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rence. The reversion took effect in possession for want of an heir, unless the lord had done or permitted what, in point of law, amounted to a consent to a new investiture or change of his vassal. This is the meaning of the distinction taken in the books, which mention that nothing escheats where the tenant is in by title. Any man in possession, by being tenant to the lord, could not strip him of the reversion. Hence it followed that the land returned in the state in which it was granted free from incumbrances.

As soon as a liberty of alienation was allowed without the lord's consent, this right changed its name. It became a sort of caducary succession. Thence the lord was called. tanquam haeres; Craig, L. 2, c. 2, s. 12-15. Lord takes as ultimus haeres, &c. The resemblance of the lord's right by escheat to the heir's by descent does not hold throughout; and therefore the lord by escheat is, in Co. Litt. 215, b, with accuracy considered as assign in law. He took no possibility, or condition, or right of action, which could not be granted. He could not elect to avoid voidable acts, as feoffment of an infant with livery. But every right preserved to the heirs which could be granted goes to the lord by escheat. As if tenant makes iease for life, reserving rent to him and his heirs, the rent will go to the lord as well as the inheritance. Per Lord Mansfield, in Burgess v. Wheate (1759).

2 POLL. & MAIT., HIST. ENG. LAW, 22. If an estate in "fee conditional" came to an end, then the land would go back to the donor. We have seen that the king's court did something towards making this an uncommon event, for the tenant, so soon as issue of the prescribed class had been born to him, might if he pleased defeat the donor's claim by an alienation. Still, even when this rule had been established, such an estate would sometimes expire and then the land would return to the donor; it would "revert" or "escheat" to the donor and lord. Now, in later days, when the great statutes of Edward I. had stopped subinfeudation and defined the nature of an estate tail, no blunder could have

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been worse than that of confusing a reversion with an escheat. These two terms had undergone specification : land "escheated" to the lord propter defectum tenentis when a tenant in fee simple died without heirs, and the lord in this case could hardly ever be the donor from whom that tenant acquired his estate; while, on the other hand, on the death of a tenant for life, or the death without issue of a tenant in tail, land "reverted" to the donor who had created that tenant's estate. But at an earlier time there was not this striking contrast. In the common case, so long as subinfeudation was permissible, the tenant in "fee-simple absolute," just like the tenant in "fee conditional," held of his donor. If the heirs of the one or the heirs of the body of the other fail, the land goes back to one who is both lord and giver. The two cases have very much in common, and the words "revert" and "escheat" are sometimes indiscriminately used to cover both. According to the orthodoxy of a later age, what the donor has when he has created a conditional fee is not a reversion but a "possibility of reverter." Whether the lawyers of 1285 had come in sight of this subtle distinction we may doubt, without hinting for a moment that it is not now-a-days well established.

DIGBY, HIST. REAL PROP., Ch. X., § 3 (1). If in the case of freehold lands there is a total failure of heirs on the death of the tenant, the land escheats to the lord. The theory of title by escheat is that the whole property in the land being, as has been said, divided between the lords (paramount and mesne) and the tenant, on the tenant failing to have any heirs to whom the lands can descend, there is a species of reversion to the next lord. His right over the land becomes as it were enlarged by the failure of the tenants in possession. But this title must be completed by entry on the land, or otherwise asserting his right.

GRAY, PERPETUITIES, § 44. The effect of the Statute Quia Emptores on the right of escheat was, of course, to

give that right to the grantor's lord. It is said by Lord. Coke that "if land holden of I. S. be given to an abbot and his successors, in this case if the abbot and all the convent die, so that the body politique is dissolved, the donor shall have againe this land, and not the lord by escheat. And so if land be given in fee-simple to a deane and chapter, or to a mayor and commonalty, and to their successors, and after such body politique or incorporate is dissolved, the donor shall have again the land, and not the lord by escheate." This statement has been often repeated as law, and has proved a sore stumbling-block to courts and writers in this country. Being unwilling to follow it, they have been constrained to call it "obsolete" or "unsuited to our institutions."

§ 50. But the notions which Lord Coke imposed upon his brethren did not always long survive his retirement. In Johnson v. Norway (1622) arose the precise question whether, on the dissolution of a corporation, its land went to the donor or escheated to the lord. Hobart, C. J., said: "The great doubt of the case will be upon the barre of the defendant, whether by the death of the abbot and the monks the land escheat to the lords of whom that was holden, or whether that shall go to the donors, and to the founders, and he thought that the land shall escheat, to which Winch seemed to agree." The report adds that the judges said they would advise of the case, and gave order to argue it again; but Lord Hale's MSS. say that it was held that the land escheated. This is the only case in which the question has been decided.

§ 51. But although Lord Coke's doctrine rests solely on a dictum of a judge in the fifteenth century, and is contrary to the only decided case, it has often been referred to as law. No decision, however, has ever followed it, and it is probably one of those decantata which when carefully examined will be found not only "odious and obsolete," but in fact to have never been law at all.

B. STATUTORY OR MODERN ESTATES.

I. Legal Estates.

CHAPTER I.

EXECUTORY USES.

Interests in

DIGBY, HIST. REAL PROP., Ch. VI. (3). lands, too, might be created by way of use to commence and terminate at times and in ways which the doctrines of the common law would not permit. It has already been seen that where one person desired to convey lands to another at common law, he must do so either by feoffment with livery of seisin, which was the regular mode of transfer, or by the fictitious processes of fine or recovery, or by conveying a particular estate by lease for years and entry, or by lease for life with livery of seisin followed by a release of the reversion to the lessee, or by a grant of the reversion to a third person, in which latter case the lessee for years must attorn to the grantee of the reversion in order to give complete effect to the grant. The foundation of all these modes of conveying interests in lands was open and notorious transfer of possession; the point at which the freehold interest passed out of the grantor and vested in the grantee was marked by an actual change of possession (unless indeed the grantee was already in actual possession), or, in the case of a fine or recovery, by an acknowledgment in open court. Thus it was that freehold interests to take effect in possession or enjoyment at a future time could only be created by way of remainder. . . No such rule, however, restricted the freedom of the Chancellor in enforc

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ing uses. There was no reason why the intention of the donor should not be carried into effect at a future period. Thus a feoffment to A. and his heirs, and after next Christmas to the use of B. and his heirs, would be carried out according to the expressed intention of the donor. So a use might be raised on the happening of any future event, or the expiration of any specified time. Thus, while at common law, as has been pointed out, a fee could not be limited after a fee, this might in effect be done with the use. A conveyance to A. and his heirs so long as he continued unmarried, and upon his marriage to the use of B. and his heirs, would cause the use upon the happening of the event to arise and spring up and vest in B.; in other words, A., upon his marriage, while remaining legal owner, would be constrained by the Chancellor to hold to the use of B. Thus a power was acquired of creating future interests in lands and of causing interests in lands to be shifted and to pass from one person to another, which was unknown to the common law, and which gave rise to the complicated system of conveyancing which prevails at the present day.

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ID., Ch. VII., § 2. It has been shown. the Statute the Chancellor was in the habit of enforcing uses created so as to arise at a future time. Such limitations now became effectual also at law, and conveyances were thus enabled to introduce limitations of much greater complication, in dealing with the legal estate, than was possible at common law.

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The above instances may suffice to suggest a distinction which is usually made between what are called (1) shifting uses, (2) springing uses, (3) future or contingent uses, or, more properly, uses limited to take effect as remainders.

The distinction between the first two of the above classes has in the history of the law been of less importance than the distinction between those two classes and the third.

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