Legal History: Mid Sem

Front 1

two fundamental doctrines in the law of real property:

Back 1

the doctrines of tenures and estates

Front 2

tenurial system of holding land

Back 2

imposed by William the Conqueror: all land is held as a tenant of the Crown.
and all other people are tenants either directly or indirectly of the crown

Front 3

feudal origins of tenurial system

Back 3

grants of land made by king to tenants upon certain conditions (in exchange for various services to be provided to the king eg. Person supply knights to king’s army)

Front 4

Direct grant from king =

Back 4

tenants in chief

Front 5

Subinfudation

Back 5

Tenants in chief could in tern (by subinfudation) tenant the land to someone below them on condition that they have to supply the knights for the king’s army

Front 6

Tenants in domain

Back 6

actually occupying the land

Front 7

Crown may have granted one of three types of freehold estate ;

Back 7

- life estate
- an estate in fee simple
- Estate in fee tail

Front 8

a grant of an estate in fee simple

Back 8

in this, Crown or grantor, had to use a certain strict formula for the grant of that fee simple.

"to A and his heirs."

Settled 1306 – grant in fee simple last so long as original tenant had heirs. Or if the tenant alienated the land (disposed of land to someone else) would last so long as there were heirs of the new tenant.

Front 9

eschest

Back 9

If run out of heir, land goes back to the crown

Front 10

Estate in fee tail

Back 10

• Grant made to A and the heirs of his body
• Continues only for so long as A has lineal descendants

Front 11

life estate

Back 11

To A for life – only as long as A is alive then goes back

Front 12

Life estate per aultra vie

Back 12

To A for the life of B

Front 13

Apart from freehold estates, there are lease holds (tenants today)

Back 13

• Inferior to freehold estates
• Leases based in contract – based in contractual rights to occupy

Front 14

classification of tenures

Back 14

(1)Free tenures
a. Military tenures
b. Tenures in socage
c. Spiritual tenures
(2) Unfree tenures
(3) Miscellanous Tenures

Front 15

(i) Knight’s service

Back 15

number of military tenures went on till 17th c
escheat and forfeiture

• Aids – payments lord could demand on special occasions which
• homage, fealty and suit of court
• relief and primer seisin
• wardship and marriage; select spouse for any tenant had in

Front 16

Grand sergeant

Back 16

involved supply of some article (such as king’s sword)

Front 17

Military tenures

Back 17

Knights service
Grant sergeant

Front 18

Tenures in socage

Back 18

(i) Petty sergeant
(ii) Socage.
- commonest form, became ultimately almost only form.
Any type of service could be reserved for lord – though generally agricultural. Fixed both to nature and amount.
- By end of 15th – most of these services converted to money payments known as quit rents. Eventually even the quit rents were abolished though land remained socage trenure.

Front 19

Spiritual tenures

Back 19

monastic / elecesiastical tenure no specific services reserved – tenants only obligation – pray for repose of grantors sooul
(i) Frankalmoign
(ii) Divine service – specified definitive spiritual services

Front 20

Unfree tenures

Back 20

tenure of common labourers or villeins, under which the land remained seised in the lord and the tenant merely occupied the land on the lord’s behalf.
enforceable at common law,
after the fall in the labour market by the Black Death, villeins became wage-earning tenants and
unfree tenant or villein was more a servant, and originally had only recourse to the court of the lord with no rights recognised by the King’s courts.

Front 21

decline in the tenurial system came about as a result of

Back 21

the effect of two statutes:
• The Tenures Abolition Act, 1660
• The Statute of QuiaEmptores, 1290

Front 22

Statute of QuiaEmptores, 1290

Back 22

Led to decline of …. New teneurs
• lord could not restrain alienation of land by subinfudation
• Network of tenures could bo longer grow
• Main lords began to disappear

Front 23

Tenures Abolition Act, 1660

Back 23

• Effected two mains aspects of the teneurial system
– it converted all free teneurs into free and common socage teneur. (except that forgot frankelmoin)
- did not purport to get rid of copyhold tenure
• Two teneurs left: socage and copyhold
• Tudors, to increase income, set out to increase efficients of collection – on piece of legislation used to do so, state of Eusus,"",etc
• By the time of tudors in 16thc , value of all these services and incidents had declined – no effective ways of re-enforcing collection

Front 24

development of the fee simple estate
• Heritability (the right to inherit land).

Back 24

• Recognised by 1100
• Right of heir to inherit clearly evident by assize of mort d’ancestor
• By then, a person could inherit his ancestor land on payment of relief

Front 25

Primogeniture

Back 25

(inheritance by the eldest son; or in the absence of sons, inheritance by coparcenary, under which the tenant’s daughters took equally).
• Early writings appear to show that there were restrictions on alienation of land during a father’s lifetime so couldn’t disinherit his sons/heirs
• Whole of inheritance goes to the eldest son, and if no son’s then the tenants daughters took father’s land under coparcenary (all sisters/daughters take equally)

Front 26

Alienability

Back 26

(ability to alienate/dispose of land during your life time)
early 1200’s, clear that a fee simple could be alienated freely, subject to the restraints of dower and curtesy, and a rule later developed that the heirs of the alienee can keep the estate going.

Front 27

rules of inheritance by the time of Edward I

Back 27

• 1200 right of father to alienate land became clearly established
• Reinforce by protective force of warranties
By 1250 right to alienate was effective – but 2 restraints
1. Dower; right of widow/wife to a life estate over 1/3rd deceased husband’s land. If husband had alienated land, could recover it
• (if woman died first in marriage husband seized of all of wife’s land. As widower, had right to a curtacy, after wife died right to all of her land until he died.

Front 28

Conditional gifts: fee tail

Back 28

gave right to the grantor, to fetter the alienation in the land in the first place.

Front 29

In conveyances inter vivos, it was necessary to use the strict words,

Back 29

“and his heirs.”

Front 30

When it became possible to devise land by will, after the Wills Act 1540, it was not necessary to use in the will

Back 30

the strict words of limitation provided that on the construction of the will it was possible to find an intention of the testator to give a fee simple.

Front 31

Old anglosaxon rules determined group of persons
Rules of glaville’s day determined

Back 31

who in that group was to become heir and entitlted to whole lot

Front 32

Rules of inhereitence 1272 (plutnick -724)
First group entitlted to a person’s inhereitence

Back 32

– lineal decendants (deceased’s children)

Front 33

Rules of inhereitence 1272 (plutnick
lineal decendants (deceased’s children)
Within this group,

Back 33

eldest son under primogeniture
If no son, all daughter’s equally

Front 34

Rules of inhereitence 1272 (plutnick
What if there’s no first group?

Back 34

Would have to pass to collateral relatives;
have to look at next group entitled,
(only looked to father of deceased not the mother) decendants of drcrsded’s father, deceased’s brother’s and sisters, start with oldest son, but if no son’s, then land divided among sister’s of deceased equally
• If had no sibilings, progressed up again to aunts and uncles

Front 35

Rules of inhereitence 1272 (plutnick
May persons inherit by representation?
IE. Deceased’s edldest son has a son but has passed before deceased, can deceased’s deceased son’s son inherit?

Back 35

YES

Front 36

fee tail is said to be a creature of statute of

Back 36

De DonisConditionalibus 1285

Front 37

Fee tail arose as a variation of the

with a condition that on failure of a defined line of descent there is

Back 37

fee simple.

a reversion to the estate of the donor
the earliest version of which is a maritagium.

Front 38

words of limitation for the creation of a fee tail were

Back 38

“and the heirs of his body.”

Front 39

Defeat of the fee tail

Back 39

the late 15th century, the courts, which have always been hostile to restraints upon the alienation of land, began to approve of conveyancing devices designed to defeat the fee tail.

Front 40

two types of life estate:

Back 40

ordinary life estate
life estate purautre vie

estate of freehold; person can defend their rights by possessory actions
• cannot be inherited

Front 41

ordinary life estate, usually created with the words,

Back 41

“for life,” eg, “to A for life”

common estate in 13th c
Gives grantee an interests, granted in possession, right of present enjoyment of property

Front 42

life estate purautre vie,

Back 42

which is an estate granted for the life of someone other than the tenant, for example, “to A for the life of B.”

Front 43

If A, grantee, dies before B, there’s still a bit of life estate that could have gone longer. What happen’s to that balance?

Back 43

• Because not a state of inheritance – can’t inherit
• Court developed Rules of Occupancy
• Situation called general occupancy, so A’s heir would have no particular claim to the land. Said at common law that first person to enter the land was entitled to it as general occupant

Front 44

“to A and his heirs for the life of B”

Back 44

• Still a life estate! But, because specifically mentioned A’s heirs, then rule at common law = rule of special occupancy

Front 45

Waste =

Back 45

an act or omission which alters land whether better or worse
• Law distinguishes between different types ie. Intentional waste )positive, deliberate injury to land)

Front 46

The grant of an estate in land to a person gives that person a present and immediate right to possession and enjoyment of the land
called:

Back 46

an estate vested in possession

eg the grants, “to A and his heirs,” or “to A and the heirs of his body,” or “to A for life.”

Front 47

tenant of the largest estate, the fee simple, may break it up and grant smaller estates in it to a number of persons in succession

Back 47

example;
G, may make a grant of a life estate to A, that is, G makes a grant “to A for life,” so that A has an immediate and present life estate vested in possession, and G retains the balance of her interest in the fee simple, a fee simple in reversion, which is a future interest, not an interest in possession.

Front 48

future interest?

Back 48

To A for life.
Grantor still has the rest of his fee simple. Grantor has balance of it – a reversion
This is a future interest, because A has present possession.

say eg. “To A for life, and then to B for life”
A has a life estate vested in possession. (present interest)
B has a vested remainder for life. (future interest)

Front 49

Grantor “To A for life” – Grantor has a ...

Back 49

Reversion in fee simple. = any reversion is a future interest.

Front 50

difference between a reversion and a remainder?

Back 50

Remainder arises where the in the same grant there was a prior estate given to someone else.
Reversion, is an interest which still resides in grantor because never given away.

Front 51

“To A for life and then to B and the heirs of his body”
A remainder is

whereas a reversion is

Back 51

a future interest granted to a person by the same instrument which granted a prior estate in possession to another person

the residue of an owner’s interest after the grant of some lesser estate to some other person.

Front 52

Before the statute of De DonisConditionalibus 1285 the grantor’s right to get back the land after a fee tail

Back 52

was weak
The statute strengthened that right with the remedy of formedon-in-the-reverter.

Front 53

Vested remainders
Later the common law recognised remainders to living persons as vested interests: that is a

Back 53

present right to the future enjoyment of the land.

After the statute De DonisConditionalibus 1285 reversions to grantor’s were on the way to being recognised, and the common law regarded them as vested in interest

Front 54

First requirement of being vested interest;

Back 54

Vested if person entitled to it is ascertained (alive = ascertained)

Front 55

Second requirement of being vested interest;

Back 55

that remainder is ready to take effect in possession immediately, prevented from doing so only because of interest of prior estate.

Front 56

Contingent remainders

Back 56

you cannot say immediately at the time of the grant who is entitled to the remainder, for example, consider a grant “to A for life and then to the heirs of A” (when A is alive at the date of the grant).

who is the heirs of A? wont know when grant made, until A dies.

Difference between vested interest and contingent remainder – one that vests on the happening of some event.

Front 57

For a long time the validity of contingent remainders were in doubt, and until as late as

Back 57

1410 contingent remainders were considered void as the interest could not immediately vest in anybody.

common law was concerned ensure somebody who could immediately take possession and perform the tenurial services. must not be a gap in seisin .

Front 58

“To A for life remainder to B and his heirs when B attains the age of 21 years” (B is aged 5 years at the date of the grant).

Back 58

B gets a fee simple. – Contingent remainder in fee simple – contingent because B cannot get his fee simple until he turns 21.
As soon as he turns 21 – no longer contingent – he now has a vested remainder in fee simple.

Front 59

recognition of contingent remainders evolved in three stages:

Back 59

From 1431 started to recognise those contingent remainders in favour of heir of living person in strange way
rule which was solidified a couple of centuries later in Shelley’s Case (1582)

Front 60

rule in Shelley’s Case (1582)

Back 60

“it is a rule of law that when an estate of freehold is given to a person, and by the same disposition an estate is limited either mediately or immediately to his heirs or to the heirs of his body, the words “heirs” or “heirs of his body” are words of limitation and not words of purchase.”

Thus, a grant “to A for life remainder to his heirs” would be considered to have the effect of a limitation “to A and his heirs,” the courts expressing this as A’s life estate and the remainder having merged.

Front 61

in a limitation by G “to A for life remainder to the heirs of B” the contingent remainder to B was void until about the mid 15th century because

Back 61

rule in Shelley’s Case did not allow the common law to deal with other types of contingent remainders.

Front 62

first step in recognising contingent remainders other than those recognised under the rule in Shelley’s Case
was to hold that

Back 62

contingent remainder to the heir of a living person
was good provided that B died before the grantor
as in that event G’s heir took the reversion and was performing the tenurial services or had the seisin in the land, until B’s heir was ascertained.

Front 63

final step in recognising this type of contingent remainder ; end of the 15th held that a contingent remainder of this type is good if

Back 63

it becomes vested before or at the moment of the termination of the prior particular estate

Front 64

The final stage in the recognition of contingent remainders came in the mid 16th century (1550)

Back 64

courts recognised remainder may be subject to a variety or several contingencies or conditions provided that they are not illegal.

Front 65

Rules governing the validity of contingent remainders

Back 65

A remainder after a fee simple is void ab initio (from the beginning).
A remainder cannot be limited to arise in futuro but must be supported by a particular estate of freehold given/created by the same instrument.
A remainder is void if it does not in fact vest at or before the termination of the preceding particular estate of freehold.
A remainder is void if it is designed to take effect in possession before the natural determination of the prior particular estate.

Front 66

A remainder cannot be limited to arise in futuro but must be supported by a particular estate of freehold given/created by the same instrument.

Back 66

It is impossible to create at common law an estate which would spring up in the future by itself.

Front 67

A remainder is void if it does not in fact vest at or before the termination of the preceding particular estate of freehold.

Back 67

This is the so-called “wait and see” rule.

Front 68

A remainder is void if it is designed to take effect in possession before the natural determination of the prior particular estate.

Back 68

Therefore, a remainder that might cut short the particular estate is void.

However, here you have to distinguish conditional gifts, as the example we just considered, and determinable limitations.

Front 69

This beginning of the use.

Back 69

Conveyancers in the 13th century began to covey land to someone who would hold the land on behalf of another.

Front 70

form of words used in a use

would be conveyed by the grantor as

Separates the

Back 70

“to the use of.”

“to A and his heirs to the use of B and his heirs,”

the legal and beneficial (or equitable) estate in the land

Front 71

common law decided not to recognise uses and it would only take notice of the


towards the end of the 14th century

Back 71

rights of the legal owner. common law provided no remedy to beneficial owners /cestuique uses who were at the mercy of the feoffee to uses,

the Chancellor was providing aid and equitable relief was probably given to cestuique uses by the early 15th century.

Front 72

Uses were employed for two significant reasons;

Back 72

1. to evade feudal incidents or liabilities

2. they gave a greater power to convey land and create future interests in certain ways that could not be done at common law because of the common law legal remainder rules

Front 73

Springing uses,

Back 73

for example, a grant by X “to A and his heirs to the use of B and his heirs after X dies,” the grant to B being void if made at common law but valid if made behind the use.

Front 74

Shifting uses,

Back 74

for example, Grant by X “to A and his heirs to the use of B and his heirs but to the use of C and his heirs if B fails to graduate in law,” in which the shift of the benefit from B to C on the happening of the condition would be void at common law but valid if made behind the use.

Front 75

The doctrine of resulting uses to the grantor

Back 75

also developed to fill gaps where the full beneficial interest of the grantor in the land was not disposed, for example, Grant by X “to A and his heirs to the use of B for life.”

Front 76

The doctrine of implied uses

Back 76

allowed the Chancellor to imply a use from the behaviour of the parties, for example in the case of a voluntary conveyance to a stranger.

Front 77

The Statute of Uses 1535

Back 77

passed as a result of pressure by Henry VIII

effectively provided for the “execution” of the use converting the use (all of beneficial interests) into the corresponding legal estate and thereby stopped the evasion of feudal dues.

Front 78

important consequence of the Statute with its execution of uses was that

Back 78

it was now possible to create new legal interests, which could not formerly be created at common law, and in particular new future interests called executory interests.

Front 79

Executory interests
springing and shifting interests could not be created at common law because they were void under the common law remainder rules.

Back 79

However after the Statute of Uses, the execution of springing and shifting uses created corresponding legal interests or so-called executory interests.

Set them up behind a use, statute would execute the use, would then have this. Couldn’t set this up outright.

Front 80

common law courts decided not to apply the common law remainder rules to executory interests
did this mean that you could then create any limitation behind a use so that the legal remainder rules were no longer relevant?

Back 80

answered by the rule in Purefoy v Rogers (1671)
- were subject to the common law remainder rules.

springing and shifting remainders were void ab initio at common law

any remainder made behind a use that was not void ab initio if made at common law

provided that the common law remainder rules continued to apply to all uses and devises except to those remainders which were absolutely void ab initio (from the beginning) under the common law rules.

Front 81

There were a number of uses to which the Statute of Uses did not apply. in four significant cases:

Back 81

(1) Where the feoffee to uses was not seised of a freehold estate, and thus did not apply where the feoffee had only a lease.
(2) Where a corporation was seised to uses.
(3) Where active uses were involved, and thus, if the feoffee had had some active duties to perform, the use was not executed.
(4) (most important), the use upon a use.

Front 82

decided before the Statute of Uses that a use upon a use was entirely void
confirmed also after the Statute of Uses in

Back 82

Tyrrel’s Case in 1557

common law and in Chancery a grant “to A and his heirs to the use of B and his heirs to the use of C and his heirs,” gave C no interest at either law or in equity.

Front 83

century after the Statute of Uses, the Chancellor began to enforce the second use where justice required though this grew into a general practice during the second half of the 17th century

necessary to have a double use: a shortened and compressed form of the use upon a use, later adopted by conveyancers with the formula

Back 83

uses were brought back to life
could be created as freely as before 1535

“unto and to the use of B in trust for C and his heirs,” which had the same effect as the extended version of before

Front 84

rules against perpetuities

by the 19th century the modern rule against perpetuities was completed by

modified in NSW by

Back 84

end of the 17th century judicial policy in relation to perpetuities was in a state of confusion

the decision of the House of Lords in 1833 in Cadell v Palmer ;
applies to all equitable future interests and legal executory interests so that a settlor cannot forever render land inalienable

the Perpetuities Act 1984 (NSW).