Blackstone's Commentaries on the Laws of England
Book the Second - Chapter the Seventh : Of Freehold States, Of Inheritance
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CHAPTER THE SEVENTH.
OF FREEHOLD ESTATES, OF
INHERITANCE.
THE next objects of our difquifitions are the nature and properties of eftates. An eftate in lands, tenements, and hereditments, fignifies fuch intereft as the tenant hath therein: fo that if a man grants all his eftate to another, every thing that he can poffibly grant fhall pafs thereby
a. It is called in Latin, ftatus; it gignifying the condition, or circumftance, in which the owner ftands, with regard to his property. And, to afcertain this with proper precifion and accuracy, eftates may be confidered in a threefold view: firft, with regard to the quantity of intereft which the tenant has in the tenement: fecondly, with regard to the time at which that quantity of intereft is to be enjoyed : and, thirdly, with regard to the number and connexions of he tenants.
FIRST, with regard to the quantity of intereft which the tenant has in the tenement, this is meafured by it's duration and extent. Thus, either his right of poffeffionis to fubfift for an uncertain period, during his own life, or the life of another man; to determine at his own deceafe, or to remainto his defcendants after him: or it is circumfcribed within a certain number of years, month, or days: or, laftly, it is infinite and unlimited, heing vefted in him and his reprefentatives for ever. And this
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a Co. Litt.345.
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occafions
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occafions the primary divifion of eftates, into fuch as are free hold, and fuch as are lefs than freehold.
AN eftate of freehold, liberum tenementum, or franktenement, is defined by Britton
b to be“ the poffeffion of the foil by a free- “ man.” And St.Germyn
c tells us, that “ the poffeffion of the “ land is called in the law of England the franktenement or free-“ hold.” Such eftate therefore, and no other, as requires actual poffeffion of the land, is legally fpeaking freehold: which actual poffeffion can, by the courfe of the common law, be only given by the ceremony called livery of feifin, which is the fame as the feodal inveftiture. And from thefe principles we may extract this defcription of a freehold; that it is fuch an eftate in lands as is conveyed by livery of feifin; or, in tenements of an incorporeal nature, by what is equivalent thereto. And accordingly it is laid down by Littleton
d, that where a freehold fhall pafs, it behoveth to have to have livery of feifin. As therefore eftates of inheritance and eftates for life could not by common law be conveyed without livery of feifin, thefe are properly eftates of freehold; and, as no other eftates were conveyed with the fame folemnity, therefore no others are properly freehold eftates.
ESTATES of freehold then are divifible into eftatesof inheritance, and eftates not of inheritance. The former are again divided into inheritances abfolute or fee-fimple; and inheritances limited, one fpecies of which we ufually call fee-tail.
1.TENANT in fee-fimple ( or,as he is frequently ftiled, tenant in fee) is he that hath lands, tenements, or hereditaments, to hold to him and his heirs for ever
c ; generally, abfolutely, and fimply; without mentioning what heirs, but referring that to his own pleafure, or to the difpofition ofthe law. The true meaning of the word fee ( feudum) is the fame with that of feud or fief, andin it's original fenfe it is taken in contradiftinction to
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b c.32.
c Dr & Stud.b.2.d.22.
d§. 59.
e Litt. 1.
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alloduium
f ;
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allodium
f ; which latter the writers on this fubject define to be every man's own land, which he poffeffeth merely in his won right, without owing any rent or fervice to any fuperior. This is property in it's higheft degree; and the owner thereof hath abfolutum et directum dominium, and therefore it is faid to be feifed thereof abfolutely in dominico fuo, in his own demefne. But feudum, or fee, is that which is held of fome fuperior, on condition or rendering him fervice; in which fuperior the ultimate property of the land refides. And therefore fir Henry Spelman
g defnies a feud or fee to be the right which the vafal or tenant hath in lands, to ufe the fame, and take the profits thereof to him and his heirs, rendering to the lord his due fervices; the mere allodial propriety of the foil always remaining in the lord. This allodial property no fubject in England has
h; it being a received, and now undeniable, principle in the law, that all the lands in England are holden mediately or immediately of the king. The king therefore only hath abfolutum et directum dominium
i ; but all fubject's lands are in the nature of feudum or fee; whether derived to them by defcent from their anceftors, or purchafed for a valuable confideration; for they cannot come to any man by either of thofe ways, unlefs accompanied with thofe feodal clogs, which were laid upon the firft feudatory when it was originally granted. A fubject therefore hath only the ufufruct, and not he abfolute property of the foil; or, as fir Edward Coke experffes it
k, he hath dominium utile, but not dominium directum. And hence it is that, in the moft folemn acts of law, we exprefs the ftrongeft and higheft eftate, that any fubject can have, by thefe words; “ he is feifed “ thereof in his demefne, as of fee.” It is a man's demenfne, dominicum, or property, fince it belongs to him and his heirs for ever:yet this dominicum, property, or demefne, is ftrictly not abfolute or allodial, but qualified or feodal: it is his demefne, as of fee; that is, it is not purely and fimply his own, fince it is held of a fuperior lord, in whom the ultimate property refides.
.
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f See pag. 45, 47.
g of feuds, c.1.
h Co. Litt. 1.
i Praedium domini Regis eft directum dominium, cujus nullus eft author nifi Deus. Ibid.
k Ibid.
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O
THIS
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THIS is the primary fenfe and acceptation of the word fee. But (as fir Martin Wright very juftly obferves
l ) the doctrine, “ that all lands are holden,” having been for fo Mary ages a fixed and undeniable axiom, our Englifh lawyers do very rarely ( of late years efpecially) ufe the word fee in this it's primary original fenfe, in contradiftinction to allodium or abfolute property, with which they have no concern; but generally ufe it to exprefs the continuance or quantity of eftate. A fee therefore, in general, fignifies an eftate of inheritance; being the higheft and moft extenfive intereft that a man can have in a feud: and, when the term is ufed fimply, without any other adjunict, or has the adjunct of fimple annexed to it, (as, a fee, or, a fee-fimple) it is ufed in contradiftinction to a fee conditional at the common law, or a fee-tail by the ftatute; importing an abfolute inheritance, clear of any condition, limitation, or reftrictions to particular heirs, but defcendible to the heirs general, whether male or female, lineal or collateral. And in no other fenfe than this is the king faid to be feifed in fee, he being the feudatory of no man
m.
TAKING therefore fee for the future, unlefs where otherwife explained, in this it's fecondary fenfe, as a ftate of inheritance, it is applicable to, and may be had in, any kind of hereditaments either corporeal or incorporeal
n . But there is this diftinction between the two fpecies of hereditaments; that, of a corporeal inheritance a man fhall be faid to be feifed in his demefne, as of fee; of an incorporeal one he fhall only be faid to be feifed as of fee, and not in his demefne
o . For, as incorporeal hereditaments are in their nature collateral to, and iffue out of, lands and houfes
p,their owner hath no property, dominicum, or demefne, in the thing itfelf, but hath only fomething derived out of it; refembling the fervitutes, or fervices, of the civil law
q . The dominicum or pro-
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l pag.148.
m Co. Litt . 1.
n Feodum eft quod quis tenet fibi et beredibus fuis, five fit tenementum, five reditus, & c.
Ltet.
l. 5. c. 5 .§ . 7.
o Litt. §. 10.
p See pag . 20.
q Servitus eft jus, que res mea alterius rei vel perfonae fervit. Ff.8.1.1.
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perty
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perty is frequently in one man, while the appendage or fervice is in another. Thus Gaius may be feifed as of fee, of a way going over the land, of which Titius is feifed in his demefne as of fee.
The fee-fimple or inheritance of lands and tenements is generally vefted and refides in fome perfon or other ; though divers inferior eftates may be carved out of it. As if one grants a leafe for twenty one years, or for one or two lives, the fee-fimple remains vefted in him and his heirs ; and after the determination of thofe years or lives, the land reverts to the grantor or his heirs, who fhallhold it again in fee-fimple. Yet fometimes the fee may be in abeyance, that is (as the word fignifies) in expectation, remembrance, and contemplation of law ; there being no perfon in effe, in whom it can veft and abide ; though the law confiders it as always potentially exifting, and ready to veft whenever a proper owner appears. Thus, in a grant to John for life, and afterwards to the heirs of Richard, the inheritance is plainly neither granted to John nor Richard, nor can it veft in the heirs of Richard till h is death, nam nemo eft baeres viventis : it remains therefore in waiting, or abeyance, during the life of Richard
r. This is likewife always the café of a parfon of a church, who hath only an eftate therein for the term of his life : and the inheritance remains in abeyance
s. And not only the fee, but the freehold alfo, may be in abeyance ; as, when a parfon dies, the freehold of his glebe is in abeyance, until a fucceffor be named, and then it vefts in the fucceffor
t.
The word, heirs, is neceffary 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 him and his affigns for ever, this vefts in him but an eftate for life
u. This very great nicety about the infertion of the word “heirs” in all feoffments and grants, in order to veft a fee, is plainly a relic of the feodal ftrictnefs : by which we may remember
w it was required, that the form of the donation fhould
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rCo. Litt. 342.
sLitt. §. 646.
tLitt. §. 647.
uLitt. §. 1.
wSee pag. 56.
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be punctually purfued ; or that, as Crag
x expreffes it, in the words of Baldus, “ donations fint ftricti juris, ne quis plus donaffe praefumatur quam in donatione exprefferit.” And therefore, as the perfonal abilities of the donee were originally fuppofed to be the only inducements to the gift, the donee's eftate in the land extended only to his own perfon, and fubfifted no longer than his life ; unlefs the donor, by an exprefs provifion in the grant, gave it a longer continuance, and extended it alfo to his heirs. But this rule is now foftened by exceptions
y.
For,1. It does not extend to devifes by will ; in which, as they were introduced at the time when the feodal rigor was apace wearing out, a more liberal conftruction is allowed : and therefore by a devife to a man for ever, or to one and his affigns for ever, or to one in fee-fimple, the devifee hath an eftate of inheritance ; for the intention of the devifor is fufficiently plain from the words of perpetuity annexed, though he hath omitted the legal words off inheritance. But if the devife be to a man and his affigns, without annexing words of perpetuity, there the devifee fhall take only an eftate for life ; for it does not appear that the devifor intended any more.2.Neither does this rule extend to fines or recoveries, confidered as a fpecies of conveyance ; for thereby an eftate in fee paffes by act and operation of law without the word “heirs :” as it does alfo, for particular reafons, by certain other methods of conveyance, which have relation to a former grant or eftate, wherein the word “heirs” was expreffed
z.3.In creations of nobility by writ, the peer fo created hath an inheritance in his title, without expreffing the word, “heirs ;” for they are implied in the creation, unlefs it be otherwife fpecially provided : but in creations by patent, which are ftricti juris, the word “heirs” muft be inferted, otherwife there is no inheritance.4.In grants of lands to fole corporations and their fucceffors, the word “fucceffors” fupplies the place of 'heirs ;” for as heirs take from the anceftor, fo doth the fucceffor from
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xl. 1. t. 9. §. 17.
yCo. Litt. 9, 10.
zIbid. 9.
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the predeceffors. Nay, in a grant to a bifhop, or other fole fpiritual corporation, frankalmoign, the word “frankalmoign” fupplies the place of both “heirs” and “fucceffors,” ex vi termini ; and in all thefe cafes a fee-fimple vefts in fuch fole corporation. But, in a grant of lands to a corporationaggregate, the word “ fucceffors” is not neceffary, though ufually inferted : for, albeit fuch fimple grant be ftrictly only an eftate for life, yet, as that corporation never dies, fuch eftate for life is perpetual, or equivalent to a fee-fimple, and therefore the law allows it to be one
a. Laftly, in the café of the king, a fee-fimple will veft in him, without the words “heirs” or “ fucceffors” in the grant ; partly from prerogative royal, and partly from a reafon fimilar to the laft, becaufe the king in judgment of law never dies
b. But the general rule is, that the word “heirs” is neceffary to create an eftate of inheritance.
II. We are next to confider limited fees, or fuch eftates of inheritance as are clogged and confined with conditions, or qualifications, of any fort. And thefe we may divide into two forts : 1.Lualified, or bafe fees ;and2.Fees conditional, fo called at the common law ; and afterwards fees-tail, in confequence of the ftatute de donis.
I.A base, or qualified, fee is fuch a one as has a qualification fubjoined thereto, and which muft be determined whenever the qualification annexed to it is at an end. As, in the café of a grant to A and his heirs, tenants of the manor of Dale ; in this inftance, whenever the heirs a A ceafe to be tenants to be tenants of that manor, the grant is intirely defeated. So, when Henry VI granted to John Talbot, lord of the manor of Kingfton-Lifle in Berks, that he and his heirs, lords of the faid manor, fhould be peers of the realm, by the title of barons of Lifle ; here John Talbot had a bafe or qualified fee in that dignity
c ; and the inftant he or his heirs quitted the feignory of this manor, the dignity was at an
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aSee Vol. I. Pag. 472.
bIbid. 242.
cCo. Litt. 27.
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end.
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end. This eftate is fee, becaufe by poffibility it may endure for ever in a man and his heirs ; yet as that duration depends upon the concurrence of collateral circumftances, which qualify and debafe the purity of the donation, it is therefore a qualified or bafe fee.
2.A conditional fee, at the common law, was a fee reftrained to fome particular heirs, exclufive of others : “donatio “ ftricta et coarctata
d; ficut certis haeredibus, quibufdam a fucceffione “ exclufis :” as, to the heirs of a man's body, by which only his lineal defcendants were admitted, in exclufion of collateral heirs ; or, to the heirs male off his body, in exclufion both of collaterals, and lineal females alfo. It was called a conditional fee, by reafon of the condition expreffed or implied in the donation of it, that if the donee died without fuch particular heirs, the land fhould revert to the donor. For this was a condition annexed by law to all grants whatfoever ; that on failure of the heirs fpecified in the grant, the grant fhould be at an end, and the land return to it's antient proprietor
e. Such conditional fees were ftrictly agreeable to the nature of feuds, when they firft ceafed to be mere eftates for life, and were not yet arrived to be abfolute eftates in fee-fimple. And we find ftrong traces off thefe limited, conditional fees, which could n to be alienated from the lineage of the firft purchafor, in our earlieft Saxon laws
f.
Now, with regard to the condition annexed to thefe fees by the common law, our anceftors held, that fuch a gift (to a man and the heirs of his body) was a gift upon condition, that it fhould revert to the donor, if the donee had no heirs of his body ; but, if he had, it fhould then remain to the donee. They therefore called it a fee-fimple, on condition that he had iffue. Now we muft obferve, that, when any condition is performed, it is thenceforth intirely gone ; and the thing, to which it was before
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dFlet. l. 3. c. §. 5.
ePlowd. 241.
fSi quis terram baereditariam babeat, cam non vendat a cognatis baeredibus fuis, fi illi viro probibitum fit, qui cam ab initio acqquifivit, ut ita facere nequeat. LL. Aelfred. C. 37.
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annexed,
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annexed, becomes abfolute, and wholly unconditional. So that, as foon as the grantee had any iffue born, his eftate was fuppofed to become abfolute, by the performance of the condition ; at leaft, for thefe three purpofes :1.To enable the tenant to aliene the land, and thereby to bar not only his own iffue, but alfo the donor of his intereft in the reverfion
g.2.To fubject him to forfeit it for treafon : which he could not do, till iffue born, longer than for his own life ; left thereby the inheritance of the iffue, and reverfion of the donor, might have been defeated
h.3.To empower him to charge the land with rents, commons, and certain other incumbrances, fo as to bind his iffue
i. And this was thought the more reafonable, becaufe, by the birth of iffue, the poffibility of the donor's reverfion was rendered more diftant and precarious : and his intereft feems to have been the only one which the law, as it then ftood, was folicitous to protect ; without much regard to the right of fucceffion intended to be vefted in the iffue. However, if the tenant did not in fact aliene the land, the courfe of defcent was not altered by this performance of the condition : for if the iffue had afterwards died, and then the tenant, or original grantee, had died, without making any alienation ; the land, by the terms of the donation, could defcend to none but the heirs of his body, and therefore, in default of them, muft have reverted to the donor. For which reafon, in order to fubject the lands to the ordinary courfe of defcent, the donees of thefe conditional fee-fimple took care to aliene as foon as they had performed the condition by having iffue ; and afterwards re-purchafed the lands, which gave them a fee-fimple abfolute, that would defcend to the heirs general, according to the courfe of the common law. And thus ftood the old law with regard to conditional fees : which things, fays fir Edward Coke
k, though they feem antient, are yet neceffary to be known ; as well for the declaring how the common law ftood in fuch cafes, as for the fake of annuities, and fuch like inheritances, as are not within the ftatutes of entail, and therefore remain as at the common law.
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gCo. Litt. 19. 2 Inft. 233.
hCo. Litt. Ibid. 2 Inft. 234.
ICo. Litt. 19.
k1 Inft. 19.
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The inconvenience, which attended thefe limited and fettered inheritances, were probably what induced the judges to give way to this fubtle fineffe, (for fuch it undoubtedly was) in order to fhorten the duration of thefe conditional eftates. But, on the other hand, the nobility, who were willing to perpetuate their poffeffions in their own families, to put a ftop to this practice, procured the ftatute of Weftminfter the fecond
l (commonly called the ftatute de donis conditionalibus) to be made ; which pays a greater regard to the private will and intentions off the donor, than to the propriety of fuch intentions, or any public confiderations whatfoever. This ftatute revives in fome fort the antient feodal reftraints which were originally laid on alienations, by enacting, that from thenceforth the will of the donor be obferved ; and that the tenements fo given (to a man and the heirs of his body) fhould at all events go to the iffue, if there were any ; or, if none, fhould revert to the donor.
Upon the conftruction of this act of parliament, the judges determined that the donee had no longer a conditional fee-fimple, which became abfolute and at h is own difpofal, the inftant any iffue was born ; but the divided the eftate, which they denominated a fee-tail
m; and vefting in the donor the ultimate fee-fimple of the land, expectant on the failure of iffue ; which expectant eftate is what we now call a reverfion
n. And hence it is that Littleton tells us
o, that tenant in fee-tail is by virtue of the ftatute of Weftminfter the fecond.
Having thus fhewn the original of eftates-tail, I now proceed to confider, what things may, or may not, be entailed under
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l13 Edw. I. C. i.
mThe expreffion fee-tail, or feudum talliatum, was borrowed from the feudifts ; (See Crag. L. t. 10. §. 24, 25.) among whom it fignified any mutilated or truncated inheritance, from which the heirs general were cut off ; being derived from the barbarous verb taliare, to cut ; from which the French tailler and the Italian tagliare are formed. (Spelm. Gloff. 531.)
n2 Inft. 335.
o§. 13.
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the
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the ftatute de donis. Tenements is the only word ufed in the ftatute : and this fir Edward Coke
p expounds to comprehend all corporeal hereditaments whatfoever ; and alfo all incorporeal hereditaments which favour of the realty, that is, which iffue out of corporeal ones, or which concern, or are annexed to, or may be exercifed within the fame ; as, rents, eftovers, commons, and the like. Alfo offices and dignities, which concern lands, or have relation to fixed and certain places, may be entailed
q. But mere perfonal chattels, which favour not at all of the realty, cannot be entailed. Neither can an office, which merely relates to fuch perfonal chattels ; nor an annuity, which charges only the perfon, and not the lands, of the grantor. But in them, if granted to a man and the heirs of his body, the grantee hath ftill a fee conditional at common law, as before the ftatute ; andby his alienation may bar the heir or reverfioner
r. An eftate to a man and his heirs for another's life cannot be entailed
s ; for this is ftrictly no eftate oh inheritance (as will appear hereafter) and therefore not within the ftatute de donis. Neither can a copyhold eftate be entailed by virtue of the ftatute ; for that would tend to encroach upon and reftrain the will of the lord : but, by the fpecial cuftom of the manor, a copyhold may be limited to the heirs of the body
t ; for here the cuftom afcertains and interprets the lord's will.
Next, as to the feveral fpecies off eftates-tail, and how they are refpectively created. Eftates-tail are either general, or fpecial. Tail-general is where lands and tenements are given to one, and the heirs of his body begotten : which is called tail-general, becaufe, how often foever fuch donee in tail be married, his iffue in general by all and every fuch marriage is, in fucceffive order, capable of inheriting the eftate-tail, per formam doni
u. Tenant in tail-fpecial is where the gift is reftrained to certain heirs of the donee's body, and does not go to all of them in general. And this
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pIInft. 19, 20.
q7 Rep. 33.
rCo. Litt. 19, 20.
s2 Vern. 225.
t3 Rep. 8.
uLitt. §. 14, 15.
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may happen feveral ways
w. I fhall inftance in only one : as where lands and tenements are given to a man and the heirs of his body, on Mary his now wife to be begotten ; here no iffue can inherit, but fuch fpecial iffue as is engendered between them two ; not fuch as the hufband may have by another wife : and therefore it is called fpecial tail. And here we may obferve, that the words of inheritance (to him and his heirs) give him an eftate in fee ; but they being heirs to be by him begotten, this makes it a fee-tail ; and the perfon being alfo limited, on whom fuch heirs fhall be begotten, (viz. Mary his prefent wife) this makes it a fee-tail fpecial.
Estates, in general and fpecial tail, are farther diverfified by the diftinction of fexes in fuch entails ; for both of them may either be in tail male or tail female. As if hands be given to a man, and his heirs male of his body begotten, this is an eftate in tail male general ; but if to a man and the heirs female of his body on his prefent wife begotten, this is an eftate in tail female fpecial. And, in café of an entail male, the heirs female fhall never inherit, nor any derived from them ; nor, e converfo, the heirs male, in café of a gift in tail female
x. Thus, if the donee in tail male hath a daughter, who dies leaving a fon, fuch grandfon in this café cannot inherit the eftate-tail ; for he cannot deduce his defcent wholly by heirs male
y. And as the heir male muft convey his defcent wholly by males, fo muft the heir female wholly by females. And therefore if a man hath two eftates-tail, the one in tail male, the other in tail female ; and he hath iffue a daughter, which daughter hath iffue a fon ; this grandfon can fucceed to neither of the eftates : for he cannot convey his defcent wholly either in the male or female line
x.
As the word heirs is neceffary to create a fee, fo, in farther imitation of the ftrictnefs of the feodal donation, the word body, or fome other words of procreation, are neceffary to make it a
.{FS}
wLitt. §. 16, 26, 27, 28, 29.
xIbid. §. 21, 22.
yIbid. §. 24.
zCo. Litt. 25.
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fee-tail ;
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fee-tail, and afcertain to what heirs in particular the fee is limited. If therefore either the words of inheritance or words of procreation be omitted, albeit the others are inferted in the grant, this will not make an eftate-tail. As, if the grant be to a man and his children, or offspring ; all thefe are only eftates for life, there wanting the words of inheritance, his heirs
a. So, on the other hand, a gift to man, and his heirs male, or female, is an eftate in fee-fimple, and not in fee-tail ; for there are no words to afcertain the body out of which they fhall iffue
b. Indeed, in laft wills and teftaments, wherein greater indulgence is allowed, an eftate-tail may be created by a devife to a man and his feed, or to a man and his heirs male ; or by other irregular modes of expreffion
c.
There is ftill another fpecies of entailed eftates, now indeed grown out of ufe, yet ftill capable of fubfifting in law ; which are eftates in libero maritagio, or frankmarriage. Thefe are defined
d to be, where tenements are given by one man to another, together with a wife, who is the daughter or coufin of the donor, to hold in frankmarriage. Now by fuch gift, though nothing but the word frankmarriage is expreffed, the donees fhall have the tenements to them, and the heirs of their two bodies begotten ; that is, they are tenants in fpecial tail. For this one word, frankmarriage, does ex vi termini not only create an inheritance, like the word frankalmoign, but likewife limits that inheritance ; fupplying not only words of defcent, but of procreation alfo. Such donees in frankmarriage are liable to no fervice but fealty ; for a rent referved thereon is void, until the fourth degree of confanguinity be paft between the iffues of the donor and donee
e.
The incidents to a tenancy in tail, under the ftatute Weftm. 2. are chiefly thefe
f.1.That a tenant in tail may commit wafte on the eftate-tail, by feeling timber, pulling down houfes, or the
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aCo. Litt. 20.
bLitt. §. 31. Co. Litt. 27.
cCo. Litt. 9. 27.
dLitt. §. 17.
eIbid. §. 19, 20.
fCo. Litt. 224.
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like, without being impeached, or called to account, for the fame.2.That the wife of the tenant in tail fhall have her dower, or thirds, of the eftate-tail.3.That the hufband of a female tenant in tail may be tenant by the curtefy of the eftate-tail. 4.That an eftate-tail may be barred, or deftroyed, by a fine, by a common recovery, or by lineal warranty defcending with affets to the heir. All which will hereafter be explained at large.
Thus much for the nature of eftates-tail : the eftablifhment of which family law (as it is properly ftiled by Pigott
g) occafioned infinite difficulties and difputes
h. Children grew difobedient when they knew they could not be fet afide : farmers were oufted of their leafes made by tenants in tail ; for, if fuch leafes had beenvalid, then under colour of long leafes the iffue might have been virtually difinherited : creditors were defrauded of their debts ; for, if tenant in tail could have charged his eftate with their payments, he might alfo have defeated his iffue, by mortgaging it for as much as it was worth : innumerable latent books are full : and treafons were encouraged ; as eftates-tail were not liable to forfeiture, longer than for the tenant's life. So that they were juftly branded, as the fource of new contentions, and mifchiefs unknown to the common law ; and almoft univerfally confidered as the common grievance of the realm
i. But, as the nobility were always fond of this ftatute, becaufe it preferved their family eftates from forfeiture, there was little hope of procuring a repeal by the legiflature ; and therefore, by the connivance of an active and politic prince, a method was devifed to evade it.
About two hundred years intervened between the making of the ftatute de donis, and the application of common recoveries to this intent, in the twelfth year of Edward IV : which were then openly declared by the judges to be a fufficient bar of an eftate
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gCom. Recov. 5.
h1 Rep. 131.
ICo. Litt. 19. Moor. 156. 10 Rep. 38.
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tail
k.
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tail
k. For though the courts had, fo long before as the reign of Edward III, very frequently hinted their opinion that a bar might be effected upon thefe principles
l, yet it never was carried into execution ; till Edward IV obferving
m (in the difputes between the houfes of York and Lancafter) how little effect attainders for treafon had no families, whofe eftates were protected by the fanctuary of entails, gave his countenance to this proceeding, and fuffered Taltarum's café to be brought before the court
n : wherein, in confequence of the principles then laid down, it was in effect determined, that a common recovery fuffered by tenant in tail fhould be an effectual deftruction thereof. What common recoveries are, both in their nature and confequences, and why they are allowed to be a bar to the eftate-tail, muft be referved to a fubfequent enquiry. At prefent I fhall only fay, that they are fictitious proceedings, introduced by a kind of pia fraus, to elude the ftatute de donis, which was found fo intolerably mifchievous,and which yet one branch of the legiflature would not then confent to repeal : and, that thefe recoveries, however clandeftinely begun, are now become by long ufe and acquiefcence a moft common affurance of lands ; and are looked upon as the legal mode of conveyance, by which tenant in tail may difpofe of his lands and tenements : fo that no court will fuffer them to be fhaken or reflected on, and even acts of parliament
o have by a fidewind countenanced and eftablifhed them.
This expedient having greatly abridged eftates-tail with regard to their duration, others were foon invented to ftrip them of other privileges. The next that was attacked was their freedom from forfeitures for treafon. For, notwithftanding the large advances made by recoveries, in the compafs of about threefcore years, towards unfettering thefe inheritance, and thereby fubjecting the lands to forfeiture, the rapacious prince then reigning,
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k1 Rep. 131. 6 Rep. 40.
l10 Rep. 37, 38.
mPigott. 8.
fYear Book. 12 Edw. IV. 14. 19. Fitzh. Abr. tit. faux recov. 20. Bro. Abr. ibid. 30. tit. Recov. In value. 19. tit. Taile. 36.
o11 Hen. VII. c. 20. 7 Hen. VIII. c. 4. 34 & 35 Hen. VIII. c. 20. 14 Eliz. C. 8. 4 & 5 Ann. c. 16. 14. Geo. II. 20.
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finding
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finding them frequently re-fettled in a fimilar manner to fuit the convenience of families, had addrefs enough to procure a ftatute
p, whereby all eftates of inheritance (under which general words eftates-tail were covertly included) are declared to be forfeited to the king upon any conviction of high treafon.
The next attack which they fuffered, in order of time, was by the ftatute 32 Hen. VIII. c. 28. whereby certain leafes made by tenants in tail, which do not tend to the prejudice of the iffue, were allowed to be good in law, and to bind the iffue in tail. But they received a more violent blow, in the fame feffion of parliament, by the conftruction put upon the ftatute of fines
q, by the ftatute 32 Hen. VIII. c. 36. which declares a fine duly levied by tenant in tail to be a complete bar to him and his heirs, and all other perfons claiming under fuch entail. This was evidently agreeable to the intention of Henry VII, whofe policy it was (before common recoveries had obtained their full ftrength and authority) to lay the road as open as poffible to the alienation of landed property, in order to weaken the overgrown power of his nobles. But as they, from the oppofite reafons, were not eafily brought to confent to fuch a provifion, it was therefore couched, in his act, under covert and obfcure expreffions. And the judges, thought willing to conftrue that ftatute as favourably as poffible for the defeating of entailed of entailed eftates, yet hefitated at giving fines fo extenfive a power by mere implication, when the ftatute de donis had expreffly declared, that they fhould not be a bar to eftates-tail. But the ftatute of Henry VIII, when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and eftablifhed that intention. Yet, in order to preferve the property of the crown from any danger of infringement, all eftates-tail created by the crown, and of which the crown has the reverfion, are excepted out of this ftatute. And the fame was done with regard to common recoveries, by the ftatute 34 & 35 Hen. VIII. c. 20. which enacts, that no feigned recovery had againft tenants
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p26 Hen. VIII. c. 13.
q4 Hen. VII. c. 24
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in
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in tail, where the eftate was created by the crown
r, and the remainder or reverfion continues ftill in the crown, fhall be of any force or effect. Which is allowing, indirectly and collaterally, their full force and effect with refpect to ordinary eftates-tail, where the royal prerogative is not concerned.
Lastly, by a ftatute of the fucceeding year
s, all eftates-tail are rendered liable to be charged for payment of debts due to the king by record or fpecial contract ; as, fince, by the bankrupt laws
t, they are alfo fubjected to be fold for the debts contracted by a bankrupt. And, by the conftruction put on the ftatute 43 Eliz. c. 4. an appointment
u by tenant in tail of the lands entailed, to a charitable ufe, is good without fine or recovery.
Estates-tail, being thus by degrees unfettered, are now reduced again to almoft the fame ftate, even before iffue born, as conditional fees were in at common law, after the condition was performed, by the birth of iffue. For, firft, the tenant in tail is now enabled to aliene his lands and tenements by fine, by recovery, or by certain other means ; and thereby to defeat the intereft as well of his own iffue, though unborn, as alfo of the reverfioner, except in the café of the crown : fecondly, he is now liable to forfeit them for high treafon : and, laftly, he may charge them with reafonable leafes, and alfo with fuch of his debts as are due to the crown on fpecialties, or have been contracted with his fellow-fubjects in a courfe of extenfive commerce.
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rCo. Litt. 372.
s33 Hen. VIII. c. 39. §. 75.
tStat. 21 Jac. I. C. 19.
u
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