41. Bodies corporate, whether sole or aggregate, ecclesiastical or lay, may hold those freehold estates that have been transmitted to them by their predeTit. 32. c. 2. cessors. They are however prohibited by several antient and modern laws, usually called the statutes Estates in Wright's of mortmain, from purchasing more lands, without licence from the crown; nor is even such licence, in all cases, sufficient. 42. Estates of freehold are either estates of inheritance, or not of inheritance. The former are again divided into inheritances absolute, or fee simple, and inheritances limited, one species of which is called fee tail. 43. Tenant in fee simple (says Littleton, § 1.) is he which hath lands or tenements to hold to him and his heirs for ever, and it is called in Latin feodum simplex; for feodum is the same that inheritance is, and simplex is as much as to say lawful or pure; and so feodum simplex signifies a lawful or pure inheritance." 44. Littleton has been censured for annexing an improper meaning to the word feodum in this defi nition; and it has been contended that the word feodum signifies land holden of a superior lord, by military or other services. But although this was certainly the original meaning of the word; yet when the feudal law was fully established here, and it was universally acknowledged that all the lands in England were held mediately or immediately of the king; the word feodum, or fee, became generally used to denote the quantity of estate or interest in the land. Thus it appears from Bracton, that the word feodum was often used, at the time when he wrote, in both Bract. 263 b. these senses. Et sciendum quod feodum est id quod quis tenet, ex quacunque causa, sibi et hæredibus suis.-Item dicitur feodum alio modo ejus qui alium feoffat, et quod quis tenet ab alio; ut si sit qui dicat, talis tenet de me tot feoda per servitium militare. And it is evidently for the purpose of denoting the quantity of interest, that the word feodum is used, in pleading an inheritance in the king, viz. Rex seisitus fuit in dominico suo ut de feodo; where the word feodum cannot possibly import an estate holden, the king not holding of any superior lord, but merely denotes an inheritance. Vaugh. 269. 45. An estate in fee simple is the entire and Lit. § 11. absolute property of the land; from which it follows that no person can have a greater estate or interest. And whenever a person grants an estate in fee simple, he cannot make any further disposition of it, because he has already granted the whole interest; consequently nothing remains in him. An estate in fee simple may however be granted on condition; and in devises, and deeds deriving their effect from the statute of uses, an estate in fee simple may be rendered defeasible on the happening of some future event. 46. Tenant in fee simple is the absolute master of all houses and other buildings erected on the land; as also of all wood growing thereon, for trees are considered as parcel of the inheritance, and the law does not favour the severance of them from the freehold, because they would be thereby wasted and destroyed. He is also entitled to all mines of metal, ante, 3. except gold and silver; and to work and dispose of Weston, all minerals and fossils which are under the land. 2 Atk. 19. 47. We have seen that the law requires the free- Abeyance of hold should never, if possible, be in abeyance. But the Fee. where there is a tenant of the freehold, the remainder or reversion in fee may exist for a time without any Lyddall v. particular owner; in which case it is said to be in abeyance. Thus, if an estate be limited to A. for 1 Inst. 342 a. life, remainder to the right heirs of B., the fee simple is in abeyance during the life of B., because it is a maxim of law, that nemo est hæres viventis. 48. The law, however, does not favour the abeyance of the fee simple, for in that case many operations are suspended. The particular tenant, or person in possession of the freehold, is rendered disTit. 3. c. 2. punishable at law for waste; for a writ of waste can only be brought by one entitled to the fee simple. The title, if attacked, could not formerly be completely defended; for there was no person in being whom the tenant of the freehold could pray in aid to support his right: nor could the mere right itself, if subsisting in a stranger, be recovered in this interval; for in a writ of right patent, a tenant for life could not join the mise, on the mere right. In modern times the courts do not favour the abeyance of the fee simple; because it is a restraint on alienation. All other Estates merge in the Fee. 2 P. Wms. 604. 49. All inferior estates and interests in land are derived out of the fee simple; therefore whenever a particular estate, or limited interest in land, vests in the person who has the fee simple of the same land, such particular estate, or limited interest, is immediately drowned or merged in it; upon the principle that omne majus continet in se minus. * 50. Where a sum of money is charged upon a real estate, which estate comes to the person entitled to the money; if in fee, the charge is merged. But where the money is secured by a term, or other legal * There is one exception to this rule as to estates tail, which will be mentioned in Title 2. estate, in a third person, there the charge is not merged. 51. A term of 500 years was vested in trustees Thomas v. Keymish, to secure a daughter's portion, payable at eighteen 2 Vern. 348. or marriage; the fee descended to the daughter, Powell v. Morgan, who afterwards died an infant about eighteen, having Id. 90. made a nuncupative will, and thereby devised all in her power to her mother. It was decreed by Lord Amb. 246. Somers, and affirmed by the House of Lords, that this portion was not merged, but should go to the mother. Chester v. Willes, 52. The law has annexed to every estate and Incidents to a Fee. interest in lands, tenements, and hereditaments, certain peculiar incidents, rights, and privileges, which in general are so inseparably attached to those estates, that they cannot be restrained by any proviso or condition whatever. 53. Of the several incidents inseparably annexed Alienable. to an estate in fee simple, the first is an unlimited power of alienation. Any restriction therefore of this power, annexed to the creation of an estate in fee simple, would be absolutely void. 54. This unlimited power of alienation comprises in itself all inferior powers; so that a tenant in fee simple may create any inferior estate or interest out of his own. Case, Dyer, Therefore a custom that a tenant in Salford's fee simple cannot demise his lands for more than six years, is void; because it is contrary to the freedom of the estate of one who hath a fee simple. to Heirs 55. An estate in fee simple will descend to the Descendible heirs general of the person who was last seised General. thereof, whether male or female, lineal or collateral. Tit. 29.c.3. It is for this reason that the word simple is added to the word fee, importing an absolute inheritance, clear of any condition, limitation, or restriction, to par ticular heirs; in contradistinction to another class of estates of inheritance, which are only descendible to some particular heirs; of which an account will be given in the next title. 56. Estates in fee simple are subject to curtesy and dower, which will be noticed under these respective titles. 57. Estates in fee simple are liable to the payment of all debts contracted by the tenant, for which he has acknowledged any security on record; or has bound himself and his heirs by any deed or instrument under his seal; which latter are called debts by specialty, and his heir is bound to satisfy those debts, as far as the land descended to him from such ancestor will extend; which sufficient lands are called, in law, assets by descent. 58. By the common law, if the heir had aliened the assets, before an action was brought against him for the recovery of a debt due by his ancestor, the creditor was without any remedy. But now by the statute 3 Will. & Mary, c. 14. § 5. it is enacted, "That in all cases where any heir at law shall be liable to pay the debts of his ancestor, in regard to any lands, tenements, or hereditaments descended to him, and shall alien or make over the same, before any action brought or process sued out against him; that such heir at law shall be answerable for such debt or debts, in an action or actions for debt, to the value of the said land so by him sold, aliened, or made over; in which case creditors shall be preferred, as in actions against executors or administrators. And such execution shall be taken out upon any judgement or judgements so obtained against such heir, to the value of the same land, as if the same were his own proper debt or debts: saving that the lands, tene |