Gambar halaman


(D 1.) Who shall be. p. 55.
(D 2.) Who not. p. 57.


(E 1.) Who shall be. p. 59. .
(E 2.) What interest he has. p. 60.

(E 3.) What privileges he shall have. p. 62.
(F 1.) Who shall be.

p. 63. (F 2.) Of what things. p. 65. (G) TENANT FOR YEARS.

(G 1.) By what words a lease shall be. p. 66.
(G 2.) By what persons. p 71.
(G 3.) By spiritual persons, &c. at common law. p. 71.
(G 4.) By the st 32 H. 8. 28. 1 El. 19. and 13 El.

19. p. 73.
(G 5.) What leases are warranted by those statutes,

and what not. p. 77. 6.) A lease by several persons; how it operates.


p. 83.

(G 7.) A lease by estoppel, &c. p. 83.
(G 8.) When a lease shall commence. p. 84.
(G 9.) What shall be a good commencement. p. 86.
(G 10.) What shall be a good determination. p. 88.
(G 11.) When it shall be determined. p. 88.
(G 12.) What shall not be a good determination.

p. 95.

(G 18.) When a lease shall be void. p. 96.
(G 14.) What interest the lessee has before entry.

p. 97.

(G 15.) What interest the lessee has after entry. p. 97. (H) TENANT AT WILL.

(H 1.) Who shall be. p. 99.
(H 2.) Who not. p. 100.
(H 3.) What things a lessee at will may


p. 101.

(H 4.) What he ought to do. p. 101.
(H 5.) What he need not do. p. 101.
(H 6.) What shall be a determination of the will;

Express. p. 102.
(H 7.) Implied. p. 102.
(H 8.) What not. p. 103.
(H 9.) At what time the Ouster shall be. p. 103.


(I 1.) Who shall be. p. 104.
(I 2.) Who not. p. 105.


(K 1.) Joint-tenants;—Who are. p. 105.
(K 2.) Who are not. p. 107.
(K 3.) When a joint estate survives. p. 110.
(K 4.) When not. p. 110.
(K 5.) If the jointure does not continue ;—what shall

be a severance ;-What not. p. 111.
(K 6.) Joint-tenants, how seised. p. 112.
(K 7.) What charges bind the survivor. p. 113.
(K 8.) Tenants in common. p. 114.


(A 1.) Of what Things a Man may have it. An estate imports the interest which a man has in lands. Co. L. 345. a.

Every one, who has an estate in land, has the inheritance, the freehold, or a chattel interest.

Every estate of inheritance is a fee simple, or a fee tail.

An estate in fee (6) simple is, (c) where a man has an estate in lands or tenements to him and his heirs for ever. Lit. S. 1.

(6) The word fee is explained to signify, that the land or other subject of property belongs to its owner, and is transmissible in case of an individual, to those whom the law appoints to succeed him under the appellation of heirs ; and in case of corporale bodies, to ihose who are to take upon themselves the corporate function, and, from the manner' in which the body is to be continued, are denominated successors. Litt. s. 1. 1 Inst. 1 b. 271. b. Wright's Ten. 147. 150. Spelm. Feu. c. 1. Fleta. lib. 5. c. 5. s. 27. 2 Blk. Com. 104. 106. Hale’s Anal. 74. Bracton, lib. 4. 263. b. 1 Prest. Est. 420. { It seems that a deed to the Church wardens of a parish, cannot operate by way of grant, to convey a fee to them and their successors; for their successors, as such cannot take ; nor to the church wardens in their natural capacity; for the word “heirs" is not contained in the deed : But the general covenant of warranty in the deed will operate by way of estoppel, to confirm to the church and its privies, the perpetual and beneficial estate in the land. Mason v. Muncaster, 9 Wheat. 445. Terrett v. Taylor, 9 Wheat. 455. in nota. Vide also S. C. 9 Cranch, 43, 52, 53. } ,

(c) An estate which may continue for ever. 1 Prest. Est. 419.

A man may have an estate in fee simple of all lands, or tenements, or other things real. Co. L. 1. b.

Of lordships, advowsons, commons, estovers, and all hereditaments. Co. L. 4. a.

So a man may bave an estate in fee simple descendible to him and his heirs in the Isle of Man ; though it be not parcel of the realm, but a distinct territory: for it is grantable by the king under the great seal, and therefore the estate in it shall be descendible according to the rules of the common law. Co. L. 9, a.

So he may have a fee simple in things mixt; as, in franchises, liberties, &c. Co. L. 2. a.

So, if a man grants to another and his heirs all woods, underwoods, timber-trecs or others in such a part of a forest, saving the soil; the grantee has a fee to take in alieno solo. R. 8 Co. 137. b.

{ So if one grant to another, his heirs and assigns, all the trees and timber standing and growing in a certain close, forever, with free liberty to cut and carry them away, at pleasure, the grantee has an estate of inheritance in the trees and timber not only then growing, but which should thereafter be growing in the close ; and also, an exclusive interest in the soil, so far as it may be necessary for the growth and nourishment of the trees. Clap v. Draper, 4 Mass. Rep. 266. }

[*]So, in things personal; as, in an annuity. (d) Co. L. 2. a. (e)
In a dignity granted to him and his heirs. Co. L. 2. a. (f)
In a swan-mark. 7 Co. 17.
In a part or share of the New-River-water. Ca. Parl. 207. (g)

{ So, a privilege to erect a mill on a stream of water, with “ liberty of ground and stream of water," may be granted; but the right of erecting the mill, must be exercised in the lifetime of the grantee, and cannot be exercised by his heirs or assigns; the privilege not being coupled with an interest, so as to vest, absolutely, at the time of the grant. "Vandenburgh v. Van Bergen, 13 Johns. Rep. 212. }

So, in the patronage of an hospital, or other thing created de novo, in which there was not precedent estate, a man may have a fee to him and

(d) 1. But the heirs of the grantor must be bound expressly, and in that character, to the payment or render of the annuity. 1 Prest. Est. 509.-2. And since an annuity may be the subject of a fee, it follows, that permanency of interest, not immobility, is the essential quality of a fee. Ibid. 507.-3. And in equity, where money is convertible, by its application in purchases, into land, it is impressed, in the interim, in regard to succession, with the inheritable qualities of land. Id. 507.

(e) 1. An annuity of inheritance is held to be forfeitable for treagon as an hereditament. 7 Rep. 34. b.-2. Yet, being only personal, it is not an hereditament within the statute of Mortmain of 7 Edw. 1. st. R.-3. Nor is entailable within the statute de donis. Co. Litt. 2. a. n. (1)

W) 1. Which is an hereditament either mixed both of the realty and personalty.-2. For when the king creates an earl of such a county or other place, to hold that dignity to him and his heirs, this dignity is personal, and also concerneth land and tenements. Co. Litt. 2. a.-3. And is entailable within the statute de donis. Co. Litt. 20. a. 2 Eden. 373. 4. And being within the protection of the statute, is not forfeited by an attainder of felony. 2 Eden. 373. (See 54 G. 3. c. 145. as to what attainder of the ancestor shall now disinherit the heir.)-5. Yet neither can the donee nor his issue bar the entail, by fine, recovery, or any other means, as may be done in the casc of other entailable things. Show. Parl. Ca. 1. Collins's Claims of Bar. 293.-6. Or it is an hereditament altogether personal; as where a title is created, and no place mentioned.-7. For naming a place is not essential to the creation of a dignity. I Ld. Raym. 13.-8. But in this case the grantee of a dignity to him and the heirs male of his body, will have a fee conditional, and not an estate tail. 12 Rep. 81. Co. Litt. 20. a. n. (3.)

(9) Dick. 545.

his heirs, qualified in a particular manner: As, if a queen consort institutes an hospital, and reserves the patronage sibi et Reginis Anglia succedentibus. R. Ca. Ch. 214.

But in estates in esse before such desultory inheritance it cannot be: As, the dutchy of Cornwall limited to the prince et filiis Regis Angliæ primogenitis, shall not be good, except when limited by act of parliament. R. 8 Co. 16. Vide Roy, (G).

So a limitation of an advowson to the queen, and the queens her successors, shall not be good without an act of parliament: for (h) there is no person against whom a demand may be made. R. Ca. Ch. 214.

If a man gives land to A. and his heirs of the part of bis mother; the words, of the part of his mother, are void; for none can create a new inheritance, or descent, not allowed by law. Co. L. 13. a.

{What easements will pass by a grant of land, by these words, “ with all the privileges and arpartenances thereunto belonging.” Grant v. Chase, 17 Mass. Rep. 44.3.

A water-right, appurtenant to a will, will pass by the word,“ appurtenances"; and such right will pass, although the grantor, declare at the time the deed is executed, that he neither bought nor sold the water-right. Pickering v. Stapler, 5 Serg. & Rawle, 107.

(A 2.) By what words. A man cannot have a fee simple by feoffment, or grant, (i) without the words, (k) to him and his (1) heirs. (m) Co. L. 1.

(h) then the freehold might be in abeyance, and then.'

) 1. Limitations of trust are to be construed in like manner and by the like rules, as limitations of a legal estate. 3 Ves. 127.–2. And therefore in deeds the fee cannot pass by grant or transfer, inter riros, without appropriate words of inheritance. 2 Prest. Est. 64,-3. But in contracts to convey, and in trusts declared in a conveyance, the fee may pass notwithstanding the omission of a limitation to the heirs. Ibid.-4. Therefore articles to convey to A. B. in see, or a conveyance to A. B. and his heirs in trust to convey to C. D. in fec. simple, would confer a right in equity, to call for a conveyance of the inheritance. Ibid. -5. So a conveyance to A. and his heirs in trust, todidem verbis, for B. in fee, would pass a fee. Ibid.-6. So there may be a right in equity to call for a conveyance of the fee, because there is evidence of an intention to convey the fee, although that intention be not expressed by a limitation to the heirs. lbid. 64, 65.-7. And the result of the general rule is, that a bargain and sale by an equitable owner to A. simply, would pass no more than an estate for life ; while if it should appear from a recital that there was an intention to sell the fee, the court would consider the fee to pass. Ibid.-8. And to pass the fee of copyhold lands, it is not always requisite, that the word heirs should be used. 4 Rep. 29. b. Kitch. 102. b. Supra, Copyhold, (F. 8.)-9. Though the general rule seems to render it necessary that this word should be inserted, unless some other term, sanctioned by usage, and grown into custom, has been substituted in its place. Watk. Cop. 108. Rol. Abr. 839. 1. 504. 2 Prest. Est. 67.–10. By custom a grant of a copyhold to a man and his (sibi et suis), or to him and his assigns (sibi et assignalis), or to him, without any other word, may give the inheritance. Watk. Cop. 109. 1 Rol. Abr. 48. 2 Prest. Est. 68.--11. So a fine sur cognizance de droit cum ceo, or sur cognizance de droil lantum, passes an estate in fee simple without the word heirs. Co. Read. 6. 1 Inst. 9. b.-12. For when the cognizor acknowledges the lands to be the right of the cognizee, it would be repugnant and contradictory to his own acknowledgment to claim any estate in the lands in remainder or reversion. Besides, in every judgment a fee simple was recovered ; and the cognizance or ac. knowledgment of the concord coming in place of a judgment must have the same effect. - 13. But if the concord be qualified by the express words of the parties, as if the lands are limited to the cognizee for life, or to the cognizee and the heirs of his body, the fine will then only pass an estate for life or in tail; for it would be absurd, that a greater estate should pass than that which the parties themselves have limited ; and the preceding dopation or leoffment which is acknowledged in the fine, may as well be supposed to have been for life, or in tail, as in fee. Salk. 340.

[*]And therefore if he purchases to him in perpetuum, he has only for life. Lit. S. 1. (n) [*]Or, to him

and his assigns forever. (0) Lit. S. 1. { Vide Vanhorn's Les. 7. Harrison, 1 Dall. 137.

Legislative grants may be valid, though they do not contain the technical terms usual in deeds of conveyance. Rutherfood v. Green's heirs, 2 Wheat. 196. Vide Griffith v. Ridgely, 2 Har. & M'Hen. 418.

A grant of land made in 1658, though it is deficient in the formal parts of a deed; yet after a lapse of more than one hundred years, and being accompanied with the possession of the grantee and his assigns, will be held valid. Lee v. Tapscott, 2 Wash. 276. }

So, if he purchases to him and his heir in the singular number. Co. L. 8. b. Cont. (p)per 2 J. i Rol. 832. K.

To him or his heirs, in the disjunctive. Co. L. 8. b.

So, if it be to A. et B. et hæredibus, without saying, suis, it shall be void for the incertainty. Co. L. 8. b. 1 Rol. 8.33. I. 20.

Though a warranty be added to them et hæredibus suis : for this cannot enlarge it. 1 Rol. 833. 1. 25.

(k) 1. The limitation must be either by express words, or by words of direct and immediate reference. Shep. Touch. 101.-2. The word heirs (or successors, in case of a corporation) need not be in the identical deed of grant, or other mode of assurance by which the estate is granted or conveyed.--3. Thus where one to whom lands have been granted in fee, after reciting the grant, or without any recital, grants the lands to another as fully as they were granted to him. Shep. Touch. 101. infra.-4. Or where a man grants two acres to A. and B., to hold one acre to A. and his heirs, and the other acre to B. “ in form aforesaid." Shep. Touch. 101. 1 Inst. 9 b.--5. Or where a man seised of lands in fee, enfeoffs another in fee, and continues in possession of the lands, claiming to hold them at the will of the feoffee ; and the feoffee enfeoffs the person by whom he was enfeoffed in these terms: “ You have given me these lands (naming them ); as fully as you have given them to me, I assure them to you.” 39 Ass. 12. 2 Leon. 26. 1 Inst. 9. b. infra. 2 Prest. Est. 1, 2.

(1) 1. And so often as the limitation is to two persons it must express, whether the heirs are to be of both these persons, or of one of them. Hob. 94. Shep. Touch. 101. 1 Inst. 8. b.-2. And when of one of them only, then also of which of them in particular ; as of one in certain, or of the survivor of them, &c.-3. A grant to two men and heirs, without any specification that the heirs shall be of both persons, or of one of them, is void as to the heirs for uncertainty. 1 Inst. 8. b. 19 Hen. 6. 23. 20 H. 6. 34. Latch. 42. 5 Rep. 112. Shep. Touch. 19. 37 Hen. 6. 5. 2 Prest. Est. 10.

(m) 1. It is not, however, necessary that the grant should, by one entire or continuous expression, be to the grantee and his heirs : It may be by divided clauses; as to A. for life with a remainder to his right heirs. Shep. Touch. 101.-2. It will be sufficient that it should, from the context, appear that B. and his heirs are to have the benefit of the grant.3. Thus where a grant was of a rent to A., and afterwards that he and his heirs should distrain for it; this limitation of distress to him and his heirs cnlarged the estate, and made it a fee simple. 3 Bulst. 129. 2 Prest. Est. 7. 8.

(n) 1. So to a man and his heirs during the life of C., or during the lives of several persons. Bract. lib. 2. c. 9. Vaugh. 201. 1 Rep. 140. 10 Rep. 98.–2. And since it is an essential quality of a fee that it may continue for ever, an interest granted to a man and his heirs, but so qualified, that the continuance of the same under the limitation is bounded by the life of one person, or the lives of several persons, is not an estate in fee, for it cannot con tinue for ever.-3. Hence a limitation to A. and his heirs, during the life of B. is a mere frechold, not an inheritance. 1 Rep. 140. b.---4. So till an event shall arise which must happen and necessarily must take place within the period of a life, or the period of one of several lives; as an estate to A. and his heirs during the widow-hood of C., is an estate of mere frechold. 1 Inst. 42. 1 Prest. Est. 479, 480.

(0) As to the operation of these words, see 2 Prest. Est. 3. 4.

(p) 1. Extrajudicially.—2. And in the annotations on 1 Inst. it is said that, according to many authorities, heir may be nomen collectivum, as well in a deed as a will, and operate in both in the same manner, as heirs in the plural number. 2 Rol. Abr. 253. Ambl. 453. Godbolt. 155. T. Jones. 111. Cro. Eliz. 313. Robinson's Gavelkind, 95, 96. I Burr. 38. Vin. Abr. 10 vol. 233. k. pl. 1. 8 vol. 233.-3. But the contrary is asserted by Mr. Preston. 2 Prest. Est. 9. 10.

« SebelumnyaLanjutkan »