16. A fee simple is a freehold estate in perpetuity. It is an estate limited to a man and his heirs, and is the largest possible estate in land.
"The word 'fee' originally signified land holden of a superior, as distinguished from allodial land; 'fee' and 'feud' being synonymous. But 'fee' is now employed to denote the quantity of interest the tenant has in land, and is confined to estates of inheritance, i. e. those which may descend to a man's heirs. When the word 'fee' is used alone, it means 'fee simple.'"* A fee simple 8 is a freehold estate in perpetuity.9 It may exist in incorporeal as well as in corporeal hereditaments.10 A fee simple is practically equal to absolute ownership, if, indeed, it is not so, in theory, in most of the states. Under the feudal system, no one except the sovereign held a fee simple. Grants were made to tenants to hold in demesne as of a fee, but this was not the absolute fee simple of to-day. An interest in the land still remained in the grantor or feudal lord, represented by his right to the feudal services due from the tenant. The fee simple might well be called our normal estate. It represents the whole ownership of the land. Out of the fee simple all other estates are carved. The powers incident to estates less than fee simple are in all cases less than those of the owner of that estate.
4 2 Bl Comm. 201.
5 1 Stim. Am. St. Law, § 1310.
6 Post, p. 67.
7 1 Stim. Am. St Law, § 1310.
* Graves, Real Prop. § 44.
8 "Fee simple" means the same as "fee simple absolute," and generally "fee" alone is a sufficient designation. 2 Bl Comm. 106; Co. Litt. lb; Clark v. Baker, 14 Cal 612, 631; Thompson, C. J., in Jackson v. Van Zandt, 12 Johns. (N. Y.) 169.
10 2 Bl. Comm. 106.
17. For the creation of a fee simple,
(2) In many states, by statute.
(b) By devise, the intention of the testator governs, and no technical words of limitation are necessary. In many states, by statute, a fee simple is presumed to be intended if not otherwise expressed.
Creation by Deed.
In the creation of an estate in fee simple by deed 11 there is a technical rule of the common law that the limitation, as it is called, must be to one "and his heirs"; otherwise, the grantee will take only a life estate.12 And no other words are sufficient, even though the meaning be the same and the intention clear.13 In granting a fee simple to a corporation sole, "successors" is the proper word to use,14 but in the case of a corporation aggregate no words of limitation are necessary.15 The technical words are not required in a strict quitclaim deed. Thus, when one joint tenant or a co-parcener16 releases his interest to his co-tenant, no words of inheritance, as it is called, are necessary to pass a fee.17 But the rule is otherwise in the case of a conveyance by a tenant in common 18 to a co-tenant,19 or where the reversion is released to the tenant for life.20 In the case of a conveyance in which reference is made to another instrument, if the necessary words of inheritance are used in the instrument referred to, their absence from the other will not prevent a fee simple passing.21 When a fee simple was intended to be conveyed, but adequate words were not employed, the deed may be reformed in equity, and made to express the intention of the parties.22 This rule requiring the word "heirs" to be used has in many states been changed by statute, so that other expressions are adequate to convey a fee simple;
11 For the limitation of a fee to a trustee, see North v. Philbrook, 34 Me. 532; Ewing v. Shannahan, 113 Mo. 188, 20 S. W. 1065.
12 Adams v. Ross, 30 N. J. Law, 505; Edwardsville R. Co. v. Sawyer, 92 111. 377; Stell v. Barham, 87 N. C. 62; Batchelor v. Whitaker, 88 N. C. 350; Buffum v. Hutchinson, 1 Allen (Mass.) 58; Jordan v. Mcclure, 85 Pa, St 495; Arms v. Burt, 1 Vt. 303. Contra, Cole v. Lake Co., 54 N. H. 242.
13 For instance, a life estate only was held to pass by the words "successors and assigns forever," Sedgwick v. Laflin, 10 Allen (Mass.) 430; "executors, administrators, and assigns," Clearwater v. Rose, 1 Blackf. (Ind.) 137; "and his generation so long as the waters of the Delaware run," Foster v. Joice, 3 Wash. C. C. 498, Fed. Cas. No. 4,974. But see Evans v. Brady, 79 Md. 142 28 Atl. 1061; Engel v. Ayer, 85 Me. 448, 27 Atl. 352; Adams v. Ross, 30 N. J. Law, 505.
14 Shaw, C. J., in Overseers of Poor of City of Boston v. Sears, 22 Pick. (Mass.) 126; Olcott v. Gabert, 86 Tex. 121, 23 S. W. 985.
15 Congregational Soc of Halifax v. Stark, 34 Vt 243; Wilcox v. Wheeler, 47 N. H. 488. And see Beach v. Haynes, 12 Vt 15; Wilkes-barre v. Wyoming Historical & Geological Soc., 134 Pa. St 616, 19 Atl 809. Where land is settled upon or devised to a charity, it may happen that when the corporation managing the charity comes to an end, and the charity itself becomes impracticable, the land will return to the donor's heirs. Stanley v. Colt 5 Wall. 119. And see 1 Bl Comm. 484. Rutherford v. Greene's Heirs, 2 Wheat 196, and Proprietors of Enfield v. Permit 5 N. H. 280, are often cited to the effect that technical words of limitation are not necessary to pass a fee in the case of legislative grants, but they do not support the proposition.
16 See post, pp. 333, 336.
17 Scott, J., in Rector v. Waugh, 17 Mo. 13, 28
18 See post P. 335.
19 Rector v. Waugh, 17 Mo. 13.
20 1 Washb. Real Prop. (5th Ed.) 90.
21 Lemon v. Graham, 131 Pa. St 447, 19 Atl 48; Mereler v. Railway Co 54 Ma 506. But see Lytle v. Lytle, 10 Watts, 259; Reaume v. Chambers, 22 Mo. 36.
22 See Fetter, Eq. p. 314; Vickers v. Leigh, 104 N. C 248, 10 S. E. 308, Cf Ewing v. Shannahan, 113 Mo, 188, 20 S. W. 1065; Defraunce v. Brooks, 8 Watts & S. (Pa.) 67. and in some states it is to be presumed that a fee simple was intended unless the contrary appears,23
Creation by Devise. The strictness of the common-law rule is relaxed in the case of limitations in wills, and the intention of the testator governs, so that he can devise a fee simple without using the word "heirs," if the expression employed shows that a fee simple is intended.24 In many. states there is now by statute a presumption that a fee simple is devised if no other intention appears.25 That the testator meant to give a fee simple may be implied from a charge imposed on the devisee; for it is said, if he was required to pay out money, and received only a life estate, he might die before being reimbursed from the land.26 If, however, the charge is imposed on the land, instead of on the devisee personally, the presumption does not obtain.27 A fee simple may be presumed from the nature of the land devised, if no other estate would be of any value to the devisee; for instance, in a devise of wild lands, which would be of no value unless the timber could be cut, and a tenant for life would have no such right.28
23 1 Stim. Am. St Law, § 1474; 1 Shars. & B. Lead. Cas. Real Prop. 56. Pennsylvania, New Jersey, Delaware, South Carolina, Florida, Ohio, and Wyoming have not dispensed with words of inheritance in deeds. 1 Dembitz, Land Tit 99.
24 Ferguson v. Thomason, 87 Ky. 579, 9 S. W. 714; Lofton v. Murchison. 80 Ga. 391, 7 S. E. 322; Howze v. Barber, 29 S. C. 4G6, 7 S. E. 817; Webster's Trustee v. Webster (Ky.) 22 S. W. 920; Lockett v. Lockett, 94 Ky. 289, 22 S. W. 224; Mitchell v. Campbell, 94 Ky. 347, 22 S. W. 549; Thomson v. Peake, 38 S. C. 440, 17 S. E 45, 725; Boutelle v. Bank, 17 R. I. 781, 24 Atl S38; Campbell v. Carson, 12 Serg. & R, (Pa.) 54; In re Green's Estate, 140 Pa. St. 253, 21 Atl. 317; Armstrong v. Michener, 160 Pa. St. 21, 28 Atl 447; Mills v. Franklin, 128 Ind. 444, 28 N. E. 60; Bridgewater v. Bolton, 6 Md. 10G; Baker v. Bridge, 12 Pick. (Mass.) 27; Merritt v. Disney, 48 Md. 344; Dilworth v. Gusky, 131 Pa. St 343, 18 Atl. S99; Doe d. Hitch v. Patten (Del. Err. & App.) 16 Atl. 558. In a devise it Las been held that a fee simple passed by the words "all my right" or "property." Newkerk v. Newkerk, 2 Caines (N. Y.) 345; Jackson v. Housel, 17 Johns. (N. Y.) 281. Contra, Doe v. Allen, 8 Term. R. 497. . "All my estate" (by one owning a fee simple), Godfrey v. Humphrey, 18 Pick. (Mass.) 537. To A. "or his heirs," Wright v. Wright 1 Ves. Sr. 409. To A. "forever," Heath v. Heath, 1 Brown, Ch. 147. But see Vernon v. Wright, 28 Law J. Ch. 198, 204, 207; Davie v. Stevens, 1 Doug. 321. And cf. Clayton v. Clayton, 3 Bin. (Pa.) 476.
25 1 Stim. Am. St Law, § 1474; 1 Share. & B. Lead. Cas. Real Prop. 70.
26 Doe v. Richards, 3 Term R. 356; Jackson v. Merrill, 6 Johns. (N. Y.) 185; Lithgow v. Kavenagh, 9 Mass. 161; Wait v. Belding, 24 Pick. (Mass.) 129; Blinston v. Warburton, 2 Kay & J. 400; Pickwell v. Spencer, L. R. 6 Exch. 190.
18. The owner of a fee simple may use his land in any way he pleases, provided he does not cause injury to others.
One who has a fee simple estate in land possesses an indefinite right of user, so that he may commit unlimited waste, such as opening mines, cutting down trees, destroying buildings and other structures, or removing real fixtures.29 This is not technical waste. In connection with other estates, it will be seen that these acts are wrongful, and are called "waste"; but when done by an owner in fee simple they are lawful. There is the one restriction on his right of user, namely, that he must not cause injury to others by the use to which he puts his land, or, in other words, he must not maintain a nuisance on his premises.30
19. A fee simple estate is subject to alienation, which may be:
(a) Voluntary, which is:
(1) Inter vivos, or
(2) By will.
(b) Involuntary, which is either:
(1) For debts or taxes, or
(2) Under the power of eminent domain.
27 Jackson v. Bull, 10 Johns. (N. Y.) 148; Mclellan v. Turner, 15 Me. 436; Doe v. Harter, 7 Blackf. (Ind.) 488; Funk v. Eggleston, 92 111. 515, And see Spraker v. Van Alstyne, 18 Wend. (N. Y.) 200.
28 Sargent v. Towne, 10 Mass. 303.
29 2 Bl Comm. 282. But see the Case of Mines, 1 Plow. 310, 336; Com. v. Tewksbury, 11 Metc. (Mass.) 55.
30 2 Jag. Torts, p. 748; 1 Wood, Nuis. (3d Ed.) 127.