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DETERMINABLE AND BASE FEES. "Intendments should be guided by the rules of the law, and not by idle conceits, and to prove this further, 13 Hen. VII., 11 Hen. VII., 21 Hen. VI. fo. 37, it is held, and the law seems plain, that if land be given to one and his heirs so long as J. S. has heirs of his body, the donee has a fee and may alien it notwithstanding there be a condition that he shall not alien; and 11 lib. Assize, p. 8, a like case is put and held as above: and there if land be given to one and his heirs so long as J. S. or his heirs may enjoy the Manor of D., those words (so long) are utterly vain and idle, and do not abridge the estate . . . and yet it is to be admitted that one may have an estate in fee determinable, but never by the act and consent of the parties without any entry for condition broken or title defeasible; and to show briefly how this will be is now convenient, and it will be if the lord of a villein being tenant in tail enters on the land, &c., he and his heirs will enjoy the land so long as the villein has issue, and then his estate determines; so he who recovers rent against a tenant in tail, 'que ill teign in tail' [out of what he holds in tail?]; or [suppose] that tenant in tail of land be attainted of treason, the king will have a fee of the land entailed determinable on death without issue, and has no greater estate; but these estates last mentioned are not made by the first creation of the estates but by matter coming afterwards by other means." Per ANDERSON, C. J., in Christopher Corbet's Case, 2 And. 134, 138, 139.

"Before the statute of Quia emptores (18 Edw. 1) an estate might have been granted to A. B. and his heirs, so long as C. D. and his issue should live, or so long as C. D. and his heirs should be tenants of the manor of Dale; and upon C. D.'s ceasing to have issue, or to be tenant of the manor of Dale, the estate reverted to the donor, not as a condition broken, of which the donor, or his heir, might take advantage by entry, but as a principle of tenure, in the nature of an escheat upon the death of a tenant in fee-simple without heirs general. But the statute of Quia emptores destroys the immediate tenure between the donor and donee, in cases where the fee is granted; and consequently there can now be no reverter, or any estate or possibility of a reversion remaining in the donor after an estate in fee granted by him. This conclusion directly follows from the doctrine of tenures, and the effect of the statute of Quia emptores upon that doctrine. The proposition does not require the aid of decided cases; but the passage in 2 And. 138, contains an accurate exposition of the law upon this subject: 'If land be given to A. and his heirs, so long as J. S. has heirs of his body, the donee has fee, and may alien it. 13 Hen. 7; 11 Hen. 7; 21 Hen. 6, fol. 37; and says the law seems to be plain in it; and cites 11 Ass. 8, where the s. c. is put and held as before; and that there if the land be given to one and his heirs, so long as J. S. and his heirs shall enjoy the manor of D., those words (so long) are entirely void and idle, and do not abridge the estate.'

"The references in this passage (with the exception of the 11 Ass 8) are not in the report correctly stated; but they are discovered in 13 Hen. 7, Easter Term, fol. 24; 11 Hen. 7, pl. 25; 21 Hen. 6, Hil. pl. 21. It will be proper to refer to the case first mentioned; premising, that, by the common law, where an absolute estate in fee simple was granted, no restraint could be placed on the alienation of it; inasmuch as such restraint would be repugnant to the grant itself. Upon a question in the case referred to, whether a condition restraining alienation upon the grant of an estate tail since the statute De donis was valid, Vavisour thought it valid; but added, that he agreed that such condition imposed on a feoffee in fee simple, so long as J. S. has issue, was void." 1 Sand. Uses (5th ed ) 208–210. See Gray, Perpetuities, §§ 31-41. "A fine by barring the issue in tail only, and not the estates subsequently limited, conveyed what was called a base fee, an estate of the quality of a fee simple and descendible to the heirs general of the grantee, but determinable by failure of the issue in tail, upon which event the subsequent limitations took effect." Leake, 40. And see Challis, R. P. (2d ed.) 297 et seq.

SECTION III.

ESTATES FOR LIFE.

LIT. §§ 32, 33, 34, 35. Tenant in fee tail after possibility of issue extinct is, where tenements are given to a man and to his wife in especial tail, if one of them die without issue, the survivor is tenant in tail after possibility of issue extinct. And if they have issue, and the one die, albeit that during the life of the issue, the survivor shall not be said tenant in tail after possibility of issue extinct; yet if the issue die without issue, so as there be not any issue alive which may inherit by force of the tail, then the surviving party of the donees is tenant in tail after possibility of issue extinct.

Also, if tenements be given to a man and to his heirs which he shall beget on the body of his wife, in this case the wife hath nothing in the tenements, and the husband is seised as donee in especial tail. And in this case, if the wife die without issue of her body begotten by her husband, then the husband is tenant in tail after possibility of issue extinct.

And note, that none can be tenant in tail after possibility of issue extinct, but one of the donees, or the donee in especial tail. For the donee in general tail cannot be said to be tenant in tail after possibility of issue extinct; because always during his life, he may by possibility have issue which may inherit by force of the same entail. And so in the same manner the issue, which is heir to the donees in especial tail, cannot be tenant in tail after possibility of issue extinct, for the reason abovesaid.

And note, that tenant in tail after possibility of issue extinct shall not be punished of waste, for the inheritance that once was in him, 10 H. 6, 1. But he in the reversion may enter if he alien in fee, 45 E. 3, 22.

Tenant by the curtesy of England is, where a man taketh a wife seised in fee simple or in fee tail general, or seised as heir in tail especial, and hath issue by the same wife male or female born alive, albeit after the issue dieth or liveth, yet if the wife dies, the husband shall hold the land during his life by the law of England. And he is called tenant by the curtesy of England, because this is used in no other realm but in England only.

And some have said, that he shall not be tenant by the curtesy unless the child, which he hath by his wife, be heard cry; for by the cry it is proved, that the child was born alive. Therefore Quare.

Co. LIT. 29 b. If lands be given to a woman and to the heirs males of her body, she taketh a husband, and hath issue a daughter, and dieth, he shall not be tenant by the curtesy; because the daughter by no possibility could inherit the mother's estate in the land; and there

fore where Littleton saith, issue by his wife male or female, it is to be understood, which by possibility may inherit as heir to her mother of such estate.

Co. LIT. 30 a. Four things do belong to an estate of tenancy by the curtesy, viz. marriage, seisin of the wife, issue, and death of the wife. But it is not requisite that these should concur together all at one time. And therefore, if a man taketh a woman seised of lands in fee, and is disseised, and then have issue, and the wife die, he shall enter and hold by the curtesy. So if he hath issue which dieth before the descent, as is aforesaid.

LIT. § 36. Tenant in dower is, where a man is seised of certain lands or tenements in fee simple, fee tail general, or as heir in special tail, and taketh a wife, and dieth, the wife after the decease of her husband shall be endowed of the third part of such lands and tenements as were her husband's at any time during the coverture, to have and to hold to the same wife in severalty by metes and bounds for term of her life, whether she hath issue by her husband or no, and of what age soever the wife be, so as she be past the age of nine years at the time of the death of her husband [for she must be above nine years old at the time of the decease of her husband], otherwise she shall not be endowed.

LIT. § 53. And also, in every case where a woman taketh a husband seised of such an estate in tenements, &c., so as by possibility it may happen that the wife may have issue by her husband, and that the same issue may by possibility inherit the same tenements of such an estate as the husband hath, as heir to the husband, of such tenements she shall have her dower, and otherwise not. For if tenements be given to a man, and to the heirs which he shall beget of the body of his wife, in this case the wife hath nothing in the tenements, and the husband hath an estate but as donee in special tail. Yet if the husband die without issue, the same wife shall be endowed of the same tenements; because the issue, which she by possibility might have had by the same husband, might have inherited the same tenements. But if the wife dieth, living her husband, and after the husband takes another wife, and dieth, his second wife shall not be endowed in this case, for the reason aforesaid.

LIT. § 56. Tenant for term of life is, where a man letteth lands or tenements to another for term of the life of the lessee, or for term of the life of another man. In this case the lessee is tenant for term of life. But by common speech he which holdeth for term of his own life, is called tenant for term of his life, and he which holdeth for term of another's life, is called tenant for term of another man's life (tenant pur terme d'auter vie).1

LIT. § 57. And it is to be understood, that there is feoffor and feoffee, donor and donee, lessor and lessee. Feoffor is properly where a man enfeoffs another in any lands or tenements in fee simple, he which maketh the feoffment is called the feoffor, and he to whom the feoff.

1 See Williams, R. P. (18th ed.) 131.

ment is made is called the feoffee. And the donor is properly where a man giveth certain lands or tenements to another in tail, he which maketh the gift is called the donor, and he to whom the gift is made is called the donee. And the lessor is properly where a man letteth to another lands or tenements for term of life, or for term of years, or to hold at will, he which maketh the lease is called lessor, and he to whom the lease is made is called lessee. And every one which hath an estate in any lands or tenements for term of his own or another man's life, is called tenant of freehold, and none other of a lesser estate can have a freehold but they of a greater estate have a freehold; for he in fee simple hath a freehold, and tenant in tail hath a freehold, &c.

SECTION IV.

ESTATES LESS THAN FREEHOLD.

LIT. § 58. Tenant for term of years is where a man letteth lands or tenements to another for term of certain years, after the number of years that is accorded between the lessor and the lessee. And when the lessee entereth by force of the lease, then is he tenant for term of years; and if the lessor in such case reserve to him a yearly rent upon such lease, he may choose for to distrain for the rent in the tenements letten, or else he may have an action of debt for the arrearages against the lessee.

Co. LIT. 46 b. And true it is, that to many purposes he is not tenant for years until he enter: as a release made to him is not good to Lim to increase his estate, before entry; but he may release the rent reserved before entry, in respect of the privity. Neither can the lessor grant away the reversion by the name of reversion, before entry. But the lessee before entry hath an interest, interesse termini, grantable to another. And albeit the lessor die before the lessee enters, yet the lessee may enter into the lands, as our author himself holdeth in this chapter. And so if the lessee dieth before he entered, yet his executors or administrators may enter, because he presently by the lease hath an interest in him and if it be made to two, and one die before entry, his interest shall survive.

LIT. § 68. Tenant at will is, where lands or tenements are let by one man to another, to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called tenant at will, because he hath no certain nor sure estate, for the lessor may put him out at what time it pleaseth him.

Co. LIT. 57 b. There is a great diversity between a tenant at will and a tenant at sufferance; for tenant at will is always by right, and tenant at sufferance entereth by a lawful lease, and holdeth over

by wrong. A tenant at sufferance is he that at the first came in by lawful demise, and after his estate ended continueth in possession and wrongfully holdeth over. As tenant pur terme d'auter vie continueth in possession after the decease of Ce' que vie, or tenant for years holdeth over his term; the lessor cannot have an action of trespass before entry.

SECTION V.

JOINT OWNERSHIP.

1

Parceners. LIT. §§ 241, 242, 254, 265, 277, 280-282, 287, 291, 292, 294, 309, 319, 321. Parceners are of two sorts, to wit; parceners according to the course of the common law, and parceners according to the custom. Parceners after the course of the common law are, where a man, or woman, seised of certain lands or tenements in fee simple or in tail, hath no issue but daughters, and dieth, and the tenements descend to the issues, and the daughters enter into the lands or tenements so descended to them, then they are called parceners, and be but one heir to their ancestor. And they are called parceners; because by the writ, which is called breve de participatione facienda, the law will constrain them, that partition shall be made among them. And if there be two daughters to whom the land descendeth, then they be called two parceners; and if there be three daughters, they be called three parceners; and four daughters, four parceners; and so forth.

Also, if a man seized of tenements in fee simple or in fee tail dieth without issue of his body begotten, and the tenements descend to his sisters, they are parceners, as is aforesaid. And in the same manner, where he hath no sisters, but the lands descend to his aunts, they are parceners, &c. But if a man hath but one daughter, she shall not be called parcener, but she is called daughter and heir, &c.

And note, that none are called parceners by the common law, but females or the heirs of females, which come to lands or tenements by descent; for if sisters purchase lands or tenements, of this they are called jointenants, and not parceners.

Parceners by the custom are, where a man seised in fee simple, or in fee tail of lands or tenements which are of the tenure called gavel kind within the county of Kent, and hath issue divers sons and die, such lands or tenements shall descend to all the sons by the custom, and they shall equally inherit and make partition by the custom, as females shall do, and a writ of partition lieth in this case as between females. But it behooveth in the declaration to make mention of the custom. Also such custom is in other places of England, and also such custom is in North Wales, &c.

1 See 2 Bl. Com. 187 et seq.

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