Sec. 53. Qualified And Base Fee Simples

A qualified or base fee simple is a fee upon condition or subject to a qualification.

It is possible to hold a fee and yet hold it in a qualified or conditional way as where land is granted to A and his heirs as long as they shall continue to occupy it, or so long as A shall remain unmarried. In the latter case, if A never marries, the qualified fee passes into an absolute one, and A's heirs have the fee simple.

Sec. 54. Fee Tails

A fee tail is an estate which one has under a conveyance or gift to him (the tenant in tail) and a particular class of his heirs. It is not known in this country.

An interesting chapter in the English law of estate is that concerning "fee-tails," which we do not have in this country.

If there was a gift or conveyance to a person and a certain class of his heirs (not to him and his heirs generally) as for instance to "John Doe and the heirs male of his body," this would mean, if effectual, to his lineal male descendants, and so perpetually down that line of descent so long as he should have posterity. But the courts in very early times gave a construction to such gift or conveyance as follows: They determined that such an estate was a gift to John on condition that he have male issue, otherwise to revert to the grantor. If he did have issue (male in the case supposed) they said that he had performed the condition, and therefore took an absolute estate in fee which he could sell; although if he did not sell the same, the land would go to the person or persons coming within the class of heirs designated, or if they had not outlived the first taker (John Doe), would revert to the grantor or his heirs. Therefore, in order to defeat this possibility of reversion, John Doe in the case supposed would sell the land as soon as he had issue, and then would buy it back again and have an estate in fee simple absolute. Thus, by this artificial mode of reasoning the happening of the very condition which would logically vest in the heirs male of his body an estate, was made to defeat it, and the motive underlying such reasoning was to evade the "inconveniences which attended these limited and fettered inheritances." Such limited and fettered inheritances were, however, favored by the nobility and the above construction not favorably received by them and they therefore procured the passage of a statute called the statute de donis (concerning gifts) which enacted that the will of the donor should be observed and wiped out the fictitious reasoning above outlined. By virtue of this statute the gift above illustrated (to John Doe and the heirs male of his body) divided the fee into two parts one called a tenancy in tail which was John Doe's life estate; the other part of which, the rest of the fee, was to go to the class of heirs named, and on down forever in that class of heirs, subject to reversion to the donor or his heirs upon failure of such class. This was called entailment of estates and took the land out of commerce. It resulted in rendering prevalent many evils, which the courts prior to de donis had avoided by the construction described. "Children grew disobedient when they knew they could not be set aside; farmers were ousted of their leases made by tenants in tail; * * * creditors were defrauded of their debts; for if tenant in tail could have charged his estate with their payment, he might also have defeated his issue, by mortgaging it for as much as it was worth; innumerable latent [hidden] entails were produced to deprive purchasers of lands they had fairly bought; * * * and treasons were encouraged; as estates tail were not liable to forfeiture longer than the tenant's life." 59 It would be considered sufficient evil in our day that the land was taken out of commerce. This statute continued in all its force for two centuries, when the courts applied a method of defeating fee tails, and this was by the invention of fictitious suits at law known as common recoveries, which Blackstone describes as a kind of pious fraud. And by this process and other development of the law, estates tail were practically made obsolete and the statute de donis overcome.

In the creation of an estate tail, the word "heirs" had to be used; the gift being to a certain class of heirs. If to John Doe and after his death to his son William and his heirs, John would have a life estate, and William the fee simple subject to such life estate. To constitute an estate tail there had to be a gift to a class of heirs, even though in fact only one person made up that class.

In this country various statutes have been enacted to govern a gift which at common law would have created an estate tail, as that he who would have been tenant in tail shall have a life estate, the heir in tail taking a fee simple, and some have enacted that language that would have created a fee tail shall give the tenant in tail a fee simple.

59. Blackstone, Book II, p. 116.