*(2.) A qualified, base, or determinable fee, (for I shall use the words promiscuously,) is an interest which may continue for ever, but the estate is liable to be determined without the aid of a conveyance, by some act or event, circumscribing its continuance or extent. Though the object on which it rests for perpetuity may be transitory or perishable, yet such estates are deemed fees, because, it is said, they have a possibility of enduring for ever. A limitation to a man and his heirs, so long as A. shall have heirs of his body; or to a man and his heirs, tenants of the manor of Dale; or till the marriage of B.; or so long as St. Paul's church shall stand, or a tree shall stand, are a few of the many instances given in the books, in which the estate will descend to the heirs, but continue no longer than the period mentioned in the respective limitations, or when the qualification annexed to it is at an end. If the event marked out as the boundary to the time of the continuance of the estate, becomes impossible, as by the death of B. before his marriage, the estate then ceases to be determinable, and changes into a simple and absolute fee; but until that time, the estate is in the grantee, subject only to a possibility of reverter in the grantor. It is the uncertainty of the event, and the possibility that the fee may last for ever, that renders the estate a fee, and not merely a freehold. All fees liable to be defeated by an executory devise, are determinable fees, and continue descendible inheritances until they are discharged from the determinable quality annexed to them, either by the happening of the event, or a release. These

subject to be bent every day by loose latitudinary reasoning. A lawyer always speaks with confidence on questions of right under a deed, and generally circumspectly as to questions of right under a will.

Plowd. 557. a. 10 Co. 97. b. 11 Co. 49. a. 1 Ld. Raym. 326. Powell, J., in Idle v. Cooke, 2 Ld. Raym. 1148. 2 Blacks. Com. 109. Preston on Estates, vol. i. 431, 432, 433. 481, 482, 483.

Goodright v. Searle, 2 Wils. Rep. 29.

qualified or determinable fees are likewise termed base fees, because their duration depends upon the occurrence of collateral circumstances, which qualify and debase the purity of the title. A tenant in tail may, by a bargain and sale, lease *and release, or covenant to stand seised, create a base fee, which will not determine until the issue in tail enters.a

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If the owner of a determinable fee conveys in fee, the determinable quality of the estate follows the transfer; and this is founded upon the sound maxim of the common law, that nemo potest plus juris in alium transferre quam ipse habet. Within that rule, the proprietor of a qualified fee has the same rights and privileges over the estate as if he were a tenant in fee-simple; all the estate is in the feoffee, notwithstanding the qualification, and no remainder can be limited over, nor any reversion expectant thereon, other than the possibility of a reverter when the estate determines, or the qualification ceases.b

• Machell v. Clarke, 2 Ld. Raym. 778. The apprentice of the Middle Temple, in the course of his learned and successful argument in Walsingham's case, (Plowden, 547, 557,) stated the distinction which has been followed by Mr. Preston, between a determinable and a base fee, and he gives the following obscure explanation of the latter: "A. has a good and absolute estate in fee-simple, and B. has another estate of fee in the same land, which shall descend from heir to heir, but which is base in respect of the fee of A., and not of absolute perpetuity, as the fee of A. is." He then gives the following example, by way of illustration: "If a man makes a gift in tail, and the donee be attainted of treason, the king shall have the land as long as there are any heirs of the body of the donee; and in that case, there are two fees, for the donor has his ancient fee-simple, and the crown another fee in the same land, which is but a base fee, for it is younger in time than the fee of the donor, and if the heirs of the body of the donee fail, the fee is gone, whereas the fee of the donor never perishes: it is pure and perpetual, while the other is but base and transitory." Mr. Preston, in his Treatise on Estates, vol. i. 460. 468, defines a qualified fee to be an interest given to a man and to certain of his heirs only, as to a man and his heirs on the part of his father; but this is termed in Plowden, 241. b, a feesimple conditional.

10 Co. 97. b. Preston on Estates, vol. i. 484. According to Lord Ch..

*(3.) A conditional fee is one which restrains the fee to some particular heirs exclusive of others, as to the heirs of a man's body, or to the heirs male of his body. This was at the common law construed to be a fee-simple on condition that the grantee had the heirs prescribed. If the grantee died without such issue, the lands reverted to the grantor. But if he had the specified issue, the condition was supposed to be performed, and the estate became absolute, so far as to enable the grantee to alien the land, and bar not only his own issue, but the possibility of a reverter. By having issue the condition was performed for three purposes; to alien, to forfeit, and to charge. Even before issue had, the tenant of the fee-simple conditional might by feoffment have bound the issue of his body. But there still existed the possibility of a reverter in the donor. After issue born, the tenant could also bar the donor and his heirs of that possibility of a reversion, but the course of descent was not altered by having issue. The common law provided the formedon in reverter, as the remedial writ for the grantor and his heirs, after the determination of the gift

J. Vaughan, the reverter in this case is a quasi reversion, and he did not see why a remainder might not be granted out of such a qualified fee. Gardner v. Shelden, Vaughan, 269. But the rule is probably otherwise, and on a fee-simple conditional at common law, a remainder could not be created, for the fee was the whole estate. There was only a possibility, or right of reverter, left in the donor, and that was not an actual estate; Lee, Ch. J., in Martin v. Strachan, 5 Term Rep. 107, note; and yet Mr. Preston, (on Estates, vol. ii. 353,) concludes, that limitations of remainders, after qualified or limited estates of inheritance, were in use at common law.

a

Fleta, lib. 3. c. 3. sec. 5. 2 Blacks. Com. 110.

b In Izard v. Izard, 1 Bailey's Eq. R. S. C. 228, the rule was recognized that lands held in fee-simple conditional, were bound, after the birth of issue, by the lien of a judgment or decree, against the tenant, in bar of the right of the issue to take per formam doni. And in Pearse v. Killian, 1 McMullan, 231, it was held that the reversion or remainder expectant on the feesimple conditional, or the possibility of reverter may be released, so as to make the estate of the tenant of the fee conditional, an absolute fee.

Bracton, lib. 2. c. 6. 17. b. Co. Litt. 19. a. 2 Inst. 333.

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of the conditional fee, by the failure of heirs. Before the statute de donis, a fee on condition that the donee had issue of his body, was in fact a fee-tail, and the limitation was not effaced by the birth of issue. If the donee died without having aliened in fee, and without leaving issue general or special, according to the extent of the gift, the land reverted again to the donor. But the tenant, after the birth of issue, could and did alien in fee; and this alleged breach of the condition of the grant, was the occasion of the statute of Westminster 2, 13 Edw. I., c. 1, commonly called the statute de donis, which recited the evasion of the condition of the gift by this subtle construction, and consequent alienation, going to defeat the intention of the donor. The statute, accordingly, under that pretence, preserved the estate for the benefit of the issue of the grantee, and the reversion for the benefit of the donor and his heirs, by declaring that the will of the donor, according to the form of the deed manifestly expressed, should be observed, and that the grantee should have no power to alien the land. It deprived the owner of the feud of his ancient power of alienation, upon his having issue, or performing the condition, and the donor's possibility or right of reverter was turned into a reversion. The feud was to remain unto the issue according to the form of the gift, and if such issue failed, then the land was to revert to the grantor, or his heirs; and this is frequently considered to have been the origin of estates tail, though the statute rather gave perpetuity, than originally created that ancient kind of feudal estate.b

3 F. N. B. 219.

Sir Martin Wright, (Int. to Tenures, 189,) observes, that the statute de donis did not create any new fee, aut re aut nomine. It only severed the limitation from the condition of the gift, according to the manifest intent of it, and restored the effect of the limitation to the issue, and the reversion, as the proper effect of the condition, to the donor. The fee-simple conditional at

(4.) Of fees tail.

The statute de donis took away the power of alienation on the birth of issue, and the courts of justice considered that the estate was divided into a particular estate in the donee, and a reversion in the donor. Where the donee had a fee-simple before, he had by the statute what was denominated an estate tail; and where the donor had but a bare possibility before, he had, by construction of the statute, a reversion or fee-simple expectant upon the estate tail. Under this division of the estate, the donee could not bar or charge his issue, nor, for default of issue, the donor or his heirs, and a perpetuity was created. The tenant in tail was not chargeable with waste, and the wife had her dower and the husband his curtesy in the estate tail. The inconvenience of these fettered inheritances is as strongly described, and the policy of them as plainly condemned, in the writings of Lord Bacon, and Lord Coke, as by subsequent authors, and the true policy of the common law is deemed to have been overthrown by the statute de donis establishing those perpetuities. Attempts were frequently made in Parliament to get rid of them, but the bills introduced for that purpose (and which Lord Coke says he had seen) were uniformly rejected by the feudal aristocracy, because estates tail were not liable to forfeiture for treason or felony, nor chargeable with the debts of the ancestor, nor bound by alienation. They were very conducive to the security and power of the great landed proprietors and their

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common law, was declared, in the case of Willion v. Berkley, Plowd. 239, to be the same as the estate tail under the statute de donis.

a Entails are generally supposed to have been introduced by the Normans, but they were frequent in the Saxon times, and they existed in the Roman law-volo meas ædes manere firmas meis filiis et nepotibus, in universum tempus. Dig. 31, 1. 78.

Lord Bacon on the Use of the Law. Co. Litt. 19. b. 6 Co. 40. Lord Coke's Dedication of his Reports to the Reader, 6.