J. J. S. (John Jane Smith) Wharton.

The principles of conveyancing ... with copyhold forms and precedents, and a copious index online

. (page 1 of 55)
Online LibraryJ. J. S. (John Jane Smith) WhartonThe principles of conveyancing ... with copyhold forms and precedents, and a copious index → online text (page 1 of 55)
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By J. J. S. WHARTON, M.A., Oxon,


To the successful Practice of Conveyancing, two things are indispensible :— 1. A correct
knowledge of its principles ; and, 2. skilfulness in their application.




04.9 ?3/S!?



In detaining the reader for a moment at the
opening" of this book, let him not suspect a subtle
apology for its appearance, or an indirect and
artful eulogy of its contents : I simply desire to
inform him of what he will find set down in it,
lest he should enter upon its perusal with high
expectation, and abandon it with frustrated hope.

The volume, then, is devoted to that branch of
our national jurisprudence, denominated "Con-
veyancing," and comprehends the grand sub-
jects which make up the scientific principles,
governing the relationship that subsists between
the owner and his landed property. It is divided
into four Tractates, or Books, each of them com-
plete in itself, although they have a connexion
with one another, as treating of subjects common
to the same science.

The first Tractate deals with the important
theme of Estates in Realty, botli as regards their
quantity as well as their quality. It exhibits, not

77/:^ 36


only all the several interests that can be enjoyed
in land according to English Law, together with
their particular attributes and characteristics, but
also the periods ot" their enjoyment, and the
manner, whether sole or joint, in which they are
held and occupied.

As closely connected with this fundamental
enquiry, the second Tractate takes up the whole
question of Copyholds, Customary Freeholds,
and Ancient Demesnes, and exhibits their origin,
incidents, and peculiarities of transfer, giving the
minute details of the practice relating to Commu-
tation and Enfranchisement, interspersed with the
necessary forms, as well as valuable precedents of
surrenders, deeds of covenants, and enfranchise-
ments, which have been selected from drafts in
actual operation.

Having developed the laws of Freeholds and
Copyholds, the abstruse and important doctrines
of Uses, Trusts and Powers, absorb the whole of
the third Tractate, which, being sub-divided,
treats of Uses and Trusts, in its first part,
and attempts, in its second part, a sketch of
those Powers which modify the uses of an estate.

The fourth Tractate is occupied with the
vital subject of Title to Realty, in whicli the
several methods of its acquirement are indicated,


and their leai-ning expounded ; the latter poition
of it comprehending the requisites of Abstracts of
Title, their perusal and verification, together with
the duties and purposes of searching for incum-
brances, and the registration of judgments and

A copious table of arrangement, with figures
corresponding to the text, precedes each Tractate,
with a portional repetition at the heading of each
chapter to which it relates ; and a full index to
them all is placed at the end, to facilitate refe-
rence, and render every matter treated of ac-

Thus, the volume contains, in fact, all the lead-
ing subjects embodying the Principles of Con-
veyancing. Brevity, without ambiguousness,
has been the object sought to be attained ; obso-
lete law and exploded doctrine have been entirely
discarded, while living and extant learning has
been exclusively discussed. A voluminous body
of valuable annotation is arranged in the notes,
with authorities and treatises quoted, where
the minutest details of all the salient tenets ex-
hibited, may be found.

The reader is now invited to an examination of
this volume, which I have treated after an order
and style entirely my own. It has been my


endeavour to make it practical, in accordance
with the Spirit of the Ag-e. Unnecessary disser-
tation is not indulg-ed in, time and space are
economised, and simple results set forth.

While, indeed, every effort has been made to
render the work acceptable, and at a price quite
without example in an original book upon the
abstruse subject of real-property-law, I am abun-
dantly sensible that a sifting scrutiny may dis-
cover imperfections : earnestly, then, do I pray
the critical student to be the friend in his stric-
tures upon my humble labors, and to remember
the great difference between conception and
reality, arising from the scantiness of human intel-
lect, and the impotency of human strength.

J. J. S. Wharton.

36, Lincoln's Inn Fields,
Sept. 10, 1851.



" The Laws of Property have bccii formed into a fine and artiticiul system, full of con
nections and nice dependencies ; into a system vAnch has reason for its basis, and co!>
venience and good policy for its objects."— Preston.




We have selected this as the first subject in our series of
Tractates, for the reasons laid down by a great master of
Conveyancing Law — the late Mr. Richard Preston— who
thus pronounced his opinion by way of preface to the
second edition of his elementary treatise on Estates: — " The
most mature reflection, and the \merring guide of ex-
perience in the education of pupils, have brought the
fullest conviction to my mind (a conviction originally
impressed by the example of Littleton) that the knowledge of
the quantity or measure of estates, ought to be with every
person, anxious to become acquainted with the rules of
property, either as a barrister, a conveyancer, a pleader,
or a solicitor, the foundation of his studies. Every branch
of the law, on Rights and Titles ; on Remedies ; on the
power of alienation ; on the modes of conveyance, &c., &c.,
and the forms of action concerning the title, or the I'ight
to the possession, and frequently to relief in equity, must
be deduced from the previous consideration, what estate
was in the person in reference to whom the material (jucs-
tion is to be predicated."



1. The terms "property," "estate," and I 2. "Things" distributed into real, pcr-
" tilings" explained. | sonal, and mixed.

So extensive and various is the relation between persons
and property; so great the privileges and power, political
as well as social, which wealth confers upon its possessor,
that the law, expounding its principles and governing its
transfer, is of universal interest. This particular law is
technically called '' Conveyancing •/' and, like every other
human acquirement, distributes itself into the Science and
the Art : the science developing the theoretical plan, and
systematizing the speculative principles of the subject ;
the Art being mechanical, and laying down ascertained
I'ules for facilitating the method of disposition.

It will be convenient, on the threshold of our inquiry,
to ascertain the technical meaning of several very general

1. The terms ^^ property^' and "estate" in their popular
sense are convertible, signifying the subject of ownership,
and are, therefore, coincident with "things." The law
employs the word "things" in contradistinction to ^'^ per-
sons,'^ and intends by it to comprehend all animate and
inanimate matter, save only mankind. But the exact
signification of '' property^^ is synonymous with the tech-
nical force of '' estate,^^ which means the peculiar relation-
ship in which a person stands wnth regard to things, and
the particular privileges possessed by such person in con-
sequence. To the question— " What interest has a certain
individual in a given thing ?" the answer may use the
word " estate" in the two senses, thus, " He has a free-


hold estate in the estate at Greenacre." It will be observed
that "freehold estate" applies the word technically;
while ^^ estate at Greenacre" employs it popularly. The
term '^ property" might have been substituted for ^'^ estate"
with precisely the like effect.^

2. "TJiings" the treatise-waiters distribute into real,
personal, and mixed. The characteristic of things-real,
(otherwise called realty or real-property,) is that they are
immovable, and cannot be transported from one place to
another, such as land ; things-personal, (otherwise called
personalty or personal-property,) 2 include all movables,
which can of course be carried anywhere, as goods^ money,

(1) It is the practice in modern statutes to introduce a glossary clause explaining the
meaning and extent of many technical words and phrases made use of in them, which
words and phrases have very often in tlieir ordinary sijniification, a more confined, and
Lfl many cases, a different meaning. See 13 & 14 Vict., c. 60, § 2, as to the word
" land." Every considerable act of pa,rliament thus carries its own peculiar dictionary,
the effect of which is to produce doubt, confusion, and perplexity. It really be-
comes a very serious question whether there should not be passed a general glos-
sarial statute, exactly defining such technical terms, by which their meaning in every
subsequent act of parliament should be ascertained and interpreted. The act just
passed — 13 Vict., c. 21 — attempts to deal with this subject ; but it is meagre and in-
adequate, and altogether too feeble to cope with the robust evil.

(2) Wliile the principles of realty are for the most part of feudal derivation, the rules
concerning personalty are brought from the ci%il law, or the law of nature. Sir Robert
Chambers, in his Treatise on Estates and Tenures, epitomizes the history of the Feudal
System as follows : —

" The diu-ation of the feudal law has by some writers been fancifully enough distin-
guished into four ages.

1. "In its infancy, the lands given to the soldiers, which were not j'et called feuds, and
perhaps had no general denomination, were held by the mere will and pleasure of their

2. " The second age began when some regard was had to descent. It is supposed, that
at first the son of a tenant was put into possession of his father's land, not as having a
better right, but as being natiu-aUy more Isnowu and more favoured than a stranger.
Wliat was reasonable by degrees became customary, and when the son without any
cause alleged was excluded, the lord was considered as exercising stimmumjtis, as acting
imkindly, though not UlegaUy. In time the advantages of a more certain settlement
were discovered, and grants were made to a tenant and his sons. These giants were
however inter^ireted in their most literal rigour.

3. " In the third age those possessions which, while tliey were granted only for life,
or at most with very strict limitarions, had been termed beneficia, began to be made




and chattels personal ; things mixed are evidently made
up of those subjects of ownership, which possess the cha-
racteristics of both realty and personalty. They subdivide
themselves into two classes : — (1), they are either fixed in
contemplation of law to realty, but movable in themselves,
as heir-looms, (or limbs,) title deeds, court rolls, &c., which
maybe denominated quasi realty, or, (2), they are movable
in point of law, though fixed to things real, either actvially
as emblements [or fructus industriales), fixtures, Sec, orficti-
tiouslj^, as chattels real, leases for years, &c.: both of which
kinds may be called quasi personalty. There is also one
description of property connected with land which may be
either real or personal property, depending on the terms
of the statute which creates it; as canal shares, which
under some acts are real property, and under others, per-
sonalty, although issuing in some respects out of land.

In dealing with estates in things — real, realty, or real-
property, we propose to unfold, in the first place, their
quantity ; and, then, their qualit5^

indefinitely inheritable, and took the name of feuds. Tlie succession to a feud was for
some time strictly lineal.

" The three periods of the feudal law which have been mentioned are called its infancy,
childhood, and youth.

4. "Then commenced its fourth age or matiu^ty : the order of descent was settled,
collateral relations were admitted to inheritance, the reciprocal obligations of lord and
tenant were fully imderstood, and some princes, the first of whom was the Emperor
Conrad the Second, had pubhshed edicts in %\Titing for regulating feudal successions .*

"About a ceutiu-y after the Conquest the feudal law received its completion by the
book De Feudis, now appended to the body of the civil law, and compiled in the time
of Frederic the First. This book comprises some decretal epistles of popes and some
edicts of emperors, with the opuiions and decisions of feudal lawj'ers, particidarly of
those from whose collections it was chiefly compiled, Gerardus Niger and Obertus de
Horto. This was the highest state of the feudal law, in which, bke all other human
things, it continued a short time, and from which it afterwards decUned."
* Craig. Feud. lib. passim.





1. What is meant by quantity.

2. The three articles of property.

3. Distribution of estates.

4. Fees,orInheritableFreeholds.

5. The three orders of estates, and the

three species of the first order.

It must be carefully kept in mind that the word ^'^ es-
tate" does not legally mean the land itself, which is, as
we have just seen, its popular sense ; but, that particular
right in a certain piece of land exerciseable by its
owner. "^

1 . The quantity of an estate signifies its time of con- what is

, 1^. . p ■,.-,. ,. meant by

tmuance or degree of interest ; as m fee, durmg life or quantity.
for years.

2. Estates exist in these three articles of property : — The three
(1) Lands; (2) Tenements ; and (3) Hereditaments ; which property.
terms embody what is meant by real property in this
country. Land'* comprehends all external, tangible,

and immovable property, susceptible of manual occupa-
tion, and being part and parcel of the terrestrial globe.
Tenement^ includes land and every modification of right
connected therewith, which may be holden so as to
create a tenancy, as a rent-charge, a right of common. An
hereditament is an abstract term, denoting an inheritable

(3) Co. Litt., 345 ; Chambers on Estates, 21 ; 1 Preston on Estates, 20.

(4) In its confined sense it denotes arable ground only. Cruise's Dig. 4, tit. 32,
e. 20.

(5) Popularly the terra signifies a habitable building with its appurtenants^

of estates


succession, which can be enjoyed either in land, or in
any privileges annexed to it.^

It may be broadly stated that the word '^ tenements"
includes '^ land,^^ and the word "■ hereditaments" includes
both "land" and "tenements." Land, then, is both a
tenement and hereditament, and a tenement may be an
hereditament,'^ but every tenement is not an heredita-
ment, ex. gra., a rent-charge for life, which is a tenement,
but certainly not an hereditament. Again, an heredita-
ment may be neither land nor tenement, as an annuity in
fee. And an annuity for life is neither land, tenement,
nor hereditament.

Distribution 3. We wiU now proceed to consider the distribution and

(6) Burton's Comp. of Real Prop. ]. Mr. Fearne, in his "Reading on the Statute of
Inrolments," (27 Hen. VIII. c. 16,) observes, " the word liereditnmenls,va our law, though
applicable both to real and to personal property, apphesto the two species of things in a
dififerent mode or degree of relation. WTieu applied to things real, it generally denotes the
things themselves which are the subjects ofproperty, without regard to the catiu-e or extent
of property therein; hut when used in relation to personal things, the word heredita-
ments does not import or signify the things themselves, but is only applicable to them
in respect of some inheritable right, of which they are in some mode or other the sub-
ject. Of a nature in some measure intermediate between the two already noticed,
there is a third application of the word hereditaments, wherein it is used to denote inhe-
ritable rights respecting lands, or somethuig issuing therefrom, or exercisable therein,
or having at least some local coimexion or relation, separate and distinct from the enjoy-
ment of the lands themselves. Hence we obtain the division of hereditaments into
real, personal, and mixed. Besides this distribution, there is another general division
of hereditaments into corporeal and incorporeal. The iirst description is con&ned to
those subjects of property which are comprised under the denomination of things real.
Incorporeal hereditaments are such as derive the denomination of hereditaments, not
fi-om the things themselves, but from the uiheritable rights of which they are the
subject : for rights are of an incorporeal nature. Incorporeal hereditaments therefore
comprise the two divisions of mixed and personal hereditaments already noticed, and
under the same description I would include such real hereditaments as consist of rights
to the future enjoyment of lands, divided from the present possession ; for though
corporeal hereditaments are their subject, yet, whilst the rights remain distuict from the
right of actual possession, I see nothing substantial in their natiire ; on the contrary,
they seem clearly to faU withm that predicament which I take to be the criterion of an
incorporeal inheritance, tangi nan potest, nee videri. Tliere are also other properties
common to them with other estates, which are universally arranged in the class of incor-
poreal inheritances ; for instance, they do not he in livery, and cannot be transferred
u-ithout deed, except in some special instances, similar to some of those in which coi'-
poreal inheritances may be passed at common law, without livery of seisin."

(7) 1 Preston on Estates, 12.


several species of estates, pointing out (amongst other
things) the technical words, by which their extent is to be
marked and ascertained.

Estates, as to their quantity or time of continuance,
are distributed into two classes: — (1) Freeholds and (2)
Chattel-Interests. The distinction between these two
classes of estates is that freeholds ^ endure for the period
of a life at least ; 9 while estates for a shorter period
than life are fixed for a more certain time than life, since
these are defined by a certain number of years, months,
or days, and are, therefore, deemed chattel-interests. ^^

An estate for life is called a mere freehold, it determines
with the death of the life upon which it depends for sub-
sistence ; but a freehold may be limited to endure not
only for the life of a given person, but also for the life of
his heirs or successors ; it then becomes an inheritable
estate, or interest enjoyable by the heirs of the owner after
his death.

4. An inheritable freehold is more ample than a mere Fees, or

'^ Inlieritable

freehold, for it not only comprises all the time of this Ffeeiioids.
estate, but something more, as it is transmissible to cer-
tain persons designated as the heirs or successors of the
owner after his decease, and may continue for ever. These
inheritable freeholds are distinguished by the name of fee,
the better to separate them from mere freeholds, which are
otherwise denominated life or non-inheritable freeholds.

5. We deduce, then, from these differences three distinct The three

^ orders of es-

orders of estates, viz. : — *?'«=> and the

■^ three species

( 1 .) Fees or Inheritable freeholds. °[derf *""''

(8) Freehold is a term of art which denoted, in former times, the quality of the estate,
as indefeasible at the mere will or caprice of the lord, whenever he should think proper
to exercise the oue or signify the other. 1 Preston on Estates, c. II. It is the translation
of the phrase— Zi6en<m lenemenlum.

(9) But they may be made to end sooner by the happening of an luicertaiu event, the
breach of a condition, &c.

(10) These interests are called tacks in Scotland. Erskiue's Prin., 2 lib., p. 172,


(2.) Life-freeholds.

(3.) Chattel-interests.
Under these orders rank several sorts or species of estates.
The first order of fee^, or inheritable freeholds,
comprehends in modern times three species of estates,

{a) Fee-simple absolute ;

{b) Fee-tail;

(c) Fee-qualified or base.
It will be collected then that " fee" used in this sense
is a general term, which is particvilarized by certain adjec-
tives, as simple, tail, qualified, &c. In other words, " fee'^
expresses the genius of inheritable estates, and the epithets
point out their species.

§ 1 (a). Fee Simple Absolute.

1. Its description.

2. How created.

3. The word that passes the estate in


4. As to wills.

5. Incidents of a fee-simple.


itsdescrip- ]. This interest stands at the head of estates as the
highest in dignity and the most ample in extent; since
every other kind of estate is derivable out of a fee-simple,
and is ultimately absorbed into it.

A fee-simple is pure, without condition, and vmre-
strained, except by the laws of escheat,il and the canons
of real-property descent. It is not, however, confined to

(11) Noy, in his Treatise on Tenures, p. 65, says—" This estate can never perish, so
long as the substance, whereof the estate ariseth, hath a heing. And, therefore, albeit
that he which is seised of such estate, happen to die without heir, yet the same estate
is not extinguished, but, by act in law, in some other degi-ee, transferred to the lord of
whom the lands were holden, by way of escheat ; because the land, wherein the tenant
hath such estate, doth still continue. But, if a man seised in fee of a rent-charge or
rent-seek, dieth without heir, this fee-simple, although it be of the first sort, doth perish ;
because the rent, wherein he hath estate, being transitory, is, by such dying without,
heir, quite swallowed up and dro^nled in the laud out of which it did issue."


any particular line or species of lieirs, but descends to the
owner^s heirs general, whether lineal or collateral, paternal
or maternal.

Littleton, in his Tenures (§ 1), gives a description of
this estate, which appears to have been adopted by every
subsequent writer. His language is this : —

A person who holds ^'^in fee simple is he which hath lands
or tenements to hold to him and his heires for ever. And it
is called in Latin feodum simplex, iov feodum is the same

Online LibraryJ. J. S. (John Jane Smith) WhartonThe principles of conveyancing ... with copyhold forms and precedents, and a copious index → online text (page 1 of 55)