must be livery of seisin; in case of a grant, there must be a remainder, reversion, or an incorporeal hereditament, in the instance of a release in enlargement of an estate, there must be an estate capable of enlargement: and these estates must be conveyed, at least appear to be conveyed, so as to vest the freehold in the person named as tenant, dur ing the term in which judgment is given in the recovery. In these and all other instances, if the deed cannot operate in the precise mode in which it was intended to have effect, it is to be considered whether it cannot operate with effect in some other mode. The general rule is "that the construction be such, as the whole deed and every part of it may take ef fect, and as much effect as may be to that purpose for which it is made: so as when the deed cannot take effect according to the let ter, it be construed so as it may have some effect or other (*);" and this rule is highly favoured and receives a very liberal interpre tation and extensive application (a). () Shep. Touch. 84. (4) Roe v. Tranmer, Willes's Rep. 682. 2 Wils. 75. Who shall be a sufficient Tenant to a Writ of Entry, in Point of Estate. 4 The law has carefully distinguished between those estates which are, and those which are not of a freehold quality: and as it is of the first importance, with a view. to the validity of recoveries, and of general utility, to acquire a correct knowledge of the nature, gradation, and extent of estates; and as the author cannot, in his own opinion, render a more acceptable service to those, for whose use these observations are intended, than to take a comprehensive view of this subject, and offer such practical deductions as arise out of the same, he will fully discuss this learning, in the chapter on surrenders; or on merger, as connected with that head of the law. At present it will be sufficient to observe, that estates are divided into estates, 1st, of freehold, and 2d, not of freehold Estates of freehold are again divided into estates which are of inheritance, and estates which are not of inheritance (b). Estates which are not of freehold are merely chattel interests. Of this description (b) Essay on Estates, 114. are, 1st, terms of years; 2d, estates by statute merchant, statute staple, and elegit; and 3d, other uncertain interests, as a devise to executors till debts paid (c)....... By those chattel interests, no right to the freehold is conferred, and for this reason: when the person against whom the writ of entry is brought has merely a term for years, or any other interest less than the freehold, the recovery will be defective, and an estate to a man for 99, or any other number of years, if he shall so long live, is a mere chattel interest, and he can neither be, nor make a good tenant to the writ of entry (d). In one instance, by the rules of common law, a termor for years might, by the mere act of law, without descent, have become the freeholder. This happened under the learning of occupancy, which cast the freehold on him (e). That case is an anomaly. He was the tenant of the freehold by reason of the occupancy (f). Though his possession, under the term, was the cause of his occupancy, the term was totally disregarded in the conclusion, that he had the (c) Essay on Estates, 603. Chap. on Chattel Interests. (d) Smith ex dem. Dormer . Parkhurst, 3 Atk. 135. 2 Str. 1105. (e) Co. Litt. 41. Hale's Notes. Pig. on Recov. 35. Harris v. Fielding, 1 Keb. 785. (f) Halo's Notes to Co. Litt. 41, b.4 freehold. Had a stranger been found the occupier, he would have had the freehold as occupant. By the statute law (g), the executors and administrators are substituted in the place of the general occupant: and Mr. Hargrave (h) observes," the title by general occupancy is now universally prevented by the stat. of 29 Car. II. c. S. sect. 12; and 14 Geo. II. c. 20. sect. 9." There is one case in which, perhaps, there may, for a time, even at this day, be a freehold by general occupancy, namely, in the interval between the death of a tenant pour autre vie, who dies intestate, and the time of obtaining letters of administration of his effects. Without allowing a title by occu pancy to exist, for the intermediate time, the maxim of the law, which so carefully guards against the abeyance of the freehold, will be infringed. Unless the law leaves the freehold open to occupancy during the intermediate time, the statute of 14 Geo. II. must receive the construction that it gives the administrator a title by relation: and this construction must proceed on the ground that no inconvenience will be produced, as administration can be obtained by a stranger, (g) 14 Geo. II. c. 20. s. 9, in case the party entitled shall, on being cited, refuse to take it. Thus the freehold of the church will be in abeyance, till a successor to the parson shall be appointed (i); and on the death of the tenant pour autre vie, leaving the possession vacant, the freehold will be in abeyance till some one enters (k). The former hypothesis is most consonant with our system of tenures ; Thus in the case of the birth of a posthu mous child, the heir for the time being is allowed to take (1), and the statute of Will. III. (m) applies only to posthumous children, who are to take by purchase, on the death of their parent; and consequently are in esse to many purposes (n). All estates of inheritance are estates of freehold. Estates of freehold, however, are not necessarily estates of inheritance. Under the division of estates of freehold, may be classed, 1. The estate of tenant for his own life. 2d. For the life of another person, or pour autre vie. Bd. For the joint lives of several persons. (i) Co. Litt. 342, b. (*) Ibid. (2) Shelley's case, 1 Co. 93, b. Watkins' Descent, ch. 4. Bassett v. Bassett, 3 Atk. 207. (m) 11 Will. III. c. 16. (n) Doe z. Clarke, 2 H. Black, 401. |