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11. Was socage tenure of feodal origin?-86.
Yes; as appears from a comparison of the incidents and consequences of socage tenure with those of tenure in chivalry.
12. What species of our modern tenures has arisen from pure villenage ?-90.
Copyhold tenures, or tenure by copy of court roll at the will of the lord.
13. What were villeins ?-92–94.
Sir William Temple says, there were a sort of people in a condition of downright servitude, under the Saxon government, used and employed in the most servile works, and belonging, both they, and their children, and effects, to the lord of the soil, like the rest of the cattle or stock upon it. They were either villeins regardant, or else they were in gross, or at large, that is, annexed to the person of the lord, and transferable by deed from one owner to another. The villein could acquire no property in land or goods. His children were also in the same state of bondage. 14. What was the origin of copyhold ?-95, 96.
Copyholders are no other but villeins who, by a long series of immemorial encroachments on the lord, have at last established a customary right to those estates, which before were held absolutely at the lord's will.
15. Did these encroachments grow to be general ?—96.
Yes; they grew to be so universal, that when tenure in vil. lenage was virtually abolished, though copyholds were reserved, by the statute of Charles II., there was hardly a pure villein left in the nation.
16. What was privileged villenage, or villein socage?—99.
Such, according to Bracton, as has been held of the kings of England, from the conquest downwards. Tenants in villein socage could not aliene or transfer their tenements by grant, or feoffment, any more than pure villeins could. This tenure is no other than an exalted species of copyhold subsisting at this day, viz., the tenure in ancient demesne.
17. Of what does ancient demesne consist ?—99.
Ancient demesne consists of those lands or manors, which, though now perhaps granted out to private subjects, were actually in the hands of the crown in the time of Edward the Confessor, or William the Conqueror; and so appear to have beep by Doomsday Book.
18. What is tenure in frankalmoigne ?–101.
That whereby a religious corporation, aggregate or sole, holdeth lands of the donor to them and their successors forever.
OF FREEHOLD ESTATES OF INHERITANCE.
1. What does an estate in lands, tenements, and hereditaments, signify?–103.
Such interest as the tenant bath therein : so that if a man grants all his estate in Dale to A, and his heirs, everything that he can possibly grant shall pass thereby.
2. In what vier may estates be considered ?–103.
First, with regard to the quantity of interest which the tenant has in the tenement ; secondly, with regard to the time at which that quantity of interest is to be enjoyed ; and thirdly, with regard to the number and connections of the tenants.
3. What is the primary division of estates, with regard to the quantity of interest ? --103.
It is measured by its duration and extent. Thus, either his right of possession is to subsist an uncertain.period, during his own life, or the life of another man ; to determine at his own decease, or to remain to his descendants after him ; or it is circumscribed within a certain number of years, months, or days; 9r, lastly, it is infinite and unlimited, being vested in him and his representatives forever. And this occasions the primary
division of estates into such as are freehold, and such as are less than freehold 4. What is an estate of freehold ?-104.
A freehold, liberum tenementum, or frank tenement, is such an estate in lands as is conveyed by livery of seizin, or, in tenements of an incorporeal nature, by what is equivalent thereto. Britton defines it to be “the possession of the soil by a freeman." Such an estate, therefore, and no other, as requires actual possession of the land, is, legally speaking, freehold.
5. What is the division of estates of freehold (thus understood)! 104.
Into estates of inheritance, and estates not of inheritance.
6. How are estates of inheritance divided ?–104.
Into inheritances absolute, or fee-simple; and inheritances limited, one species of which we usually call fee-tail.
7. Who is tenant in fee-simple, or tenant in fee ?-104.
He that hath lands, tenements, or hereditaments, to hold to him and his heirs forever, generally, absolutely, and simply; without mentioning what heirs, but referring that to his own pleasure, or the disposition of the law.
8. What is the true meaning of the word fee?—104, 105.
The true meaning of the word fee (feodum) is the same with that of feud or fief, and, in its original sense, is taken in contradistinction to allodium.
9. What word is necessary in the grant, in order to make a fee, or inheritance ?-107, 108.
The word “ heirs ;" for if land be given to a man forever, or to him and his assigns forever, this vests in him but an estate for life. But this rule is now softened by many exceptions.
10. What are these exceptions -108.
It does not extend to devises by will ; or to fines and recoveries, considered as a species of conveyance ; or to creations of nobility by writ, for the peer so created hath an inheritance in
his title, without expressing the word " heirs,” for heirship is inplied in the creation, but in creation of peers by patent the word “heirs" must be inserted; or in grants of land to sole corporations and their successors; or in case of the king, for a feesimple will vest in him without the word "heirs" or "successors” in the grant. 11. Horo are limited fees divided?—109.
Limited fees are of two sorts : 1. Qualified or base fees ; and, 2, fees conditional, so called at the common law; and afterward fees-tail, in consequence of the statute de donis.
12. What is a base or qualified fee ?—109.
It is such a one as has a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end.
13. What was a conditional fee at the common law ?-110.
It was a fee restrained to some particular heirs, exclusive of others; and was called a conditional fee, by reason of the condition, expressed or implied in the donation of it, if the donee died without such particular heirs, the land should revert to the donor.
14. Whence is the origin of fee-tail and reversion ?-112.
From the construction given to the statute de donis. The judges determined that the donee had no longer a conditional fee-simple, which became absolute, and at his own disposal, the instant any issue was born ; but they divided the estate into two parts, leaving in the donee a new kind of particular estate, which they denominated a fee-tail, and vesting in the donor the ultimate fee-simple of the land, expectant on the failure of issue ; which expectant estate is what we now call a reversion.
15. What estates may, and may not, be entailed by the statute de donis ?–113.
Tenements is the only word used in the statute ; and this Sir Edward Coke expounds to comprehend all corporeal hereditaments whatsoever ; 'and also all incorporeal hereditaments, which savor of the realty, that is, which issue out of corporeal ones, or which concern, or are annexed to, or may be exercised within, the same, as rents, estovers, commons, and the like. Also offices and dignities which concern lands, or have relation to fixed and certain places, may be entailed; but mere personal chattels, which savor not at all of the realty, cinnot be entailed. Neither can an office which merely relates to such personal chattels, nor an annuity, which charges only the person, and not the lands of the grantor be entailed under the statute.
16. What are the several species of estates tail ?—113.
Estates tail are either general or special.
17. What is tail-general ?-113.
Tail-general is where lands and tenements are given to one, and the heirs of his body begotten.
18. What is tail-special ?—113, 114.
Tenancy in tail-special is where the gift is restrained to certain heirs of the donee's body, and does not go to all of them in general
19. By what distinction are estates in general, and special tail, further diversified !-114.
By the distinction of sexes in such entails; for both of them may either be in tail-male, or tail-female.
20. What word is necessary in order to make a fee-tail ?–114, 115.
The word body, or some other word of procreation, to ascertain to what heirs in particular the fee is limited.
21. Hore was the statute de donis evaded ?-116.
By the application of common recoveries in the twelfth year of Edward IV., which were then openly declared by the judges to be a sufficient bar of an estate tail.
22. What is the present state of estates tail ?–119.
They are now reduced again to almost the same state, even before issue born, as conditional fees were in, at common law, after the condition was performed by the birth of issue.