Henry Williams Challis Henry J. Hood.

The Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... online

. (page 11 of 53)
Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 11 of 53)
Font size
QR-code for this ebook

tained in the disposition by which it is created.

It is remarkable that the question has been little noticed. It
does not refer to the distinction between the heir male or female and
the heir general, but to the distinction between the heir of the body

Digitized by VjOOQIC


and the heir general. It seems to have been always tacitly assumed,
without the necessity for explicit mention, that when the law, whether
mediately or immediately, devests a fee tail by barring the issue in
tail, the novel fee thus created will, in the hands of the person
entitled to the benefit of the bar, follow the ordinary course of descent
prescribed by the common law, namely, to the heir generaL And
since base fees are now created by express limitation contained in a
" disposition," it follows that they may be limited in any shape in
which a fee may be limited.

Modem innovations upon the law have introduced a possibility of
the existence of base fees which are not strictly comprised within the
terms of Plowden's definition. A base fee created by a tenant in tail
might possibly take the shape of a disposition in favour of a grantee
in tail male or tail female. Such estate would not descend to the heir
general ; but it would possess the most prominent characteristics of
other base fees : being created rather by operation of law than by the
act of the party, and being determinable with the failure of issue
inheritable imder the defeated entail.

Moreover, sect. 65 of the Conveyancing and Law of Property Act,
1881, amended by sect. 11 of the Oonveyancring Act, 1882, enacts,
that the residue of any such long term of years as is therein specified
may be enlarged into a fee simple, by virtue of the Act, in the manner
therein prescribed. It is perhaps not dear what will become of the
reversion upon the term under such circumstances. On the one hand,
two fees simple cannot, by the common law, subsist at the same time
in the same lands ; whence might be drawn the inference, that the
reversion is absolutely destroyed. On the other hand, the rule of the
common law, that a reversion in fee cannot be expectant upon another
fee, may be suspended by force of a statute, and it has in fact been
suspended by the statute De Bonis. The question does not appear to
have been foreseen, and the answer which it will receive cannot
confidently be predicted. If the reversion is not destroyed by the
enlargement, the fee simple obtained by the enlargement will subsist
as a base fee. No other example can be suggested of a base fee
which is a fee simple absolute.

Digitized by VjOOQIC


Chapter XVI.


Under the phrase tenant for term of lifey Littleton (sect. 66) includes
both a tenant for the term of his own life and a tenant for the term
of another's life, or pur autre vie. But the latter tenancy is distin-
guished by some peculiar characteristics, which make its separate
treatment desirable.

To these, says Lord Coke, may be added a third, viz., for the lives
of the tenant himself and of another person or persons, which limita-
tion creates a single estate of freehold. (Co. litt. 41 b.) If the other
person or persons die in the lifetime of the tenant, this estate becomes
thenceforward an estate for his life simply ; but otherwise this estate
becomes subject, at his death, to the peculiar characteristics of an
estate jowr autre vie.

Every tenant for life has by common law, as incident to his estate,
and without express grant, the right to take in reasonable measure
three kinds of estovers — ^housebote (which includes firebote), plough-
bote and haybote ; xmless he be restrained from taking them by special
covenant. (Co. Litt. 41 b.) To cut timber so far as may be neces-
sary for these purposes, is not waste ; provided, of course, that the
timber is in fact used accordingly. {Ibid. 53 b.) If the tenancy
arises imder a settlement, the tenant's rights of user are always
expressly provided for by the settlement ; and in practice the tenancy
for life is commonly declared to be without impeachment of waste.
If the tenancy arises under a lease, the rights of the tenant are in
practice provided for in the lease.

By the common law, a tenant for life under a settlement has no rights
of user, or power to deal with the land, other than those possessed by a
lessee for life holding merely under a lease at a rent. But by the Settled
Land Act, 1882, extensive powers of alienation, enfranchisement, ex-
change, partition, leasing, and for other purposes, are conferred upon
every person beneficially entitled to possession (which in that Act
includes receipt of income) of settled land under a settlement, afl
defined in sect. 2, sub-s. (1) of that Act. The following remarks
will, in the absence of express mention, be restricted to such points
connected with estates for life as do not seem to be affected by the
last-mentioned Act.

An estate for life may arise (1^) by express limitation to a grantee
during his life ; (2^) by implication of law : where a grant is made

Digitized by VjOOQIC


to a grantee by name, either without any words of limitation, or
accompanied by words intended to take effect as words of limitation,
but not by law capable of so taking effect as to limit any greater
estate ; (3^) by the assignment of an estate pur autre vie to ceatui que
vie ; and (4*^) by operation of law, on the arising of a husband's right
to curtesy, or of a widow's right to dower.

Any conveyance, otherwise valid and capable of taking effect, which
nominates a grantee, but neither limits nor purports to limit any
estate, will, in the absence of any further indication, operate by
implication of law to pass an estate for the life of the grantee. (Oo.
litt. 42 a; see also litt. sect. 283.) Similarly, if the limitation is
for term of life^ without saying for whose life. (Oo. litt. 42 a.) But,
in the latter case, an estate for the life of the grantor will pass, if the
grantor might rightfully grant that estate, but could not rightfully
grant for the life of the grantee. {Ibid. See also 183 a.) And the
implication of law upon which the estate arises is liable to be rebutted
by the mfitnifestation of a contrary intention. For example, if the
estate by implication should arise in the premisses of a deed, it may by
the habendum be cut down to an estate for years, or at will ; and this
may happen even though the habendum itself be technically void as a
limitation, and therefore not capable of taking effect otherwise than
as a manifestation of intention. (See the 1st resolution in Buckler's
Caae^ 2 Eep. 65. For further observations upon the relation between
the premisses and the habendum j see p. 100, infra.)

The addition to the name of a grantee of any words designed to
serve as words of limitation, not being such as are appropriate to the
limitation of a fee, will not enable the assurance to pass any estate of
inheritance ; and in general will not enable the assurance to pass any
greater estate than would have passed by the mere nomination of the
grantee. But the addition to the name of the grantee of the words,
^'his executors, administrators, emd assigns," in the premisses of a
deed, will, when the grantor has an estate for his own life, expressly
pass the whole estate of the grantor to the grantee, so as to make the
habendum^ if purporting to grant a less, or an impossible, estate, void
for the inconsistency. {Boddington v. Robinson^ L. E. 10 Exch. 270.)
The reasons given for this decision are not very intelligible ; but the
decision itself can be reconciled with authority.


To entitle the husband to be tenant by the curtesy after the death
of the wife, it is necessary (1) that the wife be seised during the
coverture of an estate of inheritance to which issue of the marriage
may possibly succeed as heir to the wife (Idtt. sects. 35, 52) ; (2) that

Digitized by VjOOQIC


the estate be, or become during the coverture, an interest in possession ;
(3) that seisin in deed (less properly styled actual*' seisin) be obtained
during the coverture ; and (4) that issue be bom alive.

If the lands be subject to the custom of gavelkind, the curtesy is
usually of a moiety only, and ceases on the re-marriage of the
husband. But such curtesy attaches without birth of issue. (Oo.
litt. 30 a, 111 a ; and see on the subject generally, Eob. Grav. bk. ii.
oh. 1.) Special custom may assign a different proportion, or the
whole, to the husband.

The rule, that seisin in deed must be acquired during the coverture,
applies in its full rigour only to lands. As regards other realty of
which there is curtesy, a seisin in law sufl&ces if circumstances make
seisin in deed impossible ; thus, of a rent, if the wife dies before it
becomes due, or of an advowson, if she dies before the church becomes
void. (Co. litt. 29 a.) Entry is not necessary to acquire seisin in
deed, if there be a tenant for years of the land; because his possession
is the possession of the husband and wife, even before the receipt of
rent from him. (Harg. n. 3 on Co. Litt. 29 a.)

Lord Coke (Co. Litt. 40 a) refers the necessity for actual seisin
to Littleton's words (sect. 52), that the issue must be such as may by
possibility inherit as heir to the mfe : descent being traced, before the
3 & 4 Will. 4, c. 106, from the person last seised. It would seem to
follow, if he is right, either that there is now curtesy only of lands
ooming to the wife by purchase, or else that actual seisin has ceased
to have any relevancy to the matter.

In Ua^er v. Fumivall (17 Ch. D. 115) it seems to have been assumed
that the alteration of the rules of descent had not affected the necessity
for actual seisin ; but the point was not raised. It was also assumed,
that a seisin in law of lands would suffice, when a seisin in deed could
not be had: a very equitable proposition, which is ill supported
by authority.

The Court of Chancery allowed to the husband a right, analogous
to curtesy (which may be styled equitable curtesy), in respect of
equitable estates having the same nature and quantum as legal estates
which confer the right. (Harg. n. 6 on Co. Litt. 29 a.) The phrase
equitable estates here includes an equity of redemption {Casbome v.
Scarfey 1 Atk. 603) ; also trust money held upon trust for investment
in land {Sweetapple v. Bindon^ 2 Vem. 536). The doubt expressed
in the last-cited case, whether curtesy should be allowed if the trust
arose under marriage articles, is disposed of by Cunningham v. Moody ,
1 Ves. sen. 174.

If the wife is entitled to her separate use, not only as regards the

* Actual seisin properly denotes the seisin of the tenant of the immediate
freehold, as distingid^ed from the seisin of the remaindermen and reversioner.

Digitized by VjOOQIC


income but also as regards the corpus, this does not prevent the
right of the husband from attaching, though it will be defeated by
the wife's alienation, whether inter vivos or by will. {Cooper v. Mac^
donald, 7 Oh. D. 288 ; overruling Moore v. Wehdery L. E. 3 Eq. 267.)
An express declaration contained in the settlement, that the husband
" shall not be tenant by the curtesy," will exclude his right altogether;
even though the legal estate be in the wife. {Bennet v. DaviSj 2 P.
Wms. 316).

So far as alienation is concerned, the power of a wife entitled for
an estate of inheritance to her separate use, to defeat her husband's
curtesy, seems to be the same as the power of a husband, imder 3 & 4
Will. 4, c. 105, to defeat his wife's dower. But it does not appear
that a wife could, by a mere declaration of intention, without making
any disposition of the estate, defeat her husband's curtesy.

The Married Women's Property Act, 1882 (45 & 46 Vict. o. 75),
does not seem to make any further change in the law affecting curtesy,
than to put all curtesy (except of estates the title to which may have
devolved upon a married woman before the Act's commencement,
which remain unaffected) upon the same footing as equitable curtesy
in cases where, before the Act's conMuencement, the wife was entitled
to both income and corpus to her separate use. The Act seems to aim
at raising a separate use for a married woman by implication of law
and without the intervention of a trustee ; which has not necessarily
any wider operation than a separate use raised by contract. But the
question does not appear to have been foreseen ; and, so far as regards
estates belonging to women married after the Act's commencement,
and estates coming to women previously married by a subsequently-
accruing title, it must be answered with some caution.

A tenant by the curtesy has the powers conferred upon a tenant for
life under a settlement by the Settled Land Act, 1882. (See sect. 58.)
But there may perhaps be some difficulty in interpreting that enact-
ment, because the estate of a tenant by the curtesy does not arise
" under " any " instrument." {Ibid, sub-s. 2 ; q, r .)

There formerly existed three kinds of dower other than dower at
oomnion law; including, under dower at common law, dower out of
lands held by common law tenure, but of which, by special custom,
some other proportion than one-third part is assigned for dower. Two
of the three, dower ad ostium eccksim {sive monasterit) and dower ex
assensu patris (Litt. sect. 38), were abolished by 3 & 4 Will. 4, c. 105,
^. 13. The third kind, dower de la phis heale (litt. sect. 48), was
practically abolished with the abolition of tenure in chivalry by
13 Car. 2, c. 24.


Digitized by VjOOQ


Dower at oommon law is of a third part of all tenements of which
the husband was solely seised, whether in deed or in law, at any time
during the coverture, for an estate of inheritance to which issue of the
wife by the husband might by possibility inherit ; but such issue need
not be bom, (litt, sect. 36.) By local custom dower may be of a
half, or the whole. {Ibid, sect, 37.) In that case, it is more properly
styled dower by local or particular custom. (2 Bl. Com. 132.) But
such dower must be carefully distinguished from dower out of lands
held by customary tenure for customary estates of inheritance, usually

If the lands be subject to the custom of gavelkind, the dower
usually is of a moiety, and ceases on re-marriage or fornication.
(Bob. Gav. bk. ii. ch. 2.)

Although the husband was allowed equitable curtesy of equitable
estates, the wife was not allowed equitable dower. {Godwin v. JFins*
mai^Cy 2 Atk. 625.)

The dower of all women married after the 1st January, 1834, is
now regulated by the 3 & 4 Will. 4, o. 105, which gives the wife, in
addition to her common law dower, a right to dower out of equitable
estates of inheritance in possession (sect. 2), and also out of estates as
to which the husband had only a right of action (sect, 3). But it
enables the husband to bar her right to dower, (whether at common
law or by virtue of the statute,) either by making any disposition of
the estate incompatible with the right, or by declaring in any deed,
or in his will, his intention that she shall not be entitled. The pro-
visions of this Act do not extend to copyholds. {Poicdrell v. Jones,
2 Sm. & G. 407 ; Smith v. Adams, 6 De Q. M. & G. 712.)

Tenant in dower is perhaps the only " limited owner" upon whom
ho powers are confenjed by the Settled Land Act, 1882,

Chapter Xyil-


So far as regards its quantum, an estate pur autre vie may be limited
to endure (1) during the life of a single person ; or (2) during the
joint lives of several persons ; or (3) during the life of the longest
liver of several persons. In the following remarks the word life will,
for brevity, be used to include lives.

Every tenant pur autre vie has, by common law, the same right to
estovers as a tenant for his own life. (Co. litt. 41 b.)

By the oommon law, a tenant pur autre vie holding under a settle-
ment has no rights of user, or power to deal with the land, other than

Digitized by VjOOQIC


those possessed by a lessee pur autre vie holding merely under a lease
at a rent. But by the Settled Land Act, 1882, s. 68, a tenant pur
autre vie^ not holding merely under a lease at a rent, has, when his
estate is in possession, the powers conferred by that Act upon a tenant
for life under a settlement.

So far as regards its origin, an estate pur autre vie may arise in any
of three several ways : — (1) By express limitation, which is either to
a grantee simply, during the life of cestui que vie^ or to a grantee and
his heirs,* during such life ; (2) by the assignment to another person
of an existing estate for life, which latter estate may have arisen
either by act of parties, or by operation of law, as curtesy or dower ;
and the assignment is,, like the express limitation, either to the
grantee simply, or to him and his heirs, during the life of cestui que vie ;
(3) by operation of law, when, before the abolition of forfeiture by
33 & 34 Vict. c. 60, an estate for the term of the life of an attainted
traitor, who was entitled to an estate for his own life, was by
forfeiture cast upon the king; or when, before the practical aboli-
tion of general occupancy by the Statute of Frauds, an estate for the
term of the life of another person was, upon the death of a tenant
pur autre vie^ cast upon the general occupant in manner hereinafter
mentioned ; or, since that statute, upon the executor or administrator
of the deceased tenant pur autre vie.

It seems that for the purpose of creating an estate pur autre vie by
assignment, the estate of tenant in tail after possibility of issue extinct
does not differ from an estate for life, and that the assign is punish-
able for waste. (Co. litt. 28 a; 2 Inst. 302.)

When an estate j^wr autre vie arises either de novo by express limita-
tion, or by the assignment of an existing estate for Ufe, the omission
to specify the heirs in the grant has still an important influence upon
the transmission of the estate upon the death of the tenant in the life-
time of cestui que vie.

It will be observed that, in external form, the limitation to a
grantee and his heirs, during the life of cestui que vie^ resembles the
limitation of a determinable fee. But because the event which is to
determine the estate is not such as may by possibility never happen,
no fee arises. In a determinable limitation, the determining dause
must not be radically inconsistent with the preceding limitation,
which is subject to it ; that is to say, the determination must be only

* When the Statute of Frauds had oast the estate, in default of a devisee or
special occupant^ upon the executors or administrators of a deceased tenant ptur
autre vie, a practice sprang up of limiting the estate to the executors or adminis-
trators instead of to the heirs.

Digitized by VjOOQIC


possible, not certain, so that by possibility the preceding limitation
may endure throughout its whole possible extedt.

It follows, that the word heirs when used in this sense is not
properly a word of limitation. By virtue of the grant, the heir of the
tenant ^wr autre vie has, on the death of his ancestor in the lifetime of
cestui que vie, a right of entry ; but the right does not descend to him
as heir. It devolves upon him by the peculiar title styled occupancy ;
which in the case of the heir is styled special occupancy, to distinguish
it from the general occupancy which formerly existed upon the death
of a tenant pur autre vie, leaving no special occupant. This title
accrues to the heir by reason of his being named in the grant, and
not by any title of inheritance. And sinnlcffly, when an estate pur
autre vie is made the subject of a quasi-entail, purporting to be limited
to one and the heirs of his body, such special heirs do not take by
descent, and the words are not properly words of limitation, but only
words nominating a succession of special occupants. {Low v. Bun^on^
3 P. Wms. 262.) Until the Statute of Frauds made the estate in
the hands of the heir as special occupant, assets to the same extent as
a fee simple, no action lay against the heir upon his ancestor's bond
specifying the heirs.*

But when the heir is not named in the grant, he has no better title
by occupancy than any one else; and, by the common law, if the
possession was vacant at the death of the tenant pur autre vie, any
stranger who first entered gained the freehold for the residue of the
life of cestui que vie, by the title of general occupancy, and he was
styled the general occupant.t (Co. Litt. 41 b.) If the possession
was not vacant, the law cast the freehold, with the like title and style,
upon the person in possession (1 Prest. Est. 269) ; such as the tenant
for years, or at will, of the tenant pur autre vie.

Though the heir took as special occupant by the nomination of the
grantor and not by inheritance, it is the better opinion that the heir
alone, and not the executor or administrator, could be named as

• * * Such estates certainly are not estates of inheritance. They have been some-»
times called, though improperly, descendible freeholds. Strictly speaking, they
are not descendible freeholds, because the heir-at-law does not take by descent. If
on action at common law had been brought against the heir on the bond of his
ancestor, he might have pleaded riena per descent; for these estates were not
liable to the debts of the ancestor before the Statute of Frauds.** Lord Kenyon,
in Doe v. Luxton, 6 T. E. 289, at p. 291. In Seymor's Case, 10 Eep. at p. 98,
they are said to be descendible, but not of inheritance.

t "He that can first hap it, shall enjoy out the term.** Finch, Law, p. 115.
But the possession of land held pur autre vie is not more likely to be left vacant by
the death of the tenant, than the possession of land held for any other estate ;
and the cases in which any one could ** hap it ** and acquire a title subsequently
to the death of the tenant jtur autre vie, must have been extremely rare. The
object of sect. 12 of the Statute of Frauds was to make the lands assets for the
pa3nnent of debts, not, as has often (but absurdly) been said, to prevent
** scrambling for the lands.*'

a o

Digitized by VjOOQIC


special occupant in the grant. (Harg. n. 4 on Co. litt. 41 b ; Com.
Dig. tit. Estates^ F. 1 ; Lord Chancellor Sugden in Campbelly. SandySy
1 Sch. & Lef. at p. 289.) If the heir and the executor be both named
in the grant, the heir has the special occupancy. {Atkinson v. Baker^
4 T. R. 229.)

After the Statute of Frauds, as hereinafter mentioned, the question,
whether the executor or administrator might be named as special
occupant, had no practical importance so far as freehold lands are
concerned ; * because, if there was no special occupant, he would take
the estate by force of the statute. And he would take it as an estate
of freehold. {Oldham v. Pickering^ 2 Salk. 464 ; this point is stated
more fully in Carth. 376.)

Before the case of Ripley v. Waterworth (7 Ves. 426), the opinion
that the execufof* might be named as special occupant, seems to have
appeared only byway of casual surmise. (See 2 Vem. 719 ; 3 AtL 466.)
In the last-mentioned case Lord Eldon seems to have inclined towards
the same opinion. But since the question did not call for decision,
this opinion was obiter dictum ; and the question had been so long
deprived of nearly all its practical importance by the Statute of Frauds,
that the principles upon which its solution depends had fallen into
complete oblivion. It is hardly credible that, while the doctrines of
tenure retained their importance, the intrusion of an executor into the
inmiediate freehold would have been tolerated ; especially as the lord
had no means of compelling him either to take out probate or to
disclaim the estate ; so that, if he had delayed probate, the freehold
would have been in abeyance. These remcu'ks are still more obviously
applicable to an administrator.

Of things which at common law lie in grant, and of which there-
fore no possession could be taken, there was no general occupancy.
(Co. Litt. 41 b.) But of such things there might at common law
(and still may) be special occupancy. (Co. litt. 388 a, where
the word occupant evidently means general occupant; Vin. Abr.
tit. Occupant, D.) The fact that an administrator could not
be special occupant of a rent {Salter v. Butler, or Salterns Case,

Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 11 of 53)