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Section 4 Fee Simple - Sir Edward Coke, Selected Writings of Sir Edward Coke, vol. II [1606]

Edition used:

The Selected Writings and Speeches of Sir Edward Coke, ed. Steve Sheppard (Indianapolis: Liberty Fund, 2003). Vol. 2.

Part of: Selected Writings of Sir Edward Coke, 3 vols.

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Liberty Fund, Inc. is a private, educational foundation established to encourage the study of the ideal of a society of free and responsible individuals.


Section 4
Fee Simple

And in case, where the sonne purchaseth Land in Fee simple, and dyes without issue, they of his bloud on the fathers side shall inherit as heires to him, before any of the bloud on the mothers side. But if hee hath no heire on the part of his father, then the land shall descend to the heires on the part of the mother. But if a man marrieth an inheretrix of lands in Fee simple, who have issue a son, and die, and the sonne enter into the tenements, as sonne and heire to his mother, and after dies without issue, the heires of the part of his mother ought to inherit, and not the heires of the part of the father. And if hee hath no heire on the part of the mother, then the Lord of whom the land is holden, shall have the land by Escheat. In the same manner it is, if lands descend to the sonne, of the part of the father, and hee entreth, and afterwards dies without issue, this Land shall descend to the heires on the part of the father, and not to the heires on the part of the mother. And if there bee no heire of the part of the father, the Lord of whom the Land is holden shall have the land by Escheat. And so see the diversitie, where the sonne purchaseth lands or tenements in Fee simple, and where hee commeth to them by descent on the part of his mother, or on the part of his father.

By this it appeareth1 that our Author divideth heires into heires of the part of the father; and into heires of the part of the mother. (a)2 And note it is an old and true Maxime in Law, that none shall inherit any lands as heire, but onely the bloud of the first Purchaser, for (*)3refert à quo fiat perquisitum,4 As for example, Robert Coke taketh the daughter of Knightley to wife and purchaseth lands to him and to his heires, and by Knightley hath issue Edward, none of the bloud of the Knightleys though they be of the bloud of Edward shall inherit, albeit hee had no kindred but them, because they were not of the bloud of the first purchaser, viz. of Robert Coke.

(b)5 “they of his bloud on the fathers side.”

Here it is to be understood, that the father hath two immediate blouds in him, viz. the bloud of his father, and the bloud of his mother, both these blouds are of the part of the father. (c)6 And this made ancient Authors say, that if a man be seised of lands in the right of the wife, and is attainted of felony, and after hath issue, this issue should not inherit his mother, for that he could derive no bloud inheritable from the Father. And both these blouds of the part of the Father must bee spent | before the heire of the bloud of the part of the mother shall inherit, wherein ever the line of the male of the part of the father, (that is) the posteritie of such male, bee they male or female, (who ever in descents are preferred) must faile before the line of the mother shall inherit, (d)7 and the reason of all this is for that the bloud of the part of the father is more worthy, more neere in judgement of Law, than the bloud of the part of the mother.

“before any of the bloud on the mothers side.”

And it is to be observed,8 that the mother hath also two immediate blouds in her, (viz.) her fathers bloud, and her mothers bloud. Now to illustrate all this by example. Robert Fairefield Sonne of John Fairefield and Jane Sandie, take to wife Anne Boyes Daughter of John Boyes and Jane Bewpree, and hath Issue William Fairefield who purchaseth lands in fee. Here William Fairefield hath foure immediate blouds in him, two of the part of his father, viz. the bloud of the Fairefields, and the bloud of the Sandies, and two of the part of his mother; viz. the bloud of the Boyses, and the bloud of the Bewprees, and so in both cases upward in infinitum.

Now admit that William Fairefield die without issue, first the bloud of the part of his father, viz. of the Fairefields, and for want thereof the bloud of the Sandies (for both these are of the part of the father) if both these faile, then the heires of the part of the mother of William Fairefield shall inherit, viz. first the bloud of the Boyses, and for default thereof the bloud of the Bewprees.

It is necessarie to be knowne in what cases the Heire of the part of mother shall inherit, and where not. If a man be seised of lands as Heire of the part of his mother, and maketh a feoffment in fee, and taketh backe an estate to him and to his heires, this is a new purchase, and if hee dieth without issue, the heires of the part of the father shall first inherit. If a man so seised maketh a feoffment in fee upon condition,9 and die, the heire of the part of the father which is the heire at the Common Law shall enter for the condition broken, but the heire of part of the mother shall enter upon him, and enjoy the land. (m)10 A man so seised maketh a feoffment in fee reserving a rent to him and to his heires, this rent shall goe to the heires of the part of the father; but (n)11 if he had made a gift in taile, or a lease for life reserving a rent, the heire of the part of the mother shall have the reversion, and the rent also, as incident thereunto, shall passe with it; but the heire of the part of the mother shall not take advantage of a condition annexed to the same, because it is not incident to the reversion, nor can passe therewith. (o)12 If a man had been seised of a mannor as heire on the part of his mother, and before the Statute of Quia emptores terrarum,13 had made a feoffment in fee of parcell to hold of him by rent and service, albeit they be newly created, yet for that they are parcell of the mannor, they shall with the rest of the mannor descend to the heire of the part of the mother, quia multa transeunt cum universitate quae per se non transeunt.14 If a man hath a rent secke of the part of his mother, and the tenant of the land | granteth a distresse to him and his heires, and the Grantee dieth, the distresse shall goe with the rent to the heire of the part of the mother as incident or appurtenant to the rent, for now is the rent secke become a Rent charge.

(p)15 A man so seised as heire on the part of his mother maketh a Feoffment in Fee to the use of him and his heires, the use being a thing in trust and confidence shall insue the nature of the land, and shall descend to the heire on the part of the mother. (q)16 A man hath Seigniorie as heire of the part of his mother, and the Tenancie doth escheat, it shall goe to the heire of the part of the mother. If the heire of the part of the mother of land whereunto a Warrantie is annexed is impleaded and Vouche, and judgement is given against him, and for him to recover in value, and dieth before execution (r)17 the heire of the part of the mother shall sue execution to have in value against the Vouchee, for the effect ought to pursue the cause, and the recompence shall ensue the losse.

If a man giveth lands to a man, to have and to hold to him and his heires on the part of his mother, yet the heires of the part of the father shall inherit, for no man can institute a new kinde of inheritance not allowed by the Law, and the words (of the part of his mother) are void, as in the case that Littleton putteth this Chapter. If a man giveth lands to a man to him and his heires males, the Law rejecteth this word males, because there is no such kinde of inheritance, whereof you shall read more in his proper place.

If a man hath issue a sonne, and dieth, and the wife dieth also, lands are letten for life, the remainder to the heires of the wife, the sonne dieth without issue, the heires of the part of the father shall inherit, & not the heires of the part of the mother, because it vested in the son as a Purchaser. And the rule of Littleton holdeth as well in other kinde of Inheritances, as in Lands and Tenements. (f )18 And therefore if there be Lord, feme mesne,19 and Tenant, and the Mesne binde her selfe and her heires by her Deed to the acquitall of the Tenant, the Mesne take husband, the Tenant by his Deed granteth to the husband and his heires, that hee or his heires shall not bee bound to acquitall, the husband & wife have issue, and die, this issue, being bound as heire to his mother, shall not take benefit of the said grant of discharge, for that extends to the heires of the part of the father, and not to the heires of the part of the mother, and therefore the heire of the part of the mother was bound to the Acquitall. And thus much for the better understanding of Littleton’s Cases concerning the heire of the part of the mother shall suffice.

“But if a man marrieth an inheretrix.”

Here there is another maxime, (t)20 That whensoever Lands doe descend from the part of the mother, the heires of the part of the father shall never inherit. And likewise when Lands descend from the part of the father, the heires of the part of the mother shall never inherit. Et sic paterna paternis, et è converso, materna maternis.21 For more manifestation hereof, and of that which hereafter shall be said touching Descents, see a Table in the end of this Chapter.

“shall have the land by Escheat”

(u)22 Escheat, Eschaeta is a word of art, and derived from the French word Eschear (id est) cadere, excidere or accidere, and signifieth properly when by accident the Lands fall to the Lord of whom they are holden, in which Case wee say the Fee is escheated. And therefore, of sonne, Escheats are called excadentiae, or teriae excadentiales (w)23Dominus vero capitalis loco haeredis habetur quoties per defectum vel delictum extinguitur sanguis sui tenentis, loco haeredis & haberi poterit, nisi per modum donationis sit reversio cujusque tenementi. And Ockam (who wrote in the reigne of Henry the second) treating of Tenures of the King, saith, Porro eschaetae vulgo dicuntur, quae decedentibus hiis quae de Rege tenent, &c. cum non existit ratione sanguinis haeres ad fiscum relabuntur.24 (x)25 So as an Escheat doth happen two manner of wayes, aut per defectum sanguinis, i.e for default of heire, aut per delictum tenentis, i.e. for felony, and that is by judgement three manner of wayes, aut quia suspensus per collum, aut quia abjuravit regnum, aut quia utlegatus est.26 And therefore, they which are hanged by Martiall Law, in furore belli forfeit no Lands: and so in like Cases Escheats by the Civilians are called Caduca.

(y)27 The father is seised of Lands in fee holden of I.S. the son is attainted of high treason, the father dieth, the Land shall escheat to I.S. propter defectum sanguinis, for that the father dieth without heire. And the King cannot have the Land because the sonne never had any thing to forfeit. But the King shall have the Escheat of all the Lands whereof the person attainted of high treason was seised, of whomsoever they were holden.

(z)28 In an Appeale of Death or other felony, &c. processe is awarded against the Defendant and hanging the processe the Defendant conveyeth away the land, and after is outlawed, the conveyance is good and shall defeat the Lord of his Escheat, but if a man be indited of felony, and hanging the processe against him, hee conveyeth away the Land, and after is outlawed, the Conveyance shall not in that case prevent the Lord of his Escheat. And the reason of this diversitie is manifest: For in the case of the Appeale, the Writ containeth no time when | the felony was done, and therefore the Escheat can relate but to the Dutlawrie pronounced. But the inditement containeth the time when the felony was committed, and therefore the Escheat upon the Outlawrie shall relate to that time. Which cases I have added, to the end the Student may conceive, that the observation of writs, Inditements, Processe, Judgements, and other Entries, doth conduce much to the understanding of the right reason of the Law.

Of this word (Eschaeta) here used by our Author, commeth (a)29Eschaetor, an ancient Officer so called, because his office is properly to looke to Escheats, Wardships, and other casualties belonging to the Crowne. In ancient time there were but two Escheators in England, the one on this side of Trent, and the other beyond Trent, at which time they had Subescheators. But in the reigne of Edward the second, the Offices were divided and severall Escheators made in everie Countie for life, &c. and so continued untill the reigne of Edward the third. And afterwards by the statute of 14 Edw. 3. it to enacted by authoritie of Parliament, that there should be as many Escheators assigned, as when king Edward the third came to the Crowne, and that was one in every Countie, and that no Escheator should tarrie in his office above a yeere, and by another Statute to be in office but once in three yeeres, the Lord Treasurer nameth him.

And hereof also commeth Eschaetria, which signifieth the Escheatership, or the office of the Escheater. But now let us heare what our Author will further say unto us.

“And so see the diversitie.”

This kinde of speech is often used by our Author, and doth ever import matter of excellent observation, which you may finde in the Sections noted in the margent.30

And it is to be well observed, that our Author saith, Sil nad ascun heire, &c. la terre eschaetera.31 In which words is implyed a diversitie (as to the Escheat) between Fee simple absolute, which a naturall body hath, and Feesimple absolute which a body politique or incorporate hath. (b)32 For if land holden of I. S. be given to an Abbot and his Successors: In this case if the Abbot and all the Convent die, so that the body politique is dissolved, the Donor shall have againe this land, and not the Lord by Escheat. And so if land be given in Fee simple to a Deane and Chapter, or to a Major and Commonaltie, and to their Successors, and after such body politique or incorporate is dissolved, the Donor shall have againe the land, and not the Lord by Escheat. And the reason and cause of this diversitie is, for that in the case of a body politique or incorporate the Fee simple is vested in their politique or incorporate capacitie created by the policie of man, and therefore the Law doth annex a condition in Law to everie such gift and grant; That if such body politique or incorporate be dissolved, that the Donor or Grantor shall re-enter, for that the cause of the gift or grant faileth, but no such condition is annexed to the estate in Fee simple vested in any man in his naturall capacitie, but in case where the Donor or Feoffor reserveth to him a Tenure, and then the Law doth imply a Condition in Law by way of Escheat. Also (as hath been said) no Writ of Escheat lyeth but in the three cases aforesaid, and not where a body politique or incorporate is dissolved.

[1. ]Vid. Sect 354. an excellent point.

[2. ](a) Pl. Com. Sir Edward Clere’s case 47.

[3. ](*) Fleta lib. 6. ca. 1. 2. &c. Bracton lib. 2. fol. 65. 67. 68. 69. &c. Britton ca. 119. 24. Edw. 3. 50. 36. Edw. 3. 29. 30. 38. 49. Edw. 3. 12. 49. Ass. p. 4. 12. Edw. 4. 14. Pl. Com. 445. & 450. 7. Edw. 6. Dyer 6. 24. Edw. 3. 24. 37. Ass. 4. 40. Edw. 3. 9. 42. Edw. 3. 10. 45. Edw. Releases, 28. 7. Hen. 5. 3. 4. 8. Ass. 6. 35. Ass. 2. 5. Edw. 4. 7. 3. Hen. 5. 21. Hen. 7. 33. 40. Ass 6. Ratcliffs case lib. 3. fol. 42.

[4. ][Ed.: it refers to the person from whom a purchase is made.]

[5. ](b) Bracton, ubi supra. Fleta, ubi supra. Britton, ca. 118. 119. Pl. Com. 445. Clere’s case. Tr. 19. Edw. 1. in Banco Rot. 25. Lincoln. Will. Seels case.

[6. ](c) Britton, fol. 15. fleta, lib. 1. ca. 18. Pl. Com. 445. 446. &c. Clere’s case.

[7. ](d) 19. Ric. 2. garr. 100.

[8. ]Britton ca. 118. 119. Fleta lib. 6. ca. 2.

[9. ]5. Hen. 7. 24.

[10. ](m) 7. Hen. 6. 4. Lib. 1. fol. 100. Shelleyes case. [note: the note designations here leap to “m.”]

[11. ](n) 5. Edw. 2, tit. Arowry, 207.

[12. ](o) 5. E. 2, Arowry 207.

[13. ][Ed.: name of statute of 1290.]

[14. ][Ed.: because many things pass when aggregated with something else which do not pass by themselves.]

[15. ](p) 5. Edw. 4. 4. lib. 1. fol 100. Shelleyes case. 27. Hen. 8. Dyer Buckenhams case. 32. Hen. 8. gard. Brook 93, 13. Hen. 7. 6.

[16. ](q) 16. E. 3. age. 46.

[17. ](r) Pl. Com. 292. & 515. See more on this in the chapter of Warranties.

[18. ](s) 38. Edw. 3. 12.

[19. ][Ed.: an intermediate tenancy held by a woman.]

[20. ](t) 39. Edw. 3. 29. 49. Edw. 3. 12.

[21. ][Ed.: And so from the father’s side to the father’s heirs, and, conversely, from the mother’s side to hers.]

[22. ](u) Vide sect. 130. Glanvill lib. 7. cap. 17. Bract. lib. 3. fol. 118. Fleta lib. 5. cap. 5. & lib. 3. cap. 10. Britton ca 37. & cap. 119. F. N. B. 100. Tr. 19. E. 1. in Banco Rot. 25.

[23. ](w) Fleta lib. 6. cap. 1. Ockam cap. quod non absolvitur, &c.

[24. ][Ed.: The chief lord takes the place of an heir whenever the blood of his tenant is extinguished by default (i.e. of kin) or misconduct. And he to whom the reversion of the tenement was made by the condition of the gift shall take the place of the heir.... Formerly those things were called escheats which, on the death of those who hold of the king etc., when there is no heir by reason of blood, go back to the fisc.]

[25. ](x) Pl. Com. Dame Hales case.

[26. ][Ed.: either for defect of blood . . . or through the wrongdoing of the tenant . . . because he has been hanged by the neck, or has abjured the realm, or has been outlawed.]

[27. ](y) Pl. Com. in Nichols case.

[28. ](z) 38. Edw. 3. f. 37. 30. Hen. 6. 5. Bract. 1., tit. de Forf. Staunf. pl. cor. 192. and according to this diversitie was it resolved in 5. Hen. 6. as it appeareth by my Lord Diers Manuscripts.

[29. ](a) Mirror ca. 1. sect. 5. 5 1. Hen. 3. statutum de Scac. Britton fo 23. 34. Flet. lib. 1. cap. 36. & lib. 2 cap. 34. 35. Regist. 301. his Oath 18. Edw. 1. Rot. Parl. Part. 21. Edw. I. Rot. 1. 29. Edw. 1. stat. de Eschaetoribus. 14. Edw. 3. c. 8. 28. Edw. 1. ca. 18. F. N. B. 100. c. Stamf. Praer. 81. 1. Hen. 8. ca. 4. 3. Hen. 8. ca. 2. Capitula Eschaetriae in Vet. Magna Carta, fo. 160. 161. &c.

[30. ]Sect. 147. 149. 248. 289. 417. 667. &c.

[31. ][Ed.: If he has no heir, etc., the land will escheat.]

[32. ](b) 7. Edw. 11. 12. Fitz. N. B. 33. g. Edw. 3. 16. 17. Edw. 2. Stat. de templariis.