yet hesitated at giving fines so extensive a power by mere implication, when the statute de donis had expressly declared that they should not be a bar to estates-tail. But the statute of Henry VIII., when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and established that intention. Yet, in order to preserve the property of the crown from any danger of infringement, all estates-tail created by the crown, and of which the crown has the reversion, are excepted out of this statute. And the same was done with regard to common recoveries, by the statute 34 & 35 Hen. VIII. c. 20, which enacts that no feigned recovery had against tenants in tail, where the estate was created by the crown,' and the remainder or reversion continues still in the crown, shall be of any [119] force and effect. Which is allowing, indirectly and collaterally, their full force and effect with respect to ordinary estates-tail, where the royal prerogative is not concerned. Further, by a statute of the succeeding year, all estates-tail were rendered liable to be charged for payment of debts due to the king by record or special contract; as since, by the bankrupt laws," they are also subjected to be sold for the debts contracted by a bankrupt. And, by the construction put on the statute 43 Eliz. c. 4, an appointment by tenant in tail of the lands entailed to a charitable use is good, without fine or recovery. coveries abo The most effectual blow, however, to estates-tail was Fines and restruck by stat. 3 & 4 W. IV. c. 74, by which, s. 2, fines and lished. recoveries are abolished; and by s. 14, all warranties of lands entered into by tenants in tail, are absolutely void against the issue in tail. Estates-tail cannot now therefore be barred, either by fines or recoveries, or by lineal warranty; but they may be barred by virtue of a much more simple assurance, a deed enrolled under the act, (s. 15,) as will be more fully explained in a subsequent part of this work. But notwithstanding all these statutes, estates-tail were y Co. Litt. 372. z 33 Hen. 8, c. 39, s. 75. Stat. 21 Jac. 1, c. 19; 3 & 4 W. 4, c. 74, ss. 55-69. b 2 Vern. 453; Cha. Prec. 16. c Some special estates tail are excepted from the operation of the act. See ss. 16 & 18, and c. 23. Powers of te d exempted from ordinary debts. But this remaining privilege was taken away by stat. 1 & 2 Vict. c. 110, s. 13,. which enacts that a judgment duly entered up in any of the superior courts at Westminster, against any person, shall operate as a charge on all his real estate, and shall be binding on the issue of his body, and all other persons whom he might have barred, and by s. 18, decrees and orders of courts of equity shall have the effect of judgments. Thus, at their first existence, estates tail could not be nant in tail. aliened at all, but by degrees they became unfettered; and now, as we shall see more fully hereafter, the tenant in tail is enabled to aliene his lands and tenements by deed founded on the late statute, either absolutely or by way of mortgage, and thereby to defeat the interest as well of his own issue, though unborn, as also of the remainder man or reversioner, even where the reversion is vested in the crownf (except the estate tail be granted for public services, or the tenant in tail is expressly restrained by act of parliament from barring his estate :) secondly, he is now liable to forfeit them for high treason and on bankruptcy; thirdly, he may charge them with reasonable leases; and lastly, they are now liable to the payment of his debts on a judgment or decree obtained against him. d As to the due entering up of judg ment, see Private Wrongs, ch. 25. e 3 & 4 W. 4, c. 74. f Ibid. s. 15 & 21. Ibid. s. 18; 34 & 35 Hen. 8, c. 20; and post, chap. 23. CHAPTER THE NINTH. OF FREEHOLDS NOT OF INHERITANCE. [ 120 ] Estates for life are con legal. We are next to discourse of such estates of freehold, as are not of inheritance, but for life only. And of these ventional or estates for life, some are conventional, or expressly created by the acts of the parties; others merely legal, or created by construction and operation of law. will consider them both in their order. We 1. Estates for 1. Estates for life, expressly created by deed or grant, life created (which alone are properly conventional) as where a lease by grant. is made of lands or tenements to a man, to hold for the term of his own life, or for that of any other person, or for more lives than one: in any of which cases he is styled tenant for life; only, when he holds the estate by the life of another, he is usually called tenant pur auter vie. These estates for life are, like inheritances, of a feudal nature; and were, for some time, the highest estate that any man could have in a feud, which (as we have before seen,) was not in its original hereditary. They are given or conferred by the same feudal rights and solemnities, the same investiture or livery of seisin, as fees themselves are; and they are held by fealty, if demanded, and such conventional rents and services as the lord or lessor, and his tenant or lessee, have agreed on. Estates for life may be created, not only by the express words before mentioned, but also by a general grant, with- [ 121 ] out defining or limiting any specific estate. As, if one What words grants to A. B. the manor of Dale, this makes him tenant an estate for for life. For though, as there are no words of inherit will create life. Estates for life granted gency. ance, or heirs, mentioned in the grant, it cannot be construed to be a fee; it shall however be construed to be as large an estate as the words of the donation will bear, and therefore an estate for life. Also such a grant at large, or a grant for term of life generally, shall be construed to be an estate for the life of the grantee; in case the grantor hath authority to make such a grant: for an estate for a man's own life is more beneficial and of a higher nature than for any other life; and the rule of law is, that all grants are to be taken most strongly against the grantor, unless in the case of the King. Such estates for life will, generally speaking, endure as on a contin- long as the life for which they are granted: but there are some estates for life, which may determine upon future contingencies, before the life, for which they are created, expires. As, if an estate be granted to a woman during her widowhood, or to a man until he is promoted to a benefice; in these, and similar cases, whenever the contingency happens, when the widow marries, or when the grantee obtains a benefice, the respective estates are absolutely determined and gone. Yet, while they subsist, they are reckoned estates for life; because, the time for which they will endure being uncertain, they may by possibility last for life, if the contingencies upon which they are to determine do not sooner happen. And, moreover, in case an estate be granted to a man for his life, generally, it may also determine by his civil death: as if he enters into a monastery, whereby he is dead in law for which reason in conveyances the grant is usually made "for the term of a man's natural life;" which can only determine by his natural death. Incidents to an estate for life. The incidents to an estate for life, are principally the following; which are applicable not only to that species of tenants for life, which are expressly created by deed, [122] but also to those which are created by act and operation of law. 1. He may take esto vers, or botes, &c. 1. Every tenant for life, unless restrained by covenant or agreement, may of common right take upon the land e Co. Litt. 42 a. g Co. Litt. 42; 3 Rep. 20. Rights of Persons, [132]. For he demised to him reasonable estovers or botes. to the emble 2. Tenant for life, or his representatives, shall not be 2. Entitled prejudiced by any sudden determination of his estate, ments, when. because such a determination is contingent and uncertain." Therefore if a tenant for his own life sows the lands, and dies before harvest, his executors shall have the emblements, or profits of the crop; for the estate was determined by the act of God; and it is a maxim in the law, that actus Dei nemini facit injuriam. The represen tatives therefore of the tenant for life shall have the emblements, to compensate for the labour and expense of tilling, manuring, and sowing the lands; and also for the encouragement of husbandry, which being a public benefit, tending to the increase and plenty of provisions, ought to have the utmost security and privilege that the law can give it. Wherefore by the feudal law, if a tenant for life [123] died between the beginning of September and the end of February, the lord who was entitled to the reversion, was also entitled to the profits of the whole year, but if he died between the beginning of March and the end of August, the heirs of the tenant received the whole. From hence our law of emblements seems to have been derived, but with very considerable improvements. So it is also, if a man be tenant for the life of another, and cestui que vie, or he on whose life the land is held, dies after the corn is |