SECTION II.

FEE-TAIL.

Co. LIT. 19 a. Before which statute of Donis conditionalibus, if land had been given to a man, and to the heirs males of his body, the having of an issue female had been no performance of the condition; but if he had issue male, and died, and the issue male had inherited, yet he had not had a fee simple absolute; for if he had died without issue male, the donor should have entered as in his reverter. By having of issue, the condition was performed for three purposes: First, to alien; Secondly, to forfeit; Thirdly, to charge with rent, common, or the like. But the course of descent was not altered by having issue: for if the donee had issue and died, and the land had descended to his issue, yet if that issue had died (without any alienation made) without issue, his collateral heir should not have inherited, because he was not within the form of the gift, viz., heir of the body of the donee. Lands were given before the statute in frank-marriage, and the donees had issue and died, and after the issue died without issue; it was adjudged, that his collateral issue shall not inherit, but the donor shall re-enter. So note, that the heir in tail had no fee simple absolute at the common law, though there were divers descents.

If lands had been given to a man and to his heirs males of his body, and he had issue two sons, and the eldest had issue a daughter, the daughter was not inheritable to the fee simple, but the younger son per formam doni. And so if land had been given at the common law to a man and the heirs females of his body, and he had issue a son and a daughter, and died, the daughter should have inherited this fee simple at the common law; for the statute of Donis conditionalibus createth no estate tail, but of such an estate as was fee simple at the common law, and is descendible in such form as it was at the common law. If the donee in tail had issue before the statute, and the issue had died without issue, the alienation of the donee at the common law, having no issue at that time, had not barred the donor.

If donec in tail at the common law had aliened before any issue had, and after had issue, this alienation had barred the issue, because he claimed a fee simple; yet if that issue had died without issue, the donor might re-enter, for that he aliened before any issue, at what time he had no power to alien to bar the possibility of the donor.1

LEAKE, DIGEST LAND LAW, 35. At the common law all inheritances were fee simple in respect of the rights and powers of the tenant. In

1 See Anonymous, Fitz. Ab. Formedon, 65; Barksdale v. Gamage, 3 Rich. Eq. 271.- ED.

respect of duration, they might be absolute or conditional, that is, determinable by some conditional limitation.

A fee limited to a person and "to the heirs of his body" or "to the heirs male of his body" or in other form of restricted inheritance was a fee simple conditional at common law. It was determinable by failure of the line of issue designated to succeed, and the land reverted in possession to the grantor or his heirs. But the restriction upon the duration of the fee did not, at common law, otherwise affect the rights and powers of the tenant; and in respect of these it remained a fee simple. So long as the fee lasted the tenant for the time being had all such powers, including the power of alienation, as were the inseparable incidents of an estate of inheritance. Only it was adjudged to be a necessary condition of the full effect of his alienation, so as to bar not only his issue, but also the possibility of reverting to the grantor, that he should have heritable issue: — “the gift to one and to the heirs of his body was construed, for the purpose of alienation, to be the same as a gift to him and to his heirs, if he had heirs of his body."

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Other ancient instances are cited of fees simple conditional, as: fee limited to A. and to his heirs for so long as the church of St. Paul shall stand; to A. and to his heirs, tenants of the manor of Dale; to A. and to his heirs, so long as A. or B. has heirs of his body.1

ST. 13 EDW. I.; ST. OF WESTM. II. (1285) c. 1; DE DONIS CONDITIONALIBUS. First, concerning lands that many times are given upon condition, that is, to wit, where any giveth his land to any man and his wife, and to the heirs begotten of the bodies of the same man and his wife, with such condition expressed that if the same man and his wife die without heir of their bodies between them begotten, the land so given shall revert to the giver or his heir; in case also where one giveth lands in free marriage, which gift hath a condition annexed, though it be not expressed in the deed of gift, which is this, that if the husband and wife die without heir of their bodies begotten, the land so given shall revert to the giver or his heir; in case also where one giveth land to another and the heirs of his body issuing, it seemed very hard and yet seemeth to the givers and their heirs, that their will being expressed in the gift was not heretofore nor yet is observed. In all the cases aforesaid after issue begotten and born between them, to whom the lands were given under such condition, heretofore such feoffees had power to aliene the land so given, and to disinherit their issue of the land, contrary to the minds of the givers, and contrary to the form expressed in the gift: and further, when the issue of such feoffee is failing, the land so given ought to return to the giver or his heir by form of gift expressed in the deed, though the issue, if any were, had died; yet by the deed and feoffment of them, to whom land was so given upon condition, the donors have heretofore been barred of their reversion of the same tenements which was directly repugnant to the form

1 See 2 P. & M. Hist. (2d ed.) 17-19.-ED.

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of the gift wherefore our lord the king, perceiving how necessary and expedient it should be to provide remedy in the aforesaid cases, hath ordained, that the will of the giver according to the form in the deed of gift manifestly expressed shall be from henceforth observed, so that they to whom the land was given under such condition shall have no power to aliene the land so given, but that it shall remain unto the issue of them to whom it was given after their death, or shall revert unto the giver or his heirs if issue fail, either by reason that there is no issue at all, or if any issue be, it fail by death, the heir of such issue failing. Neither shall the second husband of any such woman from henceforth have anything in the land so given upon condition after the death of his wife, by the law of England,1 nor the issue of the second husband and wife shall succeed in the inheritance, but immediately after the death of the husband and wife, to whom the land was so given, it shall come to their issue or return unto the giver or his heir as before is said. And forasmuch as in a new case new remedy must be provided, this manner of writ shall be granted to the party that will purchase it: "Command A. that justly, &c., he render to B. the manor of F. with its appurtenances, which C. gave to such a man, and such a woman, and to the heirs of the said man and woman issuing;” or, "which C. gave to such a man in free marriage with such a woman, and which, after the death of the aforesaid man and woman, to the aforesaid B., son of the aforesaid man and woman, ought to descend, by the form of the gift aforesaid, as he saith;" or, "which C. gave to such a one and the heirs of his body issuing, and which after the death of the said such a one, to the aforesaid B., son of the aforesaid such a one, ought to descend, by the form, &c." The writ whereby the giver shall recover when issue faileth is common enough in the Chancery. And it is to wit that this statute shall hold place touching alienation of land contrary to the form of gift hereafter to be made, and shall not extend to gifts made before. And if a fine be levied hereafter upon such lands it shall be void in the law, neither shall the heirs or such as the reversion belongeth unto, though they be of full age, within England, and out of prison, need to make their claim.

ners,

LIT. §§ 13-19, 21-24. Tenant in fee tail is by force of the statute of Westm]. II. c. 1, for before the said statute all inheritances were fee simple; for all the gifts which be specified in that statute were fee simple conditional at the common law, as appeareth by the rehearsal of the same statute. And now by this statute tenant in tail is in two manthat is to say, tenant in tail general, and tenant in tail special. Tenant in tail general is, where lands or tenements are given to a man and to his heirs of his body begotten. In this case it is said general tail, because whatsoever woman that such tenant taketh to wife (if he hath many wives, and by every of them hath issue), yet every one of these issues by possibility may inherit the tenements by force of the gift; because that every such issue is of his body engendered.

1 See Anonymous, Fitz. Ab. Formedon, 63; 2 P. & M. Hist. (2d ed.) 29. — Ed.

In the same manner it is where lands or tenements are given to a woman and to the heirs of her body; albeit that she hath divers husbands, yet the issue which she may have by every husband may inherit as issue in tail by force of this gift; and therefore such gifts are called general tails.

Tenant in tail special is, where lands or tenements are given to a man and to his wife and to the heirs of their two bodies begotten. In this case none shall inherit by force of this gift but those that be engendered between them two. And it is called especial tail, because if the wife die, and he taketh another wife and have issue, the issue of the second wife shall not inherit by force of this gift, nor also the issue of the second husband, if the first husband die.

In the same manner it is where tenements are given by one man to another with a wife (which is the daughter or cousin to the giver) in frankmarriage, the which gift hath an inheritance by these words (frankmarriage) annexed unto it, although it be not expressly said or rehearsed in the gift, that is to say, that the donees shall have the tenements to them and to the heirs between them two begotten. And this is called especial tail, because the issue of the second wife may not inherit.

And note, that this word (Talliare) is the same as to set to some certainty or to limit to some certain inheritance. And for that it is limited and put in certain what issue shall inherit by force of such gifts, and how long the inheritance shall endure, it is called in Latin feodum talliatum; i. e., hæreditas in quandam certitudinem limitata. For if tenant in general tail dieth without issue, the donor or his heirs may enter as in their reversion.

In the same manner it is of the tenant in especial tail, &c. For in every gift in tail without more saying the reversion of the fee simple is in the donor.1 And the donees and their issue shall do to the donor and to his heirs the like services as the donor doth to his lord next paramount, except the donees in frankmarriage, who shall hold quietly from all manner of service (unless it be for fealty) until the fourth degree is past, and after the fourth degree is past, the issue in the fifth degree, and so forth the other issues after him, shall hold of the donor or of his heirs as they hold over, as before is said.

And all these entails aforesaid be specified in the said statute of Westm]. II. Also there be divers other estates in tail, though they be not by express words specified in the said statute, but they are taken by the equity of the same statute. As if lands be given to a man and to his heirs males of his body begotten; in this case his issue male shall

1 "Inasmuch as the estate of tenant in tail was, according to the metaphysical expression of the lawyers, 'carved out of,' that is, less than an estate in fee simple and different from it, it followed that if tenant in fee simple made a gift in tail, such a gift was not within the Statute of Quia Emptores, but a tenure was created between tenant in tail and tenant in fee simple, the former holding of the latter." Digby, Hist. R. P. (2d ed) 248. And see Williams, R. P. (18th ed.) 106.

inherit, and the issue female shall never inherit, and yet in the other entails aforesaid it is otherwise.

In the same manner it is if lands or tenements be given to a man and to his heirs females of his body begotten; in this case his issue female shall inherit by force and form of the said gift, and not his issue male. For in such cases of gifts in tail the will of the donor ought to be observed who ought to inherit and who not.

And in case where lands or tenements be given to a man and to the heirs males of his body, and he hath issue two sons, and dieth, and the eldest son enter as heir male, and hath issue a daughter, and dieth, his brother shall have the land, and not the daughter, for that the brother is heir male. But otherwise it is in the other entails which are specified in the said statute.

Also, if lands be given to a man and to the heirs males of his body, and he hath issue a daughter, who hath issue a son, and dieth, and after the donee die; in this case the son of the daughter shall not inherit by force of the entail; because whosoever shall inherit by force of a gift in tail made to the heirs males ought to convey his descent whole by the heirs males. Also in this case the donor may enter, for that the donee is dead without issue male in the law, insomuch as the issue of the daughter cannot convey to himself the descent by an heir male.

NOTE ON WARRANTY AND ON FINES AND RECOVERIES. The object of the St. De Donis was to prevent the alienation of entailed estates. The history of the mode in which this object was defeated is curious. (1) It was held that if any one whose heir a tenant in tail was had warranted the estate to a stranger, such tenant was barred if assets had descended on him from the warrantor; and where the warranty had been given by one from whom the estate tail could not possibly have descended, as a younger brother, the tenant in tail was barred without assets. Warranty of this latter sort was called collateral warranty. See Rawle, Cov., §§ 8-10; Digby, Hist. R. P. (4th ed.) 249. (2) The courts allowed a collusive suit to be brought by the one to whom a tenant in tail wished to convey the land; and a judgment in this suit, which was called a common recovery, barred not only the issue in tail, but also all reversioners and remainder-men, except the Crown. The validity of common recoveries to disentail land seems to have been first judicially recognized in Tultarum's Case, Y. B. 12 Edw. IV. 19 (1473). See Digby, 251; Williams, R. P. (18th ed.) 93 et seq. (3) The Sts. of 4 Hen. VII. (1490) c. 24, and 32 Hen. VIII. (1540) c. 36, gave the same general effect to fines, which were another and very ancient species of collusive suit, as had been given to common recoveries. A fine levied with proclamations, in accordance with the provisions of those statutes, bound immediately all persons claiming under the cognizor, as the person levying the fine was called, and bound, unless claim was made within five years, all other persons except the Crown. Simpler methods of docking entails have been adopted in recent times. 3 & 4 W. IV. c. 74; Williams, 100. In most of the United States, estates tail have been either (a) abolished and turned into fees-simple; or (b) made a life-estate in the first donee with a remainder in fee-simple to the person to whom the estate would pass at common law on the death of the first donee; or (c) allowed to be good until docked by a conveyance in fee by a simple deed. See Stimson, Am. Stat. Law, § 1313.

NOTE. For a fuller account of the operation of fines and recoveries, see 2 Bl. Com. 348 et seq.; and for the form of proceeding, see 2 Bl. Com., Appendix.