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The Doctrine Of Estates And The Rise Of The Fee Simple Notes

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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, 2nd 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

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