Henry Williams Challis Henry J. Hood.

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

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passing of the statute 12 Car. 2, c. 24. The abolition by that statute
of the rights enjoyed by the crown in respect of its freehold tenants,
is the chief cause why the evidence of freehold tenure has for a long
time been much less carefully preserved than the evidence of copyhold
tenure. Though the growing importance of the political franchise
subsequently gave to freehold tenure, which carried with it the
right to vote at the election of knights of the shire, a new political
importance, this was in a great measure lost by the passing of the
Eef orm Act ; and even previously to Ihat time it did not much favour
the careful preservation of evidence of freehold tenure, because all
tenure is presumed to be freehold unless proved to be copyhold.
The decreased practical importance of freehold tenure has led to
something like oblivion of its existence ; and the word tenure is often
used in reference, not to the tenure properly so called, but to the
quantum of the estate or interest of the tenant.

The practical consequences of tenure are now almost confined to
(1) rights by escheat, which are seldom claimed, in respect of free-
holds, except by the crown ; (2) rights of the lord in respect of copy-
holds of the manor ; (3) rights of the lord on the one hand, and of
the commoners on the other, in respect of the waste lands of the
manor. The importance of manorial rights, whether of lord or
tenant, as distinguished from proprietary rights, is being rapidly
reduced by the enfranchisement of copyholds and the endoeure of

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wastes; though some check has been recently given to the latter
process. Ancient quit-rents affecting freehold lands and undoubted
incidents of their tenure, still exist ; but the change in the value of
money makes them of little importance, unless as evidence to support
a title by escheat. These also will tend to be extinguished by the
operation of sect 46 of the Conveyancing and Law of Property Act,


Chapter I.


By the doctrine of the common law, all the land in England is either
in the hands of the king himself, or is held of him by his tenants in
capite* The king is therefore styled, xar 6?ox>iv, the Lord Para-
mount ; as being the " sovereigne lord, or lord paramount, either
mediate or immediate, of all and every parcell of land within the
realme." (Co. Litt. 65a.) To this rule there is no exception ; but
Hargrave seems to surmise that allodial lands may still exist in
Scotland. In case of a failure of heirs of ^ the person entitled, it
would be impossible for a person in possession to withstand a claim
by escheat of the crown, upon a plea that the land was allodial^ or not
held of any lord. The tenants of the crown in capite are commonly
referred to as "the tenants in capite ;^^ and that phrase imports, in
the absence of any addition, tenure of the crown, though tenure in
capite might in fact be holden of a subject. (Co. Litt. 73a.) Under
the tenants in capite came others who held of them ; and tmtil the
statute of Quia Emptores prevented the practice of subinfeudation
from being carried further, the tenants of the tenants in capite might,
by the common law, convey lands in fee simple to tenants of their
own, and these again to others under them, and so on theoretically
ad infinitumj'f though in practice the successive links could not bo

* For some pmposes it is necessary to di8tin&:ui8h between tenants of the king
vi de corona and ui de honore, Qlie former held by direct grant from the king.
The latter held of the king only by reason that the land-barony (honoiuO ot
which they held had come to the king's hand by forfeiture or escheat. They
held of the king by the same eerrices as of the barony before it came to the
king's hand. A fag. Cart, (9 Hen. 3)cap. 31.

t As is shown by the Statute of Westminster 2(13 Edw. 1), c. 32 ; which, in


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very numerous. After the last-mentioned statute, though successive
feoffments in fee might be made, yet the feoffee did not hold under
the feoffment of the feoffor, but, imder the statute, of the chief lord
of the fee.

The tenure by which this system was held together, because it
existed by force of the common law, is often styled tenure by the
conmion law or common law tenure. Since the decadence of the feudal
system, which has deprived the true doctrine of tenures of nearly aU
its practical importance, the word tenure has often been confused
with terms referring to the quantum of the tenant's estate : a confusion
which is chiefly due to the fact, further referred to in the next para-
graph, that common law tenure is found only in connection with
estates having a certain conventional quantum. But the word properly
denotes the specific feudal relation subsisting between the lord and the
tenant; and it refers only to those relations which were comprised
within the feudal organization of the realm, and does not extend to
the relation between a reversioner and a termor for years. Until the
Statute of Gloucester (6 Edw. 1) gave a partial, and the 21 Hen. 8,
0. 15, gave a complete, remedy, the reversioner, as common law
tenant of the freehold, had power to destroy the term of years at
his own will and pleasure, by suffering a collusive recovery* (Co.
Litt. 46a.)

There does not necessarily exist any definite relation between the
nature of the tenure by which the tenant holds, and the quantum of
the estate held by the tenant ; but an invariable custom did, in fact,
establish such a definite relation, and also went a considerable way
towards maintaining a definite relation between the nature of the
tenure and the political status of the tenant. Thus it is the fact
(1) that common law tenure was always associated with estates not
falling below a certain conventional quantum; and (2) that such
tenure was so far associated with the status of a free man, that the
grant to a villein by his lord of an estate to be held thereby, or
(which is the same thing) the grant of an estate not falling below
the standard quantum^ would operate as an enfranchisement. (litt.
sect. 206.) From its connection with political status the conmion

order to prevent evasion of the Statutes of Mortmain by means of feigned reco-
veries, enacted that the hona fides of default made by the defendant in actions of
recovery brought by ecclesiastical persons should be inquired by a jury; and
that, if it should be found that the demandant had a good title, he should have
judgment; but if it should be found that he had no right, "the land shall
accrue to the next lord of the fee, if he demand it within a year from the time
of the inquest taken ; and if he do not demand it within tibe year, it shall accrue
to the next lord above, if he do demand it within half a year after the same
year; and so every lord after the next lord {quilihet dominus post proximum
dominum) shall have the space of half a year to demand it successively, until it
come to the king, to whom at length, through default of other lords, the lands
shall accrue." (2 Inst. 428.)

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law tenure acquired the name oi/ree or frank tenure^ and the common
law estates were styled estates of freehold. These estates remain, in
point of quantum^ the same now as in the days of Littleton ; but the
practical importance of the distinction between estates of freehold and
estates not of freehold, has been much lessened. Moreover, certain
important distinctions have been enacted by statute, between estates
of mere freehold arising under a settlement, and estates of mere free-
hold taken under a lease granted at a rent.

Both the nomenclature and the history of tenures shows that, so
long as the feudal system retained its practical importance, a strong
connection existed, both in public opinion and in common practice,
between free status and free tenure, and between villein status and
villein tenure. It is probable that, during the early period of the
Norman conquest, the division between free and villein tenure accu-
rately corresponded with the division of the population in regard to
status ; but the connection between tenure and status, at all events after
the earliest days of the feudal system, was not absolute. (1) A free
man did not lose his freedom by accepting lands to be held by villein
tenure. (Litt. sects. 172, 174.) (2) Not only the grant of an estate
of freehold, but also the grant of a term of years, or any fixed interest
whatever, greater than a tenancy at will, by the lord to the villein,
operated as an enfranchisement. {Ibid, sects. 205, 207.) The exist-
ence of these breaks in the connection between tenure and status is
sufficiently explained by the leaning in favorem libertatis, which has
from very early times been a marked feature of English law. (Anglim
jura in omni oaeu libertaU dant favorem.)

All free or ooromon law tenure was either in chivalry or in socage.
(Litt sect. 118.) But this must be understood of lay tenure; for
frankalmoigne is indubitably entitled to rank as a distinct third kind
of common law tenure.

(I.) Tenure in ohivaby comprised, until its abolition in the year
1660 (which took effect as from 1646) by the 12 Oar. 2, c. 24, the
following species : —

1. Grand Serjeanty. (Litt. sect. 168.) This tenure could be of

none but the crown. {Ibid. sect. 161.) Language has been
sometimes used which would seem to import that this tenure
was not destroyed, as a separate species, by the 12 Car. 2, c. 24;
but the language of the statute better supports the view, that
grand serjeanty has thereby been converted into free and
common socage, retaining, nevertheless, its honorary incidents.

2. Homage Ancestral^ on which some remarks will be made


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8. KnighUsemcej oommoBly so called, of whioli esooage, oastle-
guard, &o., were incidental services. . The term escuage is
sometimes used by metonymy to denote the tenure of which
it was a prominent incident; for example, in litt. sect. 99.
Escuage certain j i.e.f payable to a fixed amount, was used to
denote socage, of which fixity in the extent of the services law*
fully demandable was the most salient characteristic. But
when the term is used without any specific addition, it refers
to knight-service.

(II.) Tenure in socage, also styled free and common socage,
comprises : —

1. Petite Serjeanty. (litt. sects. 159, 160.) This tenure also

can be of none but the crown. {Ibid, sect. 161.) Sundry
incidents of this tenure have been abolished by the 12 Oar. 2,
c. 24, but its name seems to remain. (Harg. n. 1 on Co. Litt.
108 b.)

2. Homage Ancestral in Socage. (See Litt. sect. 162.) This tenure

iaay be said to have been converted into mere fealty ancestral
by the abolition of homage ; but the conditions under which
homage ancestral, whether in chivalry or in socage, existed,
make it very improbable that any specimens survived in
practice till the Restoration.

3. Peculiar species of socage, distinguished by thiei association with

them of peculiar customs ; as for example. Burgage Tenure
(Litt. sect. 162), distinguished by its frequent connection
with the custom of borough-english, and also with a custom
to devise by will lands so held, before the stat. 32 Hen. 8,
c. 1 ; also Gavelkindy when the word is used to denote the
tenure and not the attendant customs. Other species might
perhaps be discriminated, which have not acquired distinct
names by reason of their rarity and comparative unimport-
ance. It must, however, be observed, that the practice of
distinguishing between species of socage or other tenures, by
their connection with peculiar customs of inheritance, is of
doubtful propriety ; because an alteration in the tenure does
not e£Eect any alteration in the associated custom. ( Vide infra^
p. 8, note.)

4. Common Socage^ so styled generally, in the absence of any

special characteristic.
It is unnecessary for the present purpose to make any particular
mention of the burdensome incidents of knight-service and socage in
eapitij which were abolished, together with all common law tenures,
except socage and frankalmoigne, by the statute 12 Oar. 2, a 24.

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(HE.) Prankalmoigne is a species of tenure to which the following
conditions are necessary : — (1) that the tenant be an ecclesiastical
corporation, whether aggregate or sole ; (2) that the grant be made
by the words in Uberd (or purd) ekemosindj or the Norman or English
equivalents. (Co. litt. 94 b.) But no gift to be held by this tenure
can be made, since the statute of Quia Emptores, except by the crown,
(litt. sect. 140.) Even a corporation sole would take a continuing
estate by the use of the word frankalmoigne without words of succession.
(Co. litt. 9 b ; 94 b.) Fealty was not due to the lord. (Litt. sect. 135.)
But if by escheat the lordship passed to a superior lord {Ibid, sect. 141),
or if by alienation the lands passed to a new tenant {Ibid, Bed. 139),
fealty became due, and the tenure was converted into soeage, even
though the new tenant were an ecclesiastical person, for the tenure
of frankalmoigne could only subsist between donor and donee. (litt.
sect. 141 ; 2 Inst. 602.)

No definite or specified services could be reserved to the lord on a
gift in frankalmoigne, but a general obligation was implied to say
prayers and masses for the souls of him and his heirs. If any definite
or specified ecclesiastical service was annexed to the gift, the tenure
was not properly frankalmoigne, but by Dimne Service. (litt. sect.
137.) Therefore it would be the more strictly correct method to
treat frankalmoigne as being only one species or sub-division of
spiritual tenure^ as Lord Coke says the old books did. (Co. litt. 97 a.)
A reservation of a secular service, such as a rent, was void, as being
repugnant to the nature of a grant purporting to be made in frank-
almoigne. {Ibid,)

Frankmarriage (sometimes vaguely coupled with frankalmoigne, and
sometimes erroneously styled a tenure) was the name not of a species
of tenure^ but of a species of estate; viz., an estate in special tail* given
to a man and his wife and the heirs of their two bodies, in considera-
tion of the marriage and of a near blood relationship between the
donor and one of the parties to the marriage ; which estate had some
peculiar characteristics distinguishing it from an estate in special tail
not limited upon those particuleir considerations. (See Co. Litt. 21b.)

Frankmarriage was a word of limitation sufficient (when the
postulated state of the facts actually existed) to confer such an estate
in special tail without the word heirs.

Somage and Fealty were not themselves tenures, but incidents of
tenure : homage being due only in respect of estates of inheritatwe

* At common law, before the statute De Donii had given to conditional fees the
peculiar characteristics which have caused them to be distinguished as fees tail
or estates tail, the estate created by a gift in frankmarriage was a conditional

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(Litt. sect. 90), and being almost confined to tenure in cliivahy,
though it was sometimes f oimd as a rare incident of socage tenure
{Ibid. sect. 117) ; while fealty not only pertained equally to chivaby
and socage, but by custom also to copyhold and customary tenure,
and even to a reversion (Co. litt. 93 a), and was due in respect of
every estate and interest in land, except a tenancy at will other than
the customary tenancy upon which copyhold tenure depended ; but
(as above remarked) not in respect of lands held in frankahnoigne.
It sometimes happened that homage, or fealty, was the sole obligation
which the tenant was bound to discharge ; of which the best known
example is the case of lands held by homage ancestral, where the tenant
and his ancestors had held the land, either of the same lord and his
ancestors or of the same corporation, time out of memory, by homage
alone. (Litt. sect. 143, and Lord Coke's comment.) This tenure
tends by its nature rapidly to become extinguished ; since it requires
for its validity a double prescription, one on the side of the lord and the
other on the side of the tenant. It is sometimes mentioned as though
it had been a special tenure ; but may more properly be regarded as
knight-service (in some rare cases, conmion socage) which had lost or
never acquired burdensome incidents. We have seen how tenure in
frankalmoigne might be converted into socage, with no service incident
to it except fealty, either by alienation or by escheat.

Homage was abolished by 12 Car. 2, c. 24 ; but fealty remains due,
if demanded ; though long neglect would, in many cases, make the
title, where it exists, difficult to prove in respect of freehold tenure.
On admittances to copyholds, where the title is dear, it is usual
expressly to respite the tenant's fealty.

Gavelkind (in its usual sense *) and borough-english are not tenures,
but customary modes of devolution affecting lands in particular places,
by virtue of which the inheritance of them descends differently from
the course of descent prescribed by the common law, although the
tenure is socage, and the words of limitation used to create the estate
are those used to create common law fees.

Gtkvelkind is found as a custom most commonly, but not exclusively,

♦ The word gavelkind is used, or confused, in three different senses :— (1) To
denote the tenure, which is a species of socage haying certain peculiar customs
connected with it ; (2) to denote the soyen^ particuhirs which together make up
the custom of Kent ; and (3) to denote only me custom of ec^xmi partition among
males upon a descent. (Bob. Gav. 3rd ed. p. 9.) But it is conceived that the
word is not properly used to denote the tenure ; for the custom ** runs with the
land and not with the tenure " {Ibid. p. 80 ; and see p. 87, 90) ; and the descent of
copyholds subj ect to the custom is not altered by enfranchisement. {Ibid. p. 92. )
Some later writers seem to use the word gavelkind, in conjimction with the
word tenure, to denote the custom — a higmy inappropriate combination. In
relation to borough-english, the name of the tenure is burgage tenure.


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in Kent (Litt. sect. 210, and Lord Coke's comment) ; in which county,
though the extent of the custom has been curtailed by 31 Hen. 8, c. 3,
and other private acts, lands are still presumed to be gavelkind until
the contrary is shown ; and it seems that the word gavelkind is not
properly used of lands affected by the custom outside Kent, such
extended usage of the word having been introduced only by the
disgavelling acts of Hen. 8. (Rob. Grav. 3rd ed. p. 8, note.)

The descent is to all the sons equally ; and in Kent this quality of
equal partition extends also to collaterals. The custom affects lands
subject to it in some other respects besides descent : namely, dower,
curtesy, alienation by infants, and escheat, together with other less
important points, some of which are now obsolete ; and the effect of
the disgavelling acts above referred to is confined to descent alone, so
that the custom still applies in all other respects. (Rob. Gav. 3rd ed,
p. 96.)

Borough-english is a custom affecting lands held by burgage tenure
within certain ancient boroughs (litt. sect. 165) ; which species of
socage does not seem to be affected by 12 Car. 2, c. 24. (Harg. n. 1 on
Co. litt. 116 a.) The descent is here to the youngest son^ to the
exclusion of all the other children. (Litt. sect. 211.) Various species
or modifications of the custom, including its extension to collaterals,
are also found.

Customs affecting the descent of lands of freehold tenure, such as
those above mentioned, are found in considerable variety scattered
about the kingdom. It is said, for example, that in the borough of
Wareham in Dorsetshire, and in Taunton Dean in Somersetshire,
lands descend by the custom to both males and females by equal
partition. (Rob. Gav. 3rd ed. p. 45.) The same custom held good
of lands in Exeter, until it was abolished by 23 Eliz. c. 12. (Ibtd.)
Lord Coke (Co. Litt. 140 b) also mentions a manor in Berkshire,
in which if there be no son, the eldest daughter inherits to the
exclusion of her sisters, if any. The tenure of freehold lands situated
within such boroughs and manors might be regarded as so many distinct
species of socage, which have never acquired special names by reason
of their rare occurrence ; but it is the usual practice to regard such
peculiarities of local custom as being modifications either of gavelkind,
or of borough-english, according to their association with a custom of
equal partition, or with a custom of descent to the youngest son.
Customs like these, including the custom to devise before the passing
of the statutes in that behalf, which are in derogation from the
common law, may be alleged to exist in boroughs and manors, but
not in less important places. (Co. Litt. 110 b, and Harg. n. 2
thereon.) This last remark does not apply to customs favoured by
the law.

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10 on tenure.

Chapter II.


By the common law, lands held in fee simple could be alienated, and
upon alienation a tenure could, if the parties chose, be created between
the feoffor and feoffee. (2 Inst. 65.) Unless the alienation extended
to the whole of the lands in the same tenure, the feoffee could not, by
any act of the parties, be made to hold of the chief lord ; because the
tenant had no right to divide the lord's seignoiy without his consent.
(Co. Litt. 43 a.) For several generations such alienations were com-
mon. "We gather from the preamble to the statute of Quia Emptores
(18 Edw. 1), that this creation of a sub-tenure might deprive the chief
lords of the " escheats^ marriages and wardships of lands and tenements
belonging to their fees." The explanation* of the lords* complaint is
possibly as follows : — Though the lord might always at common law
distrain upon the whole land for his services in arrear (2 Inst. 65),
and also, under the Statutes of Gloucester and Westminster 2, might
recover the lands by writ of cessavity yet he would lose the benefit of
escheatSy mamageSy and wardshipSy if his own tenant, having infeoffed
a sub-tenant, should simply disappear, so that the happening of the
occasions upon which those benefits arose would not be known ; or if,
on occasion of the feoffment, no valuable services had been reserved,
so that the wardship of the tenant was the unlucrative wardship of a
person entitled to nothing but a bare seignoiy.

It is noteworthy that, notwithstanding the lord's right at common
law to distrain for the services, the latest version of Magna Carta
(9 Hen. 3, c. 32) provided an additional protection for him, by forbid-
ding the tenant to alienate more than would leave enough to answer
the services. The remedy afforded by a common law right of distress,
under which chattels might be seized but could not be sold, was very
imperfect. The mischief specified in the preamble to Quia Emptores
was appropriately met by removing all restraint from the alienation,
and enacting that ^' the feoffee shall hold the same lands or tenements
of the chief lord of the same fee by such service and customs as his feoffor
held before." Here the word customs means the same as services.
(2 Inst. 502.) Magna Carta and Quia Emptores both aimed by
diflferent means at the same end, " the upholding and the preservation
of the tenures whereby the lands were holden." {Ibid. 66.)

The statute (cap. 2) provides for apportionment of the services

* Blackstone (2 Com. 91) says that the wardships, &c., fell into the hands
of the mesne lords. There seems to be here some confusion. What the
superior lord was entitled to was the wardship of his own tenant, the mesne lord,
not of the mesne lord's tenant ; and the wardship of the mesne lord could not
possibly fall into the mesne lord's hand.


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on alienatioii of a part only of the lands. But this applies only to
services which are in their nature divisible. Of services which do not
admit of apportionment, some are due, after alienation, from each
tenant ; some are due from one only ; and some are, and some are
not, extinguished on the purchase of a portion of the land by the lord.
{Bruerton^a Casey 6 Rep. 1 ; Talbofs Casey 8 Rep. 104.) The appor-

Online LibraryHenry Williams Challis Henry J. HoodThe Conveyancing Acts, 1881 & 1882, and the Settled Land Act, 1882, with ... → online text (page 3 of 53)