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CHAPTER 6: THE COMMON LAW ESTATES DOWN TO 1540 - Theodore Frank Thomas Plucknett, A Concise History of the Common Law 
A Concise History of the Common Law (Indianapolis: Liberty Fund, 2010).
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THE COMMON LAW ESTATES DOWN TO 1540
In the preceding chapters we have seen that a fee simple was inheritable by primogeniture since about 1200; that it was alienable without the consent of presumptive heirs since about the same date; and that nearly a century later it became freely alienable without the lord’s consent as a result of the Statute Quia Emptores of 1290. The first two of these advances had already been made by the time of Bracton, and from his day, too, we have a large number of surviving charters which attest the frequency with which land was transferred.1
THE FEE SIMPLE
Bracton has some interesting observations upon the nature of a fee simple, and one of the most remarkable things about them is the fact that he approaches the subject from the point of view of current conveyancing forms. This is somewhat unfortunate, for those forms grew up as a matter of convention and were not settled by men who were particularly concerned in defining the nature of a fee simple, their main care being only to use a form of words which had a conventional meaning; whether that form, literally interpreted, would have expressed the exact nature of the operation involved was of less importance. The thing that mattered was to use a form of words which had a recognised legal effect. However, when Bracton discusses the nature of a fee simple he does so by means of a commentary upon the conventional charter of feoffment.1 In his day a fee simple could be granted by a deed which said that the donor gave and granted and by his charter confirmed to the donee and his heirs the land in question, to have and to hold by specified services either of the lord of the fee or of the donor, and that the donor bound himself and his heirs to warrant the donee and his heirs against all men. Bracton’s discussion centres around the word “heirs”. A gift to A. and his heirs was the conventional form for conveying the maximum legal interest, a fee simple, and Bracton first of all has to explain that in spite of the words such a charter conveys the whole estate to A. and nothing at all to his heirs; as we should say to-day, “heirs” is a word of limitation, but not of purchase. As the discussion proceeds more difficulties appear. A gift to A. and his heirs gives the full estate to A. and nothing to his heirs, but neither does it give anything to the assigns of A. If the donee A. alienates over, can this alienee claim the benefit of the warranty which the donor bound himself to give only to A. and his heirs? Bracton thinks not, and apparently this opinion was widespread, for we find about this time numerous charters in favour of the donee, his heirs and assigns, evidently drawn to meet this situation. Under such a charter the donor would be bound to warrant A., his heirs and his alienee. By the time we get to the beginning of the fourteenth century the word “assigns” ceases to be necessary—at least such was Maitland’s opinion, adding that “on the whole we cannot doubt that the use of this term played a large part in the obscure process which destroyed the old rules by which alienation was fettered”.2
In Coke’s words “a reversion is where the residue of the estate doth always continue in him that made the particular estate”. Applying to ancient cases the doctrines of his own time, Coke, and following him Challis, set forth the proposition that there could be no reversion after a conditional fee.3 This is completely erroneous. De Donis expressly tells us that there was already a writ to secure reversions, and there are cases on the Plea Rolls to confirm this. The result of the statute was, however, to strengthen the position of the reversioner very considerably by providing that the donee’s alienation should no longer be a bar to such an action, while at the same moment that De Donis was passed, another portion of the Statute of Westminster II clarified the law of receipt in favour of the reversioner (c. 3). Consequently there are two great characteristics of reversions during the middle ages. In the first place, they are not future estates, but present estates of which the reversioner is “seised”—not in demesne, certainly, but in service. Expressed in other terms, a reversion is a seignory over the tenants for life and the tenants in tail, and like other seignories in the middle ages was regarded with a good deal of concreteness. Secondly, there resulted from this attitude that liberal measure of legal protection which was due to “him in whom reside the fee and the right”, as the Year Books constantly put it. Hence the elaboration of the law of aid, receipt and voucher which had the object, and the result, of protecting the reversion against any machinations by the tenants of inferior estates. In the classical common law the reversion was, therefore, indestructible.
Estates in remainder were much longer in acquiring a definite legal standing. Here, again, the modern student must beware of the deduction on theoretical grounds by Challis that there could be no remainder after a conditional fee. This deduction is based upon the view that a conditional fee before the Statute De Donis was in fact a fee simple conditional; this is taking Bracton’s dogma too seriously, and Maitland easily showed from surviving documents that about one-half of the conditional fees of which we have record contain remainders limited after them.1 It is, of course, to the maritagium that we must look for our earliest indications. In the year 1220 we find a case involving a maritagium where this defence was pleaded: Geoffrey had two sisters, Beatrice and Matilda, and gave land in maritagium with Beatrice to Reginald fitz Ursy with this covenant, that if the said Beatrice should die without heir of her body, or if her heirs should die without heir of their body, the land should revert (sic) to the said Matilda and her heirs.2 Unfortunately, the decision in this case was made upon a point of pleading and so we do not get a full discussion of this “covenant”. It will be seen, however, that it is a clear example of a gift in maritagium to one sister with remainder in fee to the other. The fact that the word “revert” is used instead of “remain” is of little consequence, for the use of these words was far from settled.3
Bracton tells us that there is a writ for the use of remaindermen (or “substitutes” as he calls them) and that he will give us its form;1 but he does not do so. The frequent occurrence of remainders in thirteenth-century conveyancing seemed very strange when it was noted that no writ of formedon in the remainder was in existence for their protection, until after the statute. The inconclusive debate between Maitland and Challis was settled just fifty years later, when (in 1940) a writ of formedon in the remainder was discovered in a manuscript register of writs which can be dated 1282—a few years, that is to say, before the statute De Donis.2
As we have already noticed, the Statute De Donis itself does not say anything about remainders although it uses the word “remain” in the senses of “descend” and “revert”. The position of the remainderman was always less secure than that of the reversioner, particularly because he was unable to use the writ of right; this grave disability resulted from the fact that a remainderman could not say that he himself, or his ancestors, had ever been seised. Consequently, there were obvious advantages in creating remainders by fine instead of by deed.3 In 1311 a remainderman in fee successfully prayed receipt upon the default of a tenant for life.4 A generation later the point was argued afresh, and the same decision reached, in 1345; in this case a long discussion, no doubt heated, concluded with the oft-quoted words:
I think you will do as others have done in the same case, or else we do not know what the law is.
It is the will of the justices.
No, law is reason.”
In this case it was again held by the court that the remainderman was receivable, but it is significant how vigorously this opinion was contested, considering that it is the simplest possible case in which the question could be raised.5 Indeed, as late as 1472 it was possible to put forward some speculative doubts as to the possibility of even a vested remainder after a fee tail.6
EARLY CONTINGENT REMAINDERS
A still more difficult problem was the contingent remainder.1 The very earliest examples seem to have aroused little comment; for example, a fine (a particularly solemn form of conveyance) was drawn in this form according to a Year Book of 1304:2
“He granted and rendered the same tenements to the aforesaid man and his wife, to have and to hold to them, and to the heirs of their bodies begotten, and if they died without such heirs the tenements should remain to the right heirs of the man.—This, however, is strange seeing that the remainder was not granted to any certain person.”
In 1309 we get another fine which the Year Book reports thus:3
“B grants the tenements to Robert and renders them to him in this court, to have and to hold to Robert for his whole life of the chief lord of the fee; and after the decease of Robert the tenements are to remain to C and the heirs of his body begotten, to hold of the chief lord of the fee; and if C die without heir of his body, the tenements are to remain to the right heirs of Robert to hold of the chief lord of the fee.
“Bereford, J., asked who was to do homage.”4
In both of these cases it must be remembered that the rule in Shelley’s Case had not yet been formulated, and so we have in both cases a feudal difficulty which will weigh heavily upon contingent remainders in the beginning of the fourteenth century: when the remainder in fee is contingent, who is the person to do the feudal services pertaining to a fee simple? Whatever arrangement the tenant may make, it must not destroy the right of the lord to have some certain tenant all the time who will be responsible to him for the feudal services. A very curious case occurred in 1336.5 Lands were granted by fine to Osbern and Florence his wife for life, remainder to Geoffrey his son in tail, remainder to Austin the brother of Geoffrey in tail, remainder to the right heirs of Osbern. In a real action brought against her, Florence made default after default, whereupon one John prayed to be received, as right heir of Osbern. When it was objected that there were still in existence the two remainders in tail to Geoffrey and Austin, prior to his own remainder in fee, John urged that they were void on the ground that at the time the fine was levied neither Geoffrey nor Austin was in existence,6 and that it was only after the fine that Osbern and Florence achieved the requisite two sons to take the names assigned to them in the fine. The court held that the remainders to Geoffrey and Austin were bad but allowed John to be received as right heir of Osbern. It thus appears that although these remainders to named persons not in esse at the time of the gift were bad,1 yet as early as 1336 the court supported a remainder, contingent at first, which had subsequently vested.
Later still in 1388 a party brought detinue to obtain possession of a charter, alleging that he was entitled to the land to which the charter referred. It appeared that one W. gave the land to A. C. in tail, the remainder to the right heirs of A. S.; A. C. enfeoffed one B. with warranty and his executor (after his death without heir) gave W.’s charter to B. as a document of title. A. S. is also dead, and the plaintiff is suing as his right heir. Cherlton, C.J., observed: “You think that although A. S. was alive when the remainder was limited, yet since he was dead when the remainder fell in and had a right heir, that therefore the remainder is good.” The plaintiff was successful.2 The case is therefore consistent with the view which is to be found in other cases from 1336 onwards that if a contingent remainder in the course of circumstances subsequently becomes vested, then it is good enough. These decisions, however, were not reached without a good deal of discussion. In 1410 a determined attack on such a remainder was made, but it was finally held good.3 In 1431 Martin, J., upheld such a remainder, although Paston, J., remarked that it could not be proved by reason, i.e. was not defensible on principle; counsel added that the point had been argued in the moots.4
Littleton does not seem to discuss the question, but he does make it clear that in his opinion there were other sorts of contingent remainder of which he personally did not approve. Thus, in discussing the settlement alleged to have been made by Rickhill, J., in the reign of Richard II, Littleton argues against the validity of the remainders limited in it.5 According to what Littleton had heard, there were successive entails to the judge’s sons, with a proviso that if one of the sons should attempt to break the entail his estate should cease and the land should pass to the one next entitled. Such a proviso, in Littleton’s view, was a condition, and while he agreed that a reversioner could enter for the breach of a condition, a remainderman could not. Whether Littleton’s views represent what a court would have decided either in Littleton’s day or (seventy years earlier) in Rickhill’s day, it is impossible to say; nor is there any satisfactory proof that Rickhill ever made such a settlement. Even the enthusiastic Coke places it no higher than “those things that one hath by credible hearsay” which “are worthy of observation”.1
We may conclude from this evidence that, during most of the fourteenth and fifteenth centuries, the courts were willing to recognise remainders to the right heirs of a living person, in cases where that person died before the remainder fell in. Other types of contingent remainder seem hardly to have arisen in litigation.
It is noteworthy, however, that as early as 1431 it was recognised that there was a difference between grants by deed and devises.2 There were places (particularly boroughs) where land was devisable by local custom, and it was recognised that remainders (and other dispositions) which would be void in a deed might be good in a devise. It is therefore clear that the differences between dispositions by deed and those in a devise are at least a century older than the statutes of wills made by Henry VIII, and that the common law was considering these problems as they were presented by local customs long before those statutes permitted the devise of lands held by common law tenures. It is likewise clear that the peculiarities permitted in a devise do not derive from the freedom associated with the use, but were part of the tradition of local customs.
The difficulties connected with seisin in limiting remainders we have already mentioned. In part they were avoided by the device of giving seisin to the particular tenant, which seisin was held to enure to the benefit of the remainderman. This doctrine, however, had the important corollary that the remainder was dependent upon the life estate, and that the destruction of the life estate would involve the destruction of the remainder too. This doctrine was worked out in connection with vested remainders by Littleton, and was destined to have important results in later law.
THE RULE IN SHELLEY’S CASE
In spite of Bracton’s doctrine, attempts were still made from time to time to use the word “heirs” as a word of purchase. We have seen this in the history of the contingent remainder, while here we may note a series of cases which anticipate by two hundred years the famous rule in Shelley’s Case.3 In the reign of Edward II a few obscure references occur, and in the reign of Edward III we find some clear discussions of the problem involved. Thus in 1350 we find that lands were conveyed by fine to D. for life, remainder to K. for life if she survived D., remainder to the right heirs of D. The question was whether D. by his deed could have permitted K. (who was to succeed him as life tenant) to commit waste. As a mere life tenant he could not, but in the course of the discussion, Willoughby, J., observed that “according to some people, when the fee is limited to the right heirs of a certain person then the fee is in the ancestor”. To this proposition Serjeant Seton agreed, and the court held that the deed ought to be answered, whereupon issue of non est factum was joined.1 Again, in 1366 a case arose upon the following facts:2 land was given to J. for life, remainder in tail to his eldest son, remainder in fee to the right heirs of J. After the death of the life tenant and the extinction of the entail, Richard Sutton, second son of J., entered as the right heir. Thereupon the provost of Beverley distrained Richard for relief which would be due if Richard entered as heir, but not if he entered as purchaser. This discussion took place:
If the lease was made to your father for life with remainder to his right heirs then the father had the fee . . . and if you were under age the lord would have wardship and consequently relief.
He cannot avow upon us for relief as heir of the tenant in special tail, because we are not in as his heir.
I know very well what you want to say. You have pleaded that you ought not to have to pay relief since you are in as purchaser, being the first in whom the remainder takes effect according to the words of the deed; but you are in as heir to your father . . . and the remainder was not entailed to you by your proper name but under the description of heir; and so it was awarded by all the justices that the lord should have return of the distress.”
From this it is clear that there is very strong mediaeval precedent for the rule in Shelley’s Case, and that the foundation of it was the hardship to lords if their tenants were allowed to limit remainders to their heirs, and thus make them purchasers.3 This rule, therefore, like many others, once had a perfectly rational basis (while feudalism lasted) in protecting lords against serious loss through conveyances of this kind, which in those days would have seemed almost fraudulent. As with so many other troublesome rules, confusion was increased by the attempts which have been made by the courts to restrict its operation, and especially by the endeavours of Lord Mansfield to lessen its importance.4 As a result, doubt was thrown upon it, and a vast mass of litigation was needed to establish it anew.
We now come to dower, whose early history is singularly obscure.1 Ancient forms insist that it is a voluntary gift of a portion of his property made by the husband to the wife. Such seems to have been the law as late as Bracton’s day, although as early as Glanvill it was thought that church and lay law compelled the husband to make the gift. The gift might take place at the time of the marriage, although in some cases on the continent we find dower constituted many years after the marriage. In England the royal courts only recognised dower which was constituted at the church door, that is to say, at the moment of the solemnisation of the marriage; it naturally followed, therefore, that a husband could only grant dower out of land which he actually held at the time of the marriage. Informal or clandestine marriages did not confer legal protection upon dower constituted on such irregular occasions, for the marriage must be “solemnised”—although it would seem there was no need for the nuptial Mass. In this we see very clearly the hand of the Church, which was fighting a hard battle to make marriage a precise, definite and public ceremony, although it is curious to observe that the common law was (for a moment) ready to move faster in this direction than the Church.2 The common law also showed especial distrust of death-bed endowments—as also of death-bed marriages hastily contracted in the hope of legitimising the offspring. In England, the King’s Court refused to recognise dower constituted at any moment save at the marriage ceremony.
This is, generally speaking, the position of dower down to the time of Bracton. Shortly afterwards, very important changes took place whose progress has not been traced in detail. Under the new order dower consists of one-third of the land held by the husband at the time the marriage was made, unless he has specified less. By the time of Edward I dower also attached to land acquired by the husband subsequent to the marriage,3 while an endowment of less than one-third soon ceased to be a bar to a widow’s demand of a full third. On the other hand, an endowment of more than one-third would be reduced by the court at the instance of the heir. In this way dower ceases to be a gift and becomes an estate arising by operation of law. Britton expressed the change very clearly: “Since the usage of dower is become law, a wife is sufficiently endowed although her husband say nothing.”1 If the husband alienated after the marriage the widow could recover one-third—and this is protected by statute2 against the husband’s warranty and against a collusive recovery, although it had long been possible to convey free of dower by fine, if the wife came into court and expressed her assent to it.
The forfeiture or escheat incurred by the husband’s treason or felony (which may be regarded as involuntary alienation) raised interesting problems. At the time of the Conquest at least one local custom held that forfeiture did not always exclude dower.3 By the thirteenth century, however, we find that the felon’s widow loses her dower.4
In England the widow’s interest has always been for her life only, but in some continental customs it was absolute, and so it sometimes played a part in the development of community.
It will be seen that dower is likely to interfere considerably with strict feudal notions; it reduces the resources of the incoming heir by one-third, and if that heir is a minor, it reduces the quantity of land which will be in the lord’s wardship by the same proportion. It is significant that the widow of a military tenant is endowed less liberally than the Kentish free-bencher; boroughs, too, often gave dower of one-half, and villein widows so frequently had the whole tenement in dower that there arose a sort of presumption that if a tenement was subject to dower of the whole, it was a villein tenement.
There were, however, mitigations in the strict rule. Dower obviously could not attach to joint estates (and for centuries this rule was a boon to joint feoffees to uses and to trustees). The relation of dower to entailed estates caused some difficulty for a time, until it was settled that the widow was endowable of an entail if, under the limitations, any issue of hers could have inherited. Thus a widow will have dower of lands which her husband held to himself and the heirs of his body: but a second wife is not endowable of lands held by the husband to himself and his heirs by the first wife.5 The greatest difficulty of all was naturally the risk to purchasers, who after the vendor’s death might have to answer an action of dower by his widow. At a comparatively early date, therefore, it became possible to avoid this situation by taking a conveyance by fine. In order to bar dower effectually, the wife was brought into court and examined, whereupon she could of her own free will resign her dower rights.1
With the close of the middle ages the increasing efficiency of settlements made dower less important and the rule appears in the Statute of Uses that a jointure will bar dower;2 at the same time equity refused dower out of a use, and the eighteenth-century Chancellors would not allow dower out of a trust. Since the Dower Act3 in England, dower ceased to be of practical importance, but that policy has not been adopted universally in America. The later distrust of dower is reflected in the fact that there was a tendency among some of the American colonies to enable a husband to defeat dower simply by deed or will, but later the stricter rule of the common law was received.
Tenancy by the curtesy of England is the husband’s right to hold his wife’s lands for the remainder of his life after her decease, if issue has been born alive,4 although it is not necessary that it should survive. Glanvill5 tells us this curious rule but gives it no special name; Bracton6 calls it “tenancy by the law of England”, while in the earliest Year Book7 it is described as “the curtesy of England”, which, as Maitland8 suggests, may be a name applied to it by appreciative husbands. In Normandy such a right only lasted until remarriage,9 but in England curtesy was for life, and even went so far as to allow a second husband’s curtesy to postpone the entry of an heir by the first husband, and thus to defeat the lord’s wardship.10 There is an old tradition, so far unconfirmed, that curtesy owed its origin, or at least its more striking features, to a royal concession.1 According to more modern views it seems to have developed from a wardship, first over the wife and next over the children.2
“To this, so we think, points the requirement that a child capable of inheriting from the wife shall be born—born and heard to cry within the four walls. This quaint demand for a cry within the four walls is explained to us in Edward I’s day as a demand for the testimony of males—the males who are not permitted to enter the chamber where the wife lies, but stand outside listening for the wail which will give the husband his curtesy. In many systems of marital law the birth of a child, even though its speedy death follows, has important consequences for husband and wife; sometimes, for example, the ‘community of goods’ between husband and wife begins, not with the marriage, but with the birth of the first-born. These rules will send back our thoughts to a time when the sterile wife may be divorced, and no marriage is stable until a child is born.”3
A good deal of legislation from Edward I’s reign4 was necessary to prevent the abuse of curtesy rights, and the Year Books contain many cases where husbands attempted to exceed their powers in dealing with their wives’ lands. In equity a husband could have curtesy out of his wife’s separate uses, which, however, she could easily defeat, and modern legislation giving married women control over their separate property reduced curtesy to a minimum, long before it was finally abolished.
THE LIFE ESTATE
The tenant by curtesy owed his estate to the operation of law, and soon the doweress also acquired a legal right independent of her husband’s act. Both of them, moreover, were asserting rights in the land of someone else—the heir. Both of those estates were for life, destined to assure the economic independence of their owners within the framework of the family fortune. Naturally they were regarded as freeholders, as seised of a free tenement, and as protected by the petty assizes. With the new system of primogeniture and free alienation, however, such provision became necessary for others besides widows and widowers, and so we find life estates created by act of the parties, and following in general the same pattern. This development (if our hypothesis is true) is closely paralleled by the development of the entail from the old maritagium.
The implications of the life tenant’s seisin were numerous and important. Its earlier sense included wide discretion in the use, and indeed, the abuse of the tenement. Thus Bracton1 describes an elaborate law of waste by doweresses, but the tenant for life can use the land as his own within reason; indeed, he has a case to show that the court will not take notice of his waste unless it was considerable.2 The guardian in chivalry, like the doweress, is clearly dealing with someone else’s land, and is heavily penalised if he commits waste.3 In Bracton’s day the remedy was still of a discretionary nature. The reversioner obtained from the king a prohibition, and if the tenant still continued to waste, he could be attached for breach of the prohibition. In 1267 there was a statute4 prohibiting waste generally, but the proceedings were still based upon the prohibition (now general instead of individual), until in 1285 summons was made to replace the prohibition; the reason given for abolishing the prohibition was that many people mistakenly thought that waste was not actionable unless it was committed after a prohibition.5
A further result of the life tenant’s seisin was the capacity to deal with the land in ways which were admitted to be wrongful. Out of his seisin he could enfeoff a stranger and create a tortious fee simple,6 nor could the reversioner have any remedy until after the life tenant’s death, when he could bring entry ad communem legem against the alienee. By statute7 in 1278, however, a doweress who acted thus forfeited her dower and the heir recovered immediately by entry in casu proviso, and the warranty of a tenant by curtesy was made less effectual. Alienations in fee by tenants by curtesy and tenants for life did not incur forfeiture until 1310.8 Besides a tortious feoffment, a collusive recovery against a tenant for life would also create a fee simple in the alienee, and a complicated mass of rules, largely statutory, endeavoured to minimise the mischief.9
THE TERM OF YEARS
The term of years has a long and peculiar history. In the early days of the common law the position of the termor was remarkably weak. In the early thirteenth century his only remedy was an action of covenant against the lessor, which was in effect an action for specific performance.10 As against strangers the termor had no protection, and so had to content himself with enforcing an express warranty (if he had one) of quiet possession against his lessor.1 Later, such a covenant will be implied. The disadvantages of a term of years were numerous; if the lessor died leaving an infant heir the term was suspended until the heir came of age, when the term was resumed;2 the lessor’s widow was entitled to one-third of the tenement for life as dower, and so the term had to be lengthened to compensate;3 again, if the lessor alienated he could (for a time) convey free of the term.4
About the year 1235 the great judge Raleigh invented a new form of action called quare ejecit infra terminum which Bracton assures us was meant to protect the termor against all disturbers and to give him the recovery of his term.5 This action would therefore be equivalent to an assize of novel disseisin. Such a remedy, however, was too drastic, and seems almost immediately to have been reduced to an action against those only who claimed under the feoffment from the original lessor.6 Although the lessor’s feoffment would not henceforth defeat a term, there were still other methods available, and until the Statute of Gloucester, c. 11 (1278), it was possible by means of a collusive recovery to convey free of the term; under the statute the termor was now allowed receipt.7 Meanwhile the termor acquired another remedy. This was an action of trespass de ejectione firmae which by the time of Edward II was available against all disturbers, but this time the termor only got damages and not the recovery of his term.
THE ECONOMIC ROLE OF THE TERM
In order to explain this curious history we shall have to examine the function which the term of years performed in the thirteenth-century economic system. The great problem, of course, is why the termor was not protected by the petty assizes. It is certainly not because the term of years was only held by unimportant people: bishops, monasteries and great lords are to be found holding terms of years. Nor can it be said that a term of years was non-feudal, for there was little appreciable difference between a life estate which did fealty only and a term of years which also involved fealty in many cases. Indeed, as a result of the real remedies devised by Raleigh and extended by the Statute of Gloucester, it was clear that the lessee had a tenement,1 and in Raleigh’s own day it was said that he was seised.2 For centuries it remained the law that if the lessor makes a release of the fee to a termor in possession, then the termor is seised of the fee without receiving a livery of seisin—indeed, the common assurance of a Lease and Release is only explicable on the ground that a termor was seised. But the great distinction was that although the termor was seised of a tenement, yet he was not seised of a free tenement, which alone would entitle him to protection by the petty assizes. Why, then, is a term of years not treated as a free tenement? Maitland’s solution ascribed this to the influence of Roman law which would reduce the term of years to an usufruct.
“In an evil hour the English judges, who were controlling a new possessory action, which had been suggested by foreign models, adopted this theory at the expense of the termor. He must be the conductor who does not possess, or he must be the usufructuary who does not possess the land but has ‘quasi-possession’ of a servitude. But they cannot go through with their theory. In less than a century it has broken down. The termor gets his possessory action; but it is a new action. He is ‘seised’, but he is not ‘seised of free tenement’, for he cannot bring an assize. At a somewhat later time he is not ‘seised’ but is ‘possessed’. English law for six centuries and more will rue this youthful flirtation with Romanism.”3
Against this theory must be placed the important criticisms of Joüon des Longrais, who first of all establishes the economic history of the term of years.4 The term of years was used for purposes which were immoral and speculative, largely to avoid the Church’s prohibition of usury. It seems that the principal object of the term of years was to enable money to be lent on the security of land at considerable profit to the lender. A capitalist would give to an embarrassed landowner a sum of money down; in return he took a term of years sufficiently long to enable him to recover the capital, together with his profits, out of the revenues of the land. On the face of it this transaction was merely the sale of a lease in return for a lump sum, and technically it would seem to avoid the objection of usury. The termor, therefore, is not unnaturally placed in popular literature in very bad company among usurers and other scoundrels who prey upon society.1 A termor was no doubt seised in Bracton’s day, but there was every reason for not calling his tenement a free tenement. Joüon des Longrais has shown that the free tenement of which the estates for life, in dower, by curtesy, in tail, or in fee simple are examples, is a very different thing. The free tenement which the petty assizes protected consists of “family property which is up to a point permanent, productive of revenue”. The essence of the free tenement is that it should be the permanent and normal economic basis of the family. Herein lies the importance of giving it full and speedy protection, and for this purpose the petty assizes were invented. Contrasted with the free tenements the estate of the termor is merely a speculative arrangement, calculated to evade the law against usury, made between a grasping money-lender on the one hand, and on the other a man whose difficulties temporarily compel him to part with his patrimony—and it must be remembered that during the middle ages a very wealthy landowner would usually find it difficult to produce a comparatively small sum of money at short notice. There was, therefore, no reason whatever for protecting the termor by those assizes whose object was to fortify the family and its means of subsistence against wrongdoers of another type. Viewed in this light there is ample explanation for the refusal of the common law to allow the termor to use the assizes.
“The object of the assizes is to protect the real property of the family which is the source of a constant revenue assuring the maintenance of a person at least for his whole life, all of which is implied in the words ‘seisin of a free tenement’; but the tenure of land by lease for a few years has none of these characteristics.”2
The law could not continue indefinitely to be governed by the social policy of a bygone age, and under Edward I it became necessary to give the lender of money a security in land much more solid than the term of years; of the statutory freeholds by which this was effected we have already spoken.3
THE HUSBANDRY LEASE
The term of years was not exclusively concerned with providing a form of financial security. Already in the late twelfth century land was granted for a term of years, sometimes with the accompanying agricultural stock, to tenants who farmed the land.4 Here, as in a number of other cases, we have to take account of the results of the Black Death and the economic revolution which followed it.1 One of these results was a slow increase in the number of people who took their lands under leases for terms of years, and so during the fourteenth century we find the rise of the husbandry lease as it exists to-day in England. At the same time, other and more effective methods were devised for rendering land a security for debt, and so the termor was no longer associated with the worst aspects of money-lending. For the future the termor will be regularly a freeman whose capital is insufficient to purchase much land, although he is active and enterprising enough to work the land of other owners. At the same time there was a tendency for the quantity of land under cultivation to increase somewhat since a good deal of waste was being reclaimed; such reclaimed land was frequently let out on lease. Small landowners of the yeoman class also seem to have found it often desirable to take an additional quantity of land under lease. The termor is, therefore, in every way deserving of the law’s protection. As early as 1383 it was clearly stated that the unexpired term could not be recovered when an attempt was made to use trespass de ejectione for this purpose.2 In 1454 it was again stated that this was impossible and that damages only were obtainable.3 In 1467 and again in 1481 we find the opinion (although not a decision) that this action might give recovery of the term;4 in 1498 or 1499 we get the first clear decision to that effect.5 The termor was very slow in getting a real action, but in the end he got the most useful and practical of all the real actions. While freeholders had to be content with assizes and writs of entry, the termor could recover his term by the swift and simple action of trespass. So great a convenience was this that freeholders began to try to secure the same advantage. Finally they succeeded by means of the device called the action of ejectment.6 In this way a good deal could be done without resorting to the older forms of action. This development took place during the sixteenth century and the finishing touches to the edifice of fiction were the work of Lord Chief Justice Rolle during the Commonwealth, but already at the beginning of the seventeenth century the action was so commonly used that Coke lamented the fact that the old real actions were becoming very rare. And so by a curious twist of history, the freeholder was glad in the end to avail himself of remedies originally designed for the protection of the humble termor.
On the subject of this chapter see the articles by Percy Bordwell in the Iowa Law Review, volumes xxxiii, xxxiv, xxxvi and xxxvii, and by G. L. Haskins in Harvard Law Review, lxii, Boston University Law Review, xxix, University of Pennsylvania Law Review, xcvii. 6.
Bracton, f. 17.
Pollock and Maitland, ii. 14 n. 4. As an alternative to his deduction from Y.B. 33 & 35 Edward I (Rolls Series), 362, it may be suggested that all that Bereford meant when he said that “there is no force in that word ‘assigns’, but simply in the word ‘heirs of Agnes’ ”, was that the word “assigns” was indeed repugnant in a deed establishing a maritagium; wherefore he would construe the deed as if the word “assigns” were absent and the gift were in the common form establishing a maritagium. The necessity of mentioning assigns in a conveyance of a fee simple is not discussed in the case (but see Percy Bordwell, The Running of Covenants—II, Iowa Law Review, xxxvi. 484, n. 2). The point did arise, however, in Y.B. 20 & 21 Edward I (Rolls Series), 232-233 (1292).
Challis, Real Property, 83. The idea goes back to the late fifteenth century. For the thirteenth-century view see the case reported in Casus Placitorum (Selden Society), 121, 124.
The following articles deserve careful study: Elphinstone, Notes on the Alienation of Estates Tail, Law Quarterly Review, vi. 280; Maitland, Remainders after Conditional Fees, ibid. vi. 22; Challis, Real Property (ed. Sweet), 428; cf. Percy Bordwell, The Common Law Scheme of Estates and the “English Justinian”, Iowa Law Review, xxxiii. 449, 466 n. 96.
Bracton’s Note Book, no. 86.
As late as 1472 a remainder was referred to as a “reversion”: Y.B. Pasch. 12 Edward IV, no. 7, f. 2 (which contains some highly speculative matter on the nature of a fee tail).
Bracton, f. 68 b, who treats the remainderman as a “quasi-heir who takes by substitution according to the form of the gift”. For a short outline of the substitution, see Viollet, Histoire du droit français, 757 ff. The language of “substitution” may even occur in early private deeds: Cartulary of St. Mary Clerkenwell (ed. W. O. Hassall), 46 no. 66 (before 1182), at least in an ecclesiastical context.
W. H. Humphreys, Formedon en Remainder at Common Law, Cambridge Law Journal, vii. 238. But see now S. J. Bailey, Warranties of Land in the Thirteenth Century, Cambridge Law Journal, viii. 275 n. 9, where point (ii) seems cogent; the initials in mediaeval registers, however, are rarely right.
Cf. Y.BB. Edward II (Selden Society), x. p. xl; Y.B. 18 & 19 Edward III (Rolls Series), 374-378 (1345).
Y.BB. Edward II (Selden Society), x. 98. Here the remainder was limited by indenture.
Y.B. 18 & 19 Edward III (Rolls Series), 378. It was strongly contended that the old doctrine laid down by Bereford and Herle was that a remainder could entitle to receipt only if it were created by fine. This tradition was inaccurate, for the case in 1311 shows Bereford granting receipt to a remainderman by deed. The tenant’s attornment made a reversion a fact ascertainable by a jury, but a remainder was “mere words”.
Y.B. 12 Edward IV, Pasch. no. 7.
On this, see generally, Percy Bordwell, The Common Law Scheme of Estates and the Remainder, Iowa Law Review, xxxiv. 401, 413 ff.
Y.B. 32 & 33 Edward I (Rolls Series), 328.
Y.BB. Edward II (Selden Society), ii. 4.
For a somewhat similar argument suggesting the abeyance of the fee, see Y.BB. Edward II (Selden Society), xx. 142 (1316).
Y.B. 10 Edward III, Michs. no. 8.
Professor A. D. Hargreaves has suggested to me that the parents gave to their third and fourth sons (born after the fine) the names of the original remaindermen who had died without issue. For a case in 1373 of a fine to “Robert and William his son”, where it appears that Robert had two sons both called William, see Y.B. 47 Edward III, Michs. no. 16, and the comment in Lord Cheyney’s Case (1591), 5 Rep. 68 b.
Cf. 39 Ass. 20 (1365).
Detinue, 46. This case admirably illustrates the need for combining all available sources in the study of Year Book material. In the first edition of this work we stated (as the text in Fitzherbert’s Abridgement expressly says) that the plaintiff was unsuccessful, and hazarded the opinion that nevertheless the case might not be inconsistent with those already discussed. The case has now been re-edited in Y.B. 11 Richard II (ed. Thornley, Ames Foundation), 283-288. It now appears that the best MS. has a blank where the others state that the defendant had judgment, and the plea roll records judgment in the plaintiff’s favour. In consequence of the discovery of the correct decision of this case, and a re-examination of the other cases, it would seem that the recognition of this type of remainder took place a century earlier than the date suggested in Holdsworth, iii. 135.
Y.B. 11 Henry IV, 74 no. 14.
Y.B. 9 Henry VI, 23 no. 19 at p. 23.
Littleton, s. 720.
Co. Lit. 377 b. Cf. below, p. 590.
Y.B. 9 Henry VI, 23 no. 19, where Babington observed that a devise is “marvellous”.
1 Rep. 88 b (1581). For discussions, see Challis, Real Property (ed. Sweet), 154; Holdsworth, iii. 107; Hargreaves, Shelley’s Ghost, Law Quarterly Review, liv. 75, casts doubt on the view expressed above.
Y.B. 24 Edward III, 70 no. 79. An interesting case in 1353 shows a gift to husband and wife in special tail, remainder to the right heirs of the husband; they had no issue, and the husband devised the fee simple. Held, that the devisee has sufficient title to bring the assize: 27 Ass. 60.
Y.B. 40 Edward III, f. 9 no. 18. Unhappily the text of the black-letter edition leaves the precise state of the pedigree in doubt.
In the previous century tenants pursued the same object by simply enfeoffing their eldest sons, until 52 Hen. III, c. 6, made the device ineffective.
Fifoot, Mansfield, 167-180.
In Anglo-Saxon times a husband covenanted with his wife’s family to make her a satisfactory “morning-gift”. His widow would forfeit this if she remarried (Canute II, 73 a); cf. the Kentish “Free-bench”, Pollock and Maitland, ii. 418. That seems also to have been the common law rule at the opening of the twelfth century: Henry I’s Coronation Charter (1100), c. 4. The fullest history of dower in the middle ages is in F. Joüon des Longrais, La Saisine, 315-441.
The policy of requiring an unmistakable public ceremony for a marriage conflicted with the policy of freeing marriage from complicated formalities, and with the desire to construe relationships as matrimonial whenever possible.
This rule seems implied in the pleadings of a case as early as 1221: Eyre Rolls (Selden Society, vol. lix), no. 1080, and was later regarded as the result of the language of Magna Carta (1217), c. 7.
Britton, ii. 236 ff., Harvard Law Review, xl. 925 at n. 13.
Exposition of the Statute of Gloucester, 6 Edw. I (1278), c. 3; Westminster II, 12 Edw. I (1285), cc. 3 and 4. For an earlier case in which dower was defeated by alienation, see Eyre Rolls (Selden Society, vol. lix.), no. 257 (1221). In no. 1159 (also dated 1221) a claim was bought out, and in no. 1433 (1222) a doweress got judgment against an alienee.
Domesday Book, i. 154 b; Pollock and Maitland, ii. 457.
Bracton’s Note Book, no. 1334 (1217); Eyre Rolls (Selden Society, vol. lix), no. 1023 (1221). So, too, the escheat on the death of a bastard deprives his widow of her dower: Y.BB. Edward II (Selden Society), x. 12.
The history of this has recently been explained by Sir William Holdsworth in his introduction to Y.B. 10 Edw. II, 1316-1317 (52 Selden Society), xvii. Cf. Casus Placitorum (Selden Society), 26 no. 68; Y.B. 11 Richard II (Ames Foundation), 158; Y.B. 13 Richard II (ibid.), 52.
This appears in Bracton, f. 95 b, who includes a recovery also.
Statute of Uses, 27 Hen. VIII, c. 10, s. 6. If the whole of the husband’s property was in uses, the wife was unprotected, for there could be no dower out of a use, but it was customary to make her a jointure of part of the property. As the statute executed all the uses, dower would arise out of the husband’s separate uses which had become legal estates; the statute foresaw this and enacted that the jointure should be a bar to dower.
3 & 4 Will. IV, c. 105 (1833).
The child must have been heard to cry, according to a decision of the king and council: Sayles, King’s Bench, i. 32-33 (1277).
Glanvill, vii. 18; it should be noted that Glanvill only mentions the rule in connection with the maritagium, and gives no indication whether it applied to the wife’s fees simple. (See, however, Pollock and Maitland, ii. 420 n. 1.)
Bracton, f. 438.
Y.B. 20 & 21 Edward I (Rolls Series), 39, 55 (1292).
Pollock and Maitland, ii. 417.
Summa de Legibus Normannie (ed. Tardif), cxix. 1. It was there called viduitas, or veufté. Remarriage was immaterial in England (except in Kent). See, however, Eyre Rolls (Selden Society, vol. lix), no. 1090 (1221).
It was also settled in 1226 that a second husband’s curtesy would take priority over the entry of an heir of full age to the previous husband. Patent Rolls (1225-1232), 96; cf. the case in the previous footnote. By De Donis a second husband had no curtesy in land entailed to the wife.
Mirror of Justices (Selden Society), 14. The object of the concession, according to an old, but plausible tradition, was to ease the lot of poor Normans who married English heiresses, and lost their fortunes when the wife died. “There are a number of cases, few but significant, in which there is reason to think that one of the Conqueror’s barons has acquired his fief by marriage with the heiress of an Old English family”: Stenton, English Families and the Norman Conquest, Transactions of the Royal Historical Society , 5.
For a reference to this “wardship” see Eyre Rolls (Selden Society, vol. liii), no. 908 1219); vol. lix no. 559 (1221).
Pollock and Maitland, ii. 418. In 1277 the issue was to be “seen, heard and baptised”: Sayles, King’s Bench, i. 32.
Statute of Gloucester (1278), c. 3; Westminster II, c. 3.
Bracton, ff. 315, 316.
Ibid. 316 b; Bracton’s Note Book, no. 607 (1231).
Bracton, f. 317; Magna Carta (1225), c. 4; 3 Edw. I (1275), c. 21; 6 Edw. I (1278), c. 5.
52 Hen. III, c. 23.
13 Edw. I, c. 14.
So, too, could a guardian in chivalry; 3 Edw. I (1275), c. 48.
6 Edw. I, c. 7.
Y.B. 3 Edward II, 16; for entry in consimili casu, see above, p. 362.
The reversioner may “pray to be received to defend his right” if the tenant omits to “pray aid” of him. Receipt existed in Bracton’s day on the default of a doweress (Bracton, f. 393 b) and was extended by Westminster II, c. 3 (1285), to reversioners after a tenant by curtesy, in dower, for life, or in tail. The procedure was amended by the Statute De Defensione Juris (20 Edw. I), 1292.
The judgment on a writ of covenant will be “that the covenant be held”; Bracton’s Note Book, no. 1739 (1226).
To eject a lessee was a disseisin to the lessor, however: Eyre Rolls (Selden Society, vol. lix), no. 102 (1221).
Bracton, f. 30. For a termor’s defence to an assize of mort d’ancestor see Y.B. 20 & 21 Edward I (Rolls Series), 228-230 (1292).
Bracton, f. 312 (citing two cases not in the Note Book). For doubts on the rule, see Casus et Judicia, no. 50 and (in the same volume) Casus Placitorum, 28-81; Brevia Placitata, 117.
See, however, the curious passage in Bracton, f. 30 b.
Bracton, f. 220 (who does not mention Raleigh’s name); the attribution is found in certain manuscript registers: Pollock and Maitland, ii. 108 n. 2. It is important to remember that terms of years in the thirteenth century fulfilled the same functions as feudal wardships and marriages, i.e. they were bought and sold as investments. The action of quare ejecit infra terminum is therefore closely related to various forms of quare ejecit for holders of wardships.
The writ as finally settled is directed against a purchaser from the lessor. There were some doubts for a while, however, as to whether the writ went even this far: Pollock and Maitland, ii. 108 n. 3. Cf. the note in Y.BB. Edward II (Selden Society), xiv (pt. 1), xv.
In 1529 he was allowed to “falsify” a recovery: statute 21 Henry VIII, c. 15.
See contra Challis, Are Leaseholds Tenements? Law Quarterly Review, vi. 69 (reprinted in his Real Property, ed. Sweet, 424).
Thus Bracton, f. 268, describes a plea that “if A. had seisin, it was only for a term”, and as late as 1389 the Year Books will speak of a termor’s seisin, e.g. Y.B. 13 Richard II (ed. Plucknett, Ames Foundation), 89. The suggestion in Pollock and Maitland, ii. 109, that a termor could sue for the breach of “his close” is not supported by mediaeval authority; the writs available for termors carefully avoided this expression for some time; the termor begins to talk about “his close” in the time of the Commonwealth: Bacon, Abridgement (1832), viii. 657.
Pollock and Maitland, ii. 115.
F. Joüon des Longrais, La Conception anglaise de la saisine, 141-148.
See the extracts from songs and sermons in Joüon des Longrais, 120, and in Harvard Law Review, xl. 924. Cf. Page, Estates of Crowland Abbey, 112 ff., who shows that lessors were generally poor or improvident.
Joüon des Longrais, 143.
Above, pp. 390 ff.
See the examples in H. G. Richardson, Oxford Law School under John, Law Quarterly Review, lvii. 319 at 327 n. 35. Early thirteenth-century rolls also mention the “loan” or “bailment” of land; the true nature of these transactions is rarely ascertainable: Eyre Rolls (Selden Society, vol. lix), nos. 127, 272 (1221); in no. 1018 it seems to mean a royal grant during pleasure; cf. Plucknett, The Mediaeval Bailiff, 16 ff.
The changes were not everywhere immediate or catastrophic: Page, op. cit., 120-129; Levett, The Black Death (Oxford Studies, vol. 5).
It was further suggested that the damages were limited to the past, and did not extend to the future of the term: Fitz. Ejectione Firme, 2. This action was in fact appropriated at first to cases brought after the lease had expired; quare ejecit, on the other hand, could only be brought during the term.
Y.B. 33 Henry VI, Michs. no. 19. The passage is merely a note of uncertain origin; there is no trace of any decision to this effect.
Y.B. 7 Edward IV, Pasch. no. 16, fo. 6; 21 Edward IV, Michs. no. 2, fo. 11.
There is no year book report, and so the sole authority for the statement is F.N.B. 220 H.
Above, p. 373.