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First. With regard to the quantity of interest, which the tenant has in the tenement.
Second. With regard to the time, at which that quantity of interest is to be enjoyed.
Third. With regard to the number and connections of the tenants.
The Quantity of Interest. This is measured by its duration and extent. Either his right of possession is to subsist for an uncertain period, during his own life, or the life of another; to end with his decease, or to remain to his descendants, or it is limited to a certain period; or lastly, it is infinite and unlimited, being vested in him and his representatives forever. This occasions the primary division of estates into:
Estates of freehold.
Estates of Freehold. An estate of freehold, liberum tenementum, or frank-tenement, is the possession of the soil by a freeman. It requires actual possession of the land, or legally speaking, freehold, which can only be given by the ceremony of livery of seisin, which is the same as feudal investiture.
Defined. A freehold, therefore, is such an estate in lands, as is conveyed by livery of seisin; or in tenements of an incorporeal nature, by what is equivalent thereto. Therefore, estates of inheritance and estates for life could not by common law be conveyed without livery of seisin, these being properly estates of freehold, and as no other estates are conveyed with the same solemnity, therefore no others are properly freehold estates.
Divisions. Estates of freehold are either estates of inheritance, or estates not of inheritance. FREEHOLD ESTATES OF INHERITANCE.
Divisions. These are divided into inheritance absolute or fee simple, and inheritances limited, one species of which we usually call fee-tail. I. ESTATES IN FEE SIMPLE.
Defined. A tenant in fee simple, or in fee, is he who has 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 to the disposition of the law.
Meaning of Fee. The true meaning of the word "fee,” feodum, is the same with that of feud or fief, in contradistinction to allodium, which means every man's land, that he possesses in his own right, without owing rent or service to any superior, This is property in its highest degree, and the owner thereof is seised absolutely, in his own demesne. But foedum, or fee, is that which is held of some superior, on condition of rendering him service, in which superior, the ultimate property of the land resides. A feud or fee is defined, to be the right which the vassal or tenant has in lands, to use the same, and take the profits thereof to him and his heirs, rendering to the lord his due services; the mere allodial property always remaining in the lord. This allodial property no English subject possesses, it being a principal of law, that all the lands in England are holden mediately or immediately of the king.
King and Subject. Property Rights. The king, therefore, has absolute dominion, and all subjects' lands are in the nature of foedum or fee, whether derived by them by descent or purchase, for they are always accompanied by feudal limitations, which were imposed upon the original feudatory. A subject, therefore, has only the usufruct, and not the absolute property of the soil, the dominium utile, but not dominium directum. The highest estate a subject can possess is expressed : "seised thereof in his demesne, as of fee." It is a man's demesne or property, since it belongs to him and his heirs forever, yet this demesne is strictly not absolute or allodial, but qualified or feudal; it is not purely his own, since it is held of a superior lord, in whom the ultimate property resides.
Modern Interpretation of Fees. This is the primary sense of the word, “fee.” Our lawyers rarely now use the word in this sense, in contradistinction to allodium or absolute property, with which they have no concern, but generally use it to express the continuance or quantity of estate. A fee, therefore, in general signifies an estate of inheritance, being the most extensive interest one can have in a feud, and when the term is used simply, or has the mere adjunct “simple" attached, as fee, or feesimple, it is used in contradistinction to a fee-conditional at the common law, or a fee-tail by the statute; importing an absolute inheritance, clear of any condition, limitation or restriction to particular heirs, but descendible to the heirs general, whether male or female, lineal or collateral. In no other sense is the king said to be seised in fee, he being the feudatory of no
In all Hereditaments. A fee, in its secondary sense, as a state of inheritance, may be had in either corporeal or incorporeal hereditaments. Of the former a man is said to be seised in his demesne, as of fee, of the latter, he is only said to be seised, as of fee. For, as incorporeal hereditaments are collateral to and issue out of lands and houses, their owner bas no property or demesne in the thing itself, but has only something derived out of it, resembling the servitutes or services, of the civil law. The dominium or property is frequently in one man, while the appendage or service is in another.
Divisions of a Fee Simple Estate. Divers inferior estates may be carved out of a fee-simple. As if one grants a lease for twenty-one years or for a life, the fee-simple remains vested in him and his heirs, and after the end of the time or the life, the lands revert to the grantor or his heirs. Yet sometimes the fee may be in abeyance, i. e., in expectation, remembrance and contemplation in law, there being no person in esse, in whom it can vest and abide, though the law considers it as existing, and ready to vest, whenever a proper owner appears.
Thus in a grant to A for life, with remainder to the heirs of B, the inheritance is neither granted to A nor B, nor can it vest in the heirs of B till his death, nam nemo est hueres viventis; it remains, therefore, in abeyance during the life of B.
The Word “Heirs." The word "heirs" is necessary in a grant or donation, in order to make a fee or inheritance. 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. The great nicety about the insertion of the word “heirs”in all feoffments and grants, in order to vest a fee, is plainly a relic of the feudal strictness. As the personal abilities of the donee were originally supposed to be the only inducements to the gift, the donee's estate in the land extended only to his own person, and subsisted for his life only, unless the donor by an express provision in the grant, extended it also to his heirs. But this rule has now many exceptions:
“Heirs” in a Will. 1. It does not extend to devises by will, where a more liberal construction is allowed; hence by a devise to a man forever, or to one and his assigns forever, or to one in fee-simple, the devisee has an estate of inheritance, for the design of the testator is manifest from the words of perpetuity annexed. But if the devise be to a man and his assigns, without annexing words of perpetuity, there the devisee shall take only an estate for life.
“ Heirs" in Recoveries. 2. Nor does this rule extend to fines and recoveries, as a species of conveyance; for thereby an estate in fee 'passes by act and operation of law without the word “heirs.”
“Heirs" in Creating Peers. 3. In the creation of nobility by writ, the peer has an inheritance of his title, without expressing the word “heirs,” for heirship is implied in its creation.
"Heirs" in Grants to Corporations. 4. In grants of land to sole corporations and their successors, the word “successors” supplies the place of “heirs,” for as the latter take from their ancestors, so does the successor from the predecessor. But in a grant to a corporation aggregate, the word "successors" is not necessary, though usually inserted; for as a corporation never dies, such estate is perpetual and equivalent to a fee-simple.
“Heirs" in Grants to the King. 5. In the case of the king, a fee-simple will vest in him, without the word “heirs" or “successors” in a grant, because the king, in judgment of law never dies.
General Rule. But the general rule is, that the word "heirs" is necessary to create an estate of inheritance. II. LIMITED FEES.
1. Qualified or base fees.
2. Hees conditional at common law, and afterwards fees-tail by the statute de donis.
1. Base or Qualified Fee. This is such an one, as has a qualification subjoined thereto, and which must be determined, whenever the qualification annexed to it is at an end. As a grant to A and his heirs, tenants of the manor of X, when the heirs of A cease to be tenants of that manor, the grant is defeated. This estate is a fee, because by possibility it may endure forever in a man and his heirs, yet as that duration depends upon collateral circumstances, which qualify and debase the purity of the donation, it is, therefore, a qualified or base fee.
2. Conditional Fee. At the common law, this was a fee restrained to some particular heirs, exclusive of others; as to the heirs of a man's body, by which only his lineal descendants were admitted, in exclusion of collateral heirs; or to the heirs male of his body, in exclusion both of collateral and lineal females. It was called a conditional fee, by reason of the condition expressed or implied in the donation of it: that if the donee died without such particular heirs, the land should revert to the donor. This was a condition annexed to all grants whatever, that on failure of the heirs specified in the grant, the land should return to the ancient proprietor. Such conditional fees were agreeable to the nature of feuds, when they first ceased to be estates for life, and were not yet absolute estates in fee simple. Traces of these fees are found in the ancient Saxon laws.
Performance of Condition. As to the condition annexed by the common law to these fees, our ancestors held: that a gift to a man and the heirs of his body, was a gift upon condition, that it should revert to the donor, if the donee had no heirs of his body, but if he had, it should then remain in the donee. They therefore called it a fee-simple, on condition that he had issue. When a condition is performed, it is thenceforth entirely gone, and the thing to which it was before annexed becomes absolute and wholly unconditional.
Result of Performance. As soon as the grantee had issue born, his estate became absolute by the performance of the condition, at least for three purposes:
1. To enable the tenant to aliene the land, and thereby to bar not only his own issue, but also the donor of his interest in the reversion.
2. To subject him to forfeit it for treason, which he could not do till issue born, longer than for his own life.
3. To empower him to encumber the land, so as to bind his issue.
Donor's Reversion. This was thought the more reasonable, because by the birth of issue, the possibility of the donor's reversion was rendered more precarious, and his interest seems to have been the only one the law was solicitous to protect, without much regard to the right of succession. .
Changed to Fee-Simple Absolute. However if the tenant did not aliene the land, the course of descent was not altered by the performance of the condition, for if the issue afterwards