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Estate in Fee Simple (Halsbury's Laws of England, 1st Edition)

The following is taken from volume 24 of the first edition of Halsbury's Laws of England; these sections are in relation to Estate in Fee Simple, and Modified Fees. The text presented is pages 164-173 inclusive.

Best effort has been made in transcribing text from the book, however no guarantee is provided on its precision. Judges, when sitting, representing Her Mosty Excellent Majesty, must back this up.

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THE LAWS OF ENGLAND


 THE EARL OF HALSBURY


24.


RATES & RATING

REAL PROPERTY

RECEIVERS

REGISTRATION OF BIRTHS,

MARRIAGES, & DEATHS

RENT CHARGES & ANNUITIES

REVENUE

BUTTERWORTH & Co.


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chattels real — chattels, because they devolve at common law with chattels in the proper sense on the personal representatives (t); real, because they are derived out of real estate (u).

The expression "lands, tenements, and hereditaments" comprises both real estate and chattels real; hence, while it does not include personal chattels (r), it comprises copyholds (a) and chattels real (b), as well as freeholds.

Part II. - Estate and Interests in Real Estate (Other than Copyholds) at Common Law.

SECT. 1. — Estate in Fee Simple.

SUB-SECT. 1. — Quantum of Estate


Nature of fee simple.


315. An estate in fee simple approaches as near to absolute ownership as the system of tenure will allow (c). It is capable of existing as long as there are heirs-at-law of the owner for the time being, and since the law does not expect that there will be a failure of heirs (d) the duration of the estate is, in theory, unlimited. If in fact the owner dies interstate and without heirs, the land, save so far as it is required for payment of his debts, escheats to the lord - usually the Crown - under whom it is held (e). But this is the only way in which the estate can now determine (f). Moreover,

(c) A man cannot have a greater estate of inheritance than fee simple (Littleton's Tenures, s. 11). In this phrase "fee" has lost its original meaning of feud or benefice (see note (p), p. 139, ante), and denotes inheritance, while "simple" denotes that the land is descendible to the heirs generally, without restraint to any particular class of heirs, such as heirs of the body (Co. Litt. 1 b ; see 2 Bl. Com. 105). The appropriate description to denote both ownership and tenure of land is that the owner is "seised in his demesne as of fee"; of incorporal hereditaments, such as a rentcharge, that he is "seised as of fee"; see 2 Bl. Com. 106. As to the theory of absence of absolute ownership in land, see p. 138, ante.

(d) Pells v. Brown (1620), Cro. Jac. 590, 592.

(e) Co. Litt. 13 a ; see p. 139, ante ; and see title DESCENT AND DISTRIBUTION, Vol. XI., p. 23.

(f) But, as to estates upon condition and determinable fees, see pp. 168 et seq., post.

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the tenant for the time being who transfers the fee simple transfers an interest which the law treats as exhausting the possible duration of the ownership of the land. Consequently, neither a reversion nor a remainder can be reserved or limited upon such a transfer, nor can there be any possibility of reverter (g). But a fee simple may be devised by will subject to an executory devise over, and such devise over, provided it is so limited that it must, if it takes effect, take effect within the period allowed by the rule against perpetuities (h), is effectual and cannot be defeated by the prior devisee (i). Consequently, an alienee from such devisee takes subject to the executory devise (k).

How granted.

316. Apart from state, an estate in fee simple can only be created inter vivos by a limitation to the grantee "and his heirs" (l). It is not sufficient to use words implying the indefinite duration of the estate, such as a limitation to the grantee "for ever." The word "heirs" makes the estate of inheritance (m), and it is to the estate thus limited that the law attaches the incident of indefinite duration (n). But in deeds executed since the

(g) Pells v. Brown (1620), Cro. Jac. 590, 592; Challis, Law of Real Property, 3rd ed., p. 220. But this is so only where the estate is held by an individual under a limitation to him and his heirs; if it is held by a corporation, and the corporation is dissolved, there is no escheat, and the land, unless otherwise provided by statute, reverts to the donor (Co. Litt. 13 b; Challis, Law of Real Property, 3rd ed., pp. 35, 174, 226; title CORPORATIONS, Vol. VIII., p. 373).

(h) See title PERPETUITIES, Vol. XXII., pp. 300, 301.

(i) Pells v. Brown, supra.

(k) But the devisee has the statutory power of sale of a tenant for life (Settled Land Act, 1882 (45 & 46 Vict. c. 38), s. 58 (i), (ii); see title SETTLEMENTS; and, as to the avoidance of certain executory limitations, see p. 237, post.

(l) In practice the limitation is to the "heirs and assigus"; but the words "and assigns" do not enlarge the estate; this is fully created by the limitation to "heirs"; they are only declaratory of the power of alienation which would exist without them and have no conveyancing value (Brookman v. Smith (1871), L. R. 6 Exch. 291, 306; affirmed (1872), L. R. 7 Exch. 271, Ex. Ch.; Milman v. Lane, [1901] 2 K. B. 745, C. A.); though in a will the word "assigns" was necessary in order to give the power of alienation (Pollock and Maitland, History of English Law, Vol. II., p. 14; and ssee p. 288, post).

(m) The word "heirs" is construed as heirs general so as to give the fee simple, notwithstanding that the grantee cannot have any heirs except heirs of his body; e.g., if the grantee is a bastard (1 Preston, Abstracts of Titles, 272).

(n) Littleton's Tenures, s. 1; 2 Bl. Com. 107. It is apparently essential to use the word "heirs" in the plural (Co. Litt. 8 b; Chambers v. Taylor (1837), 2 My. & Cr. 376); but this was doubted in Dubber d. Trollope v. Trollope (1734), Amb. 453, 458); though in a will, when words of limitation were necessary to pass the fee, "heir" might be nomen collectivum, so as to imply the plural (Co. Litt. 8 b, note (4); and see the criticism of the note in Challis, Law of Real Property, 3rd ed., p. 221). Perhaps the omission of "his" does not destroy the effect of the limitation, but in a limitation to two persons "and heirs," the omission of the word "their" makes the limitation void for uncertainty, and they have but an estate for their lives (Co. Litt. 8 b). Apparently a limitation to A. "or his heirs" gives A. only an estate for life (Mallory's Case (1601), 5 Co. Rep. 111 b, 112 a); though in a grant to A. "or his heirs to hold to him and his heirs," the

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31st December, 1881, an estate in fee simple can be limited by the words "in fee simple" (o). If the word "heirs," or, since such date, the phrase "in fee simple," is not used, the limitation creates only an estate for life (p).

When the word "heirs" unnecessary.

The word "heirs" is not required in wills. In the absence of the whole estate to the devisee without words of limitation (q). Moreover, an estate in fee simple may be created by reference to a limitation in another instrument or in another part of the same instrument where the word "heirs" is used, although it is not used in the referential limitation (r); and the word "heirs" is not required upon a release by one coparcener or joint tenant seised in fee simple to the others (s); nor upon the grant of a rent between such persons by way of equality of partition (t). Words implying

word "or" is treated as an error and corrected (Wright v. Wright (1750), 1 Ves. Sen. 409, 411; see Goodtitle d. Dodwell v. Gibbs (1826), 5 B. & C. 709; Challis, Law of Real Property, 3rd ed., p. 221).

(o) Conveyancing and Law of Property Act, 1881 (44 & 45 Vict. c. 41), s. 51. It has been decided in England that the exact statutory phrase must be used; "in fee" is not enough (Re Ethel and Mitchells and Butlers' Contract, [1901] 1 Ch. 945); but in Re Ottley's Estate, [1910] 1 I. R. 1, the word "simple" was added by the court to the habendum of a disentailing deed.

(p) Littleton's Tenures, s. 1; but by special custom and copyhold in fee can be granted without the word "heirs" (2 Preston on Estates, 67). Before 1882, even the words "in fee simple" did not create more than a life interest (Shep. Touch. (ed. Preston) 106). In a grant to a corporation sole, the word "successors" is necessary to pass the fee simple (Co. Litt. 8 b), otherwise only a life estate passes (Co. Litt. 94 b); but when grants in frankalmoin were possible, a grant in fee simple in frankalmoin could be made to a corporation sole without mentioning successors (ibid.). In a grant to a corporation aggregate a fee simple passes without mentioning successors, "for that the body never dies" (ibid.; 2 Bl. Com. 108; see title CORPORATIONS, Vol. VIII., p. 371). The limitation of an equitable estate is primâ facie treated with the same strictness as that of a legal estate, and the word "heirs" is required to pass the equitable fee (Re Whiston's Settlement, Lovatt v. Williamson, [1894] 1 Ch. 661; Re Irwin, Irwin v. Parkes, [1904] 2 Ch. 752); but this rule is not absolute, and if there is a clear intention that the fee should pass, effect will be given to it (Re Oliver's Settlement, Evered v. Leigh, [1905] 1 Ch. 191; Re Thursby's Settlement, Grant v. Littledale, [1910] 2 Ch. 181, 189, C. A.; and see title EQUITY, Vol. XIII., pp. 94, note (s), 95, note (c) ).

(q) Wills Act, 1837 (7 Will. 4 & 1 Vict. c. 26), s. 28; and see title WILLS. Even before this statute a devise was not construed with the same strictness as a grant, and the entire fee simple passed if there were words to indicate such an intention (2 Bl. Com. 108).

(r) Co. Litt. 9 b; Garde v. Garde (1843), 3 Dr. & War. 435. But words of limitation are not supplied by reason of the grantee being defined so as to include his "heirs" (Re Ford and Ferguson's Contract, [1906] 1 I. R. 607).

(s) Co. Litt. 9 b. I.e., "when an estate of inheritance passeth and continueth"; and similarly upon a release, when an estate of inheritance passeth and continueth not, but is extinguished; when, for instance, the grantee of a rent in fee simple releases the rent to the tenant of the land, the rent is extinguished for ever, although the tenant's heirs are not mentioned (ibid.; Shep. Touch. (ed. Preston) 327).

(t) "Because the grantor has a fee simple in consideration whereof he granted the rent" (Co. Litt. 10 a); and on a bargain and sale for valuable consideration, and on a fine or recovery, the simple might pass without

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the right to receive a rentcharge in perpetuity may be effectual to create a rentcharge in fee (a).

SUB-SECT. 2. — Incidents of Estate.

(i.) Enjoyment.

Rights of user.

317. Land subject to easements (b) or to restrictive covenants (c) cannot be used in a manner inconsistent with the proper enjoyment of the easements, or with the due observance of the covenants; and, in certain circumstances, the use of land may interfere to such an extent with the comfort of neighbouring owners or occupiers as to constitute an actionable nuisance (d); but, short of this, an owner in fee simple is subject to no restrictions as to the use to which he may put the land, and he may exercise over it acts of ownership of all kinds, including the commission of waste, such as the felling of timber, the opening and working of mines, and the pulling down of houses (e). If, however, his estate is subject to an executory devise over, he is in the same position as a tenant for life without impeachment of waste, and he may not commit equitable waste (f).

(ii.) Alienation.

Right of alienation.

318. The owner of an estate in fee simple has an absolute right to alienate the land inter vivos (g), and, subject to the provisions of

words of limitation; see Challis, Law of Real Property, 3rd ed., p. 223, and authorities there referred to.

(a) Challis, Law of Real Property, 3rd ed., p. 222, n., referring to 18 Vin. Abr. 472 (1) (Rent (A.), pl. 1).

(b) See title EASEMENTS AND PROFITS A PRENDRE, Vol. XI., pp. 233 et seq. As to the natural right of support, see ibid., p. 319; and as to the right to dig so as to divert water from neighbouring land, see ibid., p. 313; Acton v. Blundell (1843), 12 M. & W. 324, Ex. Ch.; Chasemore v. Richards (1859), 7 H. L. Cas. 349; and see title MINES, MINERALS, AND QUARRIES, Vol. XX., pp. 570 et seq.

(c) See title SALE OF LAND.

(d) In accordance with the maxim, Sic utere tuo ut alienum non lædas; but there must be an injury recognised by law as actionable. A thing lawful in itself does not in general become actionable by being done with an intention to cause injury or annoyance, but this may be so if an owner with such intention does an act, such as burning limestone on a particular part of his land, when might just as well do it elsewhere without causing annoyance (Bradford Corporation v. Pickles, [1895] A. C. 587, 598); and see title NUISANCE, Vol. XXI., pp. 524 et seq.

(e) A.-G. v. Marlborough (Duke) (1818), 3 Madd. 498; compare Liford's Case (1614), 11 Co. Rep. 46 b, 50 a; Jervis v. Bruton (1692), 2 Vern. 251; and see titles AGRICULTURE, Vol. I., pp. 295, 296; MINES, MINERALS, AND QUARRIES, Vol. XX., pp. 510, 511; and as to waste, see, further, p. 175, post.

(f) Turner v. Wright (1860), 2 De G. F. & J. 234, 246. Previously the opnion seems to have been that the court would interfere to restrain waste in pursuance of the settlor's intention (Robinson v. Litton (1744), 3 Atk. 209; Stansfield v. Habergham (1804), 10 Ves. 273, 278). But the will or settlement can expressly prohibit waste, which will then be restrained, notwithstanding that the prohibition is also enforced by a clause of forfeiture (Blake v. Peters (1863), 1 De G. J. & Sm. 345, C. A.). As to waste by tenant for life without impeachment for waste, see p. 176, post; title SETTLEMENTS.

(g) See pp. 286, 288, post.

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the Land Transfer Act, 1897 (h), he can dispose of it by will (i). If his estate is subject to an executory limitation over, on failure of his issue, or in any other event (k), he has, when his estate is in possession, the statutory powers of sale, exchange, partition, and leasing conferred on a tenant for life by the Settled Land Acts (l).

(iii.) Transmission by Operation of Law.

Transmission and devolution.

319. During the life of the owner in fee simple he is liable to be deprived of his estate by process of execution (m), or by the operation of the law of bankruptcy (n); and upon his death, except in the case of a legal interest in copyholds, it devolves in the first instance on his personal representatives (o). So far as the land is not required for payment of his debts, the beneficial interest devolves, if he has disposed of it by will, upon the specific or general devisee (p); otherwise, upon his heir-at-law ascertained in accordance with the Inheritance Act, 1833 (q).

SECT. 2. — Modified Fees.

SUB-SECT. 1. — In General.

Modified fee.

320. Estates in fee can be created subject to certain modifications, and these give rise to estates upon condition — sometimes called "fee simple conditional" (r), — determinable fees, conditional fees, and qualified fees.

SUB-SECT. 2. — Creation of Estates.

(i.) Estates in Fee upon Condition.

Creation of estate upon condition.

321. An estate in fee simple may be granted upon condition, and, if the event contemplated by the condition happens, the grantor

(h) 60 & 61 Vict. c. 65, s. 1; and see EXECUTORS AND ADMINISTRATORS, Vol. XIV., p. 238.

(i) By the common law, land held in fee simple was not devisable by will, but by the custom of London and certain other cities and boroughs land was devisable (Littleton's Tenures, s. 167; Co. Litt. 111 a). Under stat. (1540) 32 Hen. 8, c. 1, explained and amended by stat. (1542-3) 34 & 35 Hen. 8, c. 5, tenants in socage (see p. 141, ante) could devise the whole, and tenants by knight service (see p. 140, ante) two-thirds of their lands; see Co. Litt. 111 b. Upon the abolition of tenure in knight service, and the conversion of that tenure into socage tenure (see p. 147, ante), the power to devise extended to all lands held in fee simple by lay tenure. The above statutes were repealed, and a new statutory power of devising land was given by the Wills Act, 1837 (7 Will. 4 & 1 Vict. c. 26), ss. 2, 3; see title WILLS; and, as to copyholds, see title COPYHOLDS, Vol. VIII., p. 109.

(k) Such as failure to comply with a condition (Re Richardson, Richardson v. Richardson, [1904] 2 Ch. 777).

(l) Settled Land Act, 1882 (45 & 46 Vict. c. 38), s. 58 (1) (ii.). As to these powers, see title SETTLEMENTS. As to the effect of a conveyance under the statute, see the Settled Land Act, 1882 (45 & 46 Vict. c. 38), ss. 20, 58 (2); title SETTLEMENTS.

(m) See title EXECUTION, Vol. XIV., pp. 61 et seq.

(n) See title BANKRUPTCY AND INSOLVENCY, Vol. II., pp. 143 et seq.

(o) See title EXECUTORS AND ADMINISTRATORS, Vol. XIV., pp. 238 et seq.

(p) See title WILLS.

(q) 3 & 4 Will. 4, c. 106; see title DESCENT AND DISTRIBUTION, Vol. XI., pp. 4, 7 et seq.

(r) See note (b), p. 168, post.

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can re-enter and determine the estate, either by virtue of the condition merely, if it is suitably expressed, or otherwise by virtue of an express proviso for re-entry (s). Thus, if the land is granted in fee simple upon condition that a specified yearly rent shall be paid, a right of entry is implied, and the grantor can re-enter if the rent is in arrear (t). The same effect is produced where the grant, after reserving a rent, contains an express proviso that, if the rent shall be in arrear, the grantor and his heirs may re-enter (a). Similarly there may be a proviso for re-entry if the land ceases to be used for a specific purpose (b).

How defeated.

322. But an estate upon condition cannot be defeated without actual entry, or claim equivalent to entry; it is not ipso facto defeated by the happening of the critical event (c); and, since the grant of the

(s) Littleton's Tenures, s. 325. Besides conditions expressed in the grant there may be conditions implied by law. Thus, before the Statute Quia Emptores (1290), 18 Edw. 1, c.1 (see p. 144, ante), the grant of an estate in fee simple to be held of the grantor implied a condition that the services shoud be performed (Fearne, Contingent Remainders, 9th ed., p. 382, n.) As to such conditions, see Littleton's Tenures, s. 378; Co. Litt. 233 b. LITTLETON treats words of limitation as conditions in law (Littleton's Tenures, s. 380).

(t) Littleton's Tenures, ss. 328, 331. Other words of condition are "Provided always," "so that" (Littleton's Tenures, s. 329; Co. Litt. 203 b). In a condition a double negative does not necessarily make an affirmative (Co. Litt. 223 b); and see titles DEEDS AND OTHER INSTRUMENTS, Vol. X., p. 478; LANDLORD AND TENANT, Vol. XVIII.,p. 531. Since no reversion exists on a grant in fee, such a rent is not rent service. As to payment of the rent, see Littleton's Tenures, s. 341; and see titles LANDLORD AND TENANT, Vol. XVIII.,pp. 464, 465; RENTCHARGES AND ANNUITIES, pp. 501 et seq., post.

(a) Littleton's Tenures, ss. 325, 330, 331. Such a rent is not incident to a reversion, inasmuch as since the Statute Quia Emptores (1290), 18 Edw. 1, c. 1, no tenure is created between grantor in fee simple and grantee; see Doe d. Freeman v. Bateman (1818), 2 B. & Ald. 168, 170; and see p. 144, ante.

(b) See Re Hollis' Hospital (Trustees) and Hague's Contract, [1899] 2 Ch. 540, where land was granted to trustees in fee for a charity in 1726, subject to a proviso that if at any time it should be employed for any other purposes, it should revert to the right heirs of the grantor. Originally mortgages were made by way of feoffment upon condition, the condition being that if the feoffor paid the debt on the agreed day he might enter (Littleton's Tenures, s. 332; Co. Litt. 205 a, b; Seymor's Case (1612), 10 Co. Rep. 95 b, 97 b). LITTLETON says (Littleton's Tenures, s. 350) that if a lease for years was made with livery of seisin, an estate in fee simple might arise by condition precedent, e.g., if the leasee paid a certain sum within the term, but this was questioned (Co. Litt. 216 b, 217 a). In both the cases last mentioned the estate is called a fee simple conditional; but, to avoid confusion with conditional fees (see p. 172, post), it is better to use the phrase "fee simple upon condition." Conditions precedent occur in the limitation of future estates; in the present connection only conditions subsequent are material. As to conditions precedent and conditions subsequent, see Re Greenwood, Goodhart v. Woodhead, [1903] 1 Ch. 749, C. A.

(c) Co. Litt. 214 b, 218 a; Leake, Law of Property in Land, 2nd ed., p. 169. But this only applies to an estate of freehold in corporeal hereditaments; it does not apply to incorporeal hereditaments (A.-G. v. Cummins, [1906] 1 I. R. 406, 408); and an estate for years can be made ipso facto void (Co. Litt. 214 b; and see title LANDLORD AND TENANT, Vol. XVIII., p. 530). So also can an estate of freehold under words operating as a limitation and not as a condition (Co. Litt. 214 b; Fitchet

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estate exhausts the fee, the right of re-entry cannot be limited by way of remainder (d); it can only be reserved to the grantor and his heirs (e), and it exists in their favour as a possibility of reverter (f).

Validity of condition.

323. Such a condition is called a common law condition, and is, apparently, subject to the rule against perpetuities (g). If this is so, it is invalid, unless it is confined within the limits allowed by the rule (h). The condition is invalid also if it is unlawful (i), and, since an estate in fee simple is in its nature inalienable, a condition in restraint of alienation is repugnant and therefore void (j).

(ii.) Determinable Fees.

Determinable fee.

324. An estate in fee may be granted with words of direct limitation (k) so as to be primâ facie a fee simple, but with further words — sometimes called words of collateral limitation (l) — whereby it is liable to be determined on the happening of some future event, provided that this is of such a nature that by possibility it may never happen at all (m). An estate so limited is called a "determinable fee" (n), and moreover it is no objection that the future

v. Adams (1740), 2 Stra. 1128; seethe text, infra). Upon re-entering the grantor is, in general, restored to his old estate (Littleton's Tenures, s. 325); as to possible exceptions, see Co. Litt. 202 a. A condition under which the grantor is to enter for non-payment of rent and hold till the arrears are satisfied does not restore to him an estate of freehold (ibid., 203 a).

(d) See pp. 213, 217, post.

(e) Littleton's Tenures, s. 347; Co. Litt. 214 b, 379 a; see Manning's Case (1609), 8 Co. Rep. 94 b, 95 b.

(f) See p. 237, post.

(g) Re Hollis' Hospital (Trustees) and Hague's Contract, [1899] 2 Ch. 540; Re Da Costa, Clarke v. Church of England Collegiate School of St. Peter, [1912] 1 Ch. 337.

(h) It has been objected that common law conditions are older than the rule against perpetuities (see Challis, Law of Real Property, 3rd ed., pp. 187, 207); but the tendency is to extend the application of the rule so as to cover future interests of all kinds. As to the reasons for which common law conditions may, perhaps, be excluded, see title PERPETUITIES, Vol. XXII., p. 315, note (q).

(i) Co. Litt. 206 b.

(j) Littleton's Tenures, s. 360; Co. Litt. 206 b; Re Machu (1882), 21 Ch. D. 838; and see title GIFTS, Vol. XV., pp. 421-423.

(k) See p. 165, ante.

(l) 1 Preston on Estates, 42; see Challis, Law of Real Property, 3rd ed., p. 252.

(m) 1 Preston on Estates, 479. Where the event must happen, the estate is a freehold inferior in quantum to a fee simple, if the event is to happen at an uncertain time, e.g., on the falling of a life, so as to make the estate an estate pur autre vie; if the event is to happen at a fixed time, the estate is a chattel real (Challis, Law of Real Property, 3rd ed., p. 251; see Littleton's Tenures, s. 740).

(n) The possibility of such estates is generally assumed by the recognised authorities. Sir E. COKE calls the estate a fee simple limited and qualified (Seymor's Case (1612), 10 Co. Rep. 95 b); Preston calls it a determinable fee (1 Preston on Estates, 443); and Butler calls the estate a limited fee (Fearne, Contingent Remainders, 9th ed., p. 382, n.), and the limitation a conditional limitation (ibid., p. 10, n.). But the term "conditional limitation" is more conveniently confined to shifting uses and executory devises in which the

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event may happen at a time beyond the limit allowed by the rule against perpetuities (o). But since the possible duration of the estate exhausts the fee, no remainder can be limited upon it; and the grantor retains only a possibility of reverter (p).

How enlarged into absolute fee simple.

If the future event is such that it will always remain liable to happen (q), the determinable fee can only be enlarged into an absolute fee simple by release of the possibility of reverter. If the future evemt is such that it may become impossible to happen (r), then upon such impossibility being ascertained, the possibility of the reverter is extinguished, and the determinable fee is enlarged into an absolute fee simple (s). If the event happens, the estate is thereby determined by force of the collateral limitation, without entry by the grantor or his heirs (t).

ultimate limitation is really conditional; see Gray, Rule against Perpetuities, 2nd ed., p. 24. Words suitable for introducing the collateral limitation are the English equivalents of "quamdiu, dummodo, dum, quousque, durante" etc. (Portington's (Mary) Case (1613), 10 Co. Rep. 35 b, 41 b; Co. Litt. 234 b; see Re Machu (1882), 21 Ch. D. 838, 843). A list of such limitations, actual or suggested, is given in Challis, Law of Real Property, 3rd ed., pp. 255-260. In modern times it has been suggested that a determinable fee is impossible since the Statute Quia Emptores (1290), 18 Edw. 1, c. 1 (see p. 144, ante) (Sanders, Uses and Trusts, 5th ed., Vol. I., p. 208; Gray, Rule against Perpetuities, 2nd ed., p. 31; Pollock, Land Laws, p. 213; Leake, Law of Property in Land, 2nd ed., p. 25; and see the discussion as to determinable fees in trustees in Collier v. Walters (1873), L. R. 17 Eq. 252, 261). But this view has not been acquiesced in (Challis, Law of Real Property, 3rd ed., p. 437; Sir Howard Elphinstone, in the Law Quarterly Review, Vol. II., p. 394; and see Mr. Gray's Reply, Rule against Perpetuities, 2nd ed., pp. 556 et seq.). In practice determinable fees are obsolete, the same object being attained by shifting uses and executory devises, and these are more effectual because the substituted estates can be limited to third persons. The examples of determinable fees given by Mr. Challis (Law of Real Property, 3rd ed., pp. 255-260) include, as Mr. Gray points out (Rule against Perpetuities, 2nd ed., p. 29, n. (6) ), many instances of shifting uses and executory devises, and the list is, perhaps, rather curious than useful; see also A.-G. v. Cummins, [1906] 1 I. R. 406; Re Leach, Leach v. Leach, [1912] 2 Ch. 422, 427.

(o) Gray, Rule against Perpetuities, 2nd ed., p. 312; A.-G. v. Cummins, supra. The principle is either that possibilities of reverter are older than the rule against perpetuities and are subject only to the common law, or that the collateral limitation determines, but does not originate, an estate. The latter is probably the better reason. See, further, title PERPETUITIES, Vol. XXII. pp. 300 et seq., 335 et seq., 348 et seq., 353 et seq.

(p) Co. Litt. 18 a; Challis, Law of Real Property, 3rd ed., p. 83.

(q) E.g., where land is granted to A. and his heirs so long as B. has heirs of his body, this is in effect a base fee; or so long as the Church of St. Paul shall stand (Plowd. 557).

(r) E.g., until the marriage of a specified person; if the person dies unmarried, the estate is enlarged into a fee simple absolute (1 Preston on Estates, 432, 442; Challis, Law of Real Property, 3rd ed., p. 256; Re Leach, Leach v. Leach, supra). But such limitations are made by shifting use; see p. 279, post. The subject is mainly theoretical, and it is unnecessary to give further examples.

(s) Challis, Law of Real Property, 3rd ed., p. 254.

(t) It has been generally assumed that the determination is in favour of the grantor and his heirs, and this is implied in the phrase "possibility of reverter." But the view has been advanced that, since Statute Quia Emptores (1290) (18 Edw. 1, c. 1) (see p. 144, ante), the absence of tenure between grantor and grantee gives the benefit of the reverter to the lord

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Conditional fees.

325. A conditional fee is an estate which has not been possible as regards freeholds since the Statute De Donis (a). The limitation of such a fee before the statute was the same as the limitation of an estate tail after the statute, that is, to the grantee and the heirs of his body, either generally, or restricted to a special class of heirs of his body (b). The grant was construed as a conditional gift in fee simple to this extent, namely, that if the grantee had issue born capable of inheriting according to the form of the grant, the condition was treated as having been performed for the purpose of enabling the grantee to alienate the land for an estate in absolute fee simple (c); but if the grantee did not alienate, the land descended to the class of heirs named in the grant (d); if, on the other hand, he died without having had issue capable of inheriting, the estate came to an end and the land reverted to the grantor (e).

Conditional fees were, as regards freehold lands, turned into estates tail by the Statute De Donis (a), but they may still exist as regards other hereditaments, since these are not within the statute (f); and it appears that in manors where there is no custom to entail, a grant of copyhold land to the grantee and the heirs of his body gives a customary fee, and is construed by the analogy of conditional fees at common law (g).

(iv.) Qualified Fees.

Qualified fees.

326. In lieu of limiting an estate to a man and his heirs, the estate many be specially limited to a man and the heirs of an

as a quasi-escheat (Sir Howard Elphinstone in the Law Quarterly Review, Vol. II., p. 394; Pollock, Land Laws, p. 215; and, on this, see Gray, Rule against Perpetuities, 2nd ed., p. 556).

(a) Stat. (1285) 13 Edw. 1, c. 1.

(b) Co. Litt. 19 a; Challis, Law of Real Property, 3rd ed., p. 263; and as to such fees, see Willion v. Berkley (1562), 1 Plowd. 223, 235, 242.

(c) Pollock and Maitland, History of English Law, Vol. I., p. 17; Challis, Law of Real Property, 3rd ed., p. 265. In addition to alienation to condition was performed for the purpose of forfeiture, and so as to enable the grantee to create incumbrances (Co. Litt. 19 a).

(d) Co. Litt. 19 a. But though the heirs general were not admitted to inherit, it seems that in a grant limited to heirs of the body of the grantee by a particular spouse, the birth of such an heir would, on failure of issue in that line, let in other heirs of the body of the grantee; in other words, birth of issue of the special class changed the estate from tail special to tail general (Challis, Law of Real Property, 3rd ed., p. 267).

(e) Willion v. Berkley, supra; Co. Litt. 19 a. Apparently these limitations originated in grants to a grantee and his heirs, if he should have heirs of his body; and, in this form, the birth of an heir fulfilled the condition and left a fee simple absolute (Pollock and Maitland, History of English Law, Vol. II., p. 18). But the conditional fee, properly so called — to A. and the heirs of his body — did not for all purposes become a fee simple absolute, and in modern times the form just referred to — to A. and his heirs, if he shall have heirs of his body — has been treated as a fee simple on condition (Challis, Law of Real Property, 3rd ed., p. 267), or, if as a conditional fee, then as a conditional fee of a special type (2 Preston on Estates, 292).

(f) Stafford (Earl) v. Buckley (1750), 2 Ves. Sen. 170; 2 Bl. Com. 154.

(g) Challis, Law of Real Property, 3rd ed., p. 62; and see title COPYHOLDS, Vol. VIII., pp. 70 et seq.

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ancestor whose heir he is. This, it has been suggested, may be done where it is required that the descent shall be traced from the ancestor (h), and such an estate has been called a qualified fee simple (i). But probably the limitation only controls the original course of descent, and does not place any restriction on the power of alienation; thus, the owner for the time being can alienate like the owner of an estate in fee simple absolute, and vest a fee simple absolute in the alienee (j).

SUB-SECT. 3. — Incidents of Estates.

Powers of owners of fees upon condition and determinable fees.

327. There is no rule forbidding waste by the owner of an estate in fee simple which is liable to be determined for breach of condition or by virtue of a collateral limitation. Consequently, such an owner has the same rights of actual enjoyment as an owner in absolute fee simple, including the right to commit waste at his pleasure (k). He has also the same rights of alienation inter vivos or by will, save that the estate in the hands of his alienee is subject to determination in the same manner as in his own hands (l).

SECT. 3. — Estate for Life.

SUB-SECT. 1. — For the Life of the Tenant.

(i.) How Arising.

Nature of life estate.

328. An estate for life is an estate of mere freehold as distinguished from estates of inheritance (m). The estate may be for the life of the tenant or for the life or lives of other persons. These estates are known as an estate for life and and estate pur autre vie, respectively.

How created.

329. An estate for the life of the tenant arises (1) by express or implied limitation; (2) by operation of law, as in the case of tenant by the curtesy or in dower; and (3) by tenant in tail being reduced to the position of tenant for life in consequence of the possibility of issue in tail becoming extinct. The estates of tenant by the curtesy and tenant in dower are treated of subsequently (n).

(h) Littleton's Tenures, s. 354. Possibly the limitation must be to the heirs of the ancestor in the paternal line (Challis, Law of Real Property, 3rd ed., pp. 269, 277). In considering the effect of the limitation, account must be taken of the Inheritance Act, 1833 (3 & 4 Will. 4, c. 106), s. 4, and of the Law of Property Amendment Act, 1859 (22 & 23 Vict. c. 35), s. 19. But such limitations, if not obsolete, are too rare to make it worth while to deal with them in detail here. They are fully dealt with in Challis, Law of Real Property, 3rd ed., ch. xix.; and see title DESCENT AND DISTRIBUTION, Vol. XI., pp. 8, 9.

(i) See Challis, Law of Real Property, 3rd ed., ch. xix.

(j) See ibid., pp. 278-280, criticising Preston's view (1 Preston on Estates, 471) that the estate ranks as a determinable fee for the purpose of alienation; and see the text, infra.

(k) See Bowle's (Lewis) Case (1615), 11 Co. Rep. 79 b, 4th resolution.

(l) See Challis, Law of Real Property, 3rd ed., p. 262.

(m) See pp. 164, 165, ante; 2 Bl.Com. 104.

(n) See pp. 183, 189, post.

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Reference

    Halsbury's Laws of England, 1st ed., Vol. 24, pp. 164-173.


06a The Death of Fee Simple - Part 1

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