creditor so held the lands, he was tenant by statute merchant or statute staple. These estates are now obsolete, but there is also a similar security, the recog nizance in the nature of a statute staple, acknowledged before a judge, or (out of term) before their substitutes, the mayor of the staple at Westminster and the recorder of London; whereby the benefit of this mercantile procedure is extended to all the king's subjects in general, by virtue of the statute 23 Hen. 8, c. 6, amended by 8 Geo. 1, c. 25, which directs such recognizances to be inrolled and certified into chancery. But these, by the statute of frauds, 29 Car. 2, c. 3, are only binding upon the lands in the hands of bond fide purchasers, from the day of their inrolment, which is ordered to be marked on the record (d). Recognizances are still used as penalties to secure the observance of certain orders of courts, as when a man is bound to keep the peace towards another. Though, except they be of these special kinds, they create no estate in land.

[*314]

Estate elegit.

*

Another similar conditional estate, created by operation of law, for security and satisfaction of debts, is called an estate by elegit. Without here entering into detail as to what an elegit is, we may here mention, that it is the name of a writ, founded originally on the statute (e) of Westm. 2, by which, after a plaintiff has obtained judgment for his debt at law, the sheriff gave him possession of one half of the defendant's lands and tenements, to be occupied and enjoyed, until his debt and damages are fully paid: and during the time he so holds them, he is called tenant by elegit. Under the act we have mentioned, the debtor could "extend," as the phrase went, the half of any freehold lands (ƒ) possessed by the debtor at the time of entering up judgment: and this right was not lost even if the debtor after the judgment conveyed away the land to a purchaser without notice of the judgment.

The remedy has by the statute of frauds, and still more by a modern act (9), been enlarged, so as to render liable the entirety of the lands, whether copyhold or freehold, to be extended, and not only these but also all rectories, tithes, rents, or hereditaments. Moreover, the restriction as to the legal estate being in the debtor is also removed, so that all these, if they be held in trust for the debtor, or if he has any disposing power over them exerciseable for his own benefit, are extendible under an elegit. But an equity of redemption not falling within either of the acts is still not extendible. Nevertheless, courts of equity will, when the creditor has proceeded at law as far as possible without success, interfere to assist him, by giving him the same benefit as he could, had the estate been legal, have had under an elegit or fieri facias (h). By a subsequent act (i), however, *a (d) The stat. 33 Hen. 8, c. 39, s. 50, enacts, 41 Geo. 3, c. 90; 1 & 2 Geo. 4, c. 121; 2 & 3 that all obligations and specialties, concern- Vict. c. 11, s. 10. ing or for the benefit of the crown, shall have the force and effect of a statute staple. And the stat. 13 Eliz. c. 4, subjects the lands of

Equitable elegit.

[* 315]

(e) 13 Edw. 1, c. 18.

(f) Only those corporeal hereditaments, of which the annual value was capable of estimation by a jury. Robinson v. Tonge, 3 P. W. 398.

(g) 1 & 2 Vict. c. 110, s. 11.

(h) Lewkener v. Freeman, Pr. in Ch. 105; Mitf. Plead. 126; Forth v. Duke of Norfolk, 4 Mad. 503; Smith v. Hurst, 1 C. C. C. 705; Yescombe v. Landor, 28 Beav. 80.

(i) 2 & 3 Vict. c. 11.

purchaser without notice of the judgment is protected from the operation of these enlarged powers, though it seems that the provision is strictly confined to the preceding act, and leaves the operation of the act of Westm. 2 unaffected: the reason for which omission is not clear, for it is an obvious hardship for a man to have half his lands sequestered to pay the debts of him from whom they had been purchased. Estates by elegit have not in modern times been common, being attended with many inconveniences; but they have acquired a new importance as preparatory to a sale of the lands under very recent legislation (j). Of this we shall see more hereafter.

Time of enjoy

ESTATES IN POSSESSION, REMAINDER, AND REVERSION. HITHERTO We have considered estates solely with regard to their duration, or the quantity of interest which the owners have therein. We are now to consider them in another view; with regard to the time of their ment of estates. enjoyment, when the actual pernancy of the profits (that is, the taking, perception, or receipt of the rents and other advantages arising therefrom) begins. Estates, therefore, with respect to this consideration, may either be in possession or in expectancy: and of expectancies there are two sorts; one created by the act of the parties, called a remainder; the other by act of law, and called a reversion.

Estates in possession.

Of estates in possession, (which are sometimes called estates executed, whereby a present interest passes to and resides in the tenant, not depending on any subsequent circumstance or contingency, as in the case of estates executory,) there is nothing peculiar to be observed. All the estates we have hitherto spoken of are of this kind; for, in laying down general rules, we usually apply them to such estates as are then actually in the tenants' possession. But the doctrine of estates in expectancy formerly contained much, and still contains some of the nicest and most abstruse learning in the English law. These will therefore require a minute discussion, and demand some degree of attention.

*An estate then in remainder may be defined to be, an estate limited to take effect and be enjoyed after another estate is determined. (299)

(j) 27 & 28 Vict. c. 112. An act, the intention of which may be praised, but which pitifully falls short of carrying that intention

*317]

into effect, so as to provide for the various cases which arise.

(299) A remainder is a remnant of an estate in land, depending upon a particular prior estate, created at the same time, and by the same instrument, and limited to arise immediately on the determination of that estate, and not in abridgment of it. 4 Kent, 197.

A remainder is an estate or interest in lands or tenements to take effect in possession or enjoyment immediately upon the determination of a prior estate, which is created at the same time and by the same act or instrument, and upon which such first-mentioned interest is made to depend. 2 Washb. Real Prop. 222 (500); Wimple v. Fonda, 2 Johns. 288; Leslie v. Marshall, 31 Barb. 560, 564; Brown v. Lawrence, 3 Cush. 390, 397; Booth v. Terrell, 16 Ga. 20.

Estates in remainder.

As if a man seised in fee simple grants lands to A. for his life, and, after the determination of that estate, then to B. and his heirs for ever; here A. is tenant for life remainder to B. in fee. In the first place, an estate for life is created or carved out of the fee, and given to A.; and the residue or remainder of it is given to B. But the present life estate and the remainder afterwards, when added together, are equal only to one estate in fee (a). They are indeed different parts, but they constitute only one whole: they are carved out of one and the same inheritance: they are both created, and may both subsist together; the one in possession, the other in expectancy. So, if land be granted to A. for life, and after the determination of the said term to B. in tail; and after the determination of B.'s estate tail, it be limited to C. and his heirs for ever; this makes a tenant for life, with remainder to B. in tail, remainder over to C. in fee. Now here the estate of inheritance undergoes a division into three portions, the first estate, and both the remainders, together constitute one entire inheritance: and if there were a hundred remainders, it would still be the same thing. And hence also it is easy to see why no remainder can be limited after the grant of an estate in fee simple (b): because a fee simple is the highest and largest estate that a subject is capable of enjoying; and he that is tenant in fee hath in him the whole of the estate: a remainder, therefore, which is only a portion, or residuary part, of the estate, cannot be reserved after the whole is disposed of. A particular estate, with all the remainders expectant thereon, is only one fee simple; as 401. is part of 1007., and 607. is the remainder of it: wherefore, after a fee simple once vested, there can no more be a remainder limited thereon, *than [*318] after the whole 1007. is appropriated there can be any residue sub

sisting. This doctrine has been, as we have seen, adopted with such strictness, that by the common law there cannot be limited a remainder upon a base fee (c), and though now, when an estate tail (upon which a remainder exists) is converted into a base fee, the remainder continues to be a valid remainder (subject of course to being barred), yet this which arises by operation of law, may not be affected by act of the parties; for before the statute De Donis no remainder could be limited upon a conditional fee (d), and no change has been made in this rule.

We must bear in mind that our remarks are applicable only to estates created by conveyance at common law; but by virtue of the statutes of Uses and of Wills, estates may, within the limits prescribed by certain rules, be limited with every conceivable variety of modelling (e).

Having premised thus much, we are in a position to discuss and comprehend the rules which are required by the law to be observed in the creation of remainders, with the reasons upon which these rules depend.

First, there must be a particular freehold estate precedent to the remainder (f). Thus, an estate given to A., to take effect after the death of B., must be preceded by an estate given to B. for his life, or to some other person for the life of B. This precedent estate is called the particular estate, as being

only a small part, or particula, of the inheritance; the residue being granted over to the remainderman or remaindermen. In one sense, a remainder is said sometimes to exist after an estate for years. Thus, if land is granted to A. for twenty years, and after the determination of that estate to B. for life, and so on. Since B.'s interest does not carry with *it the actual [*319] enjoyment of the law until after the determination of A.'s term, therefore it is sometimes described as a remainder; but inasmuch as the feudal seisin must by our law be in some person, and it cannot be in a tenant of less than freehold interest, therefore, in the case put, B. would be said to be in possession for an estate for life, subject to the tenancy for years of A., and, in fact, this is the ordinary form of such a limitation (g). The words “and in the meantime subject thereto" usually follow the limitation of the term. For the livery of seisin to A. passes it at once to B., who is at once seised of his remainder at the same time that the termor is of his term. The enjoyment of it must indeed be deferred till hereafter; but it is to all intents and purposes an estate commencing in præsenti, though to be occupied and enjoyed in futuro.

The meaning of the rule, which requires a particular precedent estate, appears also when we consider another canon of the common law, viz., that an estate of freehold (h) cannot be created to commence in futuro (i). (300) A grant of an estate tail to commence from the beginning of next year is void. This arises, as already shown, from the fact that livery of seisin being a personal act of the parties must, ex necessitate rei, operate instantly, or be entirely inoperative. There would be a manifest contradiction if an estate, which is not to commence till hereafter, could be granted by a conveyance which imports an immediate possession.

A second rule to be observed is this, that the remainder * must be [* 320] granted at the time of the creation of the particular estate (k). As, where there is an estate to A. for life, with remainder to B. in particular estate fee: here B.'s remainder in fee passes from the grantor at the

Remainder and

must pass out of

time.

grantor at same same time that seisin is delivered to A. of his life estate in possession. And it is this which induces the necessity at common law of livery of seisin being made on the particular estate, whenever a freehold remainder is created. For, if it be limited even on an estate for years, it is necessary that the lessee for years should have livery of seisin, in order to convey the freehold from and out of the grantor, otherwise no estate except the term of years is created (1). The livery is unnecessary to strengthen the estate for years: but is requisite to convey the freehold, and yet cannot be given to

(g) "It is said, that an estate-tail limited after an estate for years is a remainder. I deny that, as a general proposition. Can any case be shown where an estate for years was given to A., with limitation over to B. for life or in fee, and B. was held not to take an immediate estate of freehold? Per Patteson, J., Doe d. Cooper v. Finch, 4 B. & Ad. 283, 306.

(h) This does not apply to chattel interests, as in fact is obvious when the reason given in the text is considered, because livery of seisin was not applicable to them.

(i) Barwick's Case, 5 Rep. 94; Corbet v. Stone, Raym. 140, 151.

(k) Litt. s 671; Plowd. 25.
(1) Litt. s. 60.

(309) This rule of the common law has been abrogated by statute in several of the States, and in them estates may be created to commence in future. See 2 Washb. Real Prop. 264, 265.

VOL. I.-79

him in remainder without infringing the possession of the lessee for years, therefore the law allows, as we have already shown, such livery, made to the tenant for years, to relate and enure to him in remainder, as both are but one estate in law (m).

Remainder must vest instantly upon determina

A third rule respecting remainders is this: that the remainder must vest in the grantee during the continuance of the particular estate, or eo instanti that it determines, except in certain cases (n). (301) As, if A. be tenant for life, remainder to B. in tail: here B.'s remainder is tion of particu- vested in him, at the creation of the particular estate to A. for lar estate. life: or if A. and B. be tenants for their joint lives, remainder to the survivor in fee; here, though during their joint lives the remainder is vested in neither, yet on the death of either of them, the remainder vests instantly in the survivor: wherefore both these are good remainders. But, if an estate be limited to A. for life, remainder to the eldest son of B. in tail, and A. dies before B. has any son: here the remainder will be void, for it did not vest in any one during the continuance, nor at the determination, of the particular estate: and even supposing that *B. should afterwards [*321] have a son, he will not take by his remainder; for, as it did not vest at or before the end of the particular estate, it never can vest at all, but is gone for ever (o). And this depends upon the principle before laid down, that the precedent particular estate, and the remainder, are one estate in law; they must therefore subsist and be in esse at one and the same instant of time, either during the continuance of the first estate, or at the very instant when that determines, so that no other estate can possibly come between them. For there can be no intervening estate between the particular estate and the remainder supported thereby (p): the thing supported must fall to the ground,

(m) Co. Litt. 49.

(n) Plowd. 25; 1 Rep. 66.

(0) 1 Rep. 138.
(p) 3 Rep. 20.

(301) In accordance with the principle that the particular estate and the remainder when united together form but one estate of the extent or duration of the two, it follows that, although any number or remainders in succession may be carved out of a fee simple if each is less than a fee, yet no remainder can be limited after a fee, because when a fee has once been created there is nothing left by way of remainder to be given away.

And it has been held that if an estate is given to one with a full and absolute power of control and disposal, there can properly be no remainder limited after his estate, although this was in terms a contingent one. McLean v. McDonald, 2 Barb. 584; Mc Donald v. Walgrove, 1 Sandf. Ch. 274, 276; S. C., 3 N. Y. Leg. Obs. 208; Wright v. Miller, 8 N. Y. (4 Seld.) 9, 25; Ilde v. Ide, 5 Mass. 500; Jackson v. Bull, 10 Johns. 19; Terry v. Wiggins, 47 N. Y. (2 Sick.) 512; affirming S. C., 2 Lans. 272; Ramsdell v. Ramsdell, 21 Me. 288; Burbank v. Whitney, 24 Pick. 146.

"It is a well known rule in the law of descents, that a reversion or remainder in fee, expectant on a present freehold estate, will not, during the continuance of such freehold estate, pass by descent from a person in whom the title thereto had vested by descent, as a new stock of inheritance, unless some act of ownership, which the law regards as equiva lent to an actual seisin of a present estate of inheritance, had been exercised by the owner, over such expectant estate. But it is otherwise where the future estate was acquired by purchase, for the purchaser becomes a new stock of descent, and on his death the estate passes directly to his heir at law. This distinction is entirely settled by authority, and it will be found to reconcile various cases which would otherwise seem to be in conflict with each other." BEARDSLEY, J., in Vanderheyden v. Crandall, 2 Denio, 9, 25; S. C. affirmed, 1 N. Y. (1 Comst.) 491.