the lessees, shall have the tenements to him only during the term by force of the same lease. And if a horse, or any other chattel personal Siver has be given to many, he which surviveth shall have the horse only. all frog and In the same manner it is of debts and duties, &c. for if an obliga-all loss tion be made to many for one debt, he which surviveth shall have the whole debt or duty. And so is it of other covenants and contracts, &c. Also, if there be two jointenants of land in fee simple within a borough where lands and tenements are devisable by testament, and if joint the one of the said two jointenants deviseth that which to him belongeth unant cannot de by his testament, &c. and dieth, this devise is void. And the cause is, vise his for that no devise can take effect till after the death of the devisor, and shares by his death all the land presently cometh by the law to his companion, which surviveth, by the survivor; the which he doth not claim, nor hath any thing in the land by the devisor, but in his own right by the sur vivor according to the course of law, &c. and for this cause such devise Parceners is void. But otherwise it is of parceners seised of tenements devisable however cand. in like case of devise, &c. causa qua supra. Tenants in common are they, which have lands or tenements in fee simple, fee tail, or for term of life, &c. and they have such lands or tenements by several titles, and not by a joint title, and none of them know of this his several, but they ought by the law to occupy these lands or tenements in common, and pro indiviso to take the profits in common. And because they come to such lands or tenements by several titles, and not by one joint title, and their occupation and possession shall be by law between them in common, they are called tenants in common. As if a man infeoff two jointenants in fee, and the one of them alien that which to him belongeth to another in fee, now the alienee and the other jointenant are tenants in common; because they are in such tenements by several titles, for the alienee cometh to the moiety by the feoffment of one of the jointenants, and the other jointenant hath the other moiety by force of the first feoffment made to him and to his companion, &c. And so they are in by several titles, that is to say, by several feoffments, &c. Also, if three jointenants be, and one of them alien that which to him belongeth to another man in fee, in this case the alienee is tenant in common with the other two jointenants: but yet the other two jointenants are seised of the two parts which remain jointly, and of these two parts the survivor between them two holdeth place, &c. Also, if two parceners be, and the one alieneth that to her belongeth to another, then the other parcener and the alienee are tenants in common. Also, as there be tenants in common of lands and tenements, &c. as aforesaid, in the same manner there be of chattels reals and personals. As if a lease be made of certain lands to two men for term of 20 yeares, and when they be of this possessed, the one of the lessees grant that which to him belongeth to another during the term, then he to whom the grant is made and the other shall hold and occupy in common. In the same manner it is of chattels personals. As if two have jointly by gift or by buying a horse or an ox, &c. and the one grant that to him belongs of the same horse or ox to another, the grantee, and the other which did not grant, shall have and possess such chattels personals in common. And in such cases, where divers persons have chattels real or personal in common, and by divers titles, if the one of them dieth, the others which survive shall not have this as survivor, but the executors of him which dieth shall hold and occupy this with them which survive, as their testator did or ought to have done in his lifetime, &c. because that their titles and rights in this were several, &c. NOTE. For statutory changes in the United States, see Stimson, Am. Stat. Law, §§ 1371, 1375. CHAPTER III. SEISIN AND CONVEYANCE. SECTION I. SEISIN. dis seisor LIT. § 448. Freehold in law is, if a man disseiseth another, and dieth Son seised, whereby the tenements descend to his son, albeit that his son geld. doth not enter into the tenements, yet he hath a freehold in law, which by force of the descent is cast upon him, and therefore a release made to him, so being seised of a freehold in law, is good enough; and if he taketh wife being so seised in law, although he never enter in deed, and dieth, his wife shall be endowed. Co. LIT. 266 b. Here Littleton describeth what a freehold in law is, for he had spoke before in many places of freeholds in deed.1 LEAKE, DIGEST OF LAND LAW, 46-48. A feoffment might be made with an express appropriation of the seisin to a series of estates in the form of particular estate and remainders, and the livery to the immediate tenant was then effectual to transfer the seisin to or on behalf of all the tenants in remainder, according to the estates limited. But future estates could only be limited in the form of remainders, and any limitations operating to shift the seisin otherwise than as remainders expect 1 "It may not, perhaps, be improper in this place to attempt a short explanation of some words familiar both in the ancient and modern law. "Seisin is a technical term denoting the completion of that investiture by which the Seisin tenant was admitted into the tenure, and without which no freehold could be constituted or pass. It is a word common as well to the French as to the English law. It is either in deed, which is, when the person has the actual seisin or possession; or in law, when after a discent the person, on whom the lands descend, has not actually entered, and the possession continues vacant, not being usurped by another. When lands of inheritance are carved into different estates, the tenant of the freehold in possession, and the persons in remainder or reversion, are equally in the seisin of the fee. But, in opposition to what may be termed the expectant nature of the seisin of those infectant. remainder or reversion, the tenant in possession is said to have the actual seisin of the dual. lands. The fee is intrusted to him. By any act which amounts to a disaffirmance by him of the title of those in the reversion, he forfeits his estate, and any act of a stranger which disturbs his estate is a disturbance of the whole fee." Hargrave's note, 217. and scrsin' ant upon the determination of the preceding estate were void at common law. Thus, upon a feoffment, with livery of seisin, to A for life or in Seill tail, and upon the determination of his estate to B, the future limitaire tion takes effect as a remainder immediately expectant upon A's estate.1 But upon a feoffment to A in fee or for life, and after one year to B in fee; or to A in fee, and upon his marriage to B in fee; or to A in fee or for life, and upon B paying A a sum of money to B in fee, the limitations shifting the seisin from A to B at the times and in the events specified, as they could not take effect as remainders, were wholly void at common law. Plowden, 29; 1 Hayes Conv. 19-21. Such limitations became possible in dealing with uses and in dispositions by will, as will appear hereafter. But must always the The exigencies of tenure required that the seisin or immediate freehold should never be in abeyance, but that there should at all times be a tenant invested with the seisin ready, on the one hand, to meet the claims of the lord for the duties and services of the tenure, and, on the other hand, to meet adverse claims to the seisin, and to preserve it for the successors in the title. Co. Lit. 342 b; Butler's note, Ib; see 1 Hayes Conv. (5th ed.) 12, 14. This rule had important effects upon the creation of freehold estates; for it followed as an immediate consequence of the rule, as also from the nature of the essential act of conveyance by livery of seisin, that a grant of the freehold could not be made to commence at a future time, no freehold in leaving the tenancy vacant during the interval. "Livery of seisin fulme. must pass a present freehold to some person and cannot give a freehold in futuro.” "If a man makes a lease for life to begin at Michaelmas it is void, for he cannot make present livery to a future estate, and therefore in such case nothing passes." Co. Lit. 217 a; 5 Co. 94 b, Barwick's Case. As a consequence of the same rule if a feoffment were made to A for life and after his death and one day after to B for life or in fee, the limitation to B was void, because it would leave the freehold without a tenant or in abeyance for a day after the death of A.2 The seisin or freehold in remainder might be in abeyance during the continuance of the particular estate; for the present seisin of the tenant of that estate was sufficient to satisfy all the requirements of tenure, and it represented and supported all the future estates and interests in the fee. Accordingly a remainder might be limited to take effect upon a condition, or in a person not ascertained, as an unborn child, so as to be in "The remainder is good and passeth out of the donor by the livery of seisin; for the particular estate and remainder, to many intents and purposes, make but one estate in judgment of law." Co. Lit. 143 a. See 1 Hayes Conv. 21. 2 Plowden, 25; Fearne C. R. 307. "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. On the same principle, it was essential that all substitutions should be so strictly consecutive as not to leave the feud unprovided with a tenant even for an instant." 1 Hayes Conv. 16. abeyance or uncertainty until the condition happened or the person became ascertained. Such a limitation was good and might remain in uncertainty so long as the particular estate continued, as it was supported by the seisin of that estate. But it was essential that it should have become certain and absolute at the time when the particular estate determined; and if not then ascertained, so as to be capable of taking up the seisin, it failed altogether, and the next estate in remainder Fail does not desting •Zone revel. took immediate effect.1 next. A remainder limited to an uncertain person or upon an uncertain condition, and so long as the uncertainty lasted, became known as a contingent remainder. A remainder limited absolutely and to a determinate person, or which had become absolute and certain in ownership by subsequent events was a vested remainder the remainderman was presently invested with a portion of the seisin or freehold. LIT. § 324. Also, when a man will show a feoffment made to him, Seised great, shall say, by force of which feoffment gift, or lease, he was seised, possus. or a gift in tail, or a lease for life of any lands or tenements, there he &c. but where one will plead a lease or grant made to him of a chattel real or personal, then he shall say, by force of which he was possessed, &c. Seisin is a word of Co. LIT. 200 b, 201 a. "He was seised, &c." art, and in pleading is only applied to a freehold at for distinction sake is to a chattel real or personal. feoffment in fee, he concludeth, virtute cujus prædict'. B. fuit seisitus, &c. But if he plead a lease for yeares, he pleadeth, virtute cujus prædictus B. intravit, et fuit inde possessionatus; and so of chattels personals, virtute cujus fuit inde possessionatus. And this holdeth not only in case of lands or tenements which lie in livery, but also of rents, advowsons, commons, &c. and other things that lie in grant, whereof a man hath an estate for life or inheritance. Also when a man pleads a lease for life, or any higher estate which passeth by livery, he is not to plead any entry, for he is in actual seisin by the livery itself. Otherwise it is of a lease for years, because there he is not actually possessed until an entry. LIT. § 647. Also, if a parson of a church dieth, now the freehold of the glebe of the parsonage is in none during the time that the parsonage is void, but in abeyance, viz. in consideration and in the under 1 Co. Lit. 342 b; 378 a; Perkins, §§ 52, 87. "If a man seised of land, lease it to a stranger for life, and grants the remainder over to the right heir of J. S., which J. S. is then alive; in that case the fee is in abeyance, viz., in the consideration of the law, and is in no certain person." Ib. § 708. Fearne C. R. 3, 281, 307; "It is a general rule, that every remainder must vest, either during the particular estate, or else at the very instant of its determination." Ib. 307. A contingent remainder, as putting the freehold in abeyance, seems to have been originally regarded as an infringement of feudal principles, and is said not to have been fully recognized until the reign of Henry VI. See Williams, Real Prop. 243, 7th ed. |