« PreviousContinue »
after the course of the common law are, where a man, or woman, seised of certain lands or tenements in fee simple or in tail, hath no issue but daughters, and dieth, and the tenements descend to the issues, and the daughters enter into the lands or tenements so descended to them, then they are called parceners, and be but one heir to their ancestor. And they are called parceners; because by the writ, which is called breve de participatione facienda, the law will constrain them, that partition shall be made among them. And if there be two daughters to whom the land descendeth, then they be called two parceners; and if there be three daughters, they be called three parceners; and four daughters, four parceners; and so forth.
Also, if a man seised of tenements in fee simple or in fee tail dieth without issue of his body begotten, and the tenements descend to his sisters, they are parceners, as is aforesaid. And in the same manner, where he hath no sisters, but the lands descend to his aunts, they are parceners, &c. But if a man hath but one daughter, she shall not be called parcener, but she is called daughter and heir, &c.
Parceners by the custom are, where a man seised in fee simple, or in fee tail of lands or tenements which are of the tenure called gavelkind within the county of Kent, and hath issue divers sons and die, such lands or tenements shall descend to all the sons by the custom, and they shall equally inherit and make partition by the custom, as females shall do, and a writ of partition lieth in this case as between females. But it behooveth in the declaration to make mention of the custom. Also such custom is in other places of England, and also such custom is in North Wales, &c.
Jointenants are, as if a man be seised of certain lands or tenements, &c. and infeoffeth two, three, four, or more, to have and to hold to them for term of their lives, or for term of another's life, by force of which feoffment or lease they are seised, these are jointenants. ..
And it is to be understood, that the nature of jointenancy is, that he which surviveth shall have only the entire tenancy, according to such estate as he hath, if the jointure be continued, &c. As if three jointenants be in fee simple, and the one hath issue and dieth, yet they which
ing. And if the second jointenant hath issue and die, yet the third which surviveth shall have the whole tenements to him and to his heirs for ever. But otherwise it is of parceners; for if three parceners be, and before any partition made the one hath issue and dieth, that which to him belongeth shall descend to his issue. And if such parcener die without issue, that which belongs to her shall descend to her co-heirs, so as they shall have this by descent, and not by survivor, as jointenants shall have, &c.
And as the survivor holds place between jointenants in the same manner it holdeth place between them which have joint estate or possession with another of a chattel, real or personal. As if a lease of lands or tenements be made to many for term of years, he, which survives of 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 be given to many, he which surviveth shall have the horse only.
In the same manner it is of debts and duties, &c. for if an obligation be made to many for one debt, he wbich 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 derisable by testament, and if the one of the said two jointenants deviseth that which to him belongeth by his testament, &c. and dieth, this devise is void. And the cause is, for that no devise can take effect till after the death of the devisor, and 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 survivor according to the course of law, &c. and for this cause such devise is void. But otherwise it is of parceners seised of tenements devisable in like case of devise, &c. causu 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 sereral 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.
SEISIN AND CONVEYANCE.
LIT. § 448. Freehold in law is, if a man disseiseth another, and dieth seised, whereby the tenements descend to his son, albeit that his son 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.
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 belialf 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 espect
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 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 in remainder or reversion, the tenant in possession is said to have the actual seisin of the 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.
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 tail, and upon the determination of his estate to B, the future limitation takes effect as a remainder immediately expectant upon A's estate. 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.
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, leaving the tenancy vacant during the interval. “Livery of seisin 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.?
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
I “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 convey. ance 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 un provided with a tenant eren for an iustuut." 1 Hayes Conv. 16.