and that a certain number of acres appertain to every of these persons, to be yearly assigned and allotted to them; they have freehold estates in their respective portions of the meadow. 22. It is said in Brooke's Abridgément, that an Tit. Demand, upper chamber in a house is no frank tenement, as pl. 20. it cannot continue; for if the foundation fails, the chamber is gone. But Lord Coke says, a man may 1 Inst. 48 b. have an inheritance in an upper chamber; though the lower buildings, and soil, be in another; and seeing it is an inheritance corporeal, it shall pass by livery. c. 1. n. 1. 23. The possession of a feud was called seisin, Of Seisin. which denoted the completion of the investiture by Dissert. which the tenant was admitted to the feud. Upon the introduction of the feudal law into England, the 1 Inst. 266 b. word seisin was only applied to the possession of an Burr. 107. estate of freehold; in contradistinction to that precarious kind of possession by which tenants in villenage held their lands; which was considered to be 1 Inst. 200 b. the possession of their lords, in whom the freehold continued. Plowd. 503. Where an Entry is necessary. 24. Where a freehold estate is conveyed to a person by feoffment, with livery of seisin; or by any of those conveyances which derive their effect from the statute of uses; he acquires a seisin in deed, and a 1 Inst. 266 b. freehold in deed. But where a freehold estate comes to a person by act of law, as by descent, he only Inst. 245 b. 25. The entry must be made by the person having right, or some one authorized by him. But the mere 1 act of going on the land will not amount to a legal 6 Mod. 44. Plowd. 92, 3. 1 Inst. 15 a. 252 b. 1 Inst. 250 a. entry, sufficient to vest the actual seisin in the person who has the right. In order to constitute a legal entry, the person must enter with that intent, and do some act to shew such intention. 26. The entry of the heir, upon any part of the estate, will give him a seisin in deed of all the lands lying in the same county. For since the freehold in law is cast upon him by the death of his ancestor, and no person is in possession, so that no particular estate is to be defeated, a general entry into part, will be sufficient to reduce the whole into actual possession. But where the lands lie in different counties, there must be an entry in each county. 27. If the heir be deterred from entering by bodily fear, he may make claim, as near the land as he can. Such claim is however only in force for a year and a day; but if it be repeated once in the Lit. § 417,18. space of every year and day, which is called continual claim, it will have the same effect as a legal entry. 1 Inst. 15 a. 521. 7 Term R. 390. 8 Id. 213. Vide Tit. 8. c. 1. 28. The entry of the heir is only necessary where 3 Wils. Rep. the lands are in the actual occupation of the ancestor, at the time of his death. For if the lands are held under a lease for years, and the lessee has entered under the lease, the heir will be considered as having a seisin in deed, before entry or receipt of rent, because the possession of the lessee for years is his possession. Goodtitle Tit. 29. c. 3. 29. The possession of a guardian in socage is also v. Newman, the possession of the ward. So that if a widow, having a son on whom her husband's estate descends, continues in possession, after her husband's death, the law will consider her as guardian in socage to her son; and will therefore admit the son to have. by that means, had a seisin in deed of the land. 30. Where lands are let on leases for lives, the 1 Inst. 15 b, freehold is in the lessees; consequently the heir has no immediate right of entry on the death of his ancestor. He is, however, entitled to the rent reserved in the lease, by the receipt of which he becomes seised of the rent, and also of the reversion expectant on the determination of the lease. Vide Tit. 29. c. 1. 31. The seisin in law, which the heir acquires on Abatement. the death of his ancestor, may be defeated by the Inst. 277 a. entry of a stranger, claiming a right to the land; which entry is called an abatement; and, in such a case, the only mode of regaining the seisin is by an entry of the legal owner, which will restore him to the possession. If the abator dies seised, the lands descend to his heir, and such descent tolls, or takes Lit. § 385. away, the entry of the heir, who is, in that case, driven to his action. 32. Where a younger brother enters upon the Lit. § 396. death of the ancestor, such entry is not an abatement; for it shall be intended that the younger brother did not set up a new title, but only entered to preserve the possessions of the ancestor in the family, that no one else should abate. If the younger son dies in possession, still the elder son may enter; for as the law will not intend the entry of the son to be a wrongful act, therefore his possession becomes that of the elder. younger Gilb. Ten. 28. Vide Tit. 29. c. 1. 33. Where a person is in the actual seisin of an Disseisin. estate of freehold, he may lose that seisin by a stranger's entering on the estate, and forcibly ousting or dispossessing him of it, which is called a disseisin; and is thus defined by Littleton, § 279"Disseisin is, properly, where a man entereth into lands or tenements where his entry is not congeable; and ousteth him which hath the freehold." Lord VOL. L F 1 Burr. R. 110. Abeyance of the Freehold. Coke, in his comment on this passage, observes, that every entry is not a disseisin, unless there be an ouster of the freehold. 34. There is scarcely a subject in the English law so obscure as that of disseisin. The full effect of disseisins must formerly have been, not only a dispossessing of the freeholder, but also a substitution of the disseisor, as tenant to the lord, and as one of the pares curia, in the place of the disseisee. Now, as the consent of the lord was formerly necessary to the admission of a new tenant into the feud, it is difficult to conceive how a complete disseisin could take place without the consent, or connivance, of the lord. 35. Lord Mansfield has therefore justly observed, that "the precise definition of what constituted a disseisin, which made the disseisor the tenant to the demandant's præcipe, though the right owner's entry was not taken away, was once well known, but it is not now to be found. The more we read, unless we are very careful to distinguish, the more we shall be confounded. For after the assise of novel disseisin was introduced, the legislature by many acts of parliament, and the courts of law by liberal constructions, in furtherance of justice, extended this remedy, for the sake of the owner, to every trespass or injury done to his real property, if, by bringing his assise, he thought fit to admit himself disseised." 36. Where there is no person in esse in whom the 1 Inst. 342 b. freehold is vested, it is said to be in abeyance; that is in expectation, remembrance, and contemplation of the law. But it is a principle of the highest antiquity that there should always be a known and particular owner of every freehold estate, so that it should never, if possible, be in abeyance. This rule Dyer, 71 a. was established for two reasons: 1. That the supe rior lord might know on whom he was to call for the military services that were due for the feud; for otherwise the defence of the realm would have been considerably weakened. 2. That every stranger, who claimed a right to any particular lands, might know against whom he ought to bring his præcipe for the recovery of them, as no real action could be brought against any person but the actual freeholder. Hob. 338. 5 Rep. 94 b. 37. In consequence of this doctrine, it is a rule 1 Inst. 217 a. of law, that a freehold estate cannot be created to commence in futuro; because in that case the freehold would be in abeyance from the execution of the conveyance to the moment when the estate created was to commence. 38. One of the few instances in which a freehold Lit. § 647. estate can be in abeyance is where the parson of a church, or other ecclesiastical person, dies: for in that case the glebe, &c. is in abeyance, till a successor is appointed. have Free 39. All natural persons, born within the dominions Who may of the crown of England, are capable of holding hold Estates. freehold estates; unless they are attainted of treason or felony, or have incurred the penalties of a premunire; in those cases they are considered as civilly dead, and therefore incapable of possessing any real property. 40. Aliens, that is, persons born out of the domi- 1 Inst. 2 b. nions of the crown of England, except the children Tit. 29. c. 2. and grandchildren of natural-born subjects, are incapable of holding freehold estates; unless they are naturalized by act of parliament, or made denizens by the king's letters patent. |