CHAPTER VI. ESTATES IN FEE SIMPLE. An estate in fee simple (feudum simplex) is the greatest Fee simple. interest in land known to the law; being an estate of inheritance that is capable of descending not only to heirs of the body of the tenant, but also to his heirs generally, whether lineal in the ascending or descending line, or collateral, male or female, proximate or remote (1). It absolutely exhausts the whole possible interest which any one can have, by way of estate, in the lands so as to leave no residue subsisting in any one else. The lord is the only person with whom the tenant as such has any connection, and the only connection between them is the tenure (2). An estate in fee simple may be acquired either by some form How of assurance, e.g. a deed of grant, or a will, or by operation of created. law, as by descent on intestacy (see post, p. 650). A person who acquires an estate, otherwise than by title of descent, and other (1) The idea of a fee simple is well and quaintly expressed in the old lines quoted by Lord St. Leonards (Handy Book on Real Property Law, p. 128, 8th ed.) : "A tenant in fee simple is he That need fear neither wind nor weather; For I'd have you to know and to see, 'Tis to him and his heirs for ever!" An estate of fee simple, said Lord Coke, in Seymour's Case, is either an estate of inheritance absolute and indeterminable, as where lands are given to a man and his heirs, when he has a pure and absolute estate; or a fee simple determinable. A fee simple of the latter class, i.e. a fee simple "limited and qualified," is determinable on the happening of some event, as, for instance, if an Another instance of a qualified (2) Goodeve's Real Property, p. 84; Challis' Real Property, p. 29. Convey 1881. 66 means specified in the Act to amend the law of inheritance (1), is called a purchaser," and from him descent is traced in case of intestacy (post, p. 51). In the case of a grant by deed of the fee simple, it was, generally speaking, essential that the land should be limited to the grantee and his heirs. To this rule, however, there were some exceptions, of which the most important is with regard to grants to corporations. In a gift to a corporation sole, e.g. a bishop, parson, &c., the word "successors is necessary to pass the fee, while in a gift to a corporation aggregate the same word though the proper word of "limitation" is not usually essential (2). In practice, the estate has usually been limited to the grantee, "his heirs and assigns"; or to the grantee, "his heirs and assigns for ever;" but the word "heirs" alone was always sufficient for the purpose, for the word "assigns," as pointed out by Sir George Jessel, is not a word of limitation, and only means that the man takes an assignable interest (3). The Conveyancing Act of 1881 (4), however, now provides with regard to deeds executed after the commencement of the Act (1st January, 1882) that in a deed it shall be sufficient in the limitation of an estate in fee simple to use the words "in fee simple" without the word "heirs." It has however been pointed out in a recent case where the ancing Act, subject was considered, that the Conveyancing Act stops very far short of enacting that an intention deduced from the context or the actual limitation itself, shall be sufficient to pass by deed an estate of inheritance without technical words, and that it is confined to the popular expressions "fee simple," "in tail," and "in tail male or female." "This section of the Conveyancing Act applies to all future deeds of conveyance, whether of legal or equitable estates; but, except when those specified words are used, it leaves the law unaltered" (5). The celebrated rule in Shelley's Case, which we have already stated in connection with the subject of estates tail, should here again be noticed. It is that whenever an estate of freehold is given to a person, and by the same conveyance or will an ulterior estate (whether mediately or immediately) is limited (1) These other means are escheat (post, p. 55), partition (post, pp. 62, 555), and inclosure: 3 & 4 W. 4, c. 106, interp. clause. (2) See Elphinstore's Interpretation of Deeds, p. 225, et seq.; Tudor's Real Property Cases, 3rd ed. p. 717, et seq. (3) Osborne to Rowlett, 13 Ch. D. 774; and see as to words creating a fee simple, Olivant v. Wright, 9 Ch. D. 646. (*) 44 & 45 Vict. c. 41, s. 51. (5) Meyler v. Meyler, L. R. 11 Ir. 523. to the heirs of the same person in fee, e.g. an estate to A. for life, then to B. for life, then to the heirs of A., the word "heirs" is regarded, as it is technically phrased, as a word of limitation and not of purchase, and A. takes an estate in fee simple (1). In a will the use of the word "heirs " has never been essential to pass an estate in fee simple; any other words indicating an intention to devise the fee simple being sufficient for the purpose. And the Wills Act (2) now provides that a devise without any words of limitation shall be construed to pass the fee simple, or other the whole estate or interest which the testator had power to dispose of by will, unless a contrary intention shall appear by the will. It is pointed out, however, by Mr. Jarman (3) that this rule does not apply to interests created de novo. Thus where a rentcharge (post, p. 199) was devised to a man without further words he only took a life estate. Prior to the Statute next referred to, a tenant in fee simple might grant his land, or part of it, by a process called subinfeudation to be held of him as lord, and there might thus be a number of intermediate lords, who were called mesne lords, between the actual owner of the land and the king. The right of free alienation was recognised, and the practice of Quia subinfeudation forbidden by the famous statute of Quia emptores, emptores. passed more than six centuries ago, which struck the first great blow at the feudal system. That Act provided That from henceforth it should be "lawful to every freeman to sell at his own pleasure his lands and tenements, or part thereof, so nevertheless that the feoffee (or purchaser) should hold the same lands or tenements of the same chief lord of the fee, and by the same services and customs as his feoffor held them before," and further enacted that if part be so sold, that part should be held immediately of the chief lord, and should be charged with a proportionate part of the services due to the lord (4). The effect of this enactment is, that on the transfer of an estate in fee simple the transferee holds directly from the king or other lord of whom the transferor previously held. One main result was to put an end to the creation of manors; for the lordship, or seignory, as it is called, i.e. the having tenants (1) See White v. Hindle, 7 Ch. D. 201. (2) 1 Vict. c. 26, s. 28; and see Jarman on Wills, 4th ed. vol. ii. 268, et seq. for cases under the old law. (3) 3rd ed. vol. ii., p. 287, and see Reay v. Rawlinson, 29 Beav. 88, where it was decided that the fee "in grass for a cow" did not pass. (*) 18 Edw. 1, c. 1. Debts. Charges. in fee simple, is an essential incident of a manor. The tenancies in fee simple, however, existing at the date of the passing of the Act were left unaffected by its provisions (1). A tenant in fee simple may commit waste of any kind, and may use the land in such manner as he pleases, subject only to the restriction that he may not use it in such manner as to infringe upon the rights of others—a rule expressed by the maxim, "Sic utere tuo ut alienum non lædas,' 99.66 enjoy your own property in such a manner as not to injure that of another person" (post, p. 447). An estate in fee simple is liable for debts of all kinds incurred by its owner. In the event of his bankruptcy, it passes to the trustee for the creditors, appointed in the bankruptcy (2). It is liable to be taken in execution under a writ of elegit and sold for judgment debts (3). As regards the liability of the land for the debts of the owner in fee simple after his decease, there was under the old law no remedy independent of statute, either direct or indirect, against the land in respect of such debts (other than judgment and Crown debts) except where the debt was due by contract under seal wherein the heirs of the debtor were expressly bound. A most important alteration was made in the law on this subject by a statute passed in the year 1833 (3 & 4 Will. 4, c. 104) (4) under which all estates in fee simple which the owner should not by his will have charged with, or devised subject to, the payment of his debts, were made liable to be administered by the Court for the payment of all his debts, as well those due on simple contract, as those due by contract under seal. Thus the simple contract creditor was for the first time given a remedy against the real estate of the deceased debtor independently of the will of his debtor. The Act, however, gave to creditors by contract under seal a priority in payment over simple contract creditors, where the remedy of the latter was under the Act; but this priority was abolished by a statute of the year 1869 (32 & 33 Vict. c. 46) as regards the estates of persons dying on or after the 1st January, 1870 (post, p. 548). When the owner of an estate in fee or in tail pays off a charge, the presumption is that he intended that the charge should "merge," as it is technically phrased, in the inheritance and so be destroyed. The person paying off the charge can, (1) Williams's 16th edit. p. 365. Real Property, (2) Bankruptcy Act, 1883, s. 44. (*) See as to old law on this sub ject: 3 & 4 W. & M. c. 4 (Fraudulent Devises): 47 Geo. 3, c. 74 (Sir Samuel Romilly's Act); repealed, but to a great extent re-enacted by 1 Wm. 4, c. 47; Shelford's Real Property Statutes, and see notes 8th edit. however, by expressly declaring his intention, keep it alive. "If there is no reason for keeping it alive, then, in the absence of any declaration of his intention, equity will destroy it; but if there is any reason for keeping it alive, such as the existence of another incumbrance, equity will not destroy it" (1). It is a cardinal principle of English law that a man shall not Restraint take away with one hand what he gives with the other; and on alienatherefore a condition in absolute restraint of alienation attached to a grant or devise in fee is void as being repugnant to the nature of an estate in fee. In a case decided near the close of last century it was treated as long-established law that a condition that a tenant in fee should not alien was inconsistent and repugnant to the grant, and therefore void (2). The law on this subject was very carefully reviewed in a recent case. A testator devised an estate to his son in fee. The will next contained a proviso that if the son, his heirs, or devisees, or any persons claiming through or under him or them, should desire to sell the estate, or any part or parts thereof, in the lifetime of the testator's wife, she should have the option to purchase the same at the price of £3000 for the whole, and at a proportionate price for any part or parts thereof, and that the property should accordingly be first offered to her at such price or proportionate price or prices. The real selling value of the estate was, at the date of the will and at the time of the testator's death £15,000. The Court decided that the proviso amounted to an absolute restraint on alienation during the life of the testator's widow; that it was consequently void in law; and that the son was entitled to sell the estate as he pleased, without first offering it to the widow at the price named in the will (3). A similar point arose in another recently decided case. By an instrument in the form of a settlement, but proved as a will, real and personal property had been given to trustees upon trust for the sole use and benefit of the settlor's son to "his heir, executors, and administrators," to be assigned and trans (1) Adams v. Angell, 5 Ch. D. 634. (2) Bradley v. Peixoto, 3 Ves. 324, and see notes in Tudor's Real Property Cases, 3rd ed., p. 968, et seq. (3) In re Rosher. Rosher v. Rosher, 26 Ch. D. 801, where the cases on the subject are collected and reviewed. The liability of the estate to be attached by creditors on a bankruptcy or judgment is an incident of the tion. |