Commentaries on the Laws of England: In Four Books - William Blackstone - Google Buku

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OF INCORPOREAL HEREDITAMENTS (continued).

PAGE.

these are, 1. advowsons; 2. tithes; 3. commons; 4. ways; 5. offices; 6. digni-

ties; 7. franchises; 8. corodies or pensions; 9. annuities; 10. rents... 21

I. advowson is the right of presentation to a church or ecclesiastical benefice,. 21

it is either appendant to an estate, or in gross, when it is annexed to the

person of the owner,....

it may also be, 1. presentative; 2. collative; 3. donative,.
II. tithes are a tenth part of the yearly increase from lands, stock and industry,
appropriated to the parson or vicar,.

historical view thereof,.

may be discharged, 1. by composition; 2. by custom or prescription,... 28, 29

are now converted into a rent charge,.

32n

III. common is a profit which a man hath in the land of another..

1. common of pasture, which is either appendant, appurtenant, because of

vicinage or in gross,.....

2. common of fishery, or a liberty of fishing in another man's water,.....

3. common of turbary, or a liberty of digging turf upon another's ground, 34

4. common of estovers or botes, or the right to take necessary wood from
another's estate to furnish or supply a house or farm,.

33

V. offices are the right to exercise a public or private employment,.

VI. dignities are nearly related to offices, and have been already treated of,...

VII. franchises are royal privileges, or branches of the king's prerogative subsist-

ing in the hands of a subject,............................

VIII. corodies are allotments for one's sustenance, sometimes converted into pen-

...

IX. annuities are yearly sums chargeable upon the person of the grantor,....
X. rents are a certain profit, issuing periodically, out of corporeal hereditaments, 41
1. rent-service, so called because service, or at least fealty, is incident to it, 41
2. rent-charge, where the owner hath no future interest or expectant re-
mainder in the land, but is given a right to distrain,.

3. rent seck, or rent reserved without right of distress,.
rent is regularly due and payable on the land,...

OF THE FEUDAL SYSTEM,

the doctrine of tenures derived from the feudal system,

the constitution of feuds had its origin from the military policy of the northern

conquerers of Europe,....

historical view thereof,.

...45-53

the fundamental maxim of the feudal system, that all lands were granted out by
the sovereign, and are holden of him,...

fealty and homage due from the tenant,.

feuds originally at will, at length became hereditary,
but could only be transferred by mutual consent,.

..54-57

improper feuds were derived from the others, but differed in original, services, rend-

OF THE ANCIENT ENGLISH TEnures,......

almost all real property is holden of a superior,......

...

the distinction of tenures consisted in the nature of their services,.

tenures in chivalry, or knight-service, most universal, and regarded the most

incident to it were aids, reliefs, primer seisin, wardship, marriage, fines
for alienation and escheat,..
.....63-73

grand sergeanty differed from chivalry in the service to be performed,... 73

the personal services gradually changed into pecuniary assessments,.. 74

these called scutage or escuage,

74

OF THE ANCIENT ENGLISH TENURES (continued).

the military tenures, except grand sergeanty, abolished at restoration of

77

CHAPTER VI.

OF THE MODERN ENGLISH TENURES,..

78-101

socage is tenure by any certain and determinate service,.

79

it is free socage where the services are honorable, and villein-socage when they
are of baser nature,......

4. and to aids for knighting the lord's son and marrying his daughter,.

5. and to reliefs,..

6. primer seisin was incident to the king's tenants in capite,

villemage tenure was either pure or privileged,.....

other incidents were, 7. wardship; 8. marriage; 9. fines, 10. escheat,... 87

pure villeinage was a precarious and slavish tenure at will, upon uncertain and

base services,. . .

from thence have sprung copyhold tenures,.

to understand which a view of the origin and nature of manors is

villeins were villeins regardant, or annexed to the manor, or in gross,
or pertaining to the person,..

enfranchisement of villeins,.

copyhold tenures rest upon custom,.

are sometimes inheritable and sometimes not.....

are subject to service of some sort, relief and escheats,.

also to heriots, wardship, and fines,....

privileged villeinage is an exalted species of copyhold tenure, held by certain

services, and existing only in the ancient demesnes of the crown, and

thence called ancient demesne,.

the tenants have some peculiar immunities, and hold by the custom of the

manor, and not at will,.....

frankalmoign is tenure by a religious corporation for a render of religious ser-

many ecclesiastical and eleemosynary corporations now hold lands

the services were not certainly defined, in which it differed from tenure

by divine service, . . .

OF FREEHOLD ESTATES OF INHERITANCE,.

an estate in lands, tenements or hereditaments signifies such interest as the tenant

to ascertain which must be considered, 1. the quantity of interest; 2. the time

of enjoyment; 3. the number and connections of the tenants,.

with respect to quantity of interest estates are freehold or less than freehold,. 103

a freehold is such an estate as is conveyed by livery of seisin, or in incorporeal

tenements, by what is equivalent thereto,....

freeholds are 1. of inheritance; 2. not of inheritance, or for life only,

freeholds of inheritance are absolute, or fee-simple, and limited,..

1. tenant in fee-simple is he that hath real property to hold to him and

his heirs forever, generally, absolutely and simply,..

this is property in its highest degree,........

...

the fee simple generally resides in some person, though inferior es-

tates are carved out of it,....

in a grant or donation, the word "heirs" is generally necessary to

create a fee,....

exceptions to this rule,....

......108, 109n

2. a base or qualified fee is one that hath a qualification attached by

which it may be determined,...

OF FREEHOLD ESTATES OF INHERITANCE (continued).

3. a conditional fee at the common law was a fee restrained to the heirs

of the donee's body exclusive of others,.

this was held a fee on condition the donee had heirs of his body,.... 110

the estate was therefore absolute when issue was born, and the donee

might then alien the land,.

the statute de donis was passed to prevent such result and required

the lands to go to the issue, if any, and if none, to revert,.

a conditional fee then called fee tail,..

all tenements real or savoring of the realty may be entailed,.

estates tail are general, where the lands are given to one and the

heirs of his body generally,..................

or special, where the gift is restrained to certain heirs of the body,

and not to all of them,....

the tenant may now alien in fee simple by an ordinary deed,.

..119n

OF FREEHOLDS NOT OF INHERITANCE,.

freeholds not of inheritance are either 1. conventional, or created by act of the par-

ties, or 2. legal, or created by operation of law,.

1. conventional estates for life, are for the grantee's own life, or for the life of

another, or for more lives than one,..

and may also be created by a general grant defining no term,.

incident to these are estovers,..

also emblements where the estate is not determined by the tenant's own act,. 123

to which sub-tenants are also entitled,...

2. of the legal kind is, 1. tenancy in tail after possibility of issue extinct,.

which is of a somewhat amphibious nature,..

2. tenancy by the curtesy of England, which is where a man's wife is seized

of an estate of inheritance, and after issue born alive of the marriage which

might inherit the estate; if she dies he shall hold for his life,.....

3. tenancy in dower, is where the husband, being seized of an estate of inher-

itance in lands, dies, the wife surviving,..

dower is either by the common law, by special custom, ad ostium ecclesiæ

or er assensu patris,...

the estate is not complete until assignment is made of dower,..

also by an estate in jointure settled on her for the purpose,.

it may be barred by elopement with adulterer, divorce, alienage, detaining

title deeds, or fine and recovery,..

OF ESTATES LESS THAN FREEHOLD,

estates less than freehold are, 1. for years; 2. at will; 3. at sufferance,

estate for years is where lands are let for any certain period of time,.

the computation of time, year, month, week and day,..................

livery is not given, and it may be made to commence in futuro,.

incident to it are estovers,

also emblements, if it determines before the end of the term,...

estate at will is where lands are let to hold at the will of the lessor,.

which is also at the will of the lessee,.

incident to which are emblements where the estate is not determined by

the tenant,.....

OF ESTATES LESS THAN FREEHOLD (continued).

copyhold estates are held at the will of the lord, regulated according to the

custom of the manor,

estate at sufferance is where one lawfully comes into possession of lands and

wrongfully holds over,.

OF ESTATES UPON CONDITION,..

estates upon condition are created, enlarged or defeated by the happening or not

happening of some uncertain event,..

these are those, 1. on condition implied; 2. on condition expressed,

under which last head may be included, 3. estates held in pledge; 4. estates

by statute staple or statute merchant; 5. estates by elegit,..

estates upon condition implied are those which, from their nature and consti-

tution, have a condition inseparably annexed,.

estates upon condition expressed are where an express qualification is annexed

to the grant, whereby the estate is to commence, be enlarged or defeated, 154

the conditions are precedent or subsequent,..

a limitation differs from a condition in that it absolutely determines the estate,

while upon breach of condition the grantor, or his heirs, has a right to

determine it,......

impossible conditions, and those contrary to law, or repugnant to the estate,

estates in pledge are, 1. where the profits of land are granted till a debt is

paid, called vivum vadium,....

2. mortuum vadium, or mortgage, where an estate is granted on condition

to be void on payment of the debt,.....

the two parts of a mortgage, the conveyance and defeasance, may be in the

same or in two instruments,..

to which may be added a power of sale,

the mortgagee may take possession, subject to be dispossessed on performance

if the mortgagor fails to perform by the day he has nevertheless an equity of

this equity may be foreclosed in several ways,.

the vendor of lands may have an equitable mortgage, without writing, for
unpaid purchase-money, when he has not waived it,.

the doctrine of tacking mortgages,...

estates by statute staple or statute merchant are conveyed under certain

statutes, and resemble the vivum vadium,...

estate by elegit is where lands are delivered to the plaintiff under a judicial

writ until their profits shall satisfy his judgment,.

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estates are either in possession or expectancy, and the latter are either remainders

1. an estate in possession is where the present interest passes to and resides in the

to this there must be,

2. a remainder is an estate limited to take effect and be enjoyed after another par-

ticular estate is determined,.......

1. a particular estate to support the remainder,........

3. the remainder must vest in the grantee during the continuance or at

the determination of the particular estate,...

2. the remainder must pass out of the grantor at the creation of the par-

ticular estate,....

168

remainders are,

1. vested, where the estate is fixed to remain to a certain person after the

particular estate is spent,...

2. contingent, where the estate is limited to take effect either to an uncer-
tain person or on an uncertain event,.

169

a contingent remainder of freehold can only be limited on a freehold, 171
they are defeated by destruction of the particular estate,.............
171

....

OF ESTATES IN POSSESSION, REMAINDER AND REVERSION (continued).

an executory devise is such a disposition of lands by will that no estate

vests at death of devisor, but only on a future contingency,...... 172

this requires no particular estate, a fee simple may be limited after a

fee simple, and a remainder of a chattel interest after a life estate, 173

how long the power of alienation may be suspended, . .

a reversion is the residue of the estate left in the grantor to commence in

possession after the determination of a particular estate granted,.. 175

incident to it are usually fealty and rent,..

when a greater and a lesser estate meet in the same person, the less is

but they must meet in the same right, and without intermediate

OF ESTATES IN SEVERALTY, JOINT TENANCY, COPARCENARY, AND COMMON,.....179-194

an estate in severalty is where one holds in his own right and is sole tenant,..... 179

an estate in joint tenancy is an estate granted to two or more persons, with several

1. it is created by act of the parties and not of the law,....

2. its properties are unity of interest, title, time and possession,

the right of all must come by the same act or conveyance,.

the peculiar estate granted to husband and wife jointly,

incident to this estate is the law of hotchpot,..

each tenant is seized per my et per tout,...

on death of one joint tenant, the entire estate remains to the survivors,..

this estate is destroyed by destroying any of its constituent unities, usually

done by partition,..

an estate in coparcenary, is where an estate descends to two or more persons,.

in which case each is seized of a distinct moiety only,

the parceners may have partition,.

in the United States estates so descending are estates in common,.

tenancy in common is where there is unity of possession merely, but perhaps an

entire disunion of interest, title and time,....

this may be created by deed, or by destruction of another joint estate without

the tenants take by moieties only, and there is no survivorship,

they may sever their interests by partition,..

CHAPTER XIII.

OF THE TITLE TO THINGS REAL IN GENERAL,.

a title is the means whereby the owner of lands hath just possession of his

1. the lowest title is mere naked possession without right,....

2. the next step is the right of possession, which one may have though disseized,.. 196

3. the mere right of property may be without possession or right of possession,... 197

as where one disseized has neglected to pursue his remedy till it is barred,. 198

4. a complete title combines possession with right of property,....

OF TITLE BY DESCENT,.

descent is the title whereby a man on the death of his ancestor acquires his estate

as her at law,......

this depends on consanguinity, which is either lineal or collateral,...

the degrees are computed according to the canon law, by which two persons

are related in whatsoever degree the most remote is distant from the com-

mon ancestor,......

the computation of the civil law is different, .

.207n

the canons of descent are:

1. inheritances shall descend to the issue of the person who last died seized,
in infinitum, but never lineally ascend,..

208

this now altered,......

.208n

2. the male issue shall be admitted before the female,

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