#1675 - The Doctrine Of Estates And The Rise Of The Fee Simple - History of English Law

The Doctrine of Estates and the Rise of the Fee Simple

Consider position of the freehold T and the development of ownership in the freehold T

There are two elements to the doctrine of estates, corresponding to two ways in which estates may be classified:

(1) Duration: An estate in the land is a time in the land, or the land for a time (Walsingham’s case) – so land can be split into slices of time. + Simpson imagines a cake – the whole cake is the fee simple (time in land without end) but slices of cake can be taken out and passed to another; e.g. an estate for life, then get the cake back. This is a present right to present enjoyment.

(2) Time of enjoyment: Not only may the right to seisin be cut up into slices of time, but there may also be a present (alienable) right to a future enjoyment, when the person with the life estate has died. This is a present right to future enjoyment (but that right can still be transferred now to another); to get the cake back in the future.

Estates may be classified in relation to time of enjoyment as:

(a) Estates in possession – Current right to current enjoyment, when you enjoy your life estate.

(b) Estates in reversion – Cake with a slice missing in the fridge. When you die slice reverts back to me.

(c) Estates in remainder – Another has the cake with a slice missing in his fridge. When you die that land does not revert back to me but goes to another.

The analysis of estates was not fully developed until after the statute Quia Emptores (1290).

The Rise of the Fee Simple

‘Fee Simple’: The most ample estate - ‘a time in the land without end’ (Walsingham’s Case (1573)). Characteristics: 1. Heritability, 2. Alienability.

1. Heritability – Classic common law position is that if I die seised my fee simple descends to my heir by definition of law. Heir is eldest son. *There was a development of expectation of inheritance right of inheritance which was enforceable.

*Milsom-Maitland debate: realms of speculation over whether there was ever a pure feudal relationship (only a life estate and nothing more).

+ Maitland: Doubtfully assumed that land held by military tenure had been heritable from the Conquest:

“We are thus led to the question whether the followers of the Conqueror who received great gifts of English lands held those lands heritably. It is certain that they did; but this answer may require qualification and the difficulty of the question should be seen … No doubt [William’s] followers believed that they obtained hereditary estates, though we do not know that they had any warrant for this belief on parchment (Sir F. Pollock and F.W. Maitland, The History of English Law before the time of Edward I, 2^nd ed. (1898), vol. 1, pp. 314-315).

= Maitland recognises that this is a difficult question. Asserts that they certainly held the land heritably. Then it seemed that the followers of the conqueror (land 11^th c) could be regarded as owners of the land, as in later centuries. Difficulties for Maitland: evidence showed that immediately after the conquest if a T wanted to make a grant of land to a 3^rd party he needed the consent of his heir to do that, and the consent of the lord. So on the one hand the T is conceived as the owner, but he cannot grant land away without consent – paradox, why if he is owner are these consents required?

Maitland tried to resolve paradox by saying that these consents did not show T was not an owner, but imposes limits on the owner’s power to alienate. These consents disappeared in last quarter of 12^th c. Maitland said need for consent of the heirs disappears because by alter 12^th c. it is clear that land descends on landholders’ death to his eldest son, so he thought that before then there had been a time when land would be partitioned among all sons (maybe untrue). So to make provision for the younger sons the father must make grants when he is alive; the older son would have an unfair veto over younger brothers, so disappears. Unclear assumption that land descended to several heirs. Judges had bias in favour of freedom and alienation and so need for lord’s consent disappeared.

Challenge to Maitland’s view:

+ Thorne: Proposed ‘to show that the military fief was not heritable until about the year 1200 and that its tenant [before that] held merely an estate for life’. He argued that land did frequently pass from father to son after Conquest so, by the 1150s, the grandsons of the conqueror’s men held land granted to their grandfathers. But he said that does not necessarily show inheritance – could just be ‘succession’, i.e. hiring gardeners son descended but it has come to each by gift, they have not inherited the job of gardener.

E.g. In the case of freehold land the L subinfeudates to T. When T dies his life interest ceases and the land falls back into the hands of L. L may then grant land to the dead T’s heir, but if he does so the heir has not inherited. The land has not come to him from his ancestor, but by a new grant from the lord. Also follows, that the lord takes on the T. If the lord dies and is replaced to his heir, H is not obliged to accept L’s grant. The arrangement must be reinstated. But the re-grant to the heir frequently happens so by mid 12^th c. that land has come into grandsons’ hands. In that sense the land is held heritably but it is not strictly speaking inheritance, it is succession.

Over a no. of generations the expectation that this will happen again when T dies develops, so the view becomes more and more that the land is T’s, strengthened by novel disseisin. So by 1170s it was becoming hard to see why an heir of full age willing to do service, he should not have land at once.

Recognised by Assize of Northampton in 1176: Provided that if the heir was an adult he was to have seisin, as his ancestor had, from point of his ancestor’s death. Then he must seek out the lord to do homage – there is not a granting out again from the lord. Hence the way is open for idea that heir inherits from ancestor.

Issue: + Glanvill: Even after 1176 we do not quite have inheritance because (Glanvill says in 1180s) there are still restrictions on what may be granted away without the consent of my heir. If I have land which was my father’s I can make gifts of that land (grants free of service) only in limited circumstances without consent of my heir. E.g. I can make a dowry or gift to religious house but no more without heir’s consent.

+ Thorne: Says that when the lord makes his original subinfeudation to T and his heirs (after 1176), the lord makes a grant to tenant and his heirs – a grant to T and the future identifiable heir. So the future heir has claim by original grant made by lord in beginning. So have something like a series of life estates. That is why T can only make...