BOOK III.

ESTATES IN LAND.

A. FEUDAL OR COMMON LAW ESTATES.

I. Estates of Freehold.

CHAPTER I.

THE FREEHOLD.

BRACTON, 207. I must then in the first place examine the different kinds of tenements.

Now it is to be observed that a freehold tenement is that which a man holds to himself and his heirs in fee and in inheritance, or in fee alone, to him and his heirs. Land is also held as freehold when it is held only for life, or for an indefinite period, without any fixed limit of time, as for instance until such a thing happens or does not happen, as if it be said, "I give to such a one until I provide for him." But a tenement cannot be called a freehold which any one holds for a certain number of years, months, or days, though it be for a term of a hundred years, which exceeds the lives of Further, a tenement cannot be called a freehold which a man holds at the will of the lord and by favour,

men.

which may be revoked in season or out of season, as when a man holds from year to year or from day to day.

2 BL. COм., 103. The next objects of our disquisitions are the nature and properties of estates. An estate in lands, tenements, and hereditaments, signifies such interest as the tenant has therein; so that if a man grants all his estate in Dale to A. and his heirs, everything that he can possibly grant shall pass thereby. It is called in Latin status, it signifying the condition, or circumstance, in which the owner stands with regard to his property. And to ascertain this with proper precision and accuracy, estates may be considered in a threefold view: first, with regard to the quantity of interest which the tenant has in the tenement; secondly, with regard to the time at which that quantity of interest is to be enjoyed; and, thirdly, with regard to the number and connections of the tenants.

First, with regard to the quantity of interest which the tenant has in the tenement, this 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, lastly, it is infinite and unlimited, being vested in him and his representatives forever. And this occasions the primary division of estates into such as are freehold, and such as are less than freehold.

An estate of freehold, liberum tenementum, or franktenement, is defined by Britton' to be "the possession of the soil by a freeman." And St. Germyn tells us, that "the possession of the land is called in the law of England the franktenement or freehold." Such estate, therefore, and no other, as requires actual possession of the land, is, legally speaking, freehold: which actual possession can, by the course of the common law, be only given by the ceremony Dr. & Stud. b. 2, d. 22.

C. 32.

called livery of seisin, which is the same as the feodal investiture. And from these principles we may extract this description of a freehold; that it is such an estate in lands as is conveyed by livery of seisin, or, in tenements of any incorporeal nature, by what is equivalent thereto. And accordingly it is laid down by Littleton,1 that where a freehold shall pass, it behooveth to have livery of seisin. As, therefore, estates of inheritance and estates for life could not by common law be conveyed without livery of seisin, these are properly estates of freehold; and, as no other estates are conveyed with the same solemnity, therefore no others are properly freehold estates. Estates of freehold (thus understood) are either estates of inheritance, or estates not of inheritance. The former are again divided into inheritances absolute, or fee-simple; and inheritances limited, one species of which we usually call fee-tail.

LEAKE, LAND LAW, 43. Estates for life and estates of inheritance, being the estates admissible at common law in land of freehold tenure, are called freehold estates. An estate for life is sometimes called specially an estate of freehold, or the freehold, as distinguished from the inheritance, which in this sense includes the freehold. "The word freehold is now generally used to denote an estate for life, in opposition to an estate of inheritance. Perhaps in the old law it meant rather the latter than the former. It is known that fees were held originally at the will of the lord; then, for the life of the tenant; that afterwards they were descendible to some particular heirs of the body of the tenant; then, to all the heirs of his body; and that in succession of time the tenant had the complete dominion or power over the fee. The word freehold always imported the whole estate of the feudatory, but varied as that varied." Thus, the term freehold is used to denote the quantity or duration of estates as well as the tenure of the land.

1$ 59.

'Butler's note to Co. Lit., 266, b.

WILLIAMS, REAL PROP. (17th ed.), 71. Let us here notice that the essential quality of ownership belongs equally to all freehold estates. For every freeholder, whether in fee simple, fee tail, for life or otherwise, has the right to maintain or recover possession of his land as against all the world. While he remains in possession he may exclude all others from his land; and if he be wrongfully ejected, he may recover possession of his land by peaceable entry or by action. And these rights have been secured to freeholders from the earliest days of our common law.

Digby, HIST. REAL PROP., App., § 2. The conception of an “estate" in lands is a peculiar characteristic of English law. It is regarded, as has been seen, as an interest falling short of complete ownership, but capable of differences in extent or duration. Thus where an interest is given to A. for life, and after his death to B. for life, and after his death to C. in fee, all these interests are regarded as estates, varying in duration or extent, and in the time of their coming into possession or enjoyment. The interest or right passes at once to the successive grantees. The grantor is regarded, not as parting with the whole ownership to A., with a proviso that after A.'s death it is to go to B., and after B.'s death to C., but as carving out of his estate two smaller interests or estates, and then as having still the fee simple or inheritance to give away, the grant of which exhausts all the interest in the lands which he has to bestow, which yet does not amount to the complete ownership of the land. Thus the fee simple is regarded as the largest estate-the nearest approach to absolute ownership-which the law recognizes; an estate tail, an estate for life, an estate for years are regarded as smaller or shorter interests, which cannot exist without the fee simple at the same time residing in some person other than him who has the smaller or "particular"

estate.

2 POLL. & MAIT., HIST. ENG. LAW, 10. We thus come upon a characteristic which, at all events for six centuries and perhaps for many centuries more, will be the most salient trait of our English land law. Proprietary rights in land are, we may say, projected upon the plane of time. The category of quantity, of duration, is applied to them. The life tenant's rights are a finite quantity; the fee tenant's rights are an infinite, or potentially infinite, quantity; we see a difference in respect of duration, and this is the one fundamental difference. In short, we are coming by a law of "estates in land." We have as yet, though not without a conscious effort, refrained from using that term, and this because, so far as we can see, it does not belong to the age of Bracton. On the other hand, so soon as we begin to get Year Books, we find it in use among lawyers. As already said, it is the Latin word status; an estate for life is, in the language of our records, status ad terminum vitae, an estate in fee simple is status in feodo simplici; but a very curious twist has been given to that word. The process of contortion cannot at this moment be fully explained, since, unless we are mistaken, it is the outcome of a doctrine of possession; but when once it has been accomplished, our lawyers have found a term for which they have long been to seek, a term which will serve to bring the various proprietary rights in land under one category, that of duration. The estate for life is finite, quia nihil certius morte; the estate in fee is infinite, for a man may have an heir until the end of time. The estate for life is smaller than the estate in fee; it is infinitely smaller; so that if the tenant in fee breaks off and gives away a life estate, or twenty life estates, he still has a fee. Thus are established the first elements of that wonderful calculus of estates which, even in our own day, is perhaps the most distinctive feature of English private law.