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(B 10.) A reversion; what shall be. p. 23.
By what words it passes. p. 24.
(B 13.) A remainder; what shall be a good one. p. 25. (B 14.) What not; if it be not supported by a particular estate. p. 28.
(B 15.) Or the particular estate be destroyed before the remainder be vested. p. 29.
B 16.) What remainder shall be contingent. p. 31. (B17.) What shall be vested. p. 35.
(B18.) When an estate shall be executed, and not remain. p. 36.
(B 19.) A remainder; by what words created. p. 38.
(B21.) A gift in tail, with a fee expectant. p. 38.
(B 23.) What shall be void. p. 39.
(B 24.) What only voidable. p. 39.
B 25.) What bars the issue: A fine with proclamations. p. 40.
(B 26.) A real recovery, &c.
(B 27.) A common recovery; what interest shall be barred by it. p. 43.
(B 28.) If it be with single voucher. p. 44
(B 29.) If it be by tenant in tail as vouchee. p. 45.(B 30.) What interest is not barred. p. 45.
B31.) If the reversion, or remainder, be in the
(B 32.) A demise pursuant to the st. 32 H. 8. p. 47.
(C) An Estate tail after possibility of issue ertinct. (C1.) What shall be. p. 52.
(C 2.) In what respects tenant in tail after possibility, &c. is regarded only as tenant for life. p. 54. (C 3.) What privileges he claims above a tenant for life. p. 54.
(D) Tenant by the curtesy of England.
(D1.) Who shall be. p. 55.
(E) Tenant for Life.
(E 1.) Who shall be. p. 59.
(E 2.) What interest he has. p. 60.
(E 3.) What privileges he shall have. p. 62.
(F1.) Who shall be. p. 63.
(F2.) Of what things. p. 65.
(G) Tenant for years.
(G 1.) By what words a lease shall be. p. 66.
(G 3.) By spiritual persons, &c. at common law. p.71.
(G 3.) What leases are warranted by those statutes, and what not. p. 77.
(G6.) A lease by several persons; how it operates. p. 83.
(G7.) A lease by estoppel, &c. p. 83.
G 8.) When a lease shall commence. p. 84. (G 9.) What shall be a good commencement. p. 86. (G 10.) What shall be a good determination. p. 88. (G 11.) When it shall be determined. p. 88.
(G 12.) What shall not be a good determination.
(G 13.) When a lease shall be void. p. 96.
(G 14.) What interest the lessee has before entry. p. 97.
(G 15.) What interest the lessee has after entry. p. 97.
(H) Tenant at will.
H1.) Who shall be. p. 99.
(H 2.) Who not. p. 100.
(H 3.) What things a lessee at will may do. p. 101.
(H 4.) What he ought to do. p. 101.
(H 5.) What he need not do. p. 101.
(H 6.) What shall be a determination of the will;
(H7.) Implied. p. 102.
(H 8.) What not. p. 103.
(H 9.) At what time the Ouster shall be. p. 103.
(1) Tenant by sufferance.
(11.) Who shall be. p. 104.
(K) Estates undivided.
Who are. p. 105.
(K 1.) Joint-tenants; —
(K 3.) When a joint estate survives. p. 110.
(K 5.) If the jointure does not continue;- what
(K 6.) Joint-tenants, how seised. p. 112.
(K7.) What charges bind the survivor. p. 113.
(A) Estate in Fee Simple.
(A 1.) Of what Things a Man may have it.
AN estate imports the interest which a man has in lands. Co. L. 345. a.
Every one, who has an estate in land, has the inheritance, the freehold, or a chattel interest.
Every estate of inheritance is a fee simple, or a fee tail.
An estate in fee (b) simple is, (c) where a man has an estate in lands or tenements to him and his heirs for ever. Lit. S. 1.
A man may have an estate in fee simple of all lands, or tenements, or other things real. Co. L. 1. b.
Of lordships, advowsons, commons, estovers, and all hereditaments. Co. L. 4. a.
So a man may have an estate in fee simple descendible to him and his heirs in the Isle of Man; though it be not parcel of the realm, but a distinct territory: for it is grantable by the king under the great seal, and therefore the estate in it shall be descendible according to the rules of the common law. Co. L. 9. a.
So he may have a fee simple in things mixt; as, in franchises, liberties, &c. Co. L. 2. a.
So, if a man grants to another and his heirs all woods, underwoods, timber-trees or others in such a part of a forest, saving the soil; the grantee has a fee to take in alieno solo. R. 8 Co. 137. b.
(b) The word fee is explained to signify, that the land or other subject of property belongs to its owner, and is transmissible in case of an individual, to those whom the law appoints to succeed him under the appellation of heirs; and in case of corporate bodies, to those who are to take upon themselves the corporate function, and, from the manner in which the body is to be continued, are denominated successors. Litt. s. 1. 1 Inst. 1 b. 271. b. Wright's Ten. 147. 150. Spelm. Feu. c. 1. Fleta. lib. 5. c. 5. s. 27. 2 Blk. Com. 104. 106. Hale's Anal. 74. Bracton, lib. 4. 263. b. 1 Prest. Est. 420. (e) An estate which may continue for ever. 1 Prest. Est. 419.
So, in things personal; as, in an annuity. (d)
Co. L. 2. a. (e)
In a part or share of the New-River-water. Ca. Parl. 207. (g) So, in the patronage of an hospital, or other thing created de novo, in which there was not a precedent estate, a man may have a fee to him and his heirs, qualified in a particular manner: As, if a queen consort institutes an hospital, and reserves the patronage sibi et Reginis Angliæ succedentibus. R. Ca. Ch. 214.
But in estates in esse before such desultory inheritance it cannot be : As, the dutchy of Cornwall limited to the prince et filiis Regis Anglia primogenitis, shall not be good, except when limited by act of parliament. R. 8 Co. 16. Vide Roy, (G).
So a limitation of an advowson to the queen, and the queens her successors, shall not be good without an act of parliament: for (h) there is no person against whom a demand may be made. R. Ca. Ch. 214.
If a man gives land to A. and his heirs of the part of his mother; the words, of the part of his mother, are void; for none can create a new inheritance, or descent, not allowed by law. Co. L. 13. a.
(A 2.) By what words.
A man cannot have a fee simple by feoffment, or grant, (7) without the words, (k) to him and his (¿) heirs. (m) Co. L. 1.
(d) 1. But the heirs of the grantor must be bound expressly, and in that character, to the payment or render of the annuity. 1 Prest. Est. 509. 2. And since an annuity may be the subject of a fee, it follows, that permanency of interest, not immobility, is the essential quality of a fee. Ibid. 507.-3. And in equity, where money is convertible, by its application in purchases, into land, it is impressed, in the interim, in regard to succession, with the inheritable qualities of land. Id. 507.
(e) 1. An annuity of inheritance is held to be forfeitable for treason as an hereditaent. 7 Rep. 34. b.-2. Yet, being only personal, it is not an hereditament within the statute of Mortmain of 7 Edw. 1. st. 2.-3. Nor is entailable within the statute de donis. Co. Litt. 2. a. n (1)
(f) 1. Which is an hereditament either mixed both of the realty and personalty. 2. For when the king creates an earl of such a county or other place, to hold that dignity to him and his heirs, this dignity is personal, and also concerneth land and tenements. Co. Litt. 2. a. 3. And is entailable within the statute de donis. Co. Litt. 20. a. 2 Eden. 373.-4. And being within the protection of the statute, is not forfeited by an attainder of felony. Eden. 373. (See 54 G. 3. c. 145. as to what attainder of the ancestor shall now disinherit the heir.) — 5. Yet neither can the donee nor his issue bar the entail, by fine, recovery, or any other means, as may be done in the case of other entailable things. Show. Parl. Ca. 1. Collins's Claims of Bar. 293. -6. Or it is an hereditament altogether personal; as where a title is created, and no place mentioned.-7. For naming a place is not essential to the creation of a dignity. 1Ld. Raym. 15.-8. But in this case the grantee of a dignity to him and the heirs male of his body, will have a fee conditional, and not an estate tail. 12 Rep. 81. Co. Litt. 20. a. n. (3.)
(g) Dick. 545
(h) then the freehold might be in abeyance, and then.
() 1. Limitations of trust are to be construed in like manner and by the like rules, as limitations of a legal estate. 3 Ves. 127.-2. And therefore in deeds the fee cannot pass by grant or transfer, inter vivos, without appropriate words of inheritance. 2 Prest. Est. 64.-3. But in contracts to convey, and in trusts declared in a conveyance, the fee may pass notwithstanding the omission of a limitation to the heirs. Ibid. 4. Therefore articles to convey to A. B. in fee, or a conveyance to A. B. and his heirs in trust to convey to C. D. in fee simple, would confer a right in equity, to call
And therefore if he purchases to him in perpetuum, he has only for life. Lit. S. 1. (n)
for a conveyance of the inheritance. Ibid.-5. So a conveyance to A. and his heirs in trust, totidem verbis, for B. in fee, would pass a fee. Ibid. 6. So there may be a right in equity to call for a conveyance of the fee, because there is evidence of an intention to convey the fee, although that intention be not expressed by a limitation to the heirs. Ibid. 64. 65.-7. And the result of the general rule is, that a bargain and sale by an equitable owner to A. simply, would pass no more than an estate for life; while if it should appear from a recital that there was an intention to sell the fee, the court would consider the fee to pass. Ibid.-8. And to pass the fee of copyhold lands, it is not always requisite, that the word heirs should be used. 4 Rep. 29. b. Kitch. 102. b. Supra, Copyhold, (F. 8.)-9. Though the general rule seems to render it necessary that this word should be inserted, unless some other term, sanctioned by usage, and grown into custom, has been substituted in its place. Watk. Cop. 108. Rol. Abr. 839. 1. 504. 2 Prest. Est. 67. 10. By custom a grant of a copyhold to a man and his (sibi et suis), or to him and his assigns (sibi et assignatis), or to him, without any other word, may give the inheritance. Watk. Cop. 109. 1 Rol. Abr. 48. 2 Prest. Est. 68. -11. So a fine sur cognizance de droit cum ceo, or sur cognizance de droit tantum, passes an estate in fee simple without the word heirs. Co. Read. 6. 1 Inst. 9. b. For when the cognizor acknowledges the lands to be the right of the cognizee, it would be repugnant and contradictory to his own acknowledgment to claim any estate in the lands in remainder or reversion. Besides, in every judgment a fee simple was recovered; and the cognizance or acknowledgment of the concord, coming in place of a judgment must have the same effect.-13. But if the concord be qualified by the express words of the parties, as if the lands are limited to the cognizee for life, or to the cognizee and the heirs of his body, the fine will then only pass an estate for life or in tail; for it would be absurd, that a greater estate should pass than that which the parties themselves have limited; and the preceding donation or feoffment which is acknowledged in the fine, may as well be supposed to have been for life, or in tail, as in fee. 1 Salk. 340.
(k) 1. The limitation must be either by express words, or by words of direct and immediate reference. Shep. Touch. 101.-2. The word heirs (or successors, in case of a corporation) need not be in the identical deed of grant, or other mode of assurance by which the estate is granted or conveyed.-3. Thus where one to whom lands have been granted in fee, after reciting the grant, or without any recital, grants the lands to another as fully as they were granted to him. Shep. Touch. 101. infra.4. Or where a man grants two acres to A. and B., to hold one acre to A. and his heirs, and the other acre to B. " in form aforesaid." Shep. Touch. 101. 1 Inst. 9. b. — 5. Or where a man seised of lands in fee, enfeoffs another in fee, and continues in possession of the lands, claiming to hold them at the will of the feoffee; and the fcoffee enfeoffs the person by whom he was enfeoffed in these terms: "You have given me these lands (naming them); as fully as you have given them to me, I assure them to you." 39 Ass. 12. 2 Leon. 26. 1 Inst. 9. b. infra. 2 Prest. Est. 1. 2.
(1) 1. And so often as the limitation is to two persons, it must express, whether the heirs are to be of both these persons, or of one of them. Hob. 94. Shep. Touch. 101. 1 Inst. 8. b. 2. And when of one of them only, then also of which of them in particular; as of one in certain, or of the survivor of them, &c.—3. A grant to two men and heirs, without any specification that the heirs shall be of both persons, or of one of them, is void as to the heirs for uncertainty. 1 Inst. 8. b. 19 Hen. 6. 23. 20 Hen. 6. 34. Latch. 42. 5 Rep. 112. Shep. Touch. 19. 37 Hen. 6. 5. 2 Prest. Est. 10.
(m) 1. It is not, however, necessary that the grant should, by one entire or continuous expression, be to the grantee and his heirs: It may be by divided clauses; as to A. for life with a remainder to his right heirs. Shep. Touch. 101.-2. It will be sufficient that it should, from the context, appear that B. and his heirs are to have the benefit of the grant. 3. Thus where a grant was of a rent to A., and afterwards that he and his heirs should distrain for it; this limitation of distress to him and his heirs enlarged the estate, and made it a fee simple. 3 Bulst. 128. 2 Prest. Est, 7. 8.
(n) 1. So to a man and his heirs during the life of C., or during the lives of several persons. Bract. lib. 2. c. 9. Vaugh. 201. 1 Rep. 140. 10 Rep. 98.-2. And since it is an essential quality of a fee that it may continue for ever, an interest granted to