Antient de

mesne.

Bracton, L. 4, tr. 1, c. 28.

Like that in chivalry, the lord is the legal guardian who usually assigns some relation of the infant tenant to act in his stead; and he, like the guardian in socage, is accountable to his ward for the profits. (g). Of fines some are in the nature of primer seisins due on the death of each tenant, others are mere fines for the alienation of the lands; in some manors only one of these sorts can be demanded, in some both, and in others neither. They are sometimes arbitrary and at the will of the lord, sometimes fixed by custom; but even when arbitrary, the courts of law in favour of the liberty of copyholders have tied them down to be reasonable in their extent; otherwise they might amount to a disherison of the estate; no fine, therefore, is allowed to be taken upon descents and alienations (unless in particular circumstances) of more than two years improved value of the estate.

Privileged villenage, or villein socage, is no other than an exalted species of copyhold, subsisting at this day viz., the tenure in antient demesne. This is such as has been held of the king's of England from the Conquest downwards; the tenants perform villein services, but certain and fixed, they cannot alien or transfer their tenements by grant of feoffment any more than pure villeins can: but must surrender them to the lord or his steward, to be again granted out and held in villenage; thus partaking of the baseness of villenage in the nature of its services, and the freedom of socage in their certainty. Ancient demesne consists of those lands or manors which, though now granted out to private subjects, were actually in the hands of the crown at the time of Edward the Confessor, or William the Conqueror. Some of the tenants of these lands Britton, c. 66. continued for a long time absolute villeins; others were in a great measure enfranchised by the royal favor, being only bound to some of the better sort of villein services, but those determinate and certain; all of which are now changed into pecuniary rents; and in consideration thereof, these tenants had many privileges granted them: as to try the right of their property in a peculiar court of their own, called a court of antient demesne, by a particular process called a writ of right

F. N. B. 228

4 Inst. 269.

(g) See the act 11 Geo. 4 and 1 Wm. 4, c. 65, consolidating and amending the laws relating to property belonging to infants, femes covert, idiots, lunatics, and persons of unsound mind. Infants may be admitted by attorney. In default of appearance, the lord may appoint an attorney. If the fines be not paid, the lord may enter and receive the profits of the copyhold till he is satisfied.

close; not to pay toll or taxes; not to contribute to expenses F. N. B. 11. of knights of the shire, nor to be put on juries. Hence, though Ibid. 14. their tenure is absolutely copyhold, they have an interest equal to a freehold.

are now either

Upon the whole it appears that whatever changes and All lay tenures alterations these tenures have in process of time undergone free in common from the Saxon æra to the 12 Car. 2, all lay tenures are now socage or base by copy of in effect reduced to two species, free tenure in common court roll. socage, and base tenure by copy of court roll.

Another species of tenure reserved by the stat. of Car. 2, is Tenure in frankalmoigne. that of frankalmoign, whereby a religious corporation, aggregate or sole, holds lands of the donors to them and their successors for ever, the services being to pray for the soul of the donor Litt. s. 133. and his heirs. This is the tenure by which the antient monasteries held their lands, and many ecclesiastical foundations

now hold them; the nature of the service being, upon the Braction, 1, 4, Reformation, made conformable to the doctrines of the church tr. 1, c. 28, of England.

s. 1.

CHAPTER VIL

OF FREEHOLD ESTATES OF INHERITANCE.

AN estate in lands, tenements, and hereditaments, signifies such interest as the tenant has therein. To ascertain this signification with proper accuracy, estates may be considered with regard to the quantity of interest which the tenant has in the tenement; with regard to the time at which that interest is to be enjoyed; and with regard to the number and connexions of the tenants. The quantity of interest which the tenant has in the tenement is measured by its duration and extent. Thus either his right of possession is to subsist for an uncertain period, during his own life, or the life of another man; to determine at his own decease, or to remain to his descendants after him; or it is circumscribed within a certain number of years, months, or days; or it is infinite and unlimited, being vested in him and his representatives for ever; and this occasions the primary division of estates into such as are freehold, and such as are less than freehold.

of the nature and properties of estates.

Estates of freehold are either estates of inheritance, or Estates of estates not of inheritance. The former are again divided into

freehold.

OF FREEHOLD ESTATES OF INHERITANCE.

inheritances absolute or fee simple, and inheritances limited, one species of which we usually call fee-tail.

Tenant in fee simple, or tenant in fee, is he that has lands, tenements, or hereditaments, to hold to him and his heirs for ever: generally, absolutely, and simply, without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. The true meaning of the word fee, (feodum) is the same with that of feud or fief, and in its original sense it is taken in contradistinction to allodium, which latter is defined to be every man's own land, which he possesses in his own right, without owing any rent or service to any superior. This allodial property, the king only has, it being an undeniable principle in the law, that all subjects' lands are holden mediately or immediately of the king, and are in the nature of feodum, or fee; whether derived to them by descent from their ancestors, or purchased for a valuable consideration. And hence it is, that in the most solemn acts of law, we express the strongest and highest estate that any subject can have, by these words, "he is seised thereof in his demesne as of fee," that is, it is not purely and simply his own, since it is held of a superior lord, in whom the ultimate property resides. This is the primary sense of the word fee, but it is now more generally used to express the continuance or quantity of estate than in contradistinction to allodium or absolute property; and when the term is used simply without any other adjunct, or has the adjunct of simple annexed to it (as a fee, or fee simple) 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 restrictions to particular heirs, but descendible to the heirs general, whether male or female, lineal or collateral. In this sense, as a state of inheritance, it is applicable to and may be had in any kind of hereditaments, either corporeal or incorporeal; but with this distinction, that of a corporeal inheritance, a man is said to be seised in his demesne as of fee; of an incorporeal one he is said to be seised as of fee, and not in his demesne; for in the latter their owner has no property or demesne in the thing itself, but only something derived out of it. Thus A. may be seised as a fee of a way over land, of which B. is seised in his demesne as of fee.

The word "heirs" is necessary in the grant or donation, in order to make a fee or inheritance; for if land be given to a man for ever, or to man and his assigns for ever, it vests

in him but an estate for life. This is plainly a relic of the Litt. s. 1. feodal strictness, which limited the donee's estate to his own

life, unless the donor, by an express provision in the grant, gave it a longer continuance, and extended it to his heirs. But the rule is now softened by many exceptions. It does Co. Litt. 9,10. not extend to devises by will; and therefore by a devise to a man for ever, or to one and his assigns for ever, or to one in fee simple, the devisee has an estate of inheritance; for the intention of the devisor is sufficiently plain from the words of perpetuity annexed, though he has omitted the legal words of inheritance (a). If, however, the devise be to a man and his assigns, without annexing words of perpetuity, there the devisee takes only an estate for life, for it does not appear that the devisor intended any more (b). Nor does the rule extend to fines or recoveries, considered as a species of conveyance, whereby an estate in fee passes by act and operation of law without the word " heirs," as it does by other methods of conveyance which have relation to a former grant or estate wherein the word “heirs” was expressed. In creations of nobility by Co. Litt. 9. writ, an inheritance in the title vests without the word "heirs," for heirship is implied in the creation unless otherwise provided; but in creations by patent the word "heirs" must be inserted to vest an inheritance. In grants to sole corporations and their successors, the word "successors" supplies the place of heirs. But in a grant of lands to a corporation aggregate, the word "successors" is not necessary; for although such simple grant be only an estate for life, yet as that corporation never dies, it is perpetual. In the case of the king, a fee simple will vest in him without the word "heirs" or successors,” partly from prerogative royal, and partly from a reason similar to the last, as in judgment of law the king never dies. But the general rule is, that the word "heirs" is necessary to vest an estate of inheritance.

66

Limited fees may be divided into two sorts, qualified or of limited base fees; and fees conditional, so called at the common law; fees.

(a) And now by 7 Wm. 4 and 1 Vict. c. 26, s. 28, where any real estate shall be devised by will, made since 1st January 1838, to any person without any words of limitation, such devise shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will in such real estate, unless a contrary intention shall appear by the will.

(b) See the last note. This part of the text is now applicable only to wills made before January 1838.

A base or qualified fee.

A conditional fee at common

law.

and afterwards fees tail, in consequence of the statute de

donis.

A base or qualified fee is such a one as has a qualification subjoined thereto, and which must be determined whenever the qualification annexed to it is at an end. As in the case of a grant to A. and his heirs, tenants of the manor of Dale; in this instance, whenever the heirs of A. cease to be tenants of that manor the grant is entirely defeated. It is a fee, because it may endure for ever in a man and his heirs; yet as that depends on circumstances which qualify and debase the purity of the donation, it is therefore a qualified or base fee. A conditional fee at the common law 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 heirs and lineal females also. Such a gift to a man, and the heirs of his body, our ancestors held 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 to the donee. So that as soon as the grantee had any issue born, his estate became absolute by the performance of the condition; at least for three purposes. 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; to subject him to forfeit it for treason; which he could not do till issue born longer than for his own life; least thereby the inheritance of the issue and reversion of the donor might have Co. Litt. ibid. been defeated; and to empower him to charge the land with

Co. Litt. 19. 2 Inst. 233.

2 Inst. 234.

Co. Litt. 19.

The statute de donis.

rents, commons, and certain other incumbrances so as to bind his issue. But if the tenant did not in fact aliene the land the course of descent was not altered by this performance of the condition; for if the issue had afterwards died, and then the tenant or original grantee had died without making any alienation; the land, which, by the terms of the donation, could descend to none but heirs of his body, in default of them must have reverted to the donor.

The statute of Westminster the second, called the statute de donis conditionalibus, enacted as to conditional fees, that from 13 Edw. 1, c. 1. thenceforth the will of the donor be observed; and that the tenements so given to a man, and the heirs of his body, should at all events go to the issue, if there were any; or if none, should revert to the donor. Upon the construction of this statute it was held that the donee acquired an absolute fee,