words (), as the statute of Quia Emptores), which enacted (m) that it should be lawful for every freeman to sell at his own pleasure his lands and tenements, or part of them, but so that the feoffee should hold the same of the chief lord of the same fee by such services and customs as his feoffor held before, and (n) that if he sold any part of such lands and tenements to any, the feoffee should immediately hold it of the chief lord, and should be forthwith charged with the services, for so much as pertained or ought to pertain to the same chief lord, for the same parcel, according to the quantity of the land or tenement so sold. The alienation of a fee which had been granted to a man and his heirs, or to him, his heirs, and assigns, was thus established, and involved the right to transfer an estate granted to the feoffor for life only, which, when it came into the hands of another person, was called an estate pur autre vie, one, that is, held for the lifetime of another. But during the period of time necessary to bring about these changes there had grown up another kind of fee, to which different rules applied, and which now claims our consideration.

fee tail.

It will be recollected that the earlier fees descended Origin of the only to a man's issue, and that the word " "heirs denoted only persons answering to that description. It is probable that fees limited to the feoffee's issue were the only kind known at the time of the Conquest, since fees only began to be introduced into Europe about the year 1000 (o). It was immaterial, therefore, at that time, whether a grant were made to a man and "his heirs," or to him and "the heirs of his body." But when the word "heirs" came to mean a great many people besides the feoffee's issue, there arose a marked difference between the two forms of

(1) All the older statutes were in legal Latin.
(m) C. 1.

(n) C. 2.

(0) Somner on Gavelkind, 102.

Conditional
Fees.

Statute De
Donis.

grant. For although the new construction put upon the word "heirs," by taking away to a great extent the lord's chances of escheat, rendered him indifferent to the alienation of a fee granted to a man and his heirs, it was far otherwise when the fee had been given to a man and the heirs of his body, since these words did not admit of any larger interpretation, and consequently the lord's chances of escheat were still of considerable value. Hence although when fees began to be alienated, those granted in such a manner became capable of transfer, a certain amount of restriction was imposed with regard to them. For the courts held that such a fee only conferred an alienable interest provided that the grantee had issue born to him; and that until that event happened, he could not part with his fee. Such fees acquired, in consequence, the name of Conditional Fees, as being conferred on condition that the feoffee had issue, failing which they reverted to the lord. This view of the case did not, however, by any means please the lords, who saw their chances of escheat thus seriously diminished. Therefore, in the reign of Edward the First, shortly before the passing of the statute of Quia Emptores, another Act (p) was passed, known as the Statute De Donis Conditionalibus, which, first reciting that in cases of lands given upon condition, after issue begotten and born between them unto whom they were given upon such condition, heretofore such feoffees had power to aliene the land so given and to disinherit their issue of their land, contrary to the minds of the givers, and contrary to the form expressed in the gift, enacted that thenceforth the will of the donor should be observed according to the words expressed in the deed of gift, and that lands or tenements given to a man and the heirs of his body or the like should go to his issue, if any, or, if there were no such issue, should revert to the donor and his heirs. Such an estate in consequence

(p) 13 Ed. I. st. I.

Fee now called a Fee Tail.

Other fees

called Fees Simple.

lost its name of a Conditional Fee, and acquired that of Conditional Fee Tail (q), since it was cut down, or mutilated, by the exclusion of the heirs general, and was to last only so long as there remained heirs of the body of him on whom it was bestowed. At the same time a fee granted to a man and his heirs became known as a Fee Simple. Fees Tail remained inalienable for about two hundred years after the statute De Donis, after which time they became, as we shall see hereafter, capable of being turned into Fees Simple, and therefore subject to alienation.

It will be observed that we have hitherto spoken Alienation of only of the alienation of an estate during its owner's Land by Will. lifetime, alienation by will not having been established until comparatively recent times. One reason for this was that the feudal system only permitted land to be transferred by public delivery of the immediate ownership of it, a rule evidently inconsistent with a transfer by will. To a certain extent this difficulty was overcome by making a feoffment and livery of seisin to a person who was, after the death of the feoffor, to hold it for the benefit of such persons as the feoffor desired; and this transaction would be upheld by the Court of Chancery. But the right of alienation by will was not recognised by the Common Law or by statute until the time of Henry the Eighth. In the reign of that king an Act (r) was passed which enacted that all and every person having, or who thereafter should have, any manors, lands, tenements, or hereditaments holden in Socage, or of the nature of Socage tenure, should have full and free liberty, power, and authority, to give, dispose, will, and devise as well, by his last will and testament in writing, or otherwise by any act or acts lawfully executed in his lifetime, all his said manors, lands, tenements, and hereditaments, at his free will and pleasure; and when by the

(q) French taillé.

(r) 32 Hen. VIII. c. I.¡

Estates for
Years.

Act of Charles the Second previously mentioned (s), the greater part of the land in this country became held by Socage, the power of alienation by will became of great value. It did not, however, until recent times, enable a person to dispose of real property other than that which he had at the time of making his will. But by the present Wills Act (t) it is enacted (u) that the power of disposition by will shall extend to all real estate to which the testator may be entitled at the time of his death, notwithstanding that he may become entitled to the same subsequently to the execution of his will. The earlier Wills Act did not, moreover, extend to copyholds; but we shall see, when we come to the chapter specially devoted to estates in land of this tenure, that they also can now be disposed of both during lifetime and by will.

It remains to add a few words on the subject of Estates for Years. The Feudal System, as we have seen, dealt only with tenure by Military Service: it despised all others. In time, however, there grew up a system of allowing persons of inferior degree to cultivate lands belonging to the lords on condition of accounting for the produce, out of which they received a certain allowance for themselves. They were thus little more than bailiffs, removable at their lords' pleasure. In time, however, the custom of letting lands became general, and such a tendency ceased to imply a necessary superiority on the part of the person who let the land (or "lessor ") over the person to whom it was let (or "lessee "). The lessees consequently arrived at a more independent position, paying a fixed rent for their lands, and, provided they did this, and also complied with any other conditions on which they held, were entitled to undisturbed possession during their term.

(8) 12 Car. II. c. 24.

(t) 7 Wm. IV. & 1 Vict. c. 26.
(u) S. 3.

At first, however, they had this right as against their landlord only. For although a lessee, who had been wrongfully turned out of his holding by his lessor, was, after a time, permitted to bring an action of ejectment against him, and thus recover the land, besides obtaining damages for the wrong done, the case was different if the lessee had been turned out by some other person claiming by a title paramount to that of the lessor. For then the lessee could indeed bring an action against his lessor for not securing him undisturbed possession of the land, but could not recover the land itself. This was made a means of defrauding the tenant, for a lessor who wished to put an end to a lease would get some friendly plaintiff to bring a preconcerted action against him for the land, which he would take care not to defend; judgment would accordingly be given against him, and the plaintiff could then proceed to eject the lessee. An Act, known as the Statute of Gloucester (v), was passed in the reign of Edward the First, with a view to put a stop to this practice, but with little effect; and the lessee still remained liable to be ejected by the process above mentioned, until the passing of the 21 Hen. VIII., c. 15, which enacted that lessees, whether holding by a parol or written lease, or by one by deed, might prove that the action was fictitious, and that in that case the lessees should, notwithstanding such actions, hold their terms according to their leases. But a lease was never recognised by the law as of equal dignity with estates for life or in fee; it is still, therefore, only personal estate, and the feudal seisin remains in the person who has the first estate Estate for for life or in fee, after the term comes to an end; and Years is not who is therefore distinguished as the freeholder, since it is he, and not the lessee, who holds from the lord Always alienparamount. One advantage indeed formerly gained by the low estimation in which terms of years are

(v) 6 Ed. I. c. II.

freehold.

able.