13 Rep. R. P. C. 79.

portance, he would give the respondent the option of a case at law, if he felt disposed to carry the matter further." This offer was accepted, and a case directed to be stated for the opinion of the court of King's Bench. The matter, however, on account of of the great expense which would have been incurred, was afterwards abandoned; and thus this important question is left even more at large than it was before.

If the point depended upon the weight of authority, there can be no doubt that it greatly preponderates in favour of the opinion, that in these customary tenements the freehold is in the lord of the manor, and not in the tenant. If, however, the question is to be put not merely on authority but on reason, it will appear that there are good grounds for thinking that the freehold, in some cases at all events, is in the tenant. It would seem from Sir James Graham's communication to the Real Property Commissioners, that, in several manors in the county of Cumberland, "the fines are merely nominal; and that there are no heriots, lords' timber, or disputable timber, and no minerals1." The right to cut timber and work mines implies the absolute property of the soil,they are legal rights incident to the ownership of the freehold and inheritance; and it would be absurd to say, that the freehold is not in him who has the exclusive right of exercising all the powers of ownership. With regard to the effect of the bargain sale and surrender relied upon by Sir John Leach in Willan v. Lancaster, it is difficult to conceive how it can pass the legal estate. It is probable that this deed was originally only the written evidence of an actual surrender, though, by some means or other, in the lapse of time, the surrender in court seems, in the estimation of the parties interested, to have lost its validity, while its force and operation were infused into the written document,-that the substantial part of the assurance had sunk into supposed decrepitude, while that which had been merely matter of form and evidence had usurped its place, and was, at length, considered to be the substantial and material part of the transfer. And then, upon this state of things, the question would arise, could mere custom give to a deed of bargain and sale and surrender the effect of passing the freehold contrary to the common and statute law of the realm? This seems hardly reconcilable with settled principles; and if so, then we are thrown back upon the surrender in court, as being the operative part of the transfer, and the deed remains what it no doubt originally

was, a mere record of the transaction, or at most a sort of imperfect concurrent assurance. And, unless some other explanation can be given of the operation of the deed of bargain and sale and surrender, we seem, in this view of the case, to be compelled to come to the conclusion, that the freehold is in the lord.

Even this would not explain the whole difficulty growing out of the form of the assurance; for, in titles coming under the writer's observation, the transfer has been by deed and admittance only,— there being no surrender to the lord by the tenant. In such cases it is quite clear, that the lands, if they pass at all, must pass by the effect of the deed; and it would follow, therefore, that the freehold must be in the tenant, unless we consider the whole thing to be a blunder, which has never been detected, or led to any inconvenience or question, because no one suspecting that there was any defect in the transfer, no one has ever attempted to disturb its supposed operation. The more we reflect upon this subject, the more difficult shall we find it to conceive, that the bargain and sale can have the effect ascribed to it. For, take the case either way: if the freehold be in the tenant, it could not be transferred except by a bargain and sale enrolled;-if the freehold be in the lord of the manor, it is equally clear that it cannot pass by any deed executed merely by the tenant.

Finally, it may be suggested, that the true criterion to determine the nature of the customary tenant's estate, that is to say, whether he, or the lord of the manor, be the freeholder, is to be found in the nature of the ownership exercised by the tenant over his customary tenement. If he be dispunishable of waste, and have the exclusive right to open and work mines and fell timber, as he has in this case the whole enjoyment of the land and its profits, the absolute property of the soil must be considered as belonging to him-in other words, he is the freeholder; if, on the other hand, the exclusive right to exercise these acts of ownership be in the lord of the manor, the freehold must be in him.

CHAPTER VI.

OF ESTATES OF INHERITANCE.

SECT. 1.-OF ESTATES IN FEE-SIMPLE.

SECT. 2.-OF ESTATES TAIL.

SECT. 3.-EFFECT OF THE ALIENATION OF ESTATES TAIL

BY BARGAIN AND SALE, &c.

SECT. 4.-ALIENATION OF ESTATES TAIL BY FINE.

SECT. 5.-ALIENATION OF ESTATES TAIL BY COMMON

RECOVERY.

SECT. 6.-OF THE DISPOSITION OF ESTATES TAIL UNDER THE DISENTAILING ACT.

SECT. 7.-OF CURTESY.

SECT. 8. Of dower.

THE Owner of an estate in land may be entitled to it in perpetuity, that is to say, to him and his heirs for ever; or he may be entitled to it only for the period of his own life, or of the life or lives of other persons; or he may be entitled to it only for a term of years; or, finally, may be in possession of the lands simply as a tenant at will, or by sufferance. According as the right of ownership is for one or other of these periods, the legal incidents and liabilities of the estate will vary. An estate for life, or any greater estate, is called an estate of freehold, and is realty: an estate for howyears, ever long the term, is less than the lowest estate of freehold, and is mere personalty, and ordinarily designated as a chattel real. In treating, therefore, of the modifications which landed property undergoes, according to the greater or less estate of the owner, the subject will naturally distribute itself into four divisions: namely, estates of inheritance; estates for life; estates for a term of years; and estates at will and by sufferance. Estates of inheritance range themselves under two distinct divisions, namely, estates in fee and estates in fee tail, essentially distinct in their character,

and legal incidents, and as to the means by which they may be transferred.

It

In treating of estates tail it does not seem practicable to discuss the subject satisfactorily without explaining the state of the law as to barring the entail, which leads, of necessity, to an examination of the learning as to fines and recoveries, and, incidentally also, to the means by which estates tail are transferred. will, therefore, be convenient to examine these subjects in the present chapter, although, under the general arrangement of this work, they would appear to belong more properly to the second part, which treats of the modes of acquiring and transferring lands.

Estates by curtesy and dower are estates for life, created by act of law, and have generally the legal incidents of an ordinary life estate, created by deed, will, or other assurance; yet as being incidental to the ownership of estates of inheritance,—and the estate by dower being in an especial manner subject to the jurisdiction of courts of equity, and having, in consequence, many peculiar features,—it is thought, upon the whole, most convenient to treat them under this head.

SECT. 1.-OF ESTATES IN FEE.

Distinction between fee simple, base fee, and fee conditional, 179. -Creation of estates in fee by deed, 180,--by will, 181.Legal incidents of estates in fee, 183.

Distinction between fee simple, base fee, and fee conditional.] -Estates of inheritance at common law were either absolute, qualified, or conditional; and were called respectively estates in fee simple,-fee qualified, frequently called a base fee, and fee conditional. An estate in fee simple was an estate to a man and his heirs general, that is to say, his heirs direct and collateral to the remotest degree, without any qualification or condition whatsoever. Where a qualification was annexed, as if the grant were to A. and his heirs for ever, lords of the manor of Dale; whensoever A. or his heirs ceased to be lord of the manor of Dale, this estate determined, and the grantor, or his heir for the time being, could recover seisin. The most familiar instance of a base fee, and which,

indeed, is the sense in which this description will be chiefly used in the following pages, is that of the estate which the tenant in tail formerly acquired by levying a fine with proclamations, and which may now be acquired by a corresponding assurance under the disentailing act. By this assurance, the tenant in tail barred his issue, but not the remainders or reversions expectant upon the entail, and consequently acquired an estate of inheritance, which would continue so long as there were issue inheritable under the entail, and would be determinable on the failure of such issue; in other words, would be a qualified, or base, fee. Where a condition was annexed, as where the grant was to A. and his heirs, upon condition of doing some specified act, there the fee was said to be conditional.

Creation of estates in fee by deed.]—An estate of inheritance in fee cannot, in a deed, be created without words of inheritance, that is to say, the word "heirs." To create an estate in fee-simple, the limitation must be to the grantee and his heirs, for no other form of words will do. Lord Coke says, "if a man give land to a man and to his heir, he hath but an estate for life; for his heir cannot take a fee simple by descent, because he is but one, and therefore, in that case, his heir shall 'Co. Litt. 8. b. take nothing1." It is said, indeed, by Mr. Hargrave, in his note upon this passage, that, "according to the authorities, 'heir' may be nomen collectivum as well in a deed as a will, and operate, Co. Litt. 8. b. in both cases, in the same manner as the word 'heirs 2." It

n. 4.

Dubber v. Trollope, Amb. 4.53.

42 My. & Cr. 376.

will, however, be found, upon examination, that all the cases referred to arose upon wills, or are otherwise susceptible of explanation. There is no case where the word 'heir' has, in a deed, been held to be equivalent to the word heirs3. Lord Coke says, that where this gift is "to A. and his heir, the heir takes nothing;" but if the gift were to A. for his life, and after his death to his heir, in this case the heir would take an estate for life. Thus, in Chambers v. Taylor4, by deed after marriage, the property in question was settled to the use of the husband for life, with remainder to the use of the wife for life; and after her decease, to the use of the heir female of the bodies of the two, lawfully begotten, and now living, or which may be begotten hereafter; and in default of such issue, to the use of the heir male of the bodies of the two, to be begotten; and in default of such issue, to the use of the right heirs of the husband, who was the settlor. At the time when the deed was executed, the settlor had issue by his