This section is from the book "Real Property, An Introductory Explanation Of The Law Relating To Land", by Alfred F Topham. Also available from Amazon: The New Law Of Property.
Land cannot be owned by individuals.
At the time of William I. all land was owned by the king, and in theory the same rule still applies (a).
The rule underlies the whole of the English law of land and accounts for many of its peculiarities, so that the modern law cannot be thoroughly understood without some knowledge of the history of this theory.
The Feuded System. - The king, as landowner, permitted certain of his subjects to hold land from him; they became his tenants (tenentes = "persons holding"), and owed him certain services in return for their holdings.
Those who held direct from the king were called tenants in chief or tenants in capite.
Each tenant in chief usually permitted other persons to hold the greater part of his lands as his tenants in return for services rendered by them, and these tenants in their turn had other tenants holding of them. Such tenants did not merely hold the land for a specified number of years as in the case of a modern lease, but each had an -interest in the land, which, on his death, would continue in his heirs.
It is impossible to discuss the English law of land without using many words which are unknown to the ordinary English
(a) The king is said to be "lord paramount" of all land.
language. The meanings of the following expressions must therefore be thoroughly mastered before the student can hope to understand the subject.
Heir. - The heir is the person who takes the land of a tenant on his death if the tenant has not disposed of the land by his will.
A person to whom land is given by will is not the heir, but is called a "devisee." Hence the maxim "Solus deus heredem facere potest, non homo" ("God alone determines the heir; man cannot").
. The heir is usually the eldest son of the tenant; but if there is no son, the daughters, father, brothers, sisters, or remote relations will succeed to the land according to rules which will be explained later.
He is not an heir until he becomes entitled to the land. Hence the maxim, "nemo est heres viveniis" ("a man cannot have an heir while he is alive").
A living person may have an heir apparent, that is, an eldest son, who must be his father's heir if he lives long enough to survive the father.
An heir 'presumptive is the person who would be the heir if the tenant died at once - e.g. an only daughter would be her father's heir, if he died and had no son; but the birth of a son would prevent her from becoming her father's heir.
Note that the heres of Roman law differed from the English heir in two respects: (i) the heres took all the property; (ii.) the heres could be appointed by will.
Personal Representatives. - At common law (that is, law as it existed apart from statutes) on the death of a tenant of land, the land went direct to the heir or devisee, but his movable property (called Chattels - because cattle were the most valuable kind of movable) did not go direct to his next of kin or legatee, but became vested in his executor, if the owner appointed an executor by his will, or his administrator, a person appointed by the court to take the place of the executor if none was appointed. The executor or administrator are the personal representatives of a deceased owner. Now, on the death of an owner after 1897, all his property, including his land, goes in the first place to his personal representatives.
Estate, means the interest which a tenant has in his land. Estates or interests may be of very many different kinds, thus -
An estate in fee simple, is an interest in land which, after the death of each tenant, can descend to his heir. It is, therefore, perpetual, and at the present day is practically absolute ownership.
"Thus a tenant in fee simple is usually spoken of as the owner of the land, sometimes even in legal writings and Acts of Parliament. The term "owner" will frequently be used in this book; but the reader must remember that the word is being used as a shorter way of saying "tenant in fee simple."
"Fee" itself means an interest in land which can descend to the heir. It is connected with the word "feudal," the feudal system being a system under which one tenant in fee simple holds from another tenant, in fee simple who holds from another, and so on up to the king.
"To Enfeoff" is, therefore, "to grant a person the fee."
Feoffment, is a granting of the fee.
Subinfeudation is to grant a fee simple to another person to hold sub (= under) you.
An estate in fee tail (or, more shortly, an estate tail) is a fee which can only descend to the issue of the tenant; whereas a fee simple could descend to, e.g. a younger brother of the tenant. An estate tail is created by a grant of land "to A and the heirs of his body," or "to A in tail."
The fee simple is the largest possible estate - hence any estate less than the fee simple is called a particular estate (Latin, particula = "small part").
If the estate was a fee simple or fee tail or an estate which might last for an uncertain length of time, e.g. an estate for the life of a tenant; the tenant was considered to be a free tenant - and his holding was therefore a freehold.
But if his estate was for a fixed number of years only, he was considered to have been put into the land as the bailiff or servant of his landlord, and had practically no rights against the lord.
Hence arose the expression real estate: a tenant of a freehold who was turned out (ejected) by his landlord or any other person could bring an action to recover the land itself, i.e. the "res" or "thing" of which he had been deprived; the action was called a re-al action, and the property which could be recovered was real property.
If, however, a tenant for a fixed number of years or the owner of a movable chattel were deprived of it, he could not get back the land or the chattel itself, and he merely had an action against the person who took it, whereby he could recover damages. Hence the action was a personal action, and any property, other than real property,, was called personal property, including estates in land for a fixed number of years.
Chattel-real is the name given to these interests in land which are not real estates - because they partake partly of the nature of chattels and partly of the nature of real property.
It would be hard to discover a more inappropriate name for this kind of property, for it is not a chattel (or movable), and was not real (or specifically recoverable).
At the present day chattels real are specifically recoverable, (b) and also personal chattels of unique value.
Life Estate. - Since land could not be owned, a grant of land to A did not make A an owner of the land, but merely a tenant, and as a person cannot be tenant of land after his death, the grant gave him an estate for his life only, unless the land was also granted to the heirs of A.
The grant to the heirs might be a full grant of the fee simple ("to A and his heirs"); or it might be a more limited grant (e.g. "to A and the heirs of his body"); in either case the addition of these words had the effect of marking out or "limiting" (i.e. marking the limes or boundary of) the estate of A.
Hence words of limitation mean words such as "and his heirs," which mark out the estate of the tenant, although the addition of such words increases the estate rather than limits it (in the usual sense of the word).
Grantor is the person who grants land; grantee is the person to whom land is granted; in the same way, donor is the person who gives, and donee is the person to whom something is given.
Mortgagor is the person who borrows money and makes a mortgage of his land; mortgagee is the person who lends the money and receives the land as security.
Purchase has a special meaning in law, and includes, not only the buying of land in return for money, but any acquiring of land either by the act of a living person or by the will of a deceased person. That is, a purchaser is a person who acquires land by any other means than -
(b) This is due to the action of ejectment, see later p. 57. A copyholder had no remedy if he was ejected by his lord, as he was deemed to hold the land "at the will of the lord;" but a copyhold estate has now come to be considered as "real property."
(1) descent on intestacy;
Seisin (connected with the Latin "Sedeo" and "Sessio" = to sit or sitting) means in the first place quiet possession of land.
It has nothing to do with seizing or force, and merely implies quietly sitting on land. Compare the expression a "squatter" = a person who acquires land by taking possession of it for more than twelve years.
Later, seisin comes to mean possession of a freehold, so that a person cannot be said to be seised of land, unless he is in posession of the freehold, either personally or by means of his tenants.
Hereditament means property which can descend to the heir, and is thus often used as synonomous with "land"(d).
A corporeal hereditament is an interest in land in possession, i.e. a present right to enjoy the possession of land either personally or through tenants.
An incorporeal hereditament is a right over land in the possession of another, which may be a future right to possession, or a right to use for a special purpose land in possession of another, e.g. a right of way.
This distinction is founded on the difference between a corporeal thing, which means a thing which can be touched and handled, and an incorporeal thing, which means a mere abstract right which cannot be handled.
A messuage means a house.
Premises strictly means " things previously mentioned."
Common law is used in two senses; it may mean either (1) the law applied in the courts of
(d) Money may be a hereditament, if it is settled upon trust to go to the heir with the land. Re Gosselin,  W. N. 170.
common law, as contrasted with equity, which was applied by the chancellor in the court of chancery;
Originally a person who wished to rely on the Common law had to bring his action in the Common Law Courts; while a person who wished to rely on equity had to go to the Court of Chancery. Since the Judicature Act, 1873, he may obtain any of these remedies in any court, and the terms "Common Law" and "Equity" denote merely the origin of a rule or law; and this origin may modify to some extent the manner in which the rule is applied.
or (2) the law laid down by decided cases as opposed to law created by statute.