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to successive takers; and that his failure to hold the CHAPTER I. tenement according to the conditions, expressly or tacitly imposed, could not but defeat or endanger the enjoyment of all, who claimed in remainder or reversion under the same gift, and whose rights were in truth part and parcel of his visible seisin. It is thus, by the process of simplifying, and not of refining, of reflecting upon real estate as something the reverse of abstract and ideal, that we discover the grounds and reasons of many old rules; rules, obviously inapplicable to a stage of society— a stage, indeed, that we cannot even now be said to have reached-in which rights to immovable property partake of its permanent nature, and, protected alike from violence and from fraud, repose securely on the bosom of the law.

insignificance

of interests less

than freehold.

With respect to interests of a lower grade than for Comparative life, as at will or for a term certain, they were disregarded in the pure feudal scheme. The takers of such inferior, and (even as regards termors (r)) precarious interests, were merely the serfs or husbandry tenants of the freeholder; and when, at length, leases for terms of years became sure and general, such terms, however long, and whether absolute or determinable with life, or otherwise, still continued subservient to the freehold. Though grown, at this day, to be of almost paramount importance, yet they hardly enter into the discussion of the first principles of the common law.

The rules and incidents peculiar to tenure were many and various. It will be sufficient for our present purpose to notice the most important; and these we have in part anticipated. First, then, the lord was entitled to demand certain fruits and services; secondly, certain acts or defaults of the tenant, derogating from the rights of the (r) 9 Mod. R. 102.

of certain rules

and incidents

peculiar to

tenure.

CHAPTER I.

Forfeiture explained,

-as regards

lord and tenant,

-tenant and reversioner,

-tenant and remainder

man.

lord, induced a forfeiture of the tenement; thirdly, the feudal policy required an uninterrupted tenancy of the freehold, forbidding dispositions calculated to produce a vacancy or suspense of the possession, though but for an instant; and, fourthly, it also injoined an open delivery of the possession, on every transfer by the immediate freeholder of his interest to a stranger.

Of these fundamental maxims, instituted for the mutual aid and defence of lord and vassal, that which imposed forfeiture, and that which required a continuing tenancy of the freehold, are material to be considered, with reference especially to reversioner and tenant, who were treated as standing in a relation similar to that of lord and vassal, and were subjected to similar rules. The doctrine of forfeiture was particularly important. Forfeiture was a punishment inflicted upon the tenant who broke his fidelity. The feudal compact charged him with the duty of defending the possession, and of maintaining unimpaired the rights of the lord. If the dependent threw off his dependence, if he asserted a right more extensive than that which his grant imported, or attempted in any manner to pluck the seigniory out of the lord's hands (s), the compact was violated, and the injured lord became entitled to repossess himself of the feud. So, the reversioner was a species of lord. If, therefore, the tenant for life, whose estate he had created, did an act tending to divest or defeat the reversion, the law gave the reversioner an immediate right of re-entry. It likewise armed the remainder-man with a similar remedy for wrongful acts committed by the particular tenant in possession. It is true that tenure could not subsist between the particular tenant and the remainder-man, as such, for, if A.

(8) Wright's Ten. 203.

conveyed to B. for life, with a gift over, on B.'s death, to C. for life or in tail or in fee, the rent and services were due, not from B. to C., the remainder-man, but, if the fee was conveyed, then from B. to the lord, or, if less than the fee was conveyed, then from B. to A., the reversioner (t) nevertheless B. was bound to preserve the possession for C., and an act of forfeiture committed by B. was punishable by the entry of C., whose consecutive right was consequently accelerated; just as, in the previous instance of tenant and reversioner, the forfeiture of the tenant was punishable by the re-entry of the reversioner, whose original dominion was thus restored. Certain assurances by a tenant for life or for years, tending to deprive the reversioner or remainder-man of his rights, occasioned a forfeiture; and it will presently appear that the liability of a tenancy for life, in particular, to such a premature determination, sensibly affected the state of titles.

CHAPTER I.

this state of the

law.

Several important consequences flowed from the doc- The result of trines of tenure, attended, as they were, with a perfect unity of ownership and possession; first, in regard to the enjoyment; secondly, in regard to the modifications. of ownership, or the kinds of estates and interests which might be created; and, thirdly, in regard to the forms of conveyance.

FIRST, as to the enjoyment.-It is obvious that the 1st, As to the tenant could be deprived of his land only by forcible enjoyment. dispossession or false judgment of law, by violence or injustice; or by his own dereliction of duty. In those days, indeed, owing to the disorderly state of society, the imperfect occupation of the land, and other causes, possessions were often exposed to the rude invasion of strangers.

(t) Ante, p. 11.

CHAPTER I.

Hence, the old law-writers are deeply conversant

Disseisins, &c., with disseisins, abatements, intrusions: names for wrongs

why rare in

later times.

2ndly, As to the modifications of ownership.

Invalidity of conveyances of the freehold,

which could rarely be successful in later times, when the right of the true owner was commonly protected by the possession of his lessee for years, or of his tenant from year to year, (who superseded the old tenant at will,) and when the courts lent an unwilling ear to downright usurpation pleading the sanction of obsolete law.

SECONDLY, as to the modifications of ownership.Since the tenancy was not allowed to be vacant or in suspense for an instant, it was essential to the validity of every conveyance of the freehold that it should be made to take immediate effect. Thus, a conveyance of land from A. to B., to be entered upon and enjoyed at with a suspense Christmas next, was void from the beginning, because the freehold could be conveyed by means only of an actual transfer or delivery of the possession; but, in the case proposed, the possession was not intended to be disturbed till a future period, when, if such conveyance had been allowed, it would have passed without any contemporaneous solemnity to notify the change.

of the posses

sion.

-of substitu

the possession vacant for an interval.

On the same principle, it was essential that all substitions which left tutions, or, in other words, designations of persons to take freehold interests in the land on the determination of prior interests, should be so strictly consecutive as not to leave the feud unprovided with a tenant, even for an instant. If, therefore, A. conveyed to B. for life, and, after B.'s death, and the expiration of one year or one day, to C., the substitution of C. was void from the beginning, because it was not so framed as to be capable of taking effect on the instant of the determination of the previous life-interest, but would necessarily have left the possession vacant for a year, or a day, after the death of -of substitu- B. And although a substitution so framed as to be ca

CHAPTER I.

tions to take

effect in event

possession fell

event.

pable of taking effect at the moment in which the possession of the freehold should become vacant by the determination of the previous interest, but only in a given only, where the event, was valid in its creation, yet, if it could not event- before the ually take effect at that very moment, it altogether failed. Thus, if A., being life-tenant, with a gift over, on his death, to his unborn children, forfeited his life estate before the birth of a child, the destination in favour of his children fell to the ground; and so, if A., being life-tenant, with a gift over, on his death, to the unborn children of B., either committed an act of forfeiture, or died, before a child of B. came into existence, no child of B. could possibly take the benefit of the gift. As the tenancy would not endure even a momentary pause, the next successor immediately stepped into the feud, and, agreeably to the principles already explained, the possession, having once vested in him, could not be divested without his solemn act, nor consequently shift to an after-born child. Upon the same principles, too, if the possession once vested in a child or children, born, of course, before the determination of the life-interest, it became absolutely fixed, to the exclusion of a child or children afterwards born.

These substitutions answered to the description already given of a REMAINDER. If the object of a remainder, or, in other words, the person to take under it, was ascertained, it was said to be vested; if unascertained, it was said to be contingent. Thus, when A. conveyed to B. for life, and destined the land, on the determination of B.'s interest, to be enjoyed by C. and his heirs, (instead of reverting or returning, as, in the absence of such a destination, it would have done, to A. the former owner), the remainder to C., a person ascertained, was vested; for of him it might be certainly predicated, that, were the par

[blocks in formation]

Remainders into vested and

distinguished

contingent.

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