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the claim that the State is the absolute proprietor of all lands within its jurisdiction, which consequently makes all private owners merely tenants of the State.'
Our conclusion therefore is that there is no“ private property in land” in the sense in which Mr. Spencer and Mr. George employ the term, and the provisions of the law in respect to the tenancy of lands are in strict conformity with the principles they advocate. It may be, as Mr. George asserts, that certain cunning men in days gone by cheated society out of its dues, and obtained from it fee simple tenancies without rendering an adequate equivalent; and it may be true (we shall not question the proposition in this place), that the present returns to the State for the private enjoyment of these tenancies are grossly inadequate to the benefits thus received: Mr. George may possibly be just in his claim that taxation of lands ought to be increased far beyond its present rate; but the economic problem would be very much simplified, if it is clearly understood that the scheme proposed for the nationalization of land involves no legal, as it does an economic, revolution.
$ 116. Regulation of estates — Vested rights. - If it
- — be true that the absolute property in land is in the State, it must follow as a logical consequence that, in the grant of lands to private individuals, the State may impose whatever conditions and terms, under which the land is to be acquired, that may be deemed wise or necessary. For example, the United States government may institute whatever regulations it pleases for the sale of the public lands of the West. The right to acquire a private property in land is a privilege and not a right. The State may refuse altogether to sell, or exact whatever returns in the way of rents or public duties it pleases. But when the right to the public enjoyment of lands is purchased by the individual, it becomes a vested right, of which he cannot be divested by any arbitrary rule of law. There are several clauses of the constitutions which contain an express or implied prohibition of such interferences with vested rights; but the principal protection to vested rights is that guaranteed by the clause which declares that “no man shall be deprived of his *** property, except by the judgment of his peers or the law of the land.” It is not necessary in this place to discuss in general what is meant by vested rights, and what are considered to be such. It is sufficient for us to be able to say that when one becomes the tenant of the State, or acquires the absolute title to an estate in the land, whether that estate be in fee, for life, for years, or otherwise, his interest is a vested right, which is protected by the constitutional limitations against any arbitrary changes by legislation. But naturally, until the estate is acquired, the purchaser has no absolute right to purchase any particular estate in the land. It is fully competent for the legislature to determine what estates one may acquire in lands. For example, estates tail have been abolished in most of the American States. That is, the statutes of the different States have declared what shall be the effect of an attempt to create an estate tail, In Alabama, California, Connecticut, Florida, Georgia, Kentucky, Maryland, Michigan, Minnesota, Mississippi, North Carolina, Tennessee, Texas, Wisconsin, Virginia and West Virginia, estates tail are converted into fees simple. In Arkansas, Illinois, Kansas, Missouri, New Jersey and Vermont, the tenant in tail takes a life estate, and the heirs of his body, the remainder in fee per formam doni. In Indiana and New York, the tenant takes a fee simple, if there is no limitation in remainder after the estate tail, and a life estate, where there is such a limitation. In Delaware, Maine, Massachusetts, Pennsylvania, and Rhode Island, es
1 See post, $ 121.
tates tail are not expressly abolished, but an easy mode of barring the entail by a conveyance in fee simple is provided by statute.
Another notorious example of legislative interference with creation of estates in lands is furnished by the enactment of Statutes of Uses, which provide for the union in the cestui que use of the legal and equitable estates. In the same way are the incidents of estates being materially modified and changed by statute. The law of mortgages is constantly undergoing a change in every State, through the enactment of statutes and by judicial legislation. Joint tenancies have been converted into tenancies in common; estates at will have been changed to tenancies from year to year, and estates for years declared to be estates of inheritance, with all the incidents of freehold estates. There are many other such instances of legislative changes of the character and incidents of estates in lands, which may be ascertained by a reference to any work on Real Property. All such legislation, however radical it may be, will be clearly free from all constitutional objections, as long as it is not made to apply to existing estates. To declare, that hereafter no estate tail or use shall be created, does not infringe any vested right, either of the vendor or vendee, or any third person in privity with either of them. But the effect would be very different if these statutes were made applicable to the existing estates of the prohibited kind. Whether the estate tail was converted into a fee simple or divided into a life estate in the first taker and a contingent remainder in the heirs of his body, or if the tenant in tail has the power given him to convert the estate into a fee simple by a conveyance; in any one of these three cases of legislation, the application of it to existing estates tail would violate the constitutional prohibition of interference with
1 Tiedeman on Real Prop., $ 2, n. ; 1 Washb. on Real Prop. 112, note; Williams on Real Prop. 35, Rawle's note. Tiedeman on Real Prop., $$ 459-470.
vested rights. Of course the heirs of the body have no vested rights, but the reversioner or remainder-man, after the estate tail has.? Mr. Cooley states that “in this country estates tail have been very generally changed into estates in fee simple, by statutes the validity of which is not disputed.”If the reversion or remainder after an estate tail be a vested right, and without exception the recognized authorities on the law of real property are agreed that these interests are vested rights, the conclusion is irresistible, that laws, changing estates tail into fees simple, are unconstitutional if applied to estates tail already created, when the laws were passed. Mr. Cooley says: “ No other person (than the tenant in tail) in these cases has any vested right, either in possession or expectancy, to be affected by such change; and the expectation of the heir presumptive must be subject to the same control as in other cases."' 4 In a note to the above statement he says that “the exception to this statement, if any, must be the case of a tenant in tail after possibility of issue extinct; where the estate of the tenant has ceased to be an inberitance, and a reversionary right has become vested.” There cannot be any doubt whatever, that the conversion of an estate tail after possibility of issue extinct into a fee simple, would be in violation of the vested rights of the reversioner or remainder-man. For the estate tail after possibility of issue extinct is but a life estate. But, in respect to the matter of being a vested right, there is no difference between the remainder or reversion after an ordinary
i See, post, $ 117.
2 Tiedeman on Real Prop., $$ 385, 398, 538; 2 Washb. on Real Prop. 737, 738; 2 Washb. on Real Prop. 546, 690. 3 Cooley Const. Lim. 441, citing, in support of the propo
on, De Mill v. Lockwood, 3 Blatchf. 56.
4 Cooley Const. Lim. 441, 442, citing, 1 Washb. on Real Prop. 81-84. 6 p. 442.
6 Tiedeman on Real Prop., $ 51; 1 Washb. on Real Prop. 110, 111; 2 Sharswood Blackstone, 125.
estate tail, and one after an estate tail after possibility of issue extinct. There is no uncertainty as to the title in either case. The failure of issue in both simply determines when the reversion or remainder shall take effect in possession, and the uncertainty or impossibility of ever enjoying the estate in possession, never makes a remainder contingent. It is true that in England the remainder after an estate tail was liable to be defeated by a common recovery, when suffered or instituted by the tenant in tail for the purpose of cutting off the entail. And if common recoveries or some other mode of barring the entail had been previously recognized in this country, the remainder after the estate tail would be properly considered a contingent interest instead of a vested right, and could be further regulated by statute. Thus, for example, in Massachusetts, the tenant in tail can make a conveyance in fee simple, thus barring the contingent interest of the remainder-man or reversioner. Another statute might very well be enacted, making the existing estates taila fee simple, while they remain in the possession of the tenant in tail. Since the interest of the reversioner or remainder-man was already liable to be defeated by the arbitrary will of the tenant in possession, it was not a vested right, and, therefore, not protected by the constitutional limitations.
For the same reason, the right of survivorship in a joint tenancy cannot be considered a vested right. Apart from the fact, that the title to the interest of the co-tenant under the doctrine of survivorship, could not until his death become
1 Tiedeman on Real Prop., $ 401; Fearne Cont. Rean. 216; 4 Kent Com. 202; 2 Washb. on Real Prop. 547; Croxall v. Shererd, 5 Wall. 288; Pearce v. Savage, 45 Me. 101; Brown v. Lawrence, 3 Cush. 390; Williamson v. Field, 2 Sandf. Ch. 533; Allen v. Mayfield, 20 Ind. 293; Marshall v. King, 24 Miss. 50; Manderson v. Lukens, 23 Pa. St. 31 ; Maurice v. Maurice, 43 N. Y. 380; Furness v. Fox, 1 Cush. 134; Blanchard v. Blanchard, 1 Allen, 223.
2 Williams on Real Prop. 258; 1 Spence Eq. Jur. 144; 2 Prest. Est. 460; Page v. Hayward, 2 Salk. 570.