of the freehold. Such a transaction was known as a "tortious" feoffment or alienation, and was at common law, as we shall see later, a cause for forfeiture of his estate by the tenant guilty of the wrong." 48

99 49

Those things which were incapable of actual possession, that is, incorporeal things, and also future estates, these not being accompanied by possession during the continuance of the preceding estate, were not capable of livery of seisin, and could be conveyed only by deed, called a deed of "grant.” Hence the distinction which existed at common law between things which "lie in livery" and those which "lie in grant." When the grant was of a manor, or a right of lordship (a seignory), to which tenure with rent or other services were incident, it was necessary that the tenant consent to hold of the new lord, such consent being known as "attornment." Likewise, as we shall see later, in case of the grant of a reversion expectant on a present estate, attornment by the tenant in possession was necessary. The necessity of attornment was afterwards dispensed with by statute (4 Anue, c. 16, §§ 9, 10; A. D. 1705), and it is no longer necessary in England or in this country.50 Since a grant did not involve livery of seisin, it could convey only the estate of the grantor, and consequently it could never take effect as a tortious conveyance.51

Litt. § 415, 416, 611; Co. Litt. 233b, 330b, and Butler's notes; Challis, Real Prop. 68, 110. See post, § 32.

49 Co. Litt. 9a, 9b, 49a, 172a; Shep. Touch. 228; 1 Leake, 52 et seq.; Challis, Real Prop. 41.

So Litt. 88 551, 567, 668; Co. Litt. 309a, and Butler's note Bee post, § 47.

$1 Litt. 88 609, 610; Co. Litt. 330a, Butler's note; 4 Kent, Comm. 490.

(85)

Proprietary rights in land, other than rights to dispose thereof and liens, consist in the ownership of "estates" therein; the tenant or owner, according to the theory of the common law, being entitled to an estate in the land, rather than the land itself. Estates are classified primarily according to their quantum or duration in time, and secondarily according to whether they give a right of present or future enjoyment of the land.

17. The theory of estates.

The most distinctive feature of the law of land as established in England, and from there brought to this country, is the doctrine of estates, by which the rights of possession and enjoyment are rendered capable of division according to time. "The total or indefinite extension, as to duration, of property in land, may thus be portioned out by means of successive intervals of use into separate properties, measured by terms of years, or by lives, or other specified times or events of certain or uncertain occurrence. In this manner are produced the various estates in land." 1

1 See 1 Leake, 3.

The word "estate," or "status," originally, and even as late as the middle of the thirteenth century, was used as descriptive of the personal condition of the feudal tenant; but, under the feudal system, a man's personal status was so closely connected with his proprietary rights that even then a man Was said to have the status of a tenant for life or of a tenant in fee, according to the duration of his feudal holding, and consequently but a slight change of expression was necessary to use the word with refer

The future possession and use of the land is accordingly the subject of present ownership, and, consequently, of pres ent transfer, apart from its present possession and use. The owner of land, or, more properly speaking, of an “estate” in land, may therefore, by an act of transfer, determine the person or persons who shall enjoy the land in the future, as well as in the present, creating, at his pleasure, interests or "estates" in various persons, to begin or end as he may declare at the time of the transfer; his power in this respect being limited, generally speaking, only by his inability to create any estate which will extend beyond the limits of his own estate.2

Estates can exist not only in land, but also in what we have considered above under the name of "incorporeal things real," but they cannot, properly speaking, be created in chattels, the owners of which are considered to own the chattels themselves, and not merely estates therein.

Sepa

ence to the extent of the interest in the land. 1 Pollock & Maitland, Hist. Eng. Law, 391; 2 Pollock & Maitland, Hist. Eng. Law, 11, 78. See, also, 2 Bl. Comm. 103.

This doctrine of estates is not found in the Roman law or the continental systems derived therefrom, and apparently owes its place in our law to the universal prevalence in England of the system of feudal tenures, by which the tenant was regarded as having an interest in land which was short of absolute ownership, the lord having a possibility of the land reverting to him by the termination of the tenant's interest. The principle of ■ present estate in one person and a future estate in another, thus suggested or instituted, "was subsequently worked out by con. veyancers, and sanctioned by the courts, to the full capacity of the subject for such mode of treatment, and in subservience it must be presumed, to the exigencies of the public." 1 Leake, ¡. See Digby, Hist. Real Prop. 43.

2 See Challis, Real Prop. c. 9; 2 Pollock & Maitland, Hist. Eng. Law, 11; Digby, Hist. Real Prop. 307.

2 Washburn, Real Prop. 4; Williams, Real Prop. 334; Challis. Real Prop. 36 et seq.; Huff v. McCauley, 53 Pa. St. 206, 91 Am. Dec. 203; Hall v. Turner, 110 N. C. 292.

•1 Leake, 4.

rate rights of present and future enjoyment may, however, be created in chattels personal, as distinguished from chattels real, by a contract of bailment, and in chattels real by what is known as a "sublease," and future interests may be created in chattels either real or personal by will, or by the intervention of a trustee, and, according to the weight of authority in this country, by a deed without the creation of any trust.

The limitation of estates.

The language in a deed or other instrument conveying or creating an estate, which states the time for the commencement of the estate, and its quantum or duration, is termed the "limitation of the estate," as fixing its limits. The words used for this purpose, called "words of limitation," are to be carefully distinguished from "words of purchase," which state the person or persons intended to take the estate or estates limited. A number of words, such as "heirs," "issue," "children," etc., are capable of use either as words of limitation or as words of purchase, and the determination of the purpose of their use in a particular instrument is frequently a matter of difficulty.

The primary classification of estates is into "estates of freehold," or "freehold estates," and "estates less than freehold." Freehold estates, the distinctive characteristic of which is that they endure for a period the termination of which is not fixed or ascertained by a specified limit of time, obtain the name of "freehold" from the fact that the typical holding by a free man under the feudal system,-a "free tenement, " as it was called,-was always associated with a

Gray, Perpetuities, §§ 71-97.

See 1 Leake, 152; 4 Cruise's Dig. tit. 32, ch. 20, §§ 88-90.

right in the land enduring for such a period of uncertain termination.'

Freehold estates are divided into "estates of inheritance," which pass to the owner's heirs, and "estates not of inheritance." Estates of inheritance are such as pass to collateral as well as lineal heirs, these being termed "estates in fee simple," or are such as pass only to lineal heirs, termed "estates tail." Freehold estates not of inheritance are either estates for the life of the owner (the tenant), these being called simply "estates for life," or they may be for the life of another than the owner, termed "estates pur autre vie.” Life estates may be created either by voluntary act, in which case they are known as "conventional" life estates, or in certain cases by act of the law, being then termed "legal" life estates. Legal life estates are either a "tenancy in tail after possibility of issue extinct," the estate of "dower," that of "curtesy," or what may be termed the "husband's estate during coverture." 8

Estates less than freehold include primarily estates for fixed period, the termination of which is capable of ascertainment from the beginning, called "estates for years.' With these estates are also classed what are called "tenancies at will," which are not, strictly speaking, estates at all, except where their character has been changed by statute, they being merely rights of occupancy by permission, so long as both the owner and occupant so desire, estates or "tenancies

Litt. 57; Co. Litt. 43b; Challis, Real Prop. 6; Digby, Hist. Real Prop. 160.

• An estate for life is sometimes called an estate of freehold, or the freehold, as distinguished from the inheritance. 1 Leake, 43, citing Litt. § 57. "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. The word 'freehold' always imported the whole estate of the feudatory, but varied as that varied." Butler's notes to Co. Litt. 266b.