1 Cox's R. 160.

§ 8. it is enacted, that if an accountant or debtor to Vide Tit. 14. the crown obtains a quietus in his lifetime, his lands shall not be sold after his death.

Estates in

Fee forfeited

&c.

2 Hawk.P.C.

77. Estates in fee simple are forfeited to the crown for Treason, by attainder of treason; and the lands whereof a person attainted of treason dies seised in fee, become actually vested in the crown without any office; because they cannot descend, on account of the corruption of blood of the person last seised; and the freehold shall not be in abeyance.

c. 4. § 1.

1 Inst. 390 b.

1 Hale P..C. 360.

1 Salk. 85.

Tit. 30.

And for Disclaimer.

Dissert. c. 1.

§ 84.

1 Inst. 102 a.

Finch, 270.

Booth R. A.

133.

3 Leon. 271,
272.

Qualified
Fees.

1 Inst. 1 b.

78. This forfeiture relates backwards to the time when the crime was committed; so as to avoid all intermediate sales and incumbrances; but not those made before.

79. In cases of petty treason and felony, the estate is only forfeited to the king for a year and a day; which was formerly called the annum diem et vastum; after that period, in consequence of the corruption of blood, it escheats to the lord of whom it is held. 80. An estate in fee simple is still so far considered as a strict feud, and the tenant thereof so far bound to perform the feudal duties and services which remain due, that if he disclaims upon record to hold his lands of his lord, it will operate as a forfeiture of his estate; and the lord may thereupon have a writ of right upon a disclaimer, for the recovery of the land. But if the lord accepts rent from the tenant after the disclaimer, he will be thereby barred of this writ.

81. Lord Coke says-"Of fee simple it is commonly holden that there be three kinds, viz. fee simple absoPlowd. 557. lute, fee simple conditional, and fee simple qualified, or 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 qua lified, or base. For this word simple properly ex

cludeth both conditions and limitations that defeat or abridge the fee."

82. The nature of an estate in fee simple absolute has been already explained. But where an estate limited to a person and his heirs has a qualification annexed to it, by which it is provided that it must determine whenever that qualification is at an end; it is then called a qualified or base fee. As in the case of a grant to A. and his heirs, tenants of the manor 1 Inst. 27 a. of Dale; whenever the heirs of A. cease to be tenants

of the manor of Dale, their estate determines.

83. Lord Hale gives the following instance of a Idem, n. 6. qualified or base fee. King Henry III. dedit mane_ rium de Penrith et Sourby Alexandro regi Scotia et hæredibus suis, regibus Scotia. Alexander died, not leaving any heir king of Scotland, but only daughters. Et ea de causa King Edward I. recovered seisin; and the coheirs of Alexander were excluded.

645.

84. In a modern case the Judges of the Court of Willington v. King's Bench certified to the Court of Chancery, that 1 Black. R. Willington, a devise to trustees and their heirs, upon trust to pay the testator's debts and legacies; and after payment thereof, to his sister for life, &c. gave a base fee to the trustees, determinable on payment of the debts and legacies.

85. When a person holds an estate to him and his 10 Rep. 97 b. heirs, as long as A. B. has heirs of his body, this is

a species of qualified or base fee; of which an account will be given in the next title.

86. The proprietor of a qualified or base fee has the Plowd. 557. same rights and privileges over his estate, till the qualification upon which it is limited is at an end; as if he were tenant in fee simple. With respect to conditional fees, they will be treated of in the next Title.

TITLE II.

ESTATE TAIL.

CHAP. I.

Of the Origin and Nature of Estates Tail.

CHAP. II.

Of the Power of Tenant in Tail over his Estate,
and the Modes of barring it.

Of Condi. tional Fees.

DONATIONS

SECTION 1.

ONATIONS of land were originally simple and pure, without any condition or modification annexed to them; and the estates created by such, donations were held in fee simple. In course of time, however it became customary to make donations of a more limited nature, by which the gift was restrained to some particular heirs of the donee, exclusive of

others; as to the heirs of a man's body, by which only his lineal descendants were admitted, in exclusion of collateral heirs; or to the heirs male of his body, in exclusion both of collateral heirs, and lineal female heirs.

2. Thus Bracton, in treating of donations, says Lib. 2. c. 6. Item sicut ampliari possunt hæredes, sicut prædictum est, ita coarctari poterunt per modum donationis, quod omnes hæredes generaliter ad successionem non vocantur. Modus enim legem dat donationi, et modus tenendus est contra jus commune, et contra legem, quia modus et conventio vincunt legem. Ut si dicatur-Do tali tantam terram cum pertinentiis in N. habendum et tenendum sibi et hæredibus suis, quos de carne sua et uxore sibi desponsata procreatos habuerit. Vel sic-Do tali, et tali uxori suæ, vel cum tali filia mea, &c. habendum et tenendum sibi et hæredibus suis, de carne talis uxoris, vel filiæ exeuntibus, vel procreatis vel procreandis: quo casu cum certi hæredes exprimuntur in donatione, videri poterit quod tantum sit descensus ad ipsos hæredes communes per modum in donatione appositum; omnibus aliis hæredi- Fleta lib. 3. bus suis a successione penitus exclusis, quia hoc voluit donator.

c. 9.

Britton, c.36.

§ 75.

3. These limited donations were evidently derived from the feudum talliatum, of which an account has Dissert. c. 1. been already given. They were probably introduced into England about the end of the reign of King Henry II., or that of one of his sons: for Glanville, who gives a very accurate account of the different estates that were known in his time, makes no mention whatever of limited donations; whereas we have seen that Bracton, who wrote in the reign of King Henry III., has given a full description of them.

4. The evident object of these limitations was to restrain the donees from disposing of the estates thus VOL. I.

G

given; but the general propensity which prevailed about the reign of Edward I. to favour a liberty of alienation, induced the judges to construe limitations of this kind in a very liberal manner. Instead of declaring that the estates must descend to those heirs who were particularly described in the grant, according to the evident intention of the donors, and the strict principles of the feudal law*; and that the donees should not, in any case, be enabled by their alienation to defeat the succession of those who were mentioned in the gift, or the donor's right of reverter;

they had recourse to an ingenious device, taken from Tit. 13. c. 2. the nature of a condition. Now it is a maxim of the common law, that when a condition is once performed, it is thenceforth entirely gone; and the thing, to which it was before annexed, becomes absolute, and wholly unconditional.

5. The judges, reasoning upon this ground, determined that these estates were conditional fees; that is, were granted to a 'man and the heirs of his body, upon condition that he had such heirs: therefore, as soon as the donee of an estate of this kind had issue born, his estate became absolute, by the performance of the condition; at least for these three purposes: 1. To enable him to alien the land, and thereby to bar, not only his own issue, but also the donor of his right of reverter. 2. To subject him to forfeit the estate for treason or felony; which, till issue born, he could not do, for any longer term than that of his

*Jus feudale non solum talliis non adversari, sed maximè eis favere constat : non solum quod nullas fæminas ad successionem admittet, sed multo magis, quod tenorem successionis semper servandum jubeat; hæreditatemque secundum eam deferendam expresse jubeat-Craig, Lib. 2. Tit. 16. § 3.