Lectures on the constitution and laws of England / With a commentary on Magna Charta, and illustrations of many of the English statutes

by Francis Stoughton Sullivan

Voluntary alienations of land having gained ground, and become at length established in England, contrary to the principles of the original law; and it being allowed for a maxim, that he that had a fee simple, had an absolute dominion over half of his land, to dispose of as he pleased, and, in some cases, of the whole; it could not be, but that there would arise many persons fond of perpetuating their estates in their families, and consequently displeased at this power of alienation. The means they used to attain their ends was under that maxim of law, Tenor investituræ est inspiciendus, or, as we express it, Conventio vincit & dat modum donationi. Every man therefore, absolute master of his estate, having a right to give it on what terms he pleased, they began, not as before, to give lands to a man and his heirs in general, for that would have given an absolute dominion, but to heirs limited, as to the heirs of his body, or to the heirs male of his body, or to the heirs of his body by such a woman. Here it was plain enough, that none were intended to take, but such as came within this description; and by this means they hoped to defeat the power of alienation, to secure the estate to the persons described, and, in failure of them, the returning or reversion of it to themselves or their heirs.

But the judges complying with the universal bent of the times to the contrary, did not give these grants that construction they expected, upon the natural presumption, that every person will have heirs of his body, and that his posterity will continue for ever. They construed this to be a fee simple; and yet, not entirely to disregard the intention of the donor, to be a fee simple conditional; as if the words had been to a man and his heirs, provided he have heirs of his body, and consequently to be alienable, and forfeitable upon a certain event. And one great reason of making this construction, I take to be the consideration of forfeiture for treason and felony, which, by such grants, would be defeated by another construction, and men thereby rendered more fearless to commit crimes in those troublesome times[221].

Let us see then what estate or power was in donor and donée immediately by the grant; and what, upon the performance of the condition, namely, the having issue. And first, the donée had immediately a fee simple upon the grant, contrary to Britton’s opinion, that, before children born, he had only an estate for life, and afterwards a fee. This appears from hence, that if a man had aliened in fee before issue had, the donor could not have entered upon the lands for the forfeiture, which, if he was tenant for life, he might. For the alienation in fee of tenant for life is an absolute forfeiture, and gives right of entry to the lessor. The donée, then, having presently a fee simple in him, that is, an estate for ever, than which there can be no greater; it was impossible the donor should have any actual estate or interest in the lands. He had not, therefore, a reversion vested in him, that is, a certain positive right of the lands returning to him or his heirs, as he would have had, if an estate for life only had been granted. He had only a bare possibility of reverter, in case the donée died without issue; or, leaving any, that issue had failed.

For the same reason, of the donée’s having a fee simple, no remainder could be limited in such an estate. If land be given to A. for life or for years, and after the efflux of the life or years to B., B. hath presently a remainder in the lands for life, years, or in fee, according as the limitation of the estate is; because it is certain that a life, or term of years, must expire. But if land be given to A. and the heirs of his body, and, in failure of such heirs, to B. and his heirs, this remainder to B., before the statute De Donis, was void, for A. had immediately an estate for ever, and therefore the limitation over to B. was rejected, as repugnant to the estate it depended upon.

But though, by such a grant, the donée got a fee, it being clogged with a condition, he had not, to all intents and purposes, an absolute power over it, either with respect to the donor, or his own issue. If the donor aliened before issue had, this was no bar to the donor, of his possibility of reverter; but it was a bar to the issue born afterwards, to enjoy the estate tail. For at this time fathers had a greater liberty to bar their children, than a stranger. Therefore, in this case, the alienée and his heirs, were to enjoy the lands while the donée, or any issue of his body remained. But whenever they failed, the donor’s, or his heir’s possibility of reverter, was changed into an actual reversion, and the land became his. For now, by a subsequent event, it appeared, that the legal presumption of the estates continuing for ever was ill founded. Neither, by the having of issue, was the condition performed to all purposes, so as to vest an absolute fee in the donor; for if the donée had died without issue, or if his issue failed, without any alienation being made by either, in this case also, the donor’s possibility was changed into an actual reversion. But by having issue, the condition was so far performed, as to enlarge the power of the donée to three special purposes; first, to alien absolutely, and thereby to destroy the right of issue, and the possibility also of reverter in the donor; secondly, to charge and incumber it to the prejudice of both issue and donor; and thirdly, to forfeit it for treason or felony, to the prejudice of both also. Such was the construction the judges made of these grants, which, we see, gave, in almost all cases, an unlimited power of alienating, contrary to the intention of the donor, and the form of the gift[222].

But, in the thirteenth of Edward the First, the lords, willing to preserve the grandeur of their families, obtained of that monarch the famous statute of Westminster the second, called De Donis, which by these words, quod voluntas donatoris, secundum formam in charta Doni sui, manifeste expressam, de cætero observetur, ita quod non habeant illi, quibus tenementum sic fuit datum sub conditione, potestatem alienandi tenemenium sic datum, quo minus ad exitum illorum, quibus tenementum sic fuerit datum, remaneat post eorum obitum, vel ad donatorem vel ad ejus hæredem, si exitus deficiat, revertatur[223], created a new kind of inheritance, estates tail, which very much resemble the old feudal donations, that were only descendible to the issue of the first feudatory. Let us see the consequence of these words. First, since the will of the donor was to be observed, it followed, that neither the donée, nor his issue, should have power to alien, incumber, or forfeit: the consequence of which was, that he could no longer have a fee simple, as these are inseparable incidents to such an estate; but a lesser estate, called Fee tail, from, the French word Tailler before mentioned, as being, like other lesser estates, carved out of the fee simple.

Were it to be asked, in whom did the fee simple reside? it is plain it could be in none other but the donor, who had it originally in him. Therefore, by this statute, the possibility of reverter, which the donor had, was changed into an actual present interest, called a reversion in fee simple. But it was not always necessary that the fee simple should be in the donor; for estates tail, being now less than a fee simple, it became possible to limit a remainder thereon which should be good: Thus, if a gift be made to A. and the heirs of his body, and, in failure of such heirs, to B. and his heirs; in this case, there is no reversion: for the donor hath parted with his whole estate, but A. hath an estate tail, and B. a remainder in fee simple. Many remainders may be limited on one another, as for instance, an estate may be given to A. for years, remainder to B. for life, remainder to C. in tail, remainder to D. in tail, remainder to E. in fee simple; but if the last remainder is not in fee simple, but in fee tail, then is the reversion in fee simple to the donor.

However, although a tenant in tail after this statute could alien only for his own life, his heir in tail was not allowed to enter upon the alienée without first proving his right in a court of law, and this is what is meant by saying, though a tenant in tail could not destroy the estate tail by his alienation, yet he could continue it. The reason of this is, that all estates of inheritance are presumed fee simple, until the contrary is proved, and it would be unjust to remove a possessor, who came in by a title apparently fair, until the weakness of that title appears judicially. This rule, however, extended only to estates corporeal, that lay in liveries, not to incorporeal ones, that lay in grant; which shews that this maxim of its working a discontinuance proceeded from the feudal principle, of protecting the possessor, because he was to do the feudal duties.

The statute to guard these inheritances from alienations, expressly provides, that even a fine levied of them in the king’s courts of record should be ipso jure null.

The method of recovering such lands so discontinued, is by a writ called a Formedon, from the words forma doni, of which writ there are three kinds, according to the title of the persons who bring them; formedon, in the reverter, in the descender, and in the remainder. Formedon in the reverter lies for the donor or his heirs, and lay at the common law after the failure of issue, where the alienation was before issue had; but since the statute, upon the failure of issue, it lies, though the alienation be after. Formedon in descender lies for the issue in tail, when the ancestor has aliened, and is given by the statute. The form of it is as follows, “The king to the sheriff of ⸺ greeting, command A. that he justly, and without delay, restore to B. such a manor, &c. which C. gave to D., and the heirs of his body, and which, after the death of the said D., ought to descend to the said B. the son of the said D. by the form of the aforesaid gift, as he says.” Formedon in remainder lies for a remainder man in tail, or his issue, after the particular estate previous to his (whether it be for years, life, or in tail) is spent. In the reverter, instead of the word descend, it is revert; in the remainder, remain[224].