This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
According to the weightiest modern authority, a tenant probably had the right, before the date of Magna Charta (A. D. 1217), freely to dispose of his land to others, provided this did not seriously injure the interests of his lord, and while such alienation of the land was usually made by a transfer to one to hold of him, the grantor (subinfeudation), it might also be made by a transfer conditioned that the transferee should hold of the transferor's lord, the transferee being thus substituted in the transferor's place. Magna Charta provided, in the interest of the great landholders, that thenceforth "no free man shall henceforth give or sell so much of his land as that out of the residue he may not sufficiently do to the lord of the fee the service which pertains to that fee." Thereafter, until the passage of the statute Quia Emptores, considered below, it seems that, apart from the somewhat vague restraint imposed by the charter, the tenant might "alienate the whole or any part of the land by way of subinfeudation, and the whole, though perhaps not a part of it, by way of substitution," except in the case of tenants holding directly of the crown, who were allowed to alienate their holdings only with the consent of the king, who accordingly derived a considerable revenue out of licenses to alienate and fines for alienations made without license.23
22. Litt. Sec.Sec. 112, 126; Co. Litt. 76a; 2 Blackst. Comm. 66; 1 Pollock & Maitland, Hist. Eng Law, 288 et seq.
23. 1 Pollock & Maitland, Hist. Eng. Law, 310. And see Digby, Hist. Real Prop. 156.
- Statute of Quia Emptores. The result of the right of alienation by a tenant was that, in case of subinfeudation, while the lord was still entitled to the rights incident to tenure, such as marriage, relief, wardship, and escheat, these rights might be seriously lessened in value. For instance, if a tenant by knight service aliened the land to another to hold at a rent of a pound of pepper, on the death of the tenant by knight service, leaving an infant heir, the lord, instead of being entitled to enjoy the land itself till the heir came of age, was entitled merely to a pound of pepper annually during that time; and so, in case of an escheat, the lord, instead of obtaining the use of the land absolutely, would merely receive the rent paid by the subtenant. To remedy this state of things, the statute of Quia Emptores24 was passed, whereby it was declared that every free man might sell his tenement or any part of it, but that the transferee should hold of the same lord of whom his transferor had held and by the same services, the services being apportioned in case a part only of the land was sold. This statute was in the nature of a compromise, the great lords conceding to the tenants the full right of alienation, even to the point of substitution of several tenants for one, but succeeding in obtaining a prohibition of any future alienation by subinfeudation, with its disastrous effects upon the lord's rights to marriage, wardship, and escheat.25
The statute did not apply to alienation by persons holding directly of the crown, and the liability of such persons to fines upon alienation without the license of the crown remained as before. Furthermore, the statute applied only to the alienation of the entire fee simple estate in the land belonging to the transferor, and did not prevent the creation of a species of subtenure by the alienation of an estate less than that owned by him.26 Otherwise; however, the statute effectually checked all subinfeudation, and consequently all manors existing in England at the present day, or holdings in fee simple of a lord other than the crown, must date from a period anterior to the date of this statute.27
24. Stat. Westminster III. (18 Edw. I. c. 1; A. D. 1290).
25. 1 Pollock & Maitland, Hist. Eng. Law, 318; Digby, Hist. Real
Prop. 233; Challis, Real Prop. 19. See Van Rensselaer v. Hays, 19 N. Y. 68.