PART I.

OF CORPOReal hereDITAMENTS.

law.

BEFORE proceeding to consider the estates which may Terms of the be held in corporeal hereditaments or landed property, it is desirable that the legal terms made use of to designate such property should be understood; for the nomenclature of the law differs in some respects from that which is ordinarily employed. Thus a house is by A messuage. lawyers generally called a messuage; and the term messuage was formerly considered as of more extensive import than the word house (a). is not now to be relied on (b).

But such a distinction.
Both the term messuage

and house will comprise adjoining outbuildings, the orchard, and curtilage, and, according to the better opinion, these terms will include the garden also (c). The word tenement is often used in law, as in ordinary Tenement. language, to signify a house: it is indeed the regular synonyme which follows the term messuage; a house being usually described in deeds as "all that messuage or tenement." But the more comprehensive meaning of the word tenement, to which we have before adverted (d), is still attached to it in legal interpretation, whenever the sense requires (e). Again, the word land Land. comprehends in law any ground, soil, or earth whatsoever (f); but its strict and primary import is arable land (g). It will, however, include castles, houses, and (d) Ante, p. 5.

(a) Thomas v. Lane, 2 Cha. Ca. 26; Keilw. 57.

(b) Doe d. Clements v. Collins, 2 T. Rep. 498, 502; 1 Jarman on Wills, 709.

(c) Shep. Touch. 94; Co. Litt. 5 b, n. (1).

(e) 2 Black. Com. 16, 17, 59. (f) Co. Litt. 4 a; Shep. Touch. 92; 2 Black. Com. 17; Cooke, dem. 4 Bing. 90.

(g) Shep. Touch. 92.

Premises.

buildings of all kinds; for the ownership of land carries with it every thing both above and below the surface, the maxim being cujus est solum, ejus est usque ad cœlum. A pond of water is accordingly described as land covered with water (h); and a grant of lands includes all mines and minerals under the surface (i). This extensive signification of the word land may, however, be controlled by the context; as, where land is spoken of in plain contradistinction to houses, it will not be held to comprise them (k). The word premises is frequently used in law in its proper etymological sense of that which has been before mentioned (1). Thus, after a recital of various facts in a deed, it frequently proceeds "in consideration of the premises," meaning in consideration of the facts before mentioned; and property is seldom spoken of as premises, unless a description of it is contained in some prior part of the deed. Most of the words used in the description of property have however no special technical meaning, but are construed according to their usual sense (m); and, as to such words as have a technical import more comprehensive than their ordinary meaning, it is very seldom that such extensive import is alone relied on; but the meaning of the parties is generally explained by the additional use of ordinary words.

(h) Co. Litt. 4 b.

(i) 2 Black. Com. 18.
(k) 1 Jarman on Wills, 707.
(1) Doe d. Biddulph v. Meakin,

1 East, 456; 1 Jarman on Wills, 707.

(m) As farm, meadow, pasture, &c.; Shep. Touch. 93, 94.

CHAPTER I.

OF AN ESTATE FOR LIFE.

Ir seldom happens that any subject is brought frequently to a person's notice, without his forming concerning it opinions of some kind. And such opinions carelessly picked up are often carefully retained, though in many cases wrong, and in most inadequate. The subject of property is so generally interesting, that few persons are without some notions as to the legal rights appertaining to its possession. These notions, however, as entertained by unprofessional persons, are mostly of a wrong kind. They consider that what is a man's own is what he may do what he likes with; and with this broad principle they generally set out on such legal adventures as may happen to lie before them. They begin at a point at which the lawyer stops, or at which indeed the law has not yet arrived, nor ever will; but to which it is still continually approximating. Now the student of law must forget for a time that, if he has land, he may let it, or leave it by his will, or mortgage it, or sell it, or settle it. He must humble himself to believe that he knows as yet nothing about it; and he will find that the attainment of the ample power, which is now possessed over real property, has been the work of a long period of time; and that even now a common purchase deed of a piece of freehold land cannot be explained without going back to the reign of Henry VIII. (a), or an ordinary settlement of land without recourse to the laws of Edward I. (b) That such should

(a) Stat. 27 Hen. VIII. c. 10, the Statute of Uses.

(b) Stat. 13 Edw. I. c. 1, De

Donis Conditionalibus, to which estates tail owe their origin.

No absolute ownership.

An estate for life.

be the case is certainly a matter of regret. History and antiquities are, no doubt, interesting and delightful studies in their place; but their perpetual intrusion into modern practice, and the absolute necessity of some acquaintance with them, give rise to much of the difficulty experienced in the study of the law, and to many of the errors of its less studious practitioners.

The first thing then the student has to do is to get rid of the idea of absolute ownership. Such an idea is quite unknown to the English law. No man is in law the absolute owner of lands. He can only hold an estate in them.

The most interesting, and perhaps the most ancient of estates, is an estate for life; and with this we shall begin. Soon after the commencement of the feudal system, to which, as we have seen, our laws of real property owe so much of their character, an estate for life seems to have been the smallest estate in conquered lands which the military tenant was disposed to accept (c). This estate was inalienable, unless his lord's consent could be obtained (d). A grant of lands to A. B. was then a grant to him so long as he could hold them, that is, during his life, and no longer (e); for feudal donations were not extended beyond the precise terms of the gift by any presumed intent, but were taken strictly (f); and, on the tenant's death, the lands re

(c) Watk. Descents, 107 (113, 4th ed.); 1 Hallam's Middle Ages, 160. There seems no good reason to suppose that feuds were at any time held at will, as stated by Blackstone (2 Black. Com. 55), and by Butler (Co. Litt. 191 a, n. (1), vi. 4.)

(d) Wright's Tenures, 29; 2 Black. Com. 57.

(e) Bracton, lib. 2, fol. 92 b,

par. 6.

(f) Wright's Tenures, 17, 152. Blackstone's reason for the estate being for life-that it shall be construed to be as large an estate as the words of the donation will bear (2 Black. Com. 121)-is quite at variance with this rule of construction.

verted to the lord or grantor. If it was intended that the descendants of the tenant should, at his decease, succeed him in the tenancy, this intention was expressed by additional words of grant; the gift being then to the tenant and his heirs, or with other words expressive of the intention. The heir was thus a nominee in the original grant; he took every thing from the grantor, nothing from his ancestor. So that, in such a case, "the ancestor and the heirs took equally as a succession of usufructuaries, each of whom during his life enjoyed the beneficial, but none of whom possessed, or could lawfully dispose of, the direct or absolute dominion of the property" (g). The feudal system, however, had not long been introduced into this country before the restriction on alienation began to be relaxed (h). Subsequently, by a statute of Edward I. (i), the right of every freeman to sell at his own pleasure his lands or tenements, or part thereof, was expressly recognized; at a still later period the power of testamentary alienation was bestowed (k); until, at the present day, the right to dispose of property is not only established, but has become inseparable from its possession (1). Moreover, the old feudal rule of strict construction has long since given way to the contrary maxim, that every grant is to be construed most strongly against the grantor (m). Yet so deeply rooted are the feudal principles of our law of real property, that, in the case before us, the ancient interpretation remains unaltered; and a grant to A. B. simply A grant to A.B. simply confers now confers but an estate for his life (n), which estate, only a life

(g) Co. Litt. 191 a, n. (1), vi. 5; Burgess v. Wheate, 1 Wm. Black. 133.

(h) Leg. Hen. I. 70; 1 Reeves's Hist. Eng. Law, 43, 44; Co. Litt. 191 a, n. (1), vi. 6.

(i) Stat. 18 Edw. I. c. 1. (k) By stat. 32 Hen. VIII. c. 1, as to estates in fee simple, and