صور الصفحة
PDF
النشر الإلكتروني

were laid upon the firft feudatory when it was originally grant ed. A fubject therefore hath only the ufufruct, and not the abfolute property of the foil; or, as fir Edward Coke expresses it, he hath dominium utile, but not dominium directum. And hence it is that, in the most folemn acts of law, we express the strongest and highest eftate that any fubject can have, by these words; "he is feifed thereof in his demefne, "as of fee." It is a man's demefne, 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.

THIS is the primary fenfe and acceptation of the word fee. [106] But (as fir Martin Wright very justly observes 1) the doctrine, "that all lands are holden," having been for fo many ages a fixed and undeniable axiom, our English 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 use it to exprefs the continuance or quantity of estate. A fee therefore, in general, fignifies an estate of inheritance; being the highest and most extenfive intereft that a man can have in a feud: and, when the term is ufed fimply, without any other adjunct, or has the adjunct of simple annexed to it, (as a fee, or a fee-fimple) it is used in contradiftinction to a fee conditional at the common law, or a fee-tail by the tatute; importing an abfolute inheritance, clear of any condition, limitation, or restrictions to particular heirs, but defcendible to the heirs general, whether male or female, lineal or collateral. And in no other sense than this is the king faid to be feifed in fee, he being the feudatory of no man ".

TAKING therefore fee for the future, unless where otherwise explained, in this it's fecondary sense, as a state of inheritance, it is applicable to, and may be had in, any kind of heredita

* Co. Litt. 1. 1 of ten. 148.

m Co. Litt. I.

ments

ments either corporeal or incorporeal ". But there is this diftinction between the two species 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 shall only be faid to be feised as of fee, and not in his demefne . For, as incorporeal hereditaments are in their nature collateral to, and iffue out of, lands and houses P, their owner hath no property, dominicum, or demefne, in the thing itself, but hath only fomething derived out of it; resembling the fervitutes, or fervices, of the civil law. The dominicum or property is frequently [107] in one man, while the appendage or fervice is in another. Thus Gaius may be seised as of fee of a way leading over the land, of which Titius is feised in his demefne as of fee.

THE fee-fimple or inheritance of lands and tenements is generally vefted and refides in fome person 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 vested in him and his heirs; and after the determination of those years or lives, the land reverts to the grantor or his heirs, who shall hold it again in fee-simple. Yet fometimes the fee may be in abeyance, that is (as the word fignifies) in expectation, remembrance, and contemplation in 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 vest 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 his death, nam nemo eft haeres viventis : it remains therefore in waiting or abeyance, during the life of Richard (2). This is likewife always the cafe of a parfon of

Feodum eft quod quis tenet fibi et bac-
redibus fuis, five fit tenementum,,
n, five re-
ditus, &c. Flet. 4. 5. 6. 5. § 7.

• Litt. § 10.

P See page 20.

a Servitus eft jus, quo res mea alterius rei vel perfonae fervit. Ff. 8. 1. 1. • Co. Litt. 342.

(2) The inheritance or remainder in fuch a case has been said to be in abeyance, or in nubibus, or in gremio legis; but Mr. Fearne, with great ability and learning, has expofed the futility of these

[blocks in formation]

a church, who hath only an estate therein for the term of his life; and the inheritance remains in abeyance. And not only the fee, but the freehold also, 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 vests in the fucceffor' (3) THE word, heirs, is neceffary in the grant or donation, in order to make a fee, or inheritance. For if land be given Ibid. § 647.

• Litt. § 646.

expreffions, and the erroneous ideas which have been conveyed by them. Mr. Fearne produces authorities, which prove beyond controversy, "that where a remainder of inheritance is limited in " contingency by way of ufe, or by devife, the inheritance in the "mean time, if not otherwise difpofed of, remains in the grantor " and his heirs, or in the heirs of the teftator, until the contingency happens to take it out of them." Fearne, Cont. Rem. 513. 4th edition.

But although, as Mr. Fearne obferves, "different opinions have "prevailed in refpect to the admiffion of this doctrine in convey«ances at common law," (ib. 526.) yet he adduces arguments and authorities, which render the doctrine as unquestionable in this cafe as in the two former of uses and devifes. If therefore in the inftance put by the learned Judge, John should determine his estate, either by his death, or by a feoffment in fee, which amounts to a forfeiture, in the life-time of Richard, under which circumstances the remainder never could vest in the heirs of Richard; in that cafe, the grantor or his heir may enter and resume the estate.

(3) Mr. Fearne having attacked with so much success the doctrine of abeyance, the Editor may venture to observe, with respect to the two laft inftances, though they are collected from the text of Littleton, that there hardly feems any neceffity to refort to abeyance, or to the clouds, to explain the refidence of the inheritance, or of the freehold. In the firft cafe, the whole fee-fimple is conveyed to a fole corporation, the parfon and his fucceffors; but if any intereft is not conveyed, it ftill remains, as in the former note, in the grantor and his heirs, to whom, upon the dissolution of the corporation, the eftate will revert. See 1 vol. 484. And in the second cafe, the freehold seems, in fact, from the moment of the death of the parfon, to rest and abide in the fucceffor, who is brought into view and notice by the inftitution and induction; for after induction he can recover all the rights of the church, which accrued from the death of the predeceffor.

to

to a man for ever, or to him and his affigns for ever, this vefts in him but an estate for life". This very 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 feodal [108] ftrictness: by which we may remember it was required that the form of the donation should be punctually pursued ; or that, as Crag* expresses it in the words of Baldus, “do"nationes fint fricti juris, ne quis plus donaffe praefumatur quam « in donatione exprefferit." And therefore, 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 ex, tended only to his own person, and subsisted no longer than his life; unless the donor, by an express provision in the grant, gave it a longer continuance, and extended it also to his heirs, But this rule is now foftened by many exceptions y,

FOR, 1. It does not extend to devises by will; in which, as they were introduced at the time when the feodal rigour was apace wearing out, a more liberal conftruction is allowed; and therefore by a devise to a man for ever, or to one and his affigns for ever, or to one in fee-fimple, the devifee hath an estate of inheritance; for the intention of the devifor is fufficiently plain from the words of perpetuity annexed, though he hath omitted the legal words of inheritance. But if the devife be to a man and his affigns, without annexing words of perpetuity, there the devisee shall take only an estate for life; for it does not appear that the devifor intended any more (4). 2. Neither does this rule extend to fines or recove

u Ibid. § 1.
w See pag. 56.

x l. 1. t. 9. § 17.
y Co. Litt. 9, 10.

(4) But it is not neceffary to use any words of perpetuity in a devife, in order to give a fee-fimple, where it appears to be the intention of the teftator to difpofe of all his intereft in an estate, and that is implied from the word eftate alone; as if a teftator gives to Richard his eftate or flates in or at Dale, though neither heirs, affigns, or any other word is annexed to Richard's name, yet he takes an estate in fee-fimple. 1 T. R. 411. 2T. R. 656. So

alfo

w.tr

ties 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 reasons, by certain other methods of conveyance, which have relation to a former grant or estate, wherein the word "heirs" was expreffed 3. In creations of nobility by writ,' the peer fo created hath an inheritance in his title, without expreffing the word "heirs ;" for heirship is implied in the creation, unless it be otherwise specially provided: but in creations by patent, which are fricti juris, the word "heirs" must 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 an- [109] ceftor, fo doth the fucceffor from the predeceffor. Nay, in a grant to a bishop, or other fole fpiritual corporation, in frankalmoign; the word "frankalmoign" supplies the place of

fucceffors" (as the word "fucceffors" fupplies the place of " heirs") ex vi termini; and in all these cases a fee-fimple vefts in fuch fole corporation. But, in a grant of lands to a corporation aggregate, the word "fucceffors" is not neceffary, though ufually inferted: for, albeit fuch fimple grant be ftrictly only an estate for life, yet, as that corporation never dies, fuch eftate for life is perpetual, or equivalent to a feefimple, and therefore the law allows it to be one. 5. Laftly, in the cafe of the king, a fee-fimple will vest in him, without the word "heirs" or "fucceffors" in the grant; partly from prerogative royal, and partly from a reason fímilar to the last, because the king in judgment of law never dies". But the general rule is, that the word "heirs" is neceflary to create an eftate of inheritance.

z Co. Litt. 9.

a See Vol. I. p. 484.

b Ibid. 249.

alfo where lands are given to Richard charged with the payment of a specific fum, and which is not to be raised out of the rents and profits, fuch a devife without words of perpetuity will carry a feefimple; for otherwise the devifee might be a lofer by dying before he was repaid the fum charged upon the estate. Hargr. Co Litt. 9. b.

« السابقةمتابعة »