session. The same effect is produced by the surrender of the particular estate to the reversioner. The particular estate merges in the larger reversionary estate.

Thus, as the law became more refined, new modes of conveying lands from one person to another were introduced, destined, with some modifications to be hereafter noticed, to supersede in practice the old feoffment, fine, and recovery. If A., tenant in fee simple, wished to convey the lands to B., he might make a lease to him of the lands in question, upon which B. would enter, and was then at once capable of taking a release by deed of the reversion in fee. This was called conveyance by lease and release, and became in later times the usual mode of conveying lands.1

A conveyance of the reversion might also be made to a stranger. In this case it was formerly necessary that the tenant of the particular estate, whether in tail, for life, or for years, should attorn to the grantee of the reversion, in other words, acknowledge him as the person of whom the lands were held. The necessity for attornment was done away with by 4 Anne, c. 16, secs. 9, 10. Thus two new I modes of conveying the immediate freehold were added, lease and release, and grant and attornment.

LEAKE, LAND LAW, 315. In like manner, if the tenant of a particular estate convey the land for a less estate, he has a reversion left in himself; thus tenant in tail, by a disentailing assurance, may dispose of the lands entailed in fee simple or for any less estate; and if he make a disposition for a less estate, the reversion remains in him and is subject to the entail, unless it be wholly barred by the same assurance. If tenant in tail lease for life or for years at common law, without a disentailing assurance or any other special or statutory power in that behalf, he has a reversion; but such lease is valid only during his life, and is voidable at his death by the heir in tail. So, tenant for life may make a lease for years, and, however long the term of years may be, as it is not

1 See pages 437, 502, post.-ED.

coextensive with the freehold, there is a reversion in the lessor. But such lease made under a special or statutory power is valid only during the continuance of the lessor's estate, and is avoided by his death.

If tenant for term of years make an underlease for a shorter term, by however small an interval of time, he has the reversion for that interval left in him. An underlease for a shorter term, "if the underlessee shall so long live," leaves a reversion expectant on the determination of the sub-term either by lapse of time or by the death of the underlessee. An underlease for the whole term, or for a greater term, operates as an assignment and leaves no reversion; it carries with it all the rights and liabilities incident to the term and leaves none of the incidents of a reversion. If tenant for term of years convey the land to another for an estate for life or in tail at common law, the whole term passes and there is no reversion.

The grant of a particular estate, leaving a reversion in the grantor, creates a tenure between the tenant of the particular estate and the reversioner. This tenure is not within the statute of Quia emptores, for that statute extends only to alienations in fee simple, preventing any new tenure arising upon such alienations. Hence rent reserved upon such a grant of a particular estate is of the nature of rent service, and is attended at common law with the remedy of distress. And a grant of the reversion impliedly carries with it all the incidents of the tenure, as the rent service, if any, unless there be an express exception of such incidents in the grant.

N. Y. REAL PROP. LAW, § 29. A reversion is the residue of an estate left in the grantor or his heirs, or in the heirs of a testator, commencing in possession on the determination of a particular estate granted or devised.

CHAPTER III.

REMAINDERS.

(a) Vested Remainders.

Co. LIT., 143, a. "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.

2 BL. COM., 163-168. An estate, then, in remainder may be defined to be an estate limited to take effect and be enjoyed after another estate is determined. As if a man seised in fee-simple granteth lands to A. for twenty years, and, after the determination of the said term, then to B. and his heirs forever: here A. is tenant for years, remainder to B. in fee. In the first place an estate for years is created or carved out of the fee, and given to A.; and the residue or remainder of it is given to B. But both these interests are in fact only one estate; the present term of years and the remainder afterward, when added together, being equal only to one estate in fee. 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 twenty years, and after the determination of the said term to B. for life; and after the determination of B.'s estate for life, it be limited to C. and his heirs forever; this makes A. tenant for years, with remainder to B. for life, remainder over to C. in fee. Now, here the estate of inheritance undergoes a

division into three portions: there is first A.'s estate for years carved out of it; and after that B.'s estate for life; and then the whole that remains is limited to C. and his heirs. And here also the first estate, and both the remainders, for life and in fee, are one estate only; being nothing but parts or portions of one entire inheritance: and if there were a hundred remainders, it would still be the same thing: upon a principle grounded in mathematical truth, that all the parts are equal, and no more than equal, to the whole. And hence also it is easy to collect, that no remainder can be limited after the grant of an estate in fee-simple: because a feesimple 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 feesimple as £40 is part of £100 and £60 is the remainder of it wherefore, after a fee-simple once vested, there can no more be a remainder limited thereon, than, after the whole £100 is appropriated, there can be any residue subsisting.

Thus much being premised, we shall be the better enabled to comprehend the rules that are laid down by law to be observed in the creation of remainders, and the reasons upon which those rules are founded.

1. And, first, there must necessarily be some particular estate precedent to the estate in remainder. As, an estate for years to A., remainder to B. for life; or, an estate for life to A., remainder to B. in tail. This precedent estate is called the particular estate, as being only a small part, or particula, of the inheritance; the residue or remainder of which is granted over to another. The necessity of creating this preceding particular estate, in order to make a good remainder, arises from this plain reason; that remainder is a relative expression, and implies that some part of the thing is previously disposed of: for where the whole is conveyed at once, there cannot possibly exist a remainder; but the in

terest granted, whatever it be, will be an estate in possession.

An estate created to commence at a distant period of time, without any intervening estate, is therefore properly no remainder; it is the whole of the gift, and not a residuary part. And such future estates can only be made of chattel interests, which were considered in the light of mere contracts by the ancient law, to be executed either now or hereafter, as the contracting parties should agree; but an estate of freehold must be created to commence immediately. For it is an ancient rule of the common law, that an estate of freehold cannot be created to commence in futuro; but it ought to take effect presently either in possession or remainder; because at common law no freehold in lands could pass without livery of seisin; which must operate either immediately, or not at all. It would, therefore, be contradictory, if an estate, which is not to commence till hereafter, could be granted by a conveyance which imports an immediate possession. Therefore, though a lease to A. for seven years, to commence from next Michaelmas, is good; yet a conveyance to B. of lands, to hold to him and his heirs forever from the end of three years next ensuing, is void. So that when it is intended to grant an estate of freehold, whereof the enjoyment shall be deferred till a future time, it is necessary to create a previous particular estate, which may subsist till that period of time is completed; and for the grantor to deliver immediate possession of the land to the tenant of this particular estate, which is construed to be giving possession to him in remainder, since his estate and that of the particular tenant are one and the same estate in law. As, where one leases to A. for three years, with remainder to B. in fee, and makes livery of seisin to A.; here by the livery the freehold is immediately created, and vested in B. during the continuance of A.'s term of years. The whole estate passes at once from the grantor to the grantees, and the remainder-man is seised of his remainder at the same time that the termor is possessed of his term.