An estate in fee simple (feudum simplex) is the greatest estate or interest which the law of England allows any person to possess in landed property (a). A tenant in fee simple is he that holds land or tenements to him and his heirs(b); so that the estate is descendible, not merely to the heirs of his body, but to collateral relations, according to the rules and canons of descent. An estate in fee simple is of course an estate of freehold, being a larger estate than either an estate for life, or in tail(c).
It is not, however, the mere descent of an estate in fee simple to collateral heirs, that has given to this estate its present value and importance : the unfettered right of alienation, which is now inseparably incident to this estate, is by far its most valuable quality. This right has been of gradual growth: for, as we have seen(d), estates were at first inalienable by tenants, without their lord's consent; and the heir did not derive his title so much from his ancestor as from the lord, who, when he gave to the ancestor, gave also to his heirs. In process of time, however, the ancestor acquired, as we have already seen (e), the right, first, of disappointing the expectations of his heir, and then of defeating the interests of his lord. The alienations by which these results were effected were, as will be remembered, either the subinfeudation of parts of the land, to be holden of the grantor, or the conveyance of the whole, to be holden of the superior lord. It was impossible to make a grant of part of the lands to be holden of the superior lord without his consent; for, the services reserved on any grant were considered as entire and indivisible in their nature(f). The tenant, consequently, if he wished to dispose of part of Ins lands, was obliged to create a tenure between his grantee and himself, by reserving to himself and his heirs such services as would remunerate him for the services, which he himself was liable to render to his superior lord. In this manner the tenant became a lord in his turn; and the method, which the tenants were thus obliged to adopt, when alienating part of their lands, was usually resorted to by choice, whenever they had occasion to part with the whole; for the immediate lord of the holder of any lands had advantages of a feudal nature (g) which did not belong to the superior lord, when any mesne lordship intervened; it was therefore desirable for every feudal lord, that the possession of the lands should always be holden by his own immediate tenants. The barons at the time of Edward I. accordingly, perceiving, that, by the continual subinfeudations of their tenants, their privileges as superior lords were gradually encroached on, proceeded to procure an enactment in their own favour with respect to estates in fee simple, as they had then already done with regard to estates tail (h). They did not, however, in this case attempt to restrain the practice of alienation altogether, but simply procured a prohibition of the practice of subinfeudation; and at the same time obtained, for their tenants, facility of alienation of parts of their lands, to be holden of the chief lords.
Tenant in fee simple holds to him and his heirs; and has an estate of freehold.
Right of alienation.
(a) Lift. s. 11.
(b) I/itt s. 1.
(c) Ante, pp. 22, 35.
(d) Ante, pp. 17, 18. (e) Ante, pp. 87 - 41.
Part of any lands could not anciently be granted to hold of the superior lord.
Subinfeudation disadvantageous to the superior lords.
(f) Co. Litt. 43 a. (g) Such as marriage and wardship, to be hereafter explained.
See Bract, lib. ii. c. 19, par. 2.
(h) By the stat. De Bonis, 13 Edw. I. c. 1, ante, p. 42.
The statute by which these objects were effected is known by the name of the statute of Quia emptores(i); so called from the words with which it commences. It enacts, that from thenceforth it shall be lawful to every freeman to sell at his own pleasure his lands and tenements or part thereof, so nevertheless that the feoffee (or purchaser) shall hold the same lands or tenements of the same chief lord of the fee, and by the same services and customs, as his feoffor held them before. And it further enacts (k), that, if he sell any part of such his lands or tenements to any person, the feoffee shall hold that part immediately of the chief lord, and shall be forthwith charged with so much service as pertaineth, or ought to pertain, to the said chief lord, for such part, according to the quantity of the land or tenement so sold. This statute did not extend to those who held of the king as tenants in capite, who were kept in restraint for some time longer (l). Free liberty of alienation was however subsequently acquired by them; and the right of disposing of an estate in fee simple, by act inter vivos, is now the undisputed privilege of every tenant of such an estate (m).
The alienation of lands by will was not allowed in this country, from the time the feudal system became completely rooted, until many years after alienation inter vivos had been sanctioned by the statute of Quia emptores. The city of London, and a few other favoured places, formed exceptions to the general raint on the power of testamentary alienation of of estates in fee simple (n); for in these; places tenements might be devised by will, in virtue of a special custom. In process of time, however, a method of devising lands by will was covertly adopted by means of conveyances to other parties, to such uses as the person conveying should appoint by his will (o). This indirect mode of devising lands was intentionally restrained by the operation of a statute, passed in the reign of King Henry VIII. (p), known by the name of the Statute of Uses, to which we shall hereafter have occasion to make frequent reference. But only five years after the passing of this statute, lands were by a further statute expressly rendered devisable by will. This great change in the law was effected by statutes of the 32nd and 34th of Henry VIII. (q). But even by these statutes the right to devise was partial only, as to lands of the then prevailing tenure; and it was not till the restoration of King Charles II., when the feudal tenures were abolished (r), that the right of devising freehold lands by will became complete and universal. At the present day, every tenant in fee simple so fully enjoys the right of alienating the lands he holds, either in his lifetime or by his will, that most tenants in fee think themselves to be the lords of their own domains; whereas, in fact, all landowners are merely tenants in the eye of the law, as a\ ill hereafter more clearly appear.