Prior to 1289 a tenant of lands could grant a part of them, to be held under him by feudal services. His tenant, thus created, could do the same. This process was called "subinfeudation." In the year mentioned the statute of quia emptores22 was passed. It prohibited subinfeudation, and enacted that the grantee should hold immediately of the superior lord and not of the grantor. After this statute a conveyance passed all the grantor's interest to the grantee, and the grantor dropped out of the feudal chain between the tenant in possession of the land and the lord para17 1 Pol. & M. Hist. Eng. Law, 288; Dig. Hist Real Prop. (4th Ed.) 40, 48, 80, 120; 2 Bl Comm. 65, 87; Co. Litt. 76a, S3a,
15 l Pol & M. Hist Eng. Law, 299; Dig. Hist Real Prop. (4th Ed.) 41, 86, 136; 2 Bl Comm. 67.
19 1 Pol & M. Hist Eng. Law, 303; Dig. Hist Real Prop. (4th Ed.) 48; 2 Bl Comm. 87.
21 1 Pol & M. Hist. Eng. Law, 332; 2 Pol & M. Hist Eng. Law, 22, 464, 498; Dig. Hist Real Prop. (4th Ed.) 43, 61, 91, 422; 2 Bl Comm. 72, 89.
22 18 Edw. L. c. l.
§ 10) mount, and had no farther connection with the land granted. No new tenure in fee could be created.23 This statute is in force in all the United States where tenure still exists,24 except Pennsylvania and South Carolina.25
Tenure in the United States.
The feudal system never took root in the United States, and what tenures there were in the early holdings of land were by free and common socage, and not subject to the burdensome incidents of tenure which have been enumerated.26 In many states feudal tenures are abolished.27 Lands are in these states allodial; that is, held in absolute ownership, the same as personal property.28 In other states where tenure still exists, lands cannot be holden in fee of another person, because of the statute of quia emptores, as was seen in the last paragraph. Other forms of tenure which do exist to-day, such as the tenure between landlord and tenant, or between tenant for life and reversioner or remainder-man, will be considered hereafter.29
10. Seisin is the possession of land with an intent on the part of the one holding it to claim a freehold interest.30 It may be either:
(a) Seisin in fact, or
(b) Seisin in law.
23 Gray, Perp. 12; Dig. Hist Real Prop. (4th Ed.) 232; Van Rensselaer v. Dennison, 35 N. Y. 393. Cf. Van Rensselaer v. Smith, 27 Barb. 104.
24 Gray, Perp. 16; Denio, J., in Van Rensselaer v. Hays, 19 N. Y. 68, 75.
25 Gray, Perp. pp. 17, 18; Ingersoll v. Sergeant, 1 Whart 337. Of. Wallace v. Harmstad, 44 Pa. St. 492. The charter of North Carolina permitted subinfeudation.
26 Chisholm v. Georgia, 2 Dall 419; Cornell v. Lamb, 2 Cow. 652; Combs v. Jackson, 2 Wend. 153; In re Desilver's Estate, 5 Rawle, 111. Cf. Martin v. Waddell 16 Pet 367; Johnson v. Mcintosh, 8 Wheat 543.
27 l stim. Am. St Law, §§ 400, 401, 1100-1103; Gray, Perp. 13; Matthews v. Ward, 10 Gill & J. 443, 451.
28 Mclean, J., in Mayor, etc., of New Orleans v. XL S., 10 Pet 716; Cook v. Hammond, 4 Mason, 467, 478, Fed. Cas. No. 3,159; Minneapolis Mill Co. v. Tiffany, 22 Minn. 463. Cf. Taylor v. Porter, 4 Hill, 140; Com. v. Tewksbury, 11 Metc (Mass.) 55; Bancroft v. City of Cambridge, 126 Mass. 438
29 See post, pp. 142, 303.
30 Towle v. Ayer, 8 N. H. 57.
By the early common law seisin signified the investing of a tenant with the legal right to his estate, and was properly used only in connection with freeholds.31 Seisin is now often used as the equivalent of possession.32 Seisin in fact is actual possession. Seisin in law is constructive possession.33 The theory of the common law is that there must always be some one seised of the freehold. The early form of conveyance was by a transfer of the seisin.34 Applications of the theory of seisin will be made in other places.
31 Post, p. 34. Van Rensselaer v. Poucher, 5 Denio (N. Y.) 35; Sneed, J. in Upchurch v. Anderson, 3 Baxt (Tenn.) 411; Peters, C. J., in Ford v. Garner's Adm'r, 49 Ala. 603.
32 See Wilde, J., in Slater v. Rawson, 6 Metc (Mass.) 439.
33 Allen, J., in Jenkins v. Fahey, 73 N. Y. 362; Olin, J., in Hart v. Dean, 2 Mcarthur, 63.
34 See post, p. 403.