hold or Chattels. Some Estates of Freehold are also of Inheritance, others not; and Estates of Inheritance are either in Fee Simple or Fee Tail.

(14.) An unqualified Estate in Fee, or Fee Simple, is that which gives its owner the fullest power of disposing of the Tenement which the Law allows, and not being disposed of by him, it descends to such of his kindred, however remote, as the law marks out for his heir. (15.) But such an Estate may be qualified Co. Litt. 1. b. by a Condition or Limitation capable of abridging or defeating it; and then indeed it cannot, with strict propriety, be called a Fee Simple.

(16.) An Estate in Fee Tail, (or in Tail, or an Estate Tail,) confers less ample powers of alienation; and in its descent is confined to the posterity of some individual, so as to cease upon failure of such posterity.

(17.) An Estate of Freehold only, as distinguished from an Estate of Inheritance, (for in the Inheritance the Freehold is included,) is limited to the duration of some person's life, or to some uncertain period included in such life, and not referred to the mere will of the next person in succession.

(18.) An Estate which is limited to a certain number of years, or other determinate time, is a Chattel; and, like other Chattels and Goods, or Personal Property in general, upon the death of the owner, instead of descending to his heir, it devolves to the Executors named in

Co Litt. 57. b. 1 Salk. 246.

3 East, 451.

his will, or in default of such nomination, or upon their refusal to act, to the Administrator appointed by an Ecclesiastical Court, which has jurisdiction for such purposes.

(19.) An Estate or Tenancy for an uncertain period, referred to the mere will of the next person in succession, and never extending beyond the life of the Tenant, may also be considered as a Chattel, and is called, according to circumstances, either an Estate at Will, or an Estate at Sufferance. It confers no power of

alienation.

CHAP. I.

OF ESTATES IN FEE SIMPLE.

SECT. 1.-Of Alienation at Common Law. (20.) FOR some centuries before the reign of Henry 8, (when new modes of conveyance were introduced,) an Estate in Fee Simple in Land might be transferred from one person to another by the delivery of some symbol of possession, (as a turf, a wand, &c.) upon the Land, attended Co. Litt. 48. a. with apt words. This species of conveyance, which is still occasionally in use, is called a Feoffment. It now always consists of two distinct acts, namely, the ceremony above mentioned, which is called the Livery of Seisin ; and the written explanation of it, signed by the Feoffor, (which is required by stat. 29 Car. 2, c.3, called the Statute of Frauds.) This last is com monly in the form of a deed, (i. e. an instrument authenticated by the Feoffer's seal, and solemnly delivered to the Feoffee or to another person for his benefit,) and was not unusual in former times. (21.) The words necessary for effecting a transfer of the Fee Simple may be reduced to this short form: "I give this land to you and to Litt. 1. your heirs." The word heirs is so absolutely necessary for the purpose, that no other expres

sion would serve; thus, if it were, "I give this "land to you," or " to you for ever," or even "to you in fee simple," the Feoffee would take only an estate for his life.

(22.) The effect of the Feoffment was always to confer some Estate of Freehold, either in actual possession, or only kept out of possession by a Chattel Interest preceding it. Its operation could not be suspended or deferred. For the law was anxious that it should always be matter of notoriety who was the present ostensible owner of the Land; that, if the rightful claimant were excluded, he might know against whom to bring his action, which could only be against the Tenant of the Freehold for the time being. (23.) And the better to ensure Litt. 350, 351. the same object, it was also provided that, (unless in some few anomalous cases to which the rule was necessarily inapplicable,) the Estate given by the Feoffment should not afterwards be defeated without some kind of solemnity, Accordingly, if the Feoffment had run thus, "I give this land to you and your heirs, on "condition that you pay me 10 l. next Michael"mas," or "on condition that* if I pay you

(15.)

(24.) A Condition of this kind constitutes what is called a Mortgage, by which Real Property is pledged for securing the repayment of money. By the strict rules of the Common Law, all benefit of the Condition is lost by a failure to make the payment by the stipulated day: but Courts of Equity will compel the Feoffee long afterwards to submit to a redemption, and to re-convey the mortgaged property.

"107. next Michaelmas the gift shall be void;" then, though upon breach of the condition in the first instance, and upon performance in the second, the Feoffor* would be entitled to reenter upon the Lands and hold them as if no Feoffment had been made, yet without such re-entry the Feoffment would still continue in force.

(28.) If the gift were simply "to you for your life," the Reversion in fee simple would remain in the Feoffor, But this But this consequence would be varied, if the gift were "to you "for your life, and after your decease to A. " and his heirs;" or, "to you for twenty-one years, and, subject to that estate, to A. and "his heirs ;" or, "to you and the heirs of your body," (which would constitute an estate tail,) "and upon your decease, and failure of

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your

(25.) Proper words for creating a Condition are, "on condition that," "provided always that," "so that," or "but if it happen, &c. then it shall be lawful for "the feoffor to re-enter." Litt. 328, 329, 330, 331, (26.) But Conditions must be lawful, and not absolutely unreasonable. A Condition annexed to an estate in fee prohibiting all alienation, is void. Co. Litt. 223. a. But it seems that the estate may thus be made inalienable for a certain time, or to a particular person, (1 Bac. Abr. 647;) or even, under some circumstances, to all the world except one person. Doe v. Pearson, 6 East, 173. So a Condition not to marry a Scotchman, &c. has been allowed. Perrin v. Lyon, 9 East, 170. (27.) No person can take advantage of the Condition but the Feoffor or his heirs, Litt. 347.