet may not abridge, any estate previously contained in the premisses, unless the estate in the premisses arises by mere impli- cation. 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) But a modification introduced by the habendum is per- mitted to take effect, if it is so far consistent with the language of the premisses, that its admission does not make any part of the language simply void or nugatory. In such cases there is not, properly speaking, a repug- nancy between them. - Digitized by Microsoft® 389 OK ASSURANCES. Thus, there is, for the present purpose, no repugnancy between a fee simple and a fee tail. 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. Litt. 21 a ; Harg. n. 2 thereon, and cases there referred to.) Some further evidence of in- tention, beyond the bare limitation in the premisses, is perhaps necessary to pass the remainder also. So, also, when there is a grant in the premisses to several grantees, such as, if standing by itself, would import a joint tenancy, there is no repugnancy if the limitation in the habendum should be such as to import a tenancy in common ; and iu such a case the effect of the habendum is to sever the joiat tenancy. (Litt. sect. 298 ; Co. Litt. 183 b.) And if the limita- tion be to two, habendum to one for life, remainder to the other for life : the first takes a life estate in possession, and the other a life estate in remainder. (Co. Litt. 183 b ; Dy. 160 b, pi. 43 ; ibid. 361 a, pi. 8.) And if the grant in the premisses be to a man and his heirs, habendum to him and his heirs during a life or lives, there is no repugnancy, and the grantee takes only an estate ^e(r 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 repugnancy, 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. Traeey, Dy. 124 b.) The significance 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 particular 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. Digitized by Microsoft® OF A STATUTORY GRANT. $8t by 4 Ann. c. 16, s. 9, the grant of a reversion is good without the attornment of the tenant. The remarks at p. 376, supra, as to the declaration of uses in Grant, as assurances by lease and release, whether to the releasee himself, under Statute or upon his seisin, are exactly applicable to the case of a grantee ° ^^^' by virtue of the 8 & 9 Yict. 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. Digitized by Microsoft® 382: OJS' ASSURANCES. CHAPTER XXXI. OF ASSURANCES BY WAY OE T3SE WITHOUT TRANSMUTATION OF POSSESSION. By what con- siderations a use may be raised. It was a principle 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 voluntary 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 consideration, 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. The considerations which sufficed to raise a use upon the seisin of a person who was also beneficially entitled, 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 the payment of the purchase- money, and nothing further was absolutely necessary in order that the use might effectually be raised. In the second case, the consideration was such that it was no consideration at all, unless and until the person to be affected by it elected to regard it as such; and therefore a formal declaration of his intention was necessary. This was usually done by a covenant, whence came the assurance briefly styled a covenant to stand * ' ' That no court of conscience will enforce donum gratnitum, though the intent appear never so clearly, where it is not executed, or sufficiently passed by law." (Bacon, Uses, 14.) Digitized by Microsoft® BARGAINS AND SALES AND COVENANTS TO STAND SEISED. B83 seised. But a covenant was not necessary: a declaration of intention made by deed poll would serve equally well. (Shep, T. 508.) A mere parol promise was not sufBcient. {Collard v-. Collard, Poph. 47, Serj. Moore's Eep. 687, 2 Anders. 64 ; Tage v. Moulton, Dy. 296 a, pi. 22.) A bond fide valuable consideration was necessary to tbe raising of a use by means of a bargain and sale operating as a con- veyance, and a bond fide relationsbip 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 release, was expressed to be made for a nominal consideration that was in fact never paid, does not form any exception to the rule, that a bargain and sale must, in order to take effect as a bargain and sale, be made for valuable consideration. The lease did not operate as a conveyance until it was perfected by the release ; and both stages formed together one transaction. The acknowledgment 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 assurance is therefore no exception to the rule, because it did not take effect by the means contemplated by the rule. If the validity of the use declared by the lease could have been raised in equity, as a substantive question, upon general principles it would have been permissible in equity to adduce evidence of the fictitious character of the consideration, and this might in equity have been fatal to the validity of the use. But the whole transaction was complete at law, where the doctrine of estoppel precluded all evidence touching the con- sideration ; and when it had been completed at law, there existed no equity (except under special circumstances, such as fraud, which are not in contemplation) to disturb the trans- action. After the passing of the Statute of Uses, the use which was Statute of raised upon the seisin of the vendor in favour of a j)urchaser who had paid his purchase-money, was forthwith executed by the statute and became a legal estate ; and thus, by means of Digitized by Microsoft® 384 ON ASSURANCES. mere parol bargains and sales made for valuable consideration, it was possible, 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, 1636, no manors, lands, tenements or other heredita- ments, should pass from one to another, whereby any estate of inheritance or freehold should take effect in any person, or any use thereof to be made by reason only of any bargain and sale thereof, except the same bargain and sale be made by writing, indented, sealed, and inroUed as therein mentioned.* It win 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 foundation of the release in assurances by lease and release, needed no inrolment. Bargain and sale : its dis- advantages. Bargains and sales for valuable consideration, if duly inrolled, are still perfectly valid, and perhaps they are still sometimes employed. But they can conveniently serve only to convey, not to settle, legal estates ; for since the bargainee 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 "bj the statute, and will exist only as a trust.f For the same reason, this kind of assurance does not permit the insertion of powers intended to take effect at law by declaration of use. Covenant to stand seised. The covenant to stand seised has long been quite obsolete. Its only function was to carry into effect family settlements ; * ' ' The Statute of Inrolments requires that the bargain and sale should be by- deed indented, and that the inrolment of the deed should be in parchment, within six lunar months from- the date, if the deed have a date ; but if not, then from the delivery. The inrolment may be made either upon the day of the date, or upon the last day of the six [lunar] months, reckoning the day of the date exclusively." (2 Sand. TJaes 64.) For most purposes the deed, when duly inrolled, took effect as from the delivery, to which it related back. (Ibid. 65.) t But the uses raised were not necessarily in favour only of the person himself ■who paid the consideration : they might be to himself with remainder to other persons, or to other persons alone, by his direction. (2 Roll. Abr. 784, pi. 6, 7.) Therefore, though uses executed by the statute could not be raised upon the seisin of the bargainee, successive uses might be raised upon the seisin of the bargainor ; and by this means a bargain and sale might to a certain extent give rise to a settlement ; and the citation from Eolle shows that this was not entirely unknown. Digitized by Microsoft® BARGAINS AND SALES ANB COA'ENANTS TO STAND bElSED. CiSo and as the frame of these hecame more complex, usually com- prising trustees to preserve contingent remainders, covenants to stand seised were necessarily abandoned, because the trustees were not within the consideration, and could, therefore, take no estate by virtue of the covenant. (2 Sand. Uses, 100.) 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. It has long been the practice of the courts to allow an assur- ance, technically invalid in the shape in which it was intended by the parties to operate, to take efEect as a covenant to stand seised, when the circumstances of the parties are such that the last-mentioned assurance would have been valid. Thus an assurance by lease and release made by a man to his brother, which was void as a lease and release because it purported to convey a freehold in futiiro, was held good as a covenant to stand seised. {Roe v. Tranmarr, Willes, 682, 2 Wils. 75.) It is sometimes necessary at the present day to have recourse to this doctrine in order to defend a title. CK-P. c c Digitized by Microsoft® APPENDICES. Appendix I. — Are Leaseholds Tenements ? II. — On Remainders after Conditional Fees. III. — The Squatter's Case. IV. — Determinable Fees. V. — With AM v. Vane. Digitized by Microsoft® ( 387 ) APPENDIX I. \_Reprinted from the Law Quarterly Review, Yol. VI., p. 69.J AEE LEASEHOLDS TENEMENTS? Some remarks appear under this heading in the July number of this Review, bearing the signature " H. W. E.," which is expanded on the title-page into the name of a highly-esteemed friend. They seem to afford a peculiarly apt occasion for making a few further remarks upon the subject. During the last seven years I have been on the look-out for the public appearance of the passage which he cites from Litt. sect. 132. If its existence had not been a widely-spread secret in the learned world, it would certainly have appeared sooner ; and I was unwilling to refer to it myself, because it seemed more likely to prove a cause of stumbling than of edification. It seems to me that three separate questions are involved, where my friend has perhaps shown signs of a tendency to find only one. (1) Are terms of years tenements? (2) Is the phrase, "leasehold tenure," a proper one to be used with respect to terms of years ? (3) Can the phrase, " land of any tenure," in a modern Act of Parliament, be taken to include a term of years ? It would be quite possible to answer the third question in the affirmative, while answering the first two in the negative; and it would be quite possible to meet the first with a firm and uncompromising denial, while extend- ing a qualified recognition to the practice contemplated by the second. Something like this is in fact my own case. In my humble opinion it cannot be, or at least ought not to be, seriously maintained that terms of years are tenements. I also think that the phrase, "leasehold tenure," as applied to cc2 Digitized by Microsoft® 388 APPENDIX 1. terms of years, is both useless and misleading; but if people like to use it, they can do so without being either absurd or unintelligible. As to the question, whether in a modern Act of Parliament, the words " land of any tenure," can include terms of years, I should prefer, considering what sort of things modern Acts of Parliament usually are, to leave that to the decision of their lordships the judges. On the first point I rely upon a very short argument. In England the legal definition of a tenement has for centuries been by universal consent, " whatever is intailable under the statute De Bonis." I leave it to my friend to say whether this applies to terms of years. It applies, as has often been remarked, to two distinct'classes of things: — (1) Things which are strictly the subject of common law tenure ; and (2) things, like rent-charges, which, though not strictly the subject of common law tenure, are so closely connected with things that are, that they are admitted to the privileges of the statute. The word " tenement " affords a highly convenient expression for compendiously referring to both these classes of things in a single word. What is the use of increasing the confusion of Babel by dragging in some- thing else, which has confessedly nothing to do with the statute, and which can never for any practical purpose require to be classed along with the things that have to do with it ? As to the question about " leasehold tenure," the case is different. The phrase is not, in my opinion, a judicious one ; but it can be understood, and its introduction does not tend directly to the confusion of speech. Littleton no doubt lends some countenance to the practice ; but, after perusing the following remarks, I will beg my friend to say how much. I take the matter to stand as follows : — By the time of Little- ton, terms of years had acquired great practical importance, and, under the Statute of Q-loucester, they conferred for most purposes a secure title. The custom had long obtained in practice, of admitting termors for years to do fealty. Nothing can be more evident than that Littleton was intensely puzzled when he wrote that part of sect. 132 which refers to terms of years. He knew that a term of years was no estate at all, but a mere contract, at the common law ; yet he found termors Digitized by Microsoft® ARE LEASEHOLDS TENEMENTS ? 389 allowed to do fealty. In very cautious language, redolent of doutt and bewilderment, he permits himself, as I view the matter, to infer from the fact of the fealty, that there must be some sort of tenxire or another ; and he backs this up by refer- ring to the writ of waste. Compare his style on this occasion, which reminds one of a blind man feeling his way, with his usual clear and unhesitating statement of facts ; and the difier- ence between the two will be apparent. In my himible opinion, the illustrious author was not clearly justified in his conclusion. As a term of years is a mere con- tract at the common law, there could not possibly be any tenure of it. The Statute of Grloucester did not make it an estate, but only prevented the reversioner from destroying his contract under pretence of suffering a recovery. The common practice of admitting termors to do fealty could not do what had not been done by the common law or the statute. I humbly conceive that the practice was a mere voluntary proceeding on the part of reversioners, and could not create a tenure which the law had not created ; and that the language of the writ of waste admits of the same answer; and that Littleton's conclusion would have been more closely in accordance with the theory of the law, if he had concluded against the existence of any kind of tenure. However, it is too late now, in the face of Littleton and Lord Coke, to adduce these arguments ; and those who like to talk about " leasehold tenure " must be permitted to do so without very urgent remonstrance from their friends. But the case is quite different if they propose also to call terms of years tenements. It must be remembered that the words tenant, tenere, teneri, tenure, and tenement, are not strictly correlative : the classes to which they refer are not conterminous. This sufficiently appears from the remarks of Lord Coke at the beginning of his com- mentary, and his " five significations." It is true that he says that they all " doe properly belong to our tenant in fee simple." But this is only his playful way; and even if true, it would not be inconsistent with the overlapping of the different classes ; and I leave it to my friend to say whether Lord Coke's own remarks do not prove that the terms are not strictly correlative. Digitized by Microsoft® 390 APPENDIX I. In sect. 132 Littleton does not say that a term of years is a tenement ; in the phrase cited from the writ of waste, " the lessee holds his tenements " l_tient les tenements'] " from the lessour for terme of yeares," the word "tenements" is synony- mous with " lands"; and the statement is quite true, though its language perhaps admits of improvement. Fitzherbert uses the word " lands " {de terris) in a similar writ. (Fitzh. N. B. 57 B.) As to that ^^E\vyiJ.a EpyiiJ.u<7eajs, Lord Brougham's Act, I would fain hope that some day, when the Irish are pacifieated like the tailors,* it may cease to adorn the statute-book, t * " The tailors are now entirely pacifieated." — Sartor Eesartus. t These remarts were written before the puhhcation of 52 & 53 Vict. u. 63, hy which Lord Brougham's Act has been repealed and substantially re-enacted, •without any of the improvements for which there was room. Digitized by Microsoft® ( 391 ) APPENDIX II. ON EEMAINDEKS AFTEE CONDITIONAL FEES. Professor Maitlanu knows so well liow to touch the rim of the cup with the honey of agreeable flattery, that in his case it is easy to subscribe to the maxim, Corrige sapientem et amabit te. He has satisfactorily proved by examples that in early times it was a not uncommon practice in settlements to insert what purported to be limitations of remainders in expectancy upon conditional fees ; and it follows that I had attributed iusufficient importance to the passage from Bracton which assumes the validity of such limitations. If I have not misunderstood Mr. Maitland's expressions, he seems to think that at some early period such limitations were not only of common occurrence in documents, but were in fact valid or good in law. Upon this question I respectfully submit to his notice the following observations. My own hypothesis, founded upon Mr. Maitland's facts, would rather be, that in early times, before the Inns of Court had been founded and consolidated as Schools of Law, when there was little litigation, no reports, and no professional criticism and interchange of opinion, the law was in a fluid state, which permitted clever people to give a free rein to their fancies ; and that under those circumstances the practice of inserting such limitations became common, with a view to giving wider effect to the iutention which had originally prompted the invention of conditional fees ; but that, when the circumstances changed in the manner above indicated, these limitations were subjected to strict scrutiny, and at once seen to be so utterly indefensible, that they sank down, without any serious struggle being made to assert their validity. I should gather from Mr. Maitland's remarks, that he is not aware of the existence of Digitized by Microsoft® 39"2 APPENDIX II. any evidence to prove that any struggle was made, in the course of litigation, to assert the validity of these limitations. Upon any other hypothesis than mine I am unable to explain the remarkable fact, stated by Lord Coke, that at some time subsequent to the passing of the Statute Be Bonis, there v?as a doubt whether any reversion could subsist in expectancy upon a fee tail. (Co. Litt. 22 a, 22 b.) If there could be remainders upon a conditional fee, how could it be doubted whether there might be remainders, or a reversion, upon a fee taU ? The Statute Be Bonis was so far from containing anything to introduce such a doubt, that the people who strenuously denied the previous existence of such remainders, admitted them to be afterwards legal by virtue of the statute. "I cannot but believe," says Mr. Maitland, "that the con- " veyancers of the time knew their own business, and were not " devising futilities when they limited remainders after con- " ditional fees." But I would desire him to consider the question whether, in the days to which he refers, there were any con- veyancers in the sense in which we now use the word. Every- body who could write was expected to act as a conveyancer when the occasion demanded his services. I am, of course, well acquainted with Mr. Maitland's highly interesting paper* on " A Conveyancer in the Thirteenth Century." But that sort of collection of precedents bears to what we now mean by the phrase, about the same relation as is borne by the old wives' recipe-books of the 16 th century to the modern Pharmacopoeia. Next, as to the question about the existence of a formedon en remainder at the common law. I am disposed to conclude that there was no such thing, because I find Fitzherbert, Lord Coke, and Booth all apparently consenting in that opinion, and holding that the writ had its origin in the equitable construc- tion of the Statute Be Bonis. Mr. Maitland hesitates to accept this conclusion, remarking that there exist many copies of the Eegistrum Brevium as it stood before the statute, and that he does not like to speak confidently as to their contents. I would not for a moment presume even to hazard a guess ; and I respect- fully await whatever information Mr. Maitland may hereafter * Law Quarterly Review, Vol. VII., p. 63. Digitized by Microsoft® ON REMAINDERS AFTER CONDITIONAL FEES. extract from those venerable documents. But in the meantime I would humbly observe, that he seems to be suggesting a very extraordinary state of affairs. It appears that, in his view, remainders upon conditional fees were common ; and therefore, that the rights which they conferred would need a means to enforce them ; and yet that, somehow or another, nobody has ever heard for certain of the existence of this indispensable writ ; while the persons who were the most likely to have heard of it, if there was such a thing, deny its existence. Can any other example be pointed out, of the existence of an important class of rights, founded upon the existence of a class of estates in real property, without any writ to enforce them ? or, at the least, with a writ of which the existence is so obscure, that nobody can testify to it, while Mr. Maitland can only urge, that negative evidence is not absolutely conclusive. All this is in remarkable contrast with the circumstances surrounding the writ of formedon en reverter. There we find an equal certainty about the existence of the right, and also about the existence of the writ to enforce it. It can hardly be maintained that rights under a remainder were less likely to mature into possession than rights under a reverter. Mr. Maitland, I think, will admit that in this respect remainders and reverters stand in exactly the same position. Whence, then, comes this remarkable difference, in point of prominence, between the two writs? Is it not a plausible inference, that the one writ did exist and the other did not ? Next we come to the fact, that by reason of the reading out of fines to the Court, the limitations contained in them must have been familiar to the justices ; and along with this is to be considered the argument derived from the settlement made by Thomas Weyland when a justice of the Common Pleas ; which, as Mr. Maitland observes, shows that he assumed not only to create remainders upon conditional fees, but also to play some tricks with tenures which seem very odd in our eyes. Here I will venture to express a feeling of mild surprise at the excessive moderation of Mr. Maitland's language. It is like saying that Dick Turpin sometimes swerved from the path of strict integrity, ■or that Thurtell and Weare have been suspected of complicity in crimes of violence. It surely cannot be maintained that there Digitized by Microsoft® 393 394 APPENDIX IT. ever was a time when this bewildering nightmare gave a correct picture of the law. It rather seems to prove one of two things : either that some justices of the Common Pleas knew nothing about the law, and might safely be trusted to swallow without protest anything that was put before them ; or else (which is my hjrpothesis) that legal notions in those days were in a vague and ill-ascertained condition, under which things could easUy be taken for granted, which at a subsequent period came to be scouted by universal consent as wholly inadmissible. Justices of the Common Pleas seem to have had a constitu- tional tendency towards the making of odd settlements. It will be remembered that the " invention devised by Justice Eichel in the reigne of King Richard the Second " was " full of imper- fections." The same learned person would also appear to have drawn a demurrable pleading in an action brought by himself. (Co. Litt. 377 b.) Historical inquiry into the origin of the law is a subject of which I can readily understand the fascination. To style it profoimdly interesting is to use inadequate language. But I think that this subject should be kept quite apart from the law as it is administered in practice. There may possibly be some points on which historical research not only can throw light, but can throw such a light as might reasonably appear, to men conversant with the administration of practical afFairs, to afford a sufficient ground for judgments and opinions touching the decision of rights of property at the present day. But in my opinion these points are at least not numerous. I do not think, for example, that any Court, in deciding questions on the nature of customary freeholds, ought to pay any attention to arguments about socmanni and liberi tenentes, and so forth. Nor do I think it permissible, unless under the most extraordinary circumstances, to cite in Court any authority older than Littleton. The most profound real pro- perty lawyer now living holds this opinion so strongly, that he once even apologized to the Court of Appeal for citing Fitz- herbert's Natura Bremuni, because, though late enough in date, it is too unfamiliar to be properly intelligible except to people of unusual research ; and he was afterwards so kind as to explain to me why, under the peculiar circumstances, he thought himself justified in citing that particular passage. Digitized by Microsoft® ( 395 ) APPENDIX III. \_Reprinted from the Law Quarteely Eeview, Vol. V.,p. 185. J THE SQUATTEE'S CASE. The recent case of Agency Company v. Short, 13 App. Cas. 793, is of a sort to afford sincere pleasure to every rightly constituted mind. It appears that somebody in New South "Wales had, many years ago, acquired a good title, under the system of Crown grants prevalent there, to a tract of open bush or waste land near Botany Bay. For a long time he seems to have played the part of an absentee proprietor; and when, about 1885, he began to thinli of turning the land to some use, he found somebody else in possession of a part of it. In New South Wales the Imperial Statute 3 & 4 Will. lY. c. 27 was adopted en bloc by a Local Act in 1837, and the period of twenty years (our Act of 1874 not having been locally adopted) is there the common period for the limitation of actions for recovery of land. Upon inquiry it appeared that the other somebody above mentioned had not been in possession of his plot for anything like twenty years ; but it also appeared that the rightful owner might perhaps have been out of possession for a much longer period. Forty years ago a third person had entered into possession ; after some years he had gone away, apparently with no intention of returning; after a further interval, the somebody above mentioned had entered ; and within twenty years from the last entry, the action was brought. The question was, whether this action was barred by the statute. The Supreme Court of New South Wales held that the action was barred : the Privy Council have now decided Digitized by Microsoft® 39G APPENDIX lir. that it was'not. Even the people who do not understand the grounds of the decision must feel a pious satisfaction at the disappointment of the interloping rogue who has been turned out. Some reference is made in their lordships' judgment both to the general law of disseisin and to the statute of limitations ; but the question, upon which of these grounds the decision was intended to rest, seems to require what has been styled " con- siderable consideration." The decision cannot be treated as a combined result of both these grounds taken together, because what is said about each of them separately would be quite sufficient for the purpose. On the other hand, the decision cannot easily be supposed to rest upon each of these grounds separately, because there is nothing to show that any idea of such multifariousness was present to the minds of their lord- ships ; and it may safely be said, that judges who are of opinion that they have two separate indefeasible grounds for their decision are never so self-denying as to talk as though they thought they had only one. Upon the first point their lordships appear to have held that, if a disseisor goes off the land without the intention of returning, this restores the seisin of the disseisee : in other words, it operates what is technically styled a remitter. This is not the place for criticism, but the observation may be made that this particular doctrine of remitter bears about it a strong flavour of never having been heard of before, and that (to use a remark of the late Master of the Rolls) the year 1888 is rather a modern time at which to invent new law of real property. The pro- position, or the idea which it embodies, is very appropriate to another branch of the law : a domicil of choice is lost by leaving the country without any animus redcundi ; but its appropriate- ness to the law of seisin might be open to question if this were the place for the discussion. Here it suffices to point out that the proposition is by itself an ample ground to support the decision. If the plaintiff, at the time of the defendant's entry, had been remitted to his original seisin, it was quite superfluous to discuss the Statute of Limitations, which (on that hypothesis) bad no more to do with this case than it has to do with any other case. Digitized by Microsoft® THE SQUATTEk's CASE. 397 But even suppose that the original owner had not heen remitted as aforesaid : it is nevertheless quite possible that his action might not be barred by the statute. That is a question, not of the general law of disseisin, but of the language of the statute itself. Upon this question it is not necessary here to express any opinion. The points to be noticed are, firstly, that the learned judges discussed the question evidently upon the above-stated hypothesis ; and, secondly, that their conclusion in favour of the plaintiff supplies a second and quite independent ground, which amply suffices to support the decision. If anybody were asked why he supposed that the question as to the statute was discussed upon the hypothesis that the original owner had not been remitted to his original seisin, he would probably reply : Because otherwise the question does not admit of discussion. The point is much laboured by the learned judges, and is handled in cautious and circumspect language : a proceeding which would be quite inappropriate to the discussion of something too obvious to admit of a moment's doubt. If the plaintiff really was remitted to his original seisin, he was actually seised; and in that case, if disseised, he could at any time within twenty years bring his action, without hindrance from the statute 3 & 4 "Will. IV., c. 27. It would have been quite out of place to cite the judgment of Baron Parke, in Smith v. Lloyd, to prove this point. That learned and most acute lawyer is a great authority upon nice quillets of the law ; but his opinion that two and two make four, or that fifteen years are not twenty years, carries no greater weight than the opinion to the same effect of anybody else. For these reasons it seems to be somewhat doubtful what pre- cisely is the point which the case has decided, or whether it has decided more points than one. As New South Wales has enjoyed since 1863 the blessings of the Torrens system of regis- tration of titles, it is a matter for some disappointment that no mention is made in the case of the relation of that system to statutes of limitation. Digitized by Microsoft® ( 398 ) APPENDIX IV. \_Reprinted from Law Quartekly Review, Vol. III., p. 403.] DETERMINABLE FEES. I HTJMBLY conceive that the learned and ingenious arguments of Professor Gray* against the validity of determinable fees might he separately answered in detail. But for the saving of time and space, I will on this occasion confine myself to a single argument, which certainly calls for some consideration. That a cardinal result of the Statute of Quia Emptores should he left to be discovered by Sandersf in the nineteenth century seems to me, I confess, what Ohillingworth calls " extremely improb- able, and even cousin-german to impossible." That Lord Coke, Plowden, Croke, Sir Henry Einch, Lord Nottingham, the author of the " Touchstone," Serjeant Maynard, Yaughan, Treby, Powell, Lord Hardwicke, Preston, Fearne, Butler, Watkins (to put together at random the names of a few men who have be- lieved with unquestioning faith in the existence of determinable fees since the Statute) should have passed their lives in intimate familiarity with the statute, without any one of them Hghtiag or stumbling upon what, if it were true, would be a fairly obvious truth, is not a hypothesis to be accepted, unless no other * Professor John CMpman Gray, of Harvard University : a learned friend of the present writer and the author of several highly esteemed -works. t ' ' Mr. Sanders was the first author to distinctly recognise, or at any rate to distinctly state, that the Statute Qiria Emptores put an end to qualified fees." (Gray on Perpetuities, ^ 36, p. 25.) Digitized by Microsoft® DETERMINABLE FEES. rational explanation of the language of the Statute can be found. Another and to my mind a simpler explanation presents it- self. The third chapter of the Statute contains the following words : — " And it is to wit, that this Statute extendeth hut only to lands holden in fee simple." The suggestion is at least plausible, that here " fee simple " means " fee simple absolute." That is, in fact, the proper meaning of the words ; according to the maxim. Verba wquivoca et in duhio posita intelUguntur in digniori et potention sensu. (Co. Litt. 73 a.) So Littleton (sect. 293), as translated by Lord Ooke, says : " And it is to be understood, that when it is said in any booke that a man is seised in fee, without more saying, it shall be intended in fee simple ; for it shall not be intended by this word (in fee) that a man is seised in fee tayle, unless there be added to it this addition, fee tayle, &c." By this " &o." he means here, as he often does elsewhere, to extend his words to other like cases ; which is as much as to say that, as fee means fee simple, so fee simple means fee simple absolute. So in Metcalfe's Case, 11 Rep. 38, at p. 39 a, it is said, " If fee is mentioned, it shall be intended fee simple ; " and this is put as one example of a class. The same idea is elaborated in Gregori/'s Case, 6 Eep. 19. The Latin, which is of course the actual original of the statute, is still more evidently to the purpose ; for the words are in feodo simpUciter, not in feodo simpUci. A gift to A and his heirs so long as J. S. shall have heirs of his body, cannot with much propriety be styled simpliciter the gift of a fee. It is worthy of notice that Lord Coke in 2 Inst. 504, 505, misquotes the Statute, giving the words as in feodo simplici. Yet, even with this assistance towards the conclusion advocated by Sanders, it is plain that no such idea ever ocouiTed to his mind. In vigour and acuteness of reasoning, and in what is commonly but somewhat vaguely styled "grasp of general principles," Sanders is, if I may express an opinion, inferior to no legal writer of this or the last century. But it is a perhaps not wholly insignificant fact, that in reading his writings I have always felt like a traveller in a strange land, where everything wears an odd and unexpected appearance. Fearne, Butler, Digitized by Microsoft® 399 40O APPteNDIX IV. Watkins, Preston, sometimes differ and even dispute ; but they all talk the same language, and one feels equally at home with all of them : even with the subtle and dogmatic Watkins, some of whose perquisitions and conclusions are quite as bold as any- thing that is to be found in Sanders. But the paradoxes of Watkins have about them a sort of capacity for soon looking like familiar propositions, while in the mouth of Sanders the most obvious truth acquires some new and startling aspect. This shows the originality of his intellect, but it does not prove him to be the safest of guides. He should be followed with caution in cases where he happens to differ from the whole civilised world before him. Digitized by Microsoft® ( 401 ) APPENDIX V. THE CASE OF WITHAM V. VANE, [1879.— W.— No. 104] BEFORE THE 2m, 27th April, 1883. A covenant by a puroliaaer of landa in fee simple, contained in the convey- ance made to Mm by the vendor, that the purchaser, his heirs, appointees, and assigns, will from time to time and at all times pay, or cause to he 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 conveyed, 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 for 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 sufficient evidence, in addition to the antecedent probability of the matter, to prove the execution of the conveyance by the purchaser. Held 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- C.R.]'. ]) I) Digitized by Microsoft® 402 APPENntX V. Teyanoe piirported to contain sucli a ooTenant, would not, in the absence of proof of the execution of the conveyance by the purchaser, suffice to render the purchaser and hie representatives liable, either at law or in equity, to perform the covenant. The principal question in this case turned upon the validity, and the construction, of certain stipulations, contained in certain articles of agreement in writing, dated 24th June, 1823, and in a conveyance, dated 21st January, 1824, made between the pre- decessors in title of the plaintiffs, who were also the appellants, 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 (afterwards Duke of Cleveland) of the other part, the said Gr. 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 here- ditaments 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 Gr. Silvertop, his heirs, executors, administrators, or assigns, 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 Gr. Silvertop and the said earl respectively. In the conveyance of the said hereditaments to the said earl, made in pursuance 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 here- " by, for himself his heirs executors and administrators, covenant " with the said George Silvertop, his heirs executors administra- " tors and assigns, that he, the said William 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 the said George Silvertop, his heirs executors. Digitized by Microsoft® WITHAM V. VANE. 403 " administrators or assigns, the sum of sixpence of lawful money " current in Great Britain, for eacli 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 " otherwise 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 plaintiSs, as the representatives in title of the said Gr. 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 necessary to pass the estate agreed to be sold to the purchaser, the Earl of Darlington, 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 affixed 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. The purchaser, the Earl of Darlington, was created Duie 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 arrange- ments, not material to be stated, were made in relation to the premises ; and the said indenture contained a full recital of the dd2 Digitized by Microsoft® 404 APPEKDIX Y. above-stated conveyance of 2 1 st January, 1824, in the course of whioli recital it was stated to be the fact, that the said Duie of Cleveland had, by the said conveyance, entered into the covenant above specified. The indenture of Ist 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 management in the trustees of the win of the Duke of Cleveland, was contained a recital that, upon the purchase of the said hereditaments in the year 1824, 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 judgments, 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 representatives. (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 proprietor 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 Digitized by Microsoft® WITHAM V. VANE. had to a considerable extent taken the place of the then existing custom of shipment. (5.) Whether, 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 6th June, 1880. The trial lasted until 7th June, when judgment was given for the plaintiffs. The learned judge seems to have held that, partly by reason of the undoubted 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 acqiiired by the conveyance of 21st January, 1824, it was not material to inquire 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 covenant 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 follows : — • " This Court doth declare that according to the true con- " struction of the covenant 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 number " 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 executors of the Duke of Cleveland'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 be Digitized by Microsoft® 405 406 APPENDIX V, certified to have been so shipped for sale as aforesaid ; with certain further directions in ease the last-mentioned defendants should not admit assets for the purpose. The plaintiffs appealed from the ahove-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 binding upon him, although he had held the lands under the title acquired by the conveyance 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 Statutes of Limitation) for the breach of the agreement, contained in the articles of agreement of 24th June, 1823, to execute such a covenant. They accordingly reversed the judg- ment 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 appeal was heard on 26th, 27th April, 1883, by the Lord Chancellor, Lord Blackburn, Lord Bramwell, and Lord Fitzgerald. The counsel for the appellants were Sir Farrer Herschell, Q.C., S.-Gr., Mr. Cookson, Q.C, Mr. Trevelyan, and Mr. Dunning. The counsel for the respondents were Mr. Whitehorne, Q,.C., Mr. Wolstenholme, and Mr. Smart. At the conclusion of the arguments for the respondents, their lordships retired for consultation ; and upon their return to the House, the following judgments * were delivered : — Earl of Sel- LoRD CHANCELLOR: My lords, I quite feel that this covenant iudffment " ' ^^ ^^^ ^^ ^ 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 reasons can be sufficient to prevent yom- lordships from giving to it its proper legal effect. They explain, perhaps, the perti- nacity with which this action appears to have been defended, * Such parts of tie judgments as refer only to costs have heen omitted. Digitized by Microsoft® WITHAM V. VANE, 407 and I must, for my own part, say that, but for the respect which Earl of Sel- I feel for every opinion, even when contrary to my own, of the judgment. learned judges of the Court of Appeal, I should have thought that there was no question in this case susceptible of serious difficulty or argument, excepting the question upon the con- struction 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 understand 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 trans- action was to be carried into effect by an indenture, and we have produced to us an indenture executed by the vendor, and coming out of the purchaser's possession, which, upon the face of it, shows plainly on what terms and under what contract the purchaser, out of whose possession that deed comes, held and was in enjoyment of the land. The only question is whether the covenant was executed under seal by the covenantor ; but that there was a contract 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, con- tains upon the face of it the terms of that covenant, about which, therefore, if the covenantor was ever liable, there can be no controversy whatever. 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 natu- rally 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 Digitized by Microsoft® 408 ArPENDlX V. Earl of Sel- benefit, and that the deed -which alone could prove it would be judgment. 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 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 would 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,* 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 ease that the'deed pro- duced 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. Witham and those who joined with him in conveying as vendors, has been relied upon in the Court of Appeal as evidence that no other execution by the earl, the covenantor, 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 can- not 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 d priori reason, presumption, or probability would have been by itself enough if there were no evidence of any kind, properly receiv- * Not Hargrave, but Butler, n. 3 on Co. Litt. 229 a. See also 2 Bl. Com. 296, Digitized by Microsoft® WITHA.M V. VANE. 409 able, that there was in point of fact a covenant duly entered Earl of Sel- into and executed by the earl. judgment. But, my lords, there is, as it seems to me, upon that subject evidence, not only admissible, but of the strongest possible character, and such that it is difficult to believe that its effect could have been rebutted without 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 admis- sion, under seal, by the duke's legal and personal representatives and devisees of this particular purchased estate, that he did enter into such a covenant. That admission your lordships find in the deed* bearing date the 1st March, 1843, which is made, observe, my lords, between the persons then representing the vendors en- titled to the benefit of this covenant of the first and second parts and between certain persons described as " the trustees and exe- " cutors named in and by the last will and testament of the Duke " of Cleveland" (for the earl had become the first Duke of Cleve- land) " 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 certaia terms of the payments which might be exigible under this very covenant, a reduction which would operate for the benefit, both of the 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 interested are brought together — the covenantees, the Withams, the devisees in trust of the estate to which the covenant related, and the personal representatives of the duke, who was personally bound by the covenant, and it is a bargain concerning the subject-matter of the covenant. In that deed it is solemnly recited, under the seals of aU those persons, that * See p. 403, ante. Digitized by Microsoft® 410 APPENDIX V. Earl of Sel- " by an indenture of release, dated on or about the 21st of borne, L. 0. : _ judgment. " January, 1824" (being evidently the very same deed of which a part executed by the vendors vi^as produced in evidence in 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 administrators, 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 executors administrators or " assigns, the sum of sixpence for each and every chaldron of " coals of the Newcastle measure, which should be wrought and " 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 admission 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 execu- tion of a counterpart of that indenture by the duke, which counterpart would naturally be in the custody of the vendors or those representing 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 indentures ; there is one inden- ture, 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 Digitized by Microsoft® WITHAM V. VANE. 411 SucH a covenant and for the purpose of varying the effect of it Earl of Sel- by contract for valuable consideration. judgment. That, my lords, has superadded to it a subsequent Act of Parliament obtained at the request, as it recites, of the represen- tatives of the duke and containing exactly the same recital of the existence of such a covenant. The remarkable thing, which I am unable after the argument we have heard to explain to my own mind, is that in the judg- ment 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 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 signatm-e of the duke was intended 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 produced. 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 not 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 covenant 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 great 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 Digitized by Microsoft® 412 APPENDIX V. Earl of Sel- think it necessarv to enter. My lords, if there had heen, as borne, L. C. : pi judgment. between the owners of the, estate and the general representatives of the covenantor, the relations which are described by the words "primary and secondary liability," which may very possibly have been the case by means of con raots 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 the 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 Heiningicay v. Fernandes* a case of lease between a lessor and a lessee, in which a certain covenant to make certain payments was held by the Vice- Chancellor of England to run with the laud. 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 whatever 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. Whitehorne, 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 13 Sim. 228 ; 12 L. J., Ch. 130 ; 7 Jur. 1 Digitized by Microsoft® WITHAM V. VANE. 413 argument fails. Being a mere personal covenant Mr. Wtite- Earl of Sel- norne contended that it was a covenant to pay money in an judgment. event which might only arise at a distant period of time ; that can make no diilerence. In point of fact the case I mentioned during the argument of the Clive Fund of Walsh v. The Secretary of State for India * is a remarkable illustration of the inapplicahility of the doctriue of perpetuity upon any such grounds ; for the covenant there of the East India Company was this (the covenant being madef 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 OKve 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 military force in their actual pay or service in the East Indies " certain other payments should be made. Of course that was a thing which might not have happened for centuries. In point of fact it did not happen till more than a century 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 effect. That brings me, my lords, to the question which alone really appears to me to be a serious question in this case, namely, the * 10 H. L. 0. 3G7. t The date, acoordiagto the report, is 1770. Digitized by Microsoft® 414 APPENDIX V. Earl of Sel- constmotion of the covenant : and as to that, the large eonstruc- bome, L. C. : . ° judgment. tion Contended for by the learned counsel for the appellants, that " shipped " is to be a flexible term which would be applic- able to every mode of transport, and not only to the transporta- tion 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. Ship- ment, we think, means shipment, and the covenant must be construed so. 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,* "put on shipboard by or on behalf of the colliery 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 narrow 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 negotiated 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 generally, and that you will be prepared to agree to the restoration of Mr. Justice Fry's Order, with this modi- fication, which I will now read to your lordships. I shall propose that these words be omitted from Mr. Justice Fry's Order,* " put on shipboard 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 * See p. 4 OS, anie. Digitized by Microsoft® WITH AM V. VANE. 415 on tehalf of tlie colliery proprietor for the purpose of sHp- Earl of Sel- ment and actually shipped, and coal shipped by or on behalf of judgment. the 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 construction 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, coal ■which is the subject of land transport as distinct from sea transport. And, my lords, I am bound to say that, while I think the words will 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 iucon- venience of its operation upon the persons representing the duke, because, if they have taken proper care of themselves 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 appellants have nothiag to do with, and the proprietors for the time being of the estate wiU not have it made useless to them, because it wiU. only be necessary for them to dispose of their coal in a different way ; for example, to send it to other markets by railway, and then they will be free from any burden under this covenant. Lord Blackburn : My lords, I entirely agree in what the Lord noble and learned Lord Chancellor has proposed, and I will only judgment, 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 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 Digitized by Microsoft® 416 APPENDIX V. Lord not in equity have that effect. Upon that point I say nothing judgment. whatever, a8 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 in the old times, no doubt, would have heen an indenture, of which hy terms expressed 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 " indenture," yet in modern times it has very often been the case that an indenture 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 pre- sumption as would be necessary for acting upon. But I think, looking at the nature of the transaction, where there was a very considerable estate, and where there was a very important cove- nant 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 im- portant 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 a counter- part executed and sealed, I do not very much differ from the Court of Appeal (indeed 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 say that the parties had not been guilty of gross negligence. That they- were guilty of negligence afterwards in losing the counterpart' Digitized by Microsoft® WITHAM r. VANE. 417 if there ever was one, is perfectlv plain ; and I cannot say tliat Lord ,, i. Mi. i! 1- • 1 JT Blaokbum: tney were not guilty oi some negligence previously : tney may judgment. have 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 presump- tion. The Earl of Darlington, who had become Duke of Cleveland, died in 1842. Immediately after his death his devisees in trust were brought into contact with those who represented the original covenantees, 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 considered 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 not really 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 iu 1843 admitted under their hand and seal that there was a counterpart existing, and that it had been sealed by the late dute, it would not be evidence against the trustees of the Duke of Cleveland, the devisees, 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 WilUam, Lord Brougham, seems to have become one of the trustees since ; but they repre- sent 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 WiUiam Harry, Duke of Cleveland, did, in and by the indenture now in recital, for himself, his heirs, executors, and admiuistrators, 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 endeavoured to be argued that we should understand 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 C.R.P. E E Digitized by Microsoft® 418 APPENDIX V. Lord upon the words. I think the conclusion to be drawn from them Blackbum : . . judgment. IS that in 1843, the indenture, the counterpart, 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 parties who promoted 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, cove- nanted to pay to the said Greorge Silvertop, his heirs, executors, administrators, and assigns," and then they proceed to state this covenant, 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 one ; 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 counterpart 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 containing this covenant was actually executed and did really exist, but has been lost, I know not how, but by some negligence probably ; and that being so, secondary evidence can be given. The question therefore comes. 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 Digitized by Microsoft® WITHAM V. VANE. 419 that they have been sufficiently dealt with by the noble and Lord learned lord on the woolsack. It was said that this covenant of judgment, the Duke of Cleveland, or rather of the Earl of Darlington 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 cove- nant 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 perpetuity. It is not a perpetuity in the sense in which the law aims at perpetuities. The person who is entitled to receive this sixpence a chaldron, whatever the amount may be, and the per- son who has now got the estates in question, or the Duke 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 hia 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 is, 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 E E 2 Digitized by Microsoft® 420 APPENDIX V. Lord there ; and having that before us, we have then to see what judgment. 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 after- wards ; but still the parties were thinking of the ordinary state of business, 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 not much evidence here as to what was done in 1824 ; but it is quite intelligible to this extent. Coals which were raised in that district 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 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 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 Darlington " 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 Digitized by Microsoft® WITHAM V. VANE. 421 coals on board the sWp, and sent away the ship with the coals Lord to he sold somewhere else, they being the coals of the coal-owner judgment. ' 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 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 thini that that is within the meaning of the contract, 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 iu view, it was reasonable and just and cy-prh to say, " If you are to pay sis- pence for every chaldron which comes to London by sea you should pay sixpence 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-pres 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 Bkamwell : My lords, I concur in what has been Lord proposed to your lordships. We are invited to say that there judgment. Digitized by Microsoft® 422 APPENDIX V. Lord -^^^as no counterpart of the conveyance of 1824 executed, by Lord Bramwell : judgment. Darlington. Now I feel as certain that a counterpart 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 counterpart signed by the tenant. I am very much inclined to think that, -Rithout 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 instrument 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 grantor of the estate that that counterpart should be executed ; and I strongly incline to think that that alone would suffice to make us believe in the existence of the counterpart : it would be good prima facie evidence of it, and the legitimate conclusion, if 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, the 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 counterpart 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 plaintiffs. With respect to the other two learned Lords Justices, I say, with great submission to them, that I cannot agree with their reason- Digitized by Microsoft® WITHAM V: TANE. 423 ing ; and, in particular, that matter wMch was relied on, that Lord the part of the instrument executed by the grantors was not jud^nt.' 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 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 expressed. If I enter- tained 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 for sale " would include the case of coals that were sold to the con- sumer, and as it were put on board the consumer's ship, or possibly taken away by the purchaser for the purpose of con- sumption. 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 everything 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 they were delivered or for any other object, a royalty should not be payable 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 con- sumption, that is not within the clause. It must always be borne in mind that at the time when this instrument was executed, Digitized by Microsoft® 424 Lord Bram-well ; judgment. APPENDIX V. except as regards the coal sold locally and in the neighhouxhood, there could be no contemplation that there would be any exten- sive sale, or indeed any other sale than that which resulted in a phipment. I concur therefore in the opinions which have been expressed to your lordships. Lord Fitzgerald : judgment. Lord Fitzgekald : 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 confess that when I read the judgments, having before me the Appen- dix, and read also the documents in the Appendix, I was amazed at the statements in the judgments. 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 the supposed duty alone, the learned judge was right in coming to that conclusion. But when we come to the evidence La this case, there is clear evidence of the existence and execution of the counterpart. Not only is there evidence, but it is evidence which is proper to be con- sidered as conclusive by way of estoppel. In reference to contracts, I have always understood 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. Tou 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 covenant, 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 Digitized by Microsoft® WITHAM V. VAXE. 426 been pursued in this case, and for the Judgments, by supposing Lord that this evidence was not brought to the attention of the Court, jud^ent. ' 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 defer- ence to the learned judge " (Mr. Justice Fry) " that is a matter in which I cannot coincide with him. Whether the duke did execiite 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 is 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 of 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 containing 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 difficulty. 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 wUl work injustice, and above all if that literal construction will enable the covenantor to evade a liability which he is under. Now, upon looking to the covenant itself, it is open to a fair and liberal interpretation which wUl work no injustice, but which wiLL give to each party fairly their rights. No doubt it wiU Digitized by Microsoft® 426 APPENDIX V. F°t^ „ . make it possible for the covenant in one sense to be inoperative, judgment. because the present colliery proprietors, 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, accord- ing to the evidence, the river sale is sometimes 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 obvious that the coal taken by the river boat may come under the designa- tion of a shij)ment 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 so it would equally apply to the case of a sea sale, which I understand to be a sale of coal to be shipped and sent by sea away from the place. Once shipped for sale we have nothing more to do with it — it is not necessary to inquire further ; 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 be sent by sea, where it is brought into connection with a con- tract for shipment and is actually shipped, it matters not whether there is to be afterwards a sale or not. That would embrace all the eases in which the owners of the colliery themselves shipped for sale according to the literal interpretation of the contract, 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 judg- ment which has been delivered by the Lord Chancellor. Digitized by Microsoft® WITHAM V. VANE. The Order appealed from was reversed; and it was Order, 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 substi- tuting 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. 427 Digitized by Microsoft® Digitized by Microsoft® ( 429 ) GENERAL INDEX. ABATEMENT, is the wrongful entry of a stranger, before tlie entry of the heir, 207. reduces heir's estate to a right of entry, ih. ACCUMULATIONS OE INCOME, formerly subject only to the rule against perpetuities, 186. Thellusson Act restricts the period allowed for, 187. only one of the periods allowed by the Act may be adopted, 188. the Act applies to real and personal property, ib. excessive trusts for, only void for the excess, ib. unless they violate the rule against perpetuities, when they are wholly void, ib. what becomes of the excess, 189. exceptions from the Act's provisions, ib. the Act does not extend to Ireland, 190. has been extended to Scotland, ib. English freeholds and leaseholds are within the Act, iadependently of domicil of owner, ib. ACTION, BIGHT OF, estate might be turned to, by tortious alienation, 79. this operation styled discontinuance, ib. would not support a contingent remainder, 110, 128. two stages in — (1) founded on right of possession, 373, 374. (2) founded on mere right, ib. ADMINISTEATOES, might take advantage of a condition, as to estates transmissible to them, 71. whether they may be special occupants, 328, 329. estate pur autre vie taken by, under Statute of Frauds, 330. under Wills Act, ib. ADMITTANCE, legal estate in copyholds acquired by, 27. right to, acquired by surrender, ih. relates back to the surrender, ib. ADVOWSON, APPENDANT OE APPUETENANT, seisin in deed of a manor is seisin of, 209. Digitized by Microsoft® 430 GENERAL INDEX. ADVOWSON IN GEOSS, is a mixed hereditament, 46. reason for application of common law rules of limitation to, 101. seisin in deed of, how obtained, 209. AlilEN, crown formerly might have acquired a base fee in lands of alien tenant in tail, 301. AlilENATION, history of, prior to Quia Emptores, 18. effect of Quia Emptores on, 19. condition against, in a conveyance in fee simple to a corporation, 199. ALLODIAL LANDS, do not exist in. England, 5. ANCIENT DEMESNE, manors in, what are, 29. peculiarities of copyholds of, ih. of freeholds, 31, 32. ANN JOUR ET WAST, meaning of, 35. existed by custom of Gloucester, though there was no escheat, ih. none by custom of Kent, ih. ANNUITY, not charged on land, is a personal hereditament, 46. ATTAINDER, three kinds of : — 1. Quia suspensus est per coUum, 34. did not apply to gavelkind lands in Kent, ih. abolished by 33 & 34 Yict. c. 23, ih. 2. Quia ahjuravit regnum, ih. long since aboUshed, ih. 3. Quia utlegatus est, ih. not affected by 33 & 34 Vict. c. 23... 35. crown's right to a year and a day, ih. no escheat on, by custom of Gloucester or of Kent, ih. ATTOENET, when may be appointed by infant, 367, and note. BAEE TEUSTEE, as protector of the settlement under Eines and Eecoveries Act, 289. meaning of, 293. BAEGAIN AND SALE, fee simple might pass by, without words of limitation, 196. takes effect under Statute of Uses without transmutation of posses- sion, 358, 383. might be effected by parol, prior to Statute of Inrolments, 383, 384. for valuable consideration, duly inrolled, still valid, 384. Digitized by Microsoft® GENEKAL INDEX. 431 BASE FEE, definition of, 297. origin of, out of fees tail, 51, 297. merger of, 83, 304. by what methods base fees may arise, or might formerly have arisen, 298. an estate conterminous with, may arise as a determinable fee, 302. this limitation discussed, ih. enlargement, now substituted for merger, of, 84. by what means may be enlarged, 307 — 309. specific performance of coyenant to enlarge, 310. the descent of, is to the heirs general, 304. whether a base fee can be a fee simple absolute, 305. BOEOUaH-ENGLISH, is a customary mode of devolution, 14. tenure connected with, is burgage tenure, 13. custom of, not aflected by the Descent Act, 212. BUEGAGE TENURE. See Boeough-English. OASES PAETIOULAELT DISCUSSED, Agency Co. y. Short, or the Squatfer^s Case, 395. Atkins y. Montague, 103. Beverley v. Beverley, 119. Boddington y. Bohinson, 97. Barhison v. Beaumont, 121, 122. Boe y. Horde, 371, n. GoodrigU v. White, 122. Keppell y. Bailey, 172. Sharp's Case, 366. Shelley's Case, 143. Taltarum's Case, 280. OASTLE-GUAED, an incident of knight-service, 9. OHAEITABLE USES, gifts to, must ia their inception comply with the rule against per- petuities, 181. when once established, are not afterwards subject to the rule, 182. CHATTEL INTEEEST IN LAND, includes terms of years, 56. also certain, interests which endiire for an uncertain time, ih. nature of such interests, ih. devise to A and his executors for payment of debts will create, ih. if limited to heir, passes nevertheless to executor, 225. executory devise of, is good, 159. Digitized by Microsoft® 432 GENBKAL INUEX. COMMON LAW TENURE, as to, generally, 4 — 17. is free, or frank, tenure, 7. divided, as to lay tenure, into tenure in cliivalry and tenure in socage, 8. as to spiritual tenure is frankalmoigne, 11. COMMON, EIGHTS OF, are extinguished at common law by enfranoMsement, 321. not in equity, ih, efiect of statutory enfranchisement upon, 322. and of enfranchisement by tenant for life, under S. L. Act, 321. COMMONS IN GEOSS, are mixed hereditaments, 46. no escheat of, at common law, 37, 38. now see Intestates Estates Act, 1884... 38. CONDITION, who entitled, at common law, to take advantage of, 71. statutory innovations upon the common law rule, ih. remainder cannot be limited upon a forfeiture for breach of, il. in defeasance of a freehold, whether within the rule against perpetui- ties, 174. assignments and devises thereof may be subject to the rule, 175. possibility of reverter upon, neither assignable nor deviseable at common law, 66, 67. now assignable and deviseable, 67, 201. estate subject to, is not destroyed uxitil entry, 192, 234. CONDITIONAL PEE, discussion of, 236—240. estate given in frankmarriage was, before Stat. De Donis, 13. cut down by Stat. De Bonis to a fee tail, 50, 259. possibility of reverter upon, 73. whether there could be a remainder upon, 74, Appendix II. can now only subsist (1) in hereditaments other than tenements, 52. (2) in copyholds of manors where there is no custom of entail, 272. CONTINGENT EEMAINDBES, criterion between vested and contingent estates, 64. distinction between contingent remainders and executory interests, 66. no limitation which can take efiect as a remainder is construed as an executory interest, 112, 113. cannot be subsequent to executory limitation, 113. at common law, must be supported by precedent freehold, 108, 109. which must be created by the same instrument, 109. various modes of destruction of, 109, 124 — 128. their liability to destruction is independent of the mode by which they arise, 110. Digitized by Microsoft® GENERAL INDEX. 433 CONTINGENT U'EMAINB'E'BS— continued. trustees to preserve, 130 — 140. their estate was a vested estate, 133. suggested modification of Eearne's definition, witli reference to the estate of, 135. statutes modifying the common law liability to destruction — 10& 11 WiU. 4, 0. 16...129. 7 & 8 Vict. c. 16... ib. 8 & 9 Vict. c. 106. ..127. 40&41 Vict. c. 33... 130. how far they are still liable to destruction, ib. whether they are within the rule against perpetuities, 183 — 186. equitable, not liable to destruction, 111. but are subject to rule against perpetuities, 130. in copyholds, not destroyed except by natural expiration of the pre - cedent estate, 112. Pearne's four classes of, 115. Class 1. Where the contingent event is the determination of the prior estate in one, or some only, of several possible ways, ib. can be vested only on the determination of the prior estate, not during its continuance, 116. the definition would include estate of trustees to pre- serve, 134, the estate of trustees to preserve, not contingent, 133. suggested modification of definition so as to exclude the estate of trustees to preserve, 135. Class 2. Where the contingent event is one which may never happen, 116. Class 3. Where the contingent event must happen at some time, but not necessarily tUl after determination of pre- cedent estate, 117. exception from class 3... 118. Beverley v. Beverley, 119. Class 4. Where the contingent event is the coming into being of a person not yet in esse, or the ascertainment of a person not yet ascertained, 120. exceptions from class 4. ..121. Burchett v. Durdant, ib. Darbison v. Beaumont, ib. GoodrigU v. White, 122. limitations within the Eule in SheUey's case are not to be treated as exceptions, 123. destruction of, at common law, by — 1. Forfeiture, 124. 2. Surrender to next vested remainderman, 125. 3. Merger, ib. taking place simultaneously with creation of precedent _estate, would not destroy contingent remainders, 126, 4. Tortious alienation of precedent estate, 127. C.K.P. r F Digitized by Microsoft® 434 GENEEAL INDEX. CONTINGENT EEMAINDEES— conimMerf. destruction of, at commoii law, hj— continued. 5. Turning of precedent estate to a mere right, 128. 6, Natural expiration of precedent estate pending the contin- gency, ib. created by limitation " to A. and the heirs of the body of his father," ■who is alive, 271. COPAEOENBES, definition of, 341. distinguished from joint tenants and tenants in common, 342. are entitled, at common law, to compulsory partition, 343. descent among, 344. a peerage falls into abeyance among, 104. may be revived by the Crown in favour of any of, il. an office of honour held in grand serjeanty does not fall into abeyance among, ib. how to be exercised on descent am.ong, ib. a release by one to another, might pass a fee simple without words of limitation, 196. a rent granted by one to another for equality of partition, might be in fee simple without words of limitation, ib. COPYHOLD TENUEB AND COPYHOLDS, origin of, and original connection with villein status, 25. general characteristics of, 26. fealty generally incident to, 14. not affected by 12 Car. 2, c. 24. ..24. the seisin is in the lord, 30. customary freeholds are usually copyholds, 29. entails of copyholds, 271, 272. contingent remainders of, not destroyed except by natural expiration of the prior freehold, 112. on enfranchisement, lose their protection, ib. Eule in Shelley's case applies to limitations of, lo4. peculiar customs of descent, why more common in copyholds than in freeholds, 203. copyholds are by escheat imited to the manor, 214. conditional fees in copyholds of manors in which there is no custom of entail, 272. Dower Act does not extend to copyholds, 320. copyholds may be enfranchised, under S. L. Act, by tenant for life of the manor, 321. no general occupancy of copyholds, 328. may be special occupancy, ib. COENAGE, an incident of knight-service, 9. COEPOEATION, successors of corporation sole might take advantage of a condition, 7 1 . seisin of a corporation sole is in abeyance during interval caused by death or other vacancy, 91. Digitized by Microsoft® GENERAL INDEX. 435 COB.'POnATlOK— continued. "successors" necessary in limitation of fee simple to a corporation sole, 197. except in gift in frankalmoigne, ib. qucere, whetter the Conv. Act, 1881, has altered this rtile, it. ■words of limitation not generally necessary in a grant to a corporation aggregate, 198. two classes formerly of corporations aggregate, ib. upon dissolution of, estate in fee simple reverted to donor, 1.99. condition against alienation, in gift to, ib. a corporation sole may be tenant in common with himself as an individual, 337. - ^ cannot be seised to a use, 354. a person may be seised to the use of, 355. a corporation sole may in his natural capacity be seised to the use of himself and his successors as a corporation, 356. COVENANT, giving a specific claim to specific property, is -within the rule against perpetuities, 171. secus of a personal covenant, 172. distinction, in equity, between affirmative and prohibitive, 172, 173, n., 174. for the renewal of leases, excepted from rule against perpetuities, 173. COVENANT TO STAND SEISED, common law rules of limitation do not apply to, 95, 96. takes effect under the Statute of Uses without transmutation of possession, 358. - must be in consideration of blood or marriage, 383. further remarks upon, 384, 385. CEOSS-EEMAINDEES, definition of, 339, 340. connection of, with tenancy in common, 338. may be in separate parcels, or in undivided shares, 339. nature of the estate taken by donees under the original limitation, 340, n. cannot arise by implication, except in a will, 341. "what words are sufficient for the limitation of, ib. insertion of, in executory settlement, ib. CUETESY, the four essentials to make a husband tenant by the, 314. usually allowed by custom, in copyholds, 27. in gavelkind lands, 314. tenancy by the, was a bar to possessio fratris, 214. ■tenant by the, may be protector of the settlement, 289. difference as to tenure, between curtesy and dower, 315. allowed out of equitable estates, ib. powers of a tenant by the, under S. L, Act, 317. ff2 Digitized by Microsoft® 436 GENERAL INDEX. OUSTOMAEY FEEEHOLDS, usually found in manors of ancient demesne, 29. Lord Coke's opinion, tliat they are true freeholds, ih. general conclusion against, 30, 31, CUSTOMS, peculiar customs of descent, 16. gaTolkind and borough-english, 14, 15. not afiected by the Descent Act, 212. ■why more conmionly apply to copyholds than freeholds, 203. in what places they might exist, 17. CUSTOMS OP MANOES AND LOCAL CUSTOMS, Wareham, 16. Taunton Dean, ib. Bray, ib, Sedgley, ib. Exeter, ib. Dymock, 273, Kent. See Gavelkind. Gloucester, 17, and note. Cornwall, 17, n. Durham, ib. DE BONIS, TKE STATUTE, modifies a conditional fee in two respects only, 259. (1) in restraining alienation, 260, 261. (2) in confining descent to persons included in the original form of the gift, ib. DEED, takes efEect from delivery, 97. in relation to rule against freehold in futuro, ib. DEEIVATIVE ESTATE, distinguished from an original estate, 57. gives rise to remainders and reversions, ib. ceases upon the cessation of the original, 59. estate created by a power, is, 60. three modes of derivation of, ib. out of an estate tail, 62. for life, 63. pur autre vie, ib. a term of years, 64. DESCENT, of lands in gavelkind, 14. in borough-english, 15. by other special customs, 16. special customs of, more frequent in connection with copyholds than with freeholds, 203. of uses, follows that of the lands to which the uses relate, 351. of lands, unaffected by questions of domioil, 204. Digitized by Microsoft® GENERAL INDEX. 437 DESCENT— continued. at common law, traced from person last seised in deed, 210. sucli person, called the " stock " or " root " of, ib, doctrine oi possessio fratris, 213. now traced from tlie purchaser, 211. definition of purchaser, ih. special customs of, not interfered -witli hj the Descent Act, 212. summary of Descent Act's provisions, ib. effect of escheat upon, 214. on total failure of heirs of purchaser, now to be traced from person last entitled, 219. this rule restricts escheat, ib. , statement of the rules of descent in fee simple, 210 — 220. ( 1. as to the root of descent at common law, 210. ( lA. ,, ,, at the present day, 211. f 2. as to heirship in the ascending line at common law, 214. ( 2a. ,, ,, at the present day, 215. 3. as to preference of male issue to female, ib. 4. as to primogeniture and coparcenary, ib. 5. as to representation of ancestor by his issue, 216. ' 6. as to the half-blood at common law, ib. . 6a. ,, ,, at the present day, ib. ( 1. as to preference of male collateral stocks at com-m on law, 217. I 7a. ■ ,, ,, atthepresentday, iJ, 8. as to precedence among female stocks, 218. 9. effect of total failure of heirs of purchaser, at the present day, 219. examples of, under the rules, 220. of a conditional fee, 238. at common law, might be wider than of fee tail, 239. this rule not applicable to gifts in frankmarriage, 240. effect of Statute De Bonis in confining descent, ib. of a qualified fee, 243. how entry was toUed by a descent cast, 373. entry now cannot be tolled, ib, DESULTOET LIMITATIONS, meaning and examples of, 102, 103. good only on creation de novo of incorporeal hereditaments, 102. or term of years, 103. whether must be such as, if continuous, would create a fee, ib. DETERMINABLE PEE, defined, 60, 224. distinction between, and base fee of Kke duration, 51, 52, 302. stiU. valid, 241, n., and Appendix IV. no remainder upon, 73. divisible into two classes, according as the future event is one, (1) which admits of becoming impossible, 227. (2) which must for ever remain liable to happen, ib. examples of, 228—233. Digitized by Microsoft® 438 GENERAL INDEX. DETERMINABLE LIMITATIONS, remarks upon, 225, 226. DEVESTING, properly signifies the turning of an estate to a rigM of entry, 79. how affected by tortious feoffment, 371. DEVISE, POWEE TO, fee simple at common law conferred none, 199. migM exist by local custom, ih. eucb customs did not extend to remainder, or reversion, upon a fee tail, ih. tbe Statutes of WiUs, 199, 200. the WiUs Act, 201. as to estates pii,r autre vie, 330. DISCONTINUANCE. And see Action, Eight op. properly signifies the turning of an estate to a right of action, 79. distinction between, and devesting, ib, effect of, 373^ DISENTAILING DEEDS, under the Fines and Eecoveries Act, 287. DISSEISIN, turns the estate of the disseisee to a right of entry, 80. actual disseisin may still take place, 81. disseisin by tortious feoffment at common law, 371. now prevented by statute, ib, entry upon, how tolled at common law, 373. tolling of entry now prevented by statute, ib. DISTEESS, by lord, for services in arrear, 19. by Crown, on unlicensed alienation, 20. DIVINE SEEVICE, tenure by, distinguished from frankalmoigne, 12. DOMICIL, descent of lands unaffected by questions of, 204. English freeholds subject to Thellusson Act, independently of testa- tor's, 190. DOWEE, several species of, now extinct, 317. at common law, 318. by special customs, ib. no dower out of joint tenancy, ih. dower out of tenancy in common, ib, formerly, none out of equitable estates, ib, now allowed by Descent Act, ib, means by which dower may now be defeated, 319. Dower Act does not extend to copyholds, 320i, Digitized by Microsoft® GENERAL INDEX. 439 BOWER— continued. tenant in, cannot exercise powers of Settled Land Act, 320. wife entitled to, out of fee tail, determined by death, of husband with- out issue, 318. ■wife entitled to, out of base fee which is defeasible by the entry of issue in taU, 294. EASEMENTS, properly said to be extinguished, not merged, Y8. EN AUTRE DROIT, merger of estates en autre droit, 82. Lord Coke's distinction as to, ib. is now not law, 85. ENFEANOHISEMENT OP COPYHOLDS, efiect of, upon contingent remainders, 112. rights of common, 321. powers of tenant for life, under S. L. Act, ih. ENTAIL, tenements alone are within the stat. De Bonis, 43. but custom to entail copyholds is good, 2Y1. of copyholds, in absence of custom, creates customary conditional fee, 272. equities of redemption are capable of, 45, n. estates pur autre vie, are not capable of, 330. ENTIEETIES, TENANCY BY, definition of, 344. applies to all estates of freehold, ib. as to the tenancy in chattels personal and equities of redemption, 345. whether applicable to chattels real, ib. quaere, as to effect of the M. "W. P. Act upon, 345, 346. ENTEY, is sufficient, if made on any part of the lands, 208. and with any part of the person, ib. in law, is sufficient, where actual entry is prevented by violence, ib. right of, when tolled by descent cast, 373. distinction between right of entry and seisin in law, 208. ENTEY, EIGHT OP, would support a contingent remainder, 110. if tolled, or turned to right of action, would not support contingent remainder, ib. on condition, to whom accrues, 71, 192. estate subject to condition, not destroyed tiU entry made, ib. may now be devised, 201. distinguished from a seisin in law, 208. Digitized by Microsoft® 440 GENERAL INDEX. EQUITABLE ESTATES, contingent remainders limited out of, not liable to destruction, 111. Eule in Stelley's case applies to, 153. EQUITY OP EEDEMPTION, on failure of heirs of mortgagor, formerly did not esclieat, 38. but was extinguished for benefit of mortgagee, ib. provisions of Intestates Estates Act, 1884, as to, 39, 40. is a mixed hereditament, 45, n. can be intailed, 45, n. contingent remainders limited out of, not liable to destruction. 111. as to husband's right in, when held by entireties, 345. ESCHEAT, peculiar to lands in fee simple, 33. arises upon failure of heirs of the tenant, ih, distinguished from forfeiture, 36, 37. division of, into — 1. By attainder, 33. (i.) Quia suspensus est per collum, 34, (ii.) Quia ahj'uravit regnum, ib, (iii.) Quia utlegatus est, ib. subject to Crovm's right for a year and a day, 35. unless restricted by local custom, ib. 2. Without attainder, ib. birth of subsequent heir wUl defeat lord's right to, ib. may be defeated by devise, ib. none on dissolution of a corporation, 35, 199. of trust or mortgage estates on death without heirs of sole trustee or mortgagee, now abolished, 36. none, at common law, of hereditaments not strictly the subjects of tenure, 37. nor of equitable estates, 38. nor of equity of redemption on failure of heirs of mortgagor, ib. provisions of Intestates Estates Act, 1884, with respect to, 38 — 40. of lands parcel of a manor, 214. ESCUAGE, a service incident to tenure by knight-service, 9. ESTATE DE NOVO, cannot be created except by statute, 59. examples of, 61. ESTATE FOR LIEE, what estates can be derived out of, 63. estates created by conveyance under S. L. Act are not derived out of, ib. is a " mere freehold," 89. properly includes an estate pur autre vie, 311. list of possible estates for life or Kves, ib, right to estovers incident to, ib. Digitized by Microsoft® GENERAL INDEX. 441 ESTATE FOR LIFB— continued. distinction between, under settlement, and under lease at rent, 312. methods by -wbioh it may arise, 313. how arises by implication of law, ib. the implication may be rebutted by evidence of contrary inten- tion, ii. of husband, as tenant by the curtesy of his wife's lands, 314 — 317. of wife, as tenant in dower, 317 — 320. statutory powers of tenant for life under S. L. Acts, 320. ESTOVEES, in gross, are within general definition of tenements, 43. right of tenant for life to, at common law, 311. pur autre vie, 325. EXCHANGE, whether may be made to take efleot in futuro, 96. between a tenant for life and a tenant in tail after possibility good, 264. of settled land, by a tenant for hfe, 322. of land in the same county, needs no additional livery, 364. before Statute of Frauds might have been by parol, ib. a deed is now necessary for, ib. EXECUTORS, might take advantage of a condition as to estates transmissible to them, 71. whether they might be special occupants, 328, 329. took estate pur autre vie, imder Statute of Frauds, 330. now, by Wills Act, ib. take a term of years, though it be limited to the heir, 225. EXECUTORY DEVISES, are executory limitations in a will, 66. distinguished from shifting uses, ib. seisin, during unappropriated interval, is in heir-at-law, 158, 160. origin and history of, 156. of the legal estate in chattel interests, 159. subject to rule against perpetuities, 171. EXECUTORY LIMITATIONS. And see Perpetuities. history and origin of, 156. distinction between, and remainders, 66, 71. no limitation, which might be good as remainder, is construed as, 112, 113. legal remainder cannot be subsequent to, 113. Rule in Shelley's Case does not apply to, 154. are free from the common law rules as to — (1) the impossibility of limiting a fee upon a fee, 158, 161. (2) the non-abeyance of the freehold, 158, 162. latter rule sometimes apphed by analogy, 160. of the legal estate in chattel interests, not possible by deed, 159. only by devise, ib. Digitized by Microsoft® 442 GENERAL INDEX. EXEOUTOET LIMITATIONS— con^Met^. defluition -of , 161.' in defeasance of a fee tail, cquld be barred by a recovery, 165. secus, of a fee simple or estate pur autre vie, ib. effect of Conv. Act, 1882, upon certain, 166. must, if tbey vest at all, vest witkLn a certain period, 168, 171. except executory limitations subsequent to an estate tail, 168. bad as to some of a class, are bad as to the wbole, 178. subsequent to sucb asare bad for remoteness, are also bad, 178, 179. void, leave a prior limitation unaffected, 179. arising under exercise of powers, 179^181. in gifts to charities, subject in their inception to rule against perpe- tuities, 181: but wben establisbed, are free from the rule, 182. how they differ from reverter upon condition, 192, 193. are descendible and deviseable, 164. now made assignable by statute, 165. restrictions on enjoyment of a fee simple, subject to be defeated by, 196. EXTINGUISHMENT, applies to things collateral to land or legal estate, 78. distinction between, and suspension, ih. FEALTY, incident alike to tenure in chivalry and in socage, 13. by custom to copyhold and customary tenure, ih. to a reversion, ib. not incident to a common law tenancy at will, ih. nor to tenure by frankalmoigne, 11. PEE, in English law means an estate of inheritance, 191. 'all fees must be such that they may by possibility endure for ever, 224. two common law fees cannot exist in same land, 73. FEE SIMPLE, the greatest estate known to the law, 191. characteristics of, ih. escheat is peculiar to, 33. has given rise to determinable fees, conditional fees, and qualified fees, 50. no reversion or remainder upon, 73. executory limitation in defeasance of, not barred by recovery, 165. is presumed by the law to last for ever^ 193. word "heirs" formerly necessary in limitation of, to a natural person, 194. qucere, whether the copula " and" was necessary, ih. limitation to a bastard and his heirs gives, 195. Digitized by Microsoft® GENERAL INDEX. M3 PEE BIMPIjE— continued. " ' ' ^- limitation to an alien or a felon and his heirs gives, 195. •when may arise -without express limitation, 195, 196. m.ay now he limited without the word "heirs," 196. restrictions in equity on enjoyment of, when liahle to be defeated hy executory limitation, ib. efiect of OonT. Act, 1882, on such limitations, ib, at common law conferred no power to devise, 199. might he devised hy custom, ib, now confers absolute power to devise, 24, 201. customs affecting descent of, why more common in copyholds than freeholds, 203. FEE TAIL, originated from conditional fees, as modified by Stat. Be Bonis, 50, 259. what may be the subjects of, 51. does not exclude remainder or reversion, ih, and therefore is a partioTilar estate, 270. gives rise to base fee, 51, 297. no merger of, 83. merger of, after possibility of issue extinct, ib. executory limitation in defeasance of, might be barred, 165.- subsequent to, not subject to rule against per- petuities, 168. custom to devise did not extend to remainders or reversions upon, 199. doctrine oi possessio fratris did not apply to, 216. limitation of, to heirs female, valid though unknown in practice, 259, and note, classification of, into two divisions accordingly as the hmitation : . (1) is restricted to one sex, 262. (2) is to the issue of one or more than one body, 263. meaning of terms "tail general" and "tail special," 262. "general tail " and special tail," ib. word "heirs" formerly necessary to limitation of, 264. words of procreation also necessary, ib. might be implied, even in a deed, 265. limitation " in frankmarriage " gives an estate in special tail, ib. forms of limitation of, according to their classification, 266, 267. general propositions relating to limitation of, 267 — 269. words " in tail " now by statute sufficient for limitation of, 269. limitation to the heirs of the body of an ancestor, 270. in copyholds, good by special custom, 271. in default of special custom the limitation creates a conditional fee, 272. alienation of — history of, 274. by fine, 278, 279. efPect of a fine, 285. by common recovery, 283, 284. Digitized by Microsoft® 444 GENERAL INDEX. PEE HAIL— continued. alienation of — continued. effect of recovery, 285. modern disentailing assurances, 287. protector of settlement, 288 — 293. statutory powers exerciseable by, 295. ■wife is dowable out of, 318. EEIGNED EECOVEEIES, ACT TO EMBAE, remarks upon, 296, n. FEOFFMENT, consists solely in the livery of tlie seisin, 363. only conveyance inputs of corporeal hereditaments at common law, 47. still valid, but little used, 363. tortious, by tenant in tail operated as a discontinuance, 373. by otber person devested lawful estates, 371, 373. tortious feoffments now abolished, 371. the true nature of, is the origin of the rule as to freeholds in future, 94. but the rule not confined to feoffments, 95. operates under Statute of Uses with transmutation of possession, 357. by an infant, at common law, is only voidable, 368. by the custom of Kent, is good, ih. deed was necessary at common law only for a feoffment to a corpora- tion aggregate, 369. was often accompanied by a deed declaririg the limitations, ih. effect of the deed, or charter of feoffment, il. by Statute of Frauds must be " put in writing," 370. must now be in writing and with deed, ih. the deed not necessarily, but in practice ought to be, signed, ih. FINES, definition and meaning of, 276. four kinds of, 277. effect of, at common law, ih, first Statute of, ih. second Statute of, 279. could be levied without concurrence of tenant of immediate freehold, 285. by any tenant in tail in remainder, contingent, or by way of executory limitation, ih. but barred only the issue in tail, ih. fee simple not generally obtained by, but only a base fee, ih. abolished since 31st December, 1833, ih. base fee, when created by fine levied by tenant in tail, 298. operate under Statute of Uses, with transmutation of possession, 357. one of the parties must have had an estate of freehold in the lands, 359. Digitized by Microsoft® GENERAL INDEX. 445 "FINES— continued. ■would only bar estates -wMch were sufficiently deyested, 360. efiect of, in barring dormant titles, ib. uses declared upon, by the persons levying, 361. ■where no use ■was declared, the use resulted to the person entitled to declare, ib. as used by married ■women before the Fines and Eecoveries Act, ib. separate examination of married ■women, origin of, 362. FOEFEITUEE, of prior freehold might formerly destroy contingent remainder, 124. but only after entry made for the forfeiture, 125. no'w pre^yented by statute, 127. for breach of condition, no remainder upon, 71. •whether no-w possible at aU by operation of la^w, 139. EOEEEITUEB FOE HIGH TEBASON, distinction between, and escheat, 36. of common la'w fees, ■was by the common la^w, ib. of conditional fees, 37, 238. extended to gavelkind lands, 37. none of fees tail, after De Bonis, ib, restored by 26 Hen. 8, c. 13, ib. gave a base fee to the Oro^wn, 37, 300. abolished by 33 & 34 Vict. c. 23. ..37. FOEMEDON, WEITS OF, classification of, 79, n, era reverter, at common la^w, 74, and note, era descender, ■whether at common la-w, 74, n, era remainder, none at common law, in respect of a conditional fee, 74, Appendix II. whether in any other case, 74, n. FEANK OE FEEE TENTJEE. See Common Law TENrRE. FEANKALMOIGNE, , a di-nsion of common law tenure, 11. incidents of : 1. Tenant must be an ecclesiastical corporation, ib. 2. Special terms of grant, ib. tenure of, cannot be created by a subject since Quia Emptores, ib, Continuing estate taken by, ■without words of succession, ib. fealty not due to the lord in respect of, ib. could only subsist between donor and donee, ib. converted into socage, how, ib. differed from Divine Ser^vioe, how, 12. secular service repugnant to, and void, 11, 12. not aboHshed by 12 Car. 2, c. 24... 24. FEANKMAEEIAGE, nature of, 12. conditions necessary to its validity, 12, 265. Digitized by Microsoft® 446 GENERAL INDEX. FEANKMAEEIAGE— cowMnMecf. land miglit be given in, after marriage, 12. before Stat, Be Bonis tbe estate was a conditional fee, 13. lands given in, to a daughter, must be brought into hotchpot, 343. FEEEBENOH, dovrer out of lands of customary tenure is, 318. distinguished from dower by special custom, ih. FEEEHOLD TBNTJEE, ESTATE HELD BY, quantum of, the same now as in Littleton's time, 7, 8. relation of, to free status, 7. criterion between freeholds and copyholds, 30, 31. meaning of " immediate freehold," 89. " mere freehold," i6. during a term of years is not ex'pedant itpoji, but subject -d Justice Pry, concurring with Lord Justice Bowen, in the important case of Thomas v. Quwrtermaine (Court of Appeal, March 21, 1887), read page 252 of this work, and adopted it as part of his considered judgment. Mr. Justice Denman, in Kiddle v. Zoveit (16 Q. B. Div. at p. 612), said, "The point is discussed in the third edition of Messrs. Roberts & Wallace's valuable work." Law of Real Property. — Chiefly in relation to Conveyancing. Second Edition. By HENRY W. CHALLIS, M.A., Barrister-at-Law. Royal ivo. 1892. Price 20s.; post free, IGs. 6d. Digest of the Solicitors' Law Examinations, from 1869 to 1884, with Answers. —Each branch of the Law is arranged in separate headings, with List of the principal Statutes and Cases ; a Time Table in an Action ; suggestions as to the most advisable Scheme of Reading. Second Edition. By JOSEPH A. SHEABWOOD, Esq., Barrister-at-Law. 1884. Price 15s. "To all those who wish to get through, with knowledge if possible, but at all events to get through, this book will be invaluable." — Law Journal, June 21st, 1884. Manual of Costs. — Hints on Law Costs, with Special Forms. By A BILL CLERK. 8vo., sewed. 1884. Price 2s. 6d. The Law relating to Works of Literature and Art. — Embracing the Law of Copyright ; the Law relating to Newspapers ; Contracts between Authors, Publishers, Printers, &o. ; and the Law of Libel ; with the Statutes relating thereto ; Forms of Agreements between Authors, Publishers, &c. ; and Forms of Pleading. Second Edition. By JOHN SHOB.TT, Esq., Barrister-at-Law. Thick Svo. Price 30s. The Winding-up of Companies by the Court.— Con- taining the Acts and Rules and the Cases thereon, and Forms ; witfihBxplana- tory Notes and References to the Cases and Practice in Bankruptcy. By SIDNEY WOOLF, one of Her Majesty's Counsel, assisted by RICHARD RINGWOOD, Barrister-at-Law. Demy 8fo. 1891. Price 10s.; post free, 8«. 6rf. " The book foiins a most compact and handy volume, and practitionCTS will find it one of tlie most suitable of all the works on the Companies Act." — Zaw Gazette. Digitized by Microsoft® Digitized by Microsoft® i ■;;