Suit of court.
Superiority of socage tenure.
(2) 2 Hallam's Middle Ages, 481.
(a) Ibid.; 2 Black. Com. 60, 61.
(b) Co. Litt. 65 a, 67 b, n. (1).
(c) Co. Litt. 86 a.
(d) Litt. s. 126; 2 Black. Com. 87.
(e) Litt. ss. 117, 118, 131.
(f) Co. Litt. 91 a; 2 Black. Com. 86.
(g) 2 Hallam's Middle Ages, 439, 440; 2 Black. Com. 74; Wright's Tenures, 131; Litt. 8. 97; Co. Litt. 72 a.
The right of wardship or guardianship of infant tenants having thus being taken away from the lords, the opportunity was embraced of giving to the father a right of appointing guardians to his children. It was accordingly provided by the same act of parliament (/), that the father of any child under age and not married at the time of his death, may, by deed executed in his lifetime, or by his will in the presence of two or more credible witnesses, in such manner and from time to time as he shall think fit, dispose of the custody and tuition of such child during such time as he shall remain under the age of one-and-twenty years, or any lesser time, to any person or persons in possession or remainder. And this power was given, whether the child was born at his father's decease or only in ventre sa mere at that time, and whether the father were within the age of one-and-twenty years, or of full age. But it seems that the father, if under age, cannot now appoint a guardian by will; for the Wills Act now enacts, that no will made by any person under the age of twenty-one years shall be valid (m). In other respects, however, the father's right to appoint a guardian still continues as originally provided by the above-mentioned statute of Charles II. The guardian so appointed has a right to receive the rents of the child's lands, for the use of the child, to whom, like a guardian in socage, he is accountable when the child comes of age. A guardian cannot be appointed by the mother of a child, or by any other relative than the father (n).
Stat. 12 Car II. c. 24.
Power for the father to appoint a guardian to his child.
(h) 2 Hallam's Middle Ages, 481.
(i) 2 Black. Com. 87, 88.
(j) Co. Litt. 108a, n. (5).
(k) Stat. 12 Car. II. c. 24. The
12th Car. II. A.D. 1660, was the first year of his actual reign.
(l) Stat. 12 Car. II. c. 24, s. 8. See Morgan v. Hatchell, 19 Beav 86.
A rent is not now often paid in respect of the tenure of an estate in fee simple. When it is paid, it is usually called a quit rent (o), and is almost always of a very trifling amount: the change in the value of money in modern times will account for this. The relief of one year's quit rent, payable by the heir on the death of his ancestor, in the case of a fixed quit rent, was not abolished by the statute of Charles, and such relief is accordingly still due (p). Suit of court also is still obligatory on tenants of estates in fee simple, held of any manor now existing (q). And the oath of fealty still continues an incident of tenure, as well of an estate in fee simple, as of every other estate, down to a tenancy for a mere term of years; but in practice it is seldom or never exacted (r).
(m) Stat. 7 Will. IV. & 1 Vict. c. 26, s. 7; 1 Jarm. Wills, 36, 1st ed.; 34, 2nd ed.; 39, 3rd ed.
(n) Ex parte Edwards, 3 Atk. 519; Bac. Abr. tit. Guardian
(A) 3. See also Mr. Hargrave's Notes to Co. Litt. 88 b.
(o) 2 Black. Com. 43; Co. Litt. 85 a, n. (1).
There is yet another incident of the tenure of estates in fee simple; an incident, which has existed from the earliest times, and is still occasionally productive of substantial advantage to the lord. As the donor of an estate for life has a certain reversion on his tenant's death, and as the donor of an estate in tail has also a reversion expectant on the decease of his tenant, and failure of his issue, but subject to be defeated by the proper bar, so the lord, of whom an estate in fee simple is held, possesses, in respect of his lordship or seignory, a similar (s), though more uncertain advantage, in his right of escheat; by which, if the estate happens to end, the lands revert to the lord, by whose ancestors or predecessors they were anciently granted to the tenant (t). When the tenant of an estate in fee simple dies, without having alienated his estate in his lifetime, or by his will(u), and without leaving any heirs, either lineal or collateral, the lands in which he held his estate escheat (as it is called) to the lord of whom he held them.
Suit of court.
(p) Co.Litt.85a,n.(l); Scriv. Cop. 738.
(q) Scriv. Cop. 736.
(r) Co. Litt. 67 b, n. (2), 68 b, n. (5).
(s) Watk. Descent, p. 2 (pp. 5, 6, 7, 4th ed.).
(t) 2 Black. Com. 72; Scriv. Cop. 757 et seq.
(u) Year Book, 49 Edw. IN. c. 17; Co. Litt. 236 a, n. (1);
Scriv. Cop. 762. But it may perhaps be doubted whether the new Wills Act (7 Will. IV. & 1 Vict. c. 26, s. 3) extends to this case, and whether, therefore, in order to prevent an escheat, three witnesses should not attest the will as under the old law, which still subsists as to wills to which the new act does not extend (see sect. 2).
Bastardy is the most usual cause of the failure of heirs; for a bastard is in law nullius filius; and, being nobody's son, he can consequently have no brother or sister, or any other heir than an heir of his body(v); nor can his descendants have any heirs, but such as are also descended from him. If such a person, therefore, were to purchase lands, that is, to acquire an estate in fee simple in them, and were to die possessed of them without having made a will, and without leaving any issue, the lands would escheat to the lord of the fee, for want of heirs. Again, before forfeitures for treason and felony were abolished (w), sentence of death pronounced on a person convicted of high treason or murder, or of abetting, procuring, or counselling the same (x), caused his blood to be attainted or corrupted, and to lose its inheritable quality. In cases of high treason, the crown became entitled by forfeiture to the lands of the traitor (y); but in the other cases the lord, of whom the estate was held, became entitled by escheat to the lands, after the death of the attainted person(z); subject, however, to the Queen's right of possession for a year and a day, and of committing waste, called the Queen's year, day and waste, - a right usually compounded for(a). When an escheat occurs, the crown most frequently obtains the lands escheated, in consequence of the before-mentioned rule, that the crown was the original proprietor of all the lands in the kingdom (b). But if tenure which are worth mentioning; they respect either the persons to whom the estate was originally granted, or the places in which the lands holden are situate. And, first, respecting the persons: The ancient tenure of grand serjcanty was where a man held his lands of the king by services to be done in his own proper person to the king, as, to carry the banner of the king, or his lance, or to be his marshal, or to carry his sword before him at his coronation, or to do other like services (g) : when, by the statute of Charles II. (h), this tenure, with the others, was turned into free and common socage, the honorary services above described were expressly retained. The ancient tenure of petit ser-jeanty was where a man held his land of the king, "to yield him yearly a bow, or a sword, or a dagger, or a knife, or a lance, or a paire of gloves of maile, or a paire of gilt spurs, or an arrow, or divers arrowes, or to yield such other small things belonging to warre" (i): this was but socage in effect (j), because such a tenant was not to do any personal service, but to render and pay yearly certain things to the king. This tenure therefore still remains unaffected by the statute of Charles II.