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It will be more convenient to postpone until we come to treat of deeds and leases, the consideration of the terms by which a fee will pass, and the constitutional restraint imposed upon the granting of farm leases for a longer period than twelve years.

SECTION II.

Of freeholds of inheritance defeasible or conditional.

The revised statutes evidently recognize defeasible or conditional fees as existing estates.

At common law, estates of inheritance which were not absolute, were of two sorts: 1. Qualified or base fees; and 2d. Fees conditional, so called; and afterwards fees tail in consequence of the statute de donis. (Stat. of Westm. 2. 13 Edw. 1.)

At an early day it became customary to make donations of land, restraining them to some particular heirs of the donee, exclusive of others; as to the heirs of a man's body, in exclusion of collateral kindred; or to the heirs male of his body, in exclusion both of collateral heirs, and of lineal female heirs. The strong tendency of the courts to favor the alienation of the estate led them to construe limitations of this kind into estates upon condition, and to apply to them the maxim of the common law that when a condition is once performed, it is thenceforth entirely gone; and the estate to which it was annexed as absolute and unconditional. Upon this mode of reasoning the judges held that these estates were conditional fees, depending upon the leaving heirs of the particular class named in the grant. Hence, it followed that upon the leaving issue born, the estate became absolute, at least so far that the owner could alien the land and thus bar his issue and the donor of his right of reverter, subject the estate to forfeiture for treason, and enable him to charge it with rents and other incumbrances, which would be available against his issue.

This mode of construing conditional fees defeated the object which they were intended to accomplish. This induced the nobility, who were desirous of perpetuating their possession in their own families to procure the enactment of the Statute of West. 2, 13 Edw. 1, before adverted to, and which is usually called the statute de donis, requiring "the will of the giver, according to the form of the deed of gift manifestly expressed, to be observed, so that they to whom a tenement was so given under a condition should not have power to

alien the same tenement, whereby it should not remain after the death of the donees, to their issue, or to the donor or his heirs if issue failed." This statute, as was observed by Lord Mansfield, in his elaborate opinion in Taylor v. Horde, (1 Burr. 60, 115,) only repeated what the law of tenure said before, that "the tenor of the grant should be observed." It rejected the erroneous opinion which had been expressed by the judges that a donation of this kind created a conditional fee; and declared that it vested an estate of inheritance in the donee, and some particular heirs of his, to whom it must descend notwithstanding any act of the ancestor, and that the estate of the donor is a reversion expectant on the determination of that estate. (Id.)

An estate tail may be described to be an estate of inheritance, deriving its existence from the statute de donis, which is descendible to some particular heir only of the person to whom it is granted, and not to his heirs general. It was of two kinds; tenant in tail general and tenant in tail special. The first was when lands were given, to a man and the heirs of his body, without any further restriction; and the second when the gift was restrained to certain heirs of the donee's body, exclusive of others, as when lands are given to a man and the heirs of his body, on Elizabeth his present wife, to be begotten. Thus also, the estate might be limited to the heirs male of the body of the donee, which was called an estate in tail male, or to the heirs female of his body, called an estate in tail female.

In all cases of entailment limiting the lands to a particular class of heirs, no descendant of the donee could inherit unless he could deduce his title through that particular class of heirs to which the succession of the land was limited.

This species of estate was only predicable of what partook of the nature of real property, whether corporeal or incorporeal. It was subject to many of the incidents of estates in fee simple absolute. The tenant had a right to commit every kind of waste. The estate was subject to the curtesy of the husband, and the dower of the wife. The estate might, at common law, be discontinued by five different modes of conveyance; and it might be barred by a common recovery. This species of estate was not uncommon in this state before and after the revolution until it was abolished in 1782. The act of 1786, (1 Greenl. 205,) while it abolished that estate, enacted "that when any person now is or are, or would but for the act of 1782

therein repealed, be now seised in fee tail of any lands, tenements or hereditaments, such person shall be now deemed to be seised of the same in fee simple absolute." These two statutes, to wit, of 1782 and 1786, operated as well upon vested remainders in tail as upon estates tail which had taken effect in possession. (Vanderheyden v. Crandall, 2 Denio, 9, affirmed 1 Comst. 491. Van Rensselaer v. Poucher, 5 Den. 35.) The provision in the revised statutes (1 R. S. 722, § 3) which declares that every estate which would be adjudged a fee tail before the statutes abolishing entails, shall hereafter be adjudged a fee simple, is not more comprehensive in its effects than the former statutes, but is simply declaratory of the then existing law. (Van Rensselaer v. Poucher, supra.)

But estates in fee tail having been so long abolished, are of little interest to the reader. In this state and probably in others, they are converted into estates in fee simple absolute, and the learning concerning them is of little practical value. In some states, they never formed a part of their jurisprudence. The prevailing opinion in this country is adverse to the policy which entailments are calculated to cherish. The free and unrestricted alienation of property is, on the whole, more conducive to the advancement of society, than the accumulation of large masses in the hands of a favored few.

There are some defeasible and conditional estates in fee, which have not been abrogated by the revised statutes. A limitation to a man and his heirs so long as he shall have issue of his body; or till a person at Rome shall return from Rome, or till a person shall go to Rome or during the time while a particular tree shall stand, or till default shall be made in the payment of his debts, or so long as St. Paul's Church shall stand, are instances of this species of estate. (1 Preston on Estates, 432 et seq.) Even in wills it is said that a devise to a man and his heirs, till debts are paid, passes the fee, and not a chattel interest, except under special circumstances.

These estates are of rare occurrence, except in the case of securities by way of mortgage, which will be treated of in a subsequent part of this essay.

As no one can transfer to another a greater estate than he himself posseses in the subject of the grant, the owner of a determinable fee cannot, by a conveyance thereof to a man and his heirs generally, without restriction, enlarge the determinable fee into a fee simple. The grantee would take only such estate as the grantor, at the time

of the conveyance, enjoyed. (1 R. S. 739, § 143. Sage v. Cartwright, 5 Seld. 52.)

A determinable fee may become absolute and simple without any further conveyance. Should an estate be limited to A. and his heirs until the marriage of B., and B. should die unmarried, the estate in A. would become an estate in fee simple absolute. The event on which the determination of the estate depended, having become impossible by the act of God, viz., the death of B. before marriage, the period for the determination of the estate can never arise. For that reason the estate will last forever, in the same manner, as if no collateral limitation had given to it a determinable quality.

The foregoing observation is referable only to a class of cases in which the event on which the estate is limited, may become impossible, and therefore can never happen. It does not apply to those cases where, as in the case of an estate until a tree shall fall, an event is fixed as the termination of the estate, which must happen some time or other in the course of nature. In this latter case, the reversion or remainder expectant on the estate, or the possibility of reversion which is left in the grantor, may, by a release or other proper assurance, be conveyed to the owner of the determinable fee, and thus make him the owner of a fee simple absolute.

The conditional fees at the common law, as they existed prior to the statute de donis, have in general shared the fate of estates in fee tail, and are scarcely known in our jurisprudence. They have been succeeded by executory limitations which will hereafter be noticed. The revised statutes have enacted that every person holding lands (except idiots, persons of unsound mind and infants) seised of or entitled to any interest in lands, may alien such estate or interest at his pleasure, with the effect and subject to the restriction and regulations provided by law. (1 R. S. 719, § 10. DePeyster v. Michael, 2 Seld. 467. The Albany Ins. Co. v. Bay, 4 Comst. 9. 1 R. L. 70, § 1. Id. 74, § 5.)

SECTION III.

Of freeholds not of inheritance.

Under the definition of the term freehold estate, in a preceding page, (p. 115,) an estate for life in lands is a freehold interest. It is of two sorts, 1, such as is created expressly by deed or other legal assurance, and 2, such as is derived from the operation of law. Un

der the first head are 1st, an estate for the life of the tenant, and 2d, an estate for the life of another person, or persons. Under the second general head are embraced, 1st, an estate by the curtesy of England, and 2d, an estate in dower.

We shall treat of these different estates in the present section.

1. Of an estate for the life of the tenant created by the act of the parties. This estate is created when a deed of land is given to a man in express terms for the term of his life. At common law a grant of land to a man forever, conveyed only a life interest, if the word "heirs" was omitted. (Litt. lib. 1, § 1.) But since the revised statutes have dispensed with the term "heirs" and permitted the intention to pass a fee to be gathered from the language of the instrument, (1 R. S. 748,) it is necessary, in order to create an estate for the life of the grantee, that the intention to create such estate should be expressed in the conveyance.

Formerly, such an estate might be created whenever the grantor was the owner of the fee simple. But now, by the constitution of 1846, article 1, § 14, it is provided that no lease or grant of agricultural land for a longer period than twelve years thereafter made, in which shall be reserved any rent or service of any kind, shall be valid. This provision owed its origin to the antirent excitement which at that period prevailed to a great extent in certain parts of the state, and the object was to prevent long terms of farm leases, reserving rent, from being made. The prohibition does not apply to urban property, but to that which is strictly agricultural; and it does not apply to the latter, if no rent or other service is reserved in the conveyance.

In general, this species of estate for life will endure as long as the life or lives for which it was granted. There are some exceptions to this rule. Thus it may be determinable upon an event which happens before the death of tenant for life. Thus an estate to a woman so long as she remains unmarried, or to a man and woman during coverture, or so long as the grantee shall dwell in a particular house, are estates for the life of the grantee, but are determinable on the happening of these events. (1 Inst. 42.) Hence, in the above cases, if the woman marries, or the coverture ceases by death or otherwise, or the grantee ceases to dwell in the particular house, the life estate of the grantee terminates before his death. (Id.)

An estate for one's own life is of more value than an estate for the

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