Anglo-American Land Law - Thomas

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Real Property, Probate and Trust Journal

Spring, 1999

*143ANGLO-AMERICAN LAND LAW: DIVERGING DEVELOPMENTS FROM A SHARED HISTORY

Part I: The Shared History

David A. Thomas[FNa1]

Copyright (c) 1999 by the American Bar Association; David A. Thomas

Editors' Synopsis: This Article is the first in a series of three written in anticipation of the American

Bar Association Annual Meeting in London, England, in August, 2000. The series will describe the history

of land law shared by the British and American legal systems. This Article describes the customs and laws

dealing with real property rights that emerged in early Britain. The Article specifically details the

changes that were brought about by economic changes in early British society, sociological occurrences

such as the Black Death, and the adoption of laws, such as the Statute of Uses in 1536.

I. INTRODUCTION TO THE SERIES

A. Introduction to the First Article: The Impact of the Norman Conquest on English Land Law

II. THE EMERGENCE OF AN ENGLISH LAND LAW

A. Land Rights Recognized by the Earliest British Peoples

B. Principles of Roman Property Law During the Romano-British Period

C. Modern Vestiges of Ancient Landholding Patterns

D. The Beginnings of Modern Property Rights During the Anglo-Saxon Period

E. The Impact of Viking Invasions on Property Rights in Anglo-Saxon England

F. Summary of Property Rights Recognized in Late Anglo-Saxon England

*1441. Egalitarian Nature of Early Settlements and Rights in Land

2. Development of Specialization in Real Property Interests

3. Stratified Society and Stratified Land Rights

4. Anglo-Saxon Property Rights as the Foundation for the Common Law of Property

III. NORMAN LANDHOLDING PRACTICES BEFORE THE INVASION OF ENGLAND

IV. CHANGES IN ENGLISH LAND LAW IMMEDIATELY FOLLOWING THE NORMAN CON-

QUEST

V. THE PROFOUND INFLUENCE OF THE DOMESDAY SURVEY

VI. FEUDALISM AFTER THE NORMAN CONQUEST

34 REALPPTJ 143 Page 1

34 Real Prop. Prob. & Tr. J. 143

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A. Sources of Norman Feudalism

B. Introduction of Feudal Tenures

C. Incidents or Characteristics of Tenure

D. Duration of Tenures Under the System of Estates

1. Duration Extended by Inheritability

2. Tension Between Inheritability and Alienability

E. Types of Estates

F. Other Forms of Property Interests Within the System of Estates

G. Summary of Property Interests that Arose in Medieval England

H. Uses

1. Origins of Uses

2. Advantages and Disadvantages of Uses

3. Equitable Intervention in the Development of Uses

4. Early Statutory Reform of Uses

5. Conveyancing of Uses

6. Enactment and Effects of the Statute of Uses (1536)

a. Circumstances Leading to the Enactment of the Statute of Uses

b. The Impact of the Statute of Uses on Conveyancing

(1) Feoffment to Uses

(2) Resulting Uses

(3) Bargain and Sale

*145(4)Lease and Release

(5) Covenant to Stand Seised

(6) Executory Interests

(7) Devises

(8) Contingent Remainders

(9) Uses Not Executed by the Statute of Uses

c. Summary of the Influence of the Statute of Uses

VII. THE IMPACT OF CHANGING SOCIAL CONDITIONS ON THE COMMON LAW OF PROP-

ERTY

A. The Rise and Decline of the Manorial System





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1. General Description ofEnglishManors

2. Origins ofEnglishManors

3. Decline ofEnglishManors

B. Changes in the Law of Property Coincident with the Decline of the Manorial System

1. Copyhold Tenure and Judicial Recognition of Villeins' Property Rights

2. The Black Death and Emancipation of the Villeins

3. The Consequences of Enclosures

VIII. CHANGES IN ENGLISH PROPERTY RIGHTS DURING THE LATE MIDDLE AGES

IX. FURTHER LAND LAW DEVELOPMENTS DISCUSSED IN PART II OF THE SERIES

I. INTRODUCTION TO THE SERIES

This series of three articles in the Real Property, Probate and Trust Journaldescribes the history of land

law shared by the British and American legal systems, and how and why these legal traditions have diverged

from each other in modern times. Part I in this series, The Shared History, describes the emerging customs

and laws regardinglandrights among early inhabitants of Britain, and how succeeding invasions and occupation

by Celtic, Roman, Germanic, and Norman peoples altered these customs and laws. The Article details the pro-

found changes in land law worked by massive economic changes, such as the Black Death, and statutes, such as

the Statute of Uses. Part II in the series will describe the *146 legal process of establishing British colonies in

North America, and how English land law was adopted in the thirteen colonies that formed the original United

States of America. The second Article will also describe how land law developed in each country after Americ-

an independence, through the eighteenth, nineteenth, and early twentieth centuries, until England's major re-forms of the 1920's. Part III in the series will provide a snapshot of the principal points ofland law and convey-

ancing in each country as they enter the twenty-first century.

A. Introduction to the First Article: The Impact of the Norman Conquest on English LandLaw

The gray, dank mist that blanketed the old English town of Hastings at daybreak on October 14, 1066, ob-

scured the terrifying events that would unfold before nightfall. Arrayed on a ridge at the high edge of a field

nine miles northwest of the town were 7,000 English warriors. They were a formidable force for the era, main-

taining discipline behind their shield walls and, as foot soldiers, dealing deadly blows with their battle axes. But

the soldiers were exhausted after a hard-won victory over the Norwegians near York just three weeks earlier,

followed by a forced march of 200 miles to meet the Normans invading from the south. The Norman army,eager, after repeated delays in debarking to cross the English Channel, were a mixed force also numbering about

7,000 men, divided between foot soldiers, mounted warriors, and archers. The two armies clashed in brutal,

bloody personal combat all day long. The English seemed likely to prevail by simply surviving and being posi-

tioned as they were in the heartland of their own people. But as daylight waned the Normans feigned a retreat,

inducing the English to break their shield wall in pursuit and rush headlong into an ambush by mounted Nor-

mans concealed in the woods lining the field of battle. The slaughter-the decapitations, amputations, and fatal





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and disabling injuries-was devastating to both armies, but the English in the end lost their king, Harold Godwin,

and the citizen army melted away into the darkness.[FN1]

*147Even after nearly a millennium has passed, we are still astounded to realize that this small and crippled

band of Normans could leverage that one tenuous victory into an eventual conquest of the entire English king-

dom and people. Surely the English people did not appreciate at that time the magnitude of the Norman achieve-

ment or the disastrous consequences for the English that would unfold over the next two decades. The stronger

central rule that eventually arose from the Norman intrusion tends to obscure the decades of uncontrolled

murder, oppression, rapine, humiliation, famine, and fear that the Norman invaders brought to much of England.

Often, when the Norman barons no longer could find affluent Englishmen to plunder, they quarreled and fought

among themselves, usually scourging each other's lands, manors, and peasants. After numerous unsuccessful re-

gional rebellions, the English, seeking relief from civil unrest, gave their allegiance to the Norman king rather

than to the discontented and unruly local Norman barons. This fitful and frightful struggle between the forces of

chaos and control inexorably influenced English law and government. [FN2]

Although the elements of property law in England after the Norman Conquest were generally Anglo-Saxon

in substance, the extent to which those elements entered into the common law was almost entirely a result of

Norman activity.[FN3]

II. THE EMERGENCE OF AN ENGLISH LAND LAW

A. Land Rights Recognized by the Earliest British Peoples

Legal or customary regulation of land rights was minimal among the prehistoric peoples of the British Isles,

who were hunter-gatherers and usually moved in search of the game that was their principal source of subsist-

ence. As agricultural societies arose, around 4,000 B.C.E., ranked *148 social strata developed, and people im-

posed more control over their environment.

In Britain, researchers have found evidence of fences existing as early as the third millennium B.C.E. [FN4]

Between 3,000 and 2,000 B.C.E., agricultural communities probably were organized as small single farmsteads.

In some areas those farmsteads were adjacent to large enclosures surrounded by ditch systems, and those enclos-

ures may have been used as meeting places, ritual sites, cattle corrals, and especially as settlements.

The settlement pattern in Britain by the early half of the second millennium B.C.E. consisted of isolated

farmsteads in the south of Britain and of more populous settlements predominating in the north and along the

coasts. Many sites were occupied only seasonally, and some of these sites were simply caves. About 1,500

B.C.E., the first evidence of British landscape subdivision appears in the form of orderly division of large territ-

ories. Fields all over Britain began to be enclosed or marked by hedges, ditches, or stone banks, even though the

types of farming activity differed from area to area. Common lands were divided off from household or farm-

stead lands, larger units were divided into individual fields, and these new boundaries overlaid and superseded

older monuments and land divisions. In Wessex especially, such field divisions have been called Celtic fields,

even though they pre-date known Celtic settlements in the area.

Early in the first millennium B.C.E., all the older British field systems and Celtic fields were replaced by

even larger open areas bounded by linear bank or ditch earthworks, sometimes referred to as ranch boundaries.





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These boundary markers were generally linear, but often not straight. Varying from ten to twenty feet in width,

the boundaries sometimes extended for several miles and are believed to have created dividing lines between

large landholders.

Celtic peoples entered the British Isles in several waves between about 700 to 100 B.C.E. The British Celts

lived either in isolated farms or hut *149 villages and were a stable and industrious people. They made their

livelihood by agriculture, keeping livestock, hunting, and fishing, [FN5] and they marked their land boundaries

with continuous ramparts and ditches.[FN6]Property ownership among the Celts probably was communal, with

ownership rights administered by the head of a tribe or other large kinship group. The actual occupants of the

land, mostly individual farmers, probably held rights only to use the land, possibly with rights to transmit use to

descendants. Otherwise, rights of alienation probably were unfamiliar to pre-Roman British Celts. [FN7]

Roman entry into Celtic Britain began with Julius Caesar's reconnaissance probe into the British Isles in 55

B.C.E. Caesar followed with an invasion the next year, but the conquest was not completed, and Romans then

became preoccupied with events closer to Rome. Not until the reign of Claudius in 43 A.D. did the Romans re-

turn and conquer the largest portion of Britain. However, even the Roman conquest did not alter the Celtic cus-

toms of landholding except in the few urban areas that became so thoroughly romanized that Roman law domin-

ated, especially as between Roman citizens. For a few, the rise of Roman Britain meant that isolated farms be-

came villas and substantial farm houses replaced Iron Age dwellings. [FN8] However, for perhaps eighty-five

percent of the British population, their pre-Roman lifestyles survived into and throughout the Roman occupa-

tion.[FN9]

*150Celtic customs of land ownership probably were interrupted by the Romans first in the Colchester area,

where the Romans established the first colony of discharged legionary veterans. Ordinarily, the soldiers would

have been given parcels of land from territory that had belonged to, and had been forfeited by, a defeated native

leader. In Colchester, however, the retired legionaries forcibly took much additional land, dispossessing native

farmers in the process. The new occupants exercised the more extensive ownership rights accorded to them un-

der Roman law.

Similarly, when Verulamium (modern St. Albans) was established as a Roman municipium with certain

coveted rights of self-government, private property rights conferred on Roman citizens within this urban center

were much more extensive than the property rights recognized by most Britons. In other Celtic tribal centers that

the Romans transformed into administrative centers, known as civitates, similar expansions in private property

rights probably occurred. Even if most inhabitants of Roman Britain did not draw overt comparisons between

British and Roman property rights, the Roman presence probably eventually alerted the native Britons to new

ways of landholding.

B. Principles of Roman Property Law During the Romano-British Period[FN10]

Under Roman law recognized up to 400 A.D., land was considered as something tangible that could be per-ceived by the senses (res corporalis), and therefore could be possessed and owned. Under early Roman law, for

ownership purposes, land fell into two categories: the land of Italy or land subject to Italic rights (res mancipi),

and all other land (res nec mancipi). Only the Italic lands could be privately owned, and those could be trans-

ferred only by following certain formalities. Informal transfer methods sufficed for transferring rights in the oth-

er, non-Italic lands. Ownership of non-Italic lands was at first in the people and then in the emperor, and private

parties could acquire only certain limited use and *151possessory rights, for which the parties paid taxes.





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Eventually, such private possessory and use rights in non-Italic land in the provinces became quite extens-

ive, and included the rights to hold and enjoy the land, to transmit the holder's rights to heirs upon death, to

make inter vivos transfers of possessory rights, and to extend various legal protections for present possessory

rights.

Although land in imperial Rome could be conveyed by several methods, the usual method was actual physic-

al delivery, which meant putting the transferee in actual possession and control of the land. Eventually, this de-

livery became more symbolic, achieved by delivery of a dirt clod for land or a brick for a building. In addition,

ownership could be transferred by agreement, especially if actual possession was unchanged, such as under a

form of sale-leaseback agreement. A good faith but mistaken possessor of land could acquire ownership of the

land after only two years of uninterrupted possession, a very liberal form of adverse possession. Additionally,

Roman property law recognized concurrent ownership and leaseholds.

Roman property law also recognized that land could be burdened by servitudes, including the right to cross

the land of another with a right of way for cattle, a road, or an aqueduct. Affirmative servitudes, requiring action

by the owner of the burdened land, generally were not allowed, but other servitudes prohibiting certain activities

on the burdened land or permitting certain activities by the owner of the dominant land were recognized. Some

servitudes were recognized as attached to the land and others were considered personal, such as a right to make

certain use of, or take the fruits of, the burdened land during one's lifetime.

Land under Roman law could be used as security for a debt. At first, as under early English common law, the

debtor simply transferred ownership and possession of the land to the creditor and received the land back when

the debt was paid. Later, the security interest was achieved by merely transferring possession to the creditor,

without transferring ownership. Even later, hypothecation was permitted, so that the creditor took neither owner-

ship nor possession, but simply could satisfy the unpaid and defaulted debt by taking over the pledged land.

*152These points and practices of Roman law likely were introduced into Roman Britain, but the extent of

their influence there is unknown. Former Celtic tribal centers were turned into provincial administrative centers

calledcivitates, governed by a local senate composed mostly of former Celtic chieftains who had formed a land-

holding class. Thus the elite and leading members of the local tribes obtained outright ownership of what had

been tribal property. As members of the provincial senate, these former tribal leaders elected the provincial

council and magistrates. These local officials also were brought fully into the Roman governmental and legal

system, and their newly-acquired land rights were subject to Roman land law. Their landholdings enabled them

to serve in public office, because a property qualification was imposed on, and generous donations for civic pur-

poses were expected of, all those who so served. In Roman Britain, archaeology reveals prolific construction of

villas in the regions around the civitates, attesting to the extensive private property holdings of both Romans and

native municipal leaders. However, archaeological evidence shows that even in the midst of such private land-

holdings, many native farms continued to operate as they had before the Roman invasion.[FN11]

In the later Romano-British period, some landholdings appear to have been consolidated, even among peas-

ant farmers in rural areas, perhaps enabling multiple occupancy. [FN12]Two or more self-contained residential

units are found in some villas, possibly to accommodate joint maintenance of an estate by two or more owners,

or the rights of two or more family members, or to enable a steward to manage the estate during the owner's pro-

longed absences.[FN13]Of the mere fragments of Romano-British records that have survived, only one relates

to real property: a writing scratched on a wooden tablet found in the well of a Romano-British villa refers to the

sale of real estate and uses Roman legal terms. [FN14]A record of litigation over a will tells of a petitioner who





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sought approval for an alternative disposition*153 of property set in trust for a beneficiary who did not survive

minority.[FN15]Such fragmentary references to Roman law in Britain suggest that Roman law was a factor in

the lives of the Romano-British elite, but whether Roman law had any impact on the large majority of the popu-

lation is unknown.[FN16]

C. Modern Vestiges of Ancient Landholding Patterns

Strewn all over England and Wales are ghostly remains of the land's prehistoric and Romano-British past.

Ceremonial sites at Stonehenge and Avebury, the West Kennet long barrow, the White Horse at Uffington, the

Maiden Castle hillfort, the isolated legionary camps on wild Welsh hilltops, the baths at Bath, the theater at St.

Albans/Verulamium, the deserted brick warehouse at Roman Wroxeter, the Saxon Shore forts, the villas at

Chichester, and a thousand other sites, all bespeak millennia of human habitation. None of it, however, seems to

have had much impact on life in Britain today.[FN17]

As for the land itself, and the innumerable anonymous generations who have lifted their livelihood from it,

even fewer reminders of the past catch the eye. Among these are the Celtic fieldsactually field systems predat-ing the Celtsof Smacam Down, Cerne Abbas, Dorset, and in Sussex and Wiltshire. At those places, one may

find the little rectangular fields formed up like so many ranks and files in a grid, still lined by low earthen bor-

ders, linear lumps under modern fields. These ancient field formations remind us that then, as now, land was im-

portant enough to be the substance of someone's individual stewardship and that well-regulated relations among

landholders yielded the maximum value from the land. [FN18]

*154D. The Beginnings of Modern Property Rights During the Anglo-Saxon Period

As barbarian aggressions increased throughout the Roman Empire in the fifth century A.D., the Roman le-

gions withdrew from Britain. The Romano-Britons attempted to organize themselves for defense, but they even-

tually succumbed to the persistent attacks and invasions from the Angles, Saxons, and Jutes crossing over fromnorth Germany and the Danish peninsula.

The Germanic invaders had different land-holding customs. From the earliest times, as agriculture had be-

come more prominent among them, chieftains distributed and re-distributed land to kindred groups each year.

Eventually, the chieftains made these distributions to individuals, who thus began to accumulate wealth. These

customs underwent substantial change when the invasions of Britain enabled whole tribes to leave their German-

ic homelands and start anew. Land that Anglo-Saxon settlers freshly conquered or pioneered was divided by lot,

and a number of tracts were kept in reserve as commons or as defensive buffers. Holdings assigned to individual

warriors who became settlers were permanent, and thus not subject to the annual reallocations practiced by their

ancestors. Apart from contributing to physical survival, holding an individual portion of land was a prerequisite

for sharing in the use and product of the commons, for voting in public assemblies, and for going to court. Own-

ership of land therefore signified both freedom and franchise. [FN19]

As leaders of their war bands assigned individual farmsteads to the earliest Anglo-Saxon settlers, the settlers

began to undertake certain communal obligations that eventually became customary, such as road and bridge re-

pairs and maintenance of defensive works. If they settled in still functioning Romano-British farmsteads or com-

munities, they may have adopted the landholding rights and practices recognized by the native inhabitants.

Rights of inheritability and alienation probably were rare and most likely required acquiescence by, or payment





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to, the lord or the community. By the time the Anglo-Saxons emerged from their dark age of illiteracy early in

the seventh century A.D., their property rights already *155had undergone much development, and the seeds of

feudalism were ready to flower. Conversion to Christianity, which began about 600 A.D., stimulated the devel-

opment of written legal codes and increased the use of written documents called charters that document convey-

ances of tenurial property rights.

As the concept of kingship developed among the Anglo-Saxons in Britain, the kings took over large tracts of

subjugated land and granted substantial portions to their chief warrior companions. While the land was technic-

ally the property of the entire people, the king had rights to rents, services, and other returns from occupancy of

the land. These rights often were granted or released in return for faithful service. Such grants or releases were

made by a royal diploma or charter, and lands affected by such written documents were called bookland or

bocland. Holders of bookland in Mercia were not relieved of the customary duties of military service, bridge

building, and fortress maintenance, but in other areas bookland holders were exempt from the king's right to tax

the land, a right known as the feorm. Thus, royal grants of interests in land defined and refined property interests

generally.

Because kings also granted large tracts of land to the church using written documents, much land held by the

church was bookland. Bookland often carried rights of alienation or devise, but other granted lands, called

laenland or loan land, could be alienated or inherited only with the lord's permission or under right con-

ferred by a written charter. The large tracts of land not held as bookland or loan land were held as folkland.

Folkland is a term of uncertain meaning, but probably means that the land was subject to certain customary

rights based on occupancy.

E. The Impact of Viking Invasions on Property Rights in Anglo-Saxon England

Raids by Vikings in Anglo-Saxon England began sporadically as early as 787 A.D., [FN20]but the sack of

the church foundations on the island of*156 Lindisfarne in 793, [FN21] was the most stunning announcement

of the new danger. The early raids, mostly by Norwegians, continued sporadically until about 835, after which

regular accounts of raids appear in the Anglo-Saxon Chronicle. The new raiders were mostly small and highly

mobile Danish warbands, each of which could range widely over Europe in a single season.

The raiding parties remained relatively small, [FN22]sought portable wealth, and did not come to settle. Not

until 850-851 was a band of Danish Vikings reported to have wintered in England.[FN23]Thereafter, the scale

of Viking attacks increased. Fleets of 150-250 [FN24] ships became common, and in 865 [FN25] and 871

[FN26] Viking armies divided up the land they conquered in Northumbria, [FN27] Mercia, [FN28] and East

Anglia.[FN29]

Of the great Anglo-Saxon kingdoms, only Wessex survived, and it was subjected to several bloody battles in

871[FN30]Then in 878, the Danish King Guthrum launched a surprise attack against forces of the Wessex King

Alfred. This assault drove Alfred and a few supporters into hiding in the marshes of Somerset. Their guerrillacampaign began at that time and their ultimate triumph over Guthrum is celebrated: Guthrum eventually with-

drew to his secure eastern territories and accepted Christian baptism. [FN31] During Alfred's lifetime, Wessex

and part of Mercia survived as Anglo-Saxon domains, but Northumbria, East Anglia, and the rest of Mercia

came under total Danish domination. The combined Danish holdings were known as the Danelaw. However, the

density of Danish settlement in the Danelaw and the extent of Danish influence over property and other legal

customs is uncertain.





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*157 Danish influence on Anglo-Saxon law seems to have produced little change. Even into the eleventh

century, when Cnut, a great Danish King of England, issued a law code, Anglo-Saxon law was in the full

stream of English legal achievement, and exhibited no Danish idiosyncracies. [FN32]The lack of Danish influ-

ence on Anglo-Saxon law has been explained by the similarity between English traditions and Danish kindred

organizations, wergilds, [FN33] and public assemblies. Moreover, when the Danes who settled in eastern and

northern England accepted Christianity, they implicitly accepted the body of law associated with the church and

were exposed to English clergy, who were usually responsible for written legal records.[FN34]

Nevertheless, a doom of King Alfred's descendant King Edgar declared that secular rights be in force

among the Danes according to as good laws as they can best decide on, [FN35] and the Anglo-Saxon King

Aethelred issued parallel codes for Englishmen and Danes. [FN36] Several distinctively Danish legal practices

emerged in Anglo-Danish England. In the Danelaw, land law terminology was Danish, and independent sureties

were relied on heavily for land transactions. Land measurement and assessment in the Danelaw were altered

from the English customs and were given a new vocabulary. In procedural matters, a public prosecutor may have

been used in Anglo-Danish areas.[FN37]

*158 Most significantly, in England a much greater proportion of the peasants were free in the areas where

the Danes dominated. Historians are divided over whether this social difference was directly related to Scand-

inavian settlement or arose from regional peculiarities in place before the Danes arrived. To attribute this free-

dom to the infusion of large numbers of Scandinavian farmer warriors with their traditions of independence, re-

inforced by their nature as colonists is appealing. [FN38]

F. Summary of Property Rights Recognized in Late Anglo-Saxon England

1. Egalitarian Nature of Early Settlements and Rights in Land

A lengthy elaboration of property rights took place during the entire period of Anglo-Saxon dominance inEngland. As a consequence, when the Normans took over in 1066, they made conspicuous efforts to preserve

continuity in land rights, culminating in the Domesday Survey of 1085-86.

Most likely the first Germanic settlers were either raiding war bands or disgruntled mercenaries who turned

on their British employers. When the Germanic settlers did begin to establish farms and villages, they probably

did so as independent yeomen and warriors. [FN39]The old custom of the continental Germanic tribes by which

the tribal chief or council of leaders periodically reallocated arable land to family groups may have carried over,

but that custom most likely became irrelevant as soon as settlement and stability were achieved.

Modern archaeological investigations indicate that early Anglo-Saxon society had a certain egalitarian qual-

ity that affected landholding practices. As long as pronounced social stratification was absent from the early

Anglo-Saxon settlements, significant differences were not apparent in the *159 modest farmsteads or otherforms of property.

Perhaps that ancient egalitarian tradition enabled King Alfred to exercise a form of public land use planning

during the ninth century as part of his overall defensive scheme against the Danes. Alfred created a system of

fortified towns called burhs. An assessment system consisting of a kind of public property tax and labor assess-

ment and based on the amount of land associated with the burh paid for the burhs' required fortifications. The





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Burgal Hidage[FN40]contains a unique record of the burhsand their associated lands.

2. Development of Specialization in Real Property Interests

The earliest charters, dating from the seventh century, show that elaboration of property rights already had

begun, even though the common form of landholding was still what would today be termed a life estate. Most

occupied land was subject to requirements of military service, road building, and fortress maintenance. The

charters mention several specialized property interests. One of these is bookland, a form of landholding created

only by written charter that may have been used to obtain relief from some or all of the service requirements and

to permit alienation of the land without leave of the king. Some charters also mention laenland, apparently refer-

ring to land that was loaned or rented to another either for a short term or for a period of up to three lives, mean-

ing the grantee and two successive heirs. The remaining lands might have been included in the elusive term folk-

land, which was land still subject to alienation restrictions and to customary obligations and dues.

3. Stratified Society and Stratified Land Rights

In addition to the possessory rights and restrictions pertaining to the immediate occupants of the land, a sys-

tem of shared ownership rights was developing in Anglo-Saxon England. These rights were stratified. Some

rights of ownership were subordinated to and derived from ownership *160 rights of a socially superior person

and may have been a direct product of developing stratification in Anglo-Saxon society generally. With improv-

ing stability came centralization of political power and stratification of property rights. War band leaders be-

came kings, who assigned land to their chief warriors, who in turn allotted portions to farmers and their families.

Each grantor in the chain retained rights relative to subsequent grantees. Rights of inheritability and alienation

probably were rare and probably required acquiescence of, or payment to, lord or community. At the end of this

process, the actual occupants of the land eventually would suffer a nearly complete loss of economic and person-

al independence.

By the time of the Norman Conquest, English society had suffered enormously from what F.M. Stenton

called the general drift of English peasant life ... from freedom towards servitude. [FN41] Little direct evid-

ence exists for how this drift from freedom to servitude occurred, but it is the most conspicuous aspect of Anglo-

Saxon property rights in the generation before the Conquest.[FN42]

In Anglo-Saxon England one still could be economically dependent but personally free in legal standing.

Freemen are known to have been tenants in varying degrees of servitude. Scholars have stated that Anglo-Saxon

serfdom was much more of a personal bondage and less involved with the occupation of particular land before

the Norman Conquest than after.[FN43]

4. Anglo-Saxon Property Rights as the Foundation for the Common Law of Property

Anglo-Saxon landholding practices and their correlation with social status had little known consistency

throughout England and must have been in constant fluctuation throughout the Anglo-Saxon age. For the most

part, landholding practices were acknowledged only by immemorial custom and persisted throughout the Nor-

man Conquest and into the period of common law development. These practices were the foundation of the com-

mon law*161of property.[FN44]





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III. NORMAN LANDHOLDING PRACTICES BEFORE THE INVASION OF ENGLAND

Although the Normans are widely recognized as Northmen, little else is commonly known about these me-

dieval marauders who conquered England and other European kingdoms. The Norman invasions fit squarely

within the mainstream of the Viking aggressions that afflicted Europe from the eighth through the eleventh cen-

turies. The Norman Conquest of England has been called the last great Viking expansion. [FN45]

In the Scandinavian sagas,[FN46]the founder of the Norman dynasty is believed to have been an adventurer

named Rolf or Hrolf. In the later continental chronicles, this same figure is referred to as Rollo. [FN47]Rolf was

apparently a Norwegian Viking pirate[FN48]who operated in the Baltic during his early years. The Norwegi-

an King outlawed Rolf when, desperate for food, Rolf raided for cattle in Norway. [FN49]

The Frankish King Charles III (The Simple), struggling to hold together remnants of the Carolingian Em-

pire, entered into a pact with Rolf in 911, after having defeated Rolf in a battle at Chartres. [FN50]Reportedly,

Rolf agreed to be baptized, to marry Charles' daughter, and to give homage to Charles. In return, Rolf obtained

formal control over the areas of Rouen, *162 Lisieux, Evreux, and some minor additional territory, all later

known as Upper Normandy.[FN51]

As was common in all Germanic cultures, Viking society was divided into classes of nobility, freemen, and

slaves.[FN52]In early Viking times, before feudal tendencies were manifest, persons in the classes of nobility

or freemen held land communally with the family, under the father's control. Upon the father's death, the oldest

son succeeded to the entire holding, but he had to compensate his younger brothers and sisters for their shares.

[FN53]Thus financed, younger sons were able to colonize new areas or to strike out on voyages of trade or pir-

acy.[FN54]

The land itself was free from obligations to overlords, but a landholder might assume the burdens of person-

al dues or services in return for the protection of or support from a lord. Such lordship arrangements were

strictly personal and could be transferred to other lords without affecting the rights in land. One could obtain

land by becoming the follower of a lord or chief. The chief was responsible for administering justice, giving

support in disputes, and distributing shares of spoils. [FN55]Women also could own and inherit land.[FN56]

Either spouse could obtain a divorce easily, and illegitimacy was common. [FN57]Indeed, blurred distinc-

tions between marriage and concubinage *163 sometimes led to succession by illegitimate sons, who were

abundant in the Norman ducal genealogy. Of the seven Norman rulers between Rolf and William II (The Con-

queror), Richard I, Richard II, and William II are known to have been illegitimate.

The environment and way of life had a natural influence on local legal customs. For example, farmers left

farm implements in the fields overnight to save time during the short harvest seasons, and laws imposed severe

penalties for their theft. Other laws firmly obligated neighbors to assist those who otherwise could not get their

harvests in on time. [FN58]Similarly, when wintering ships were pulled into sheds for storage and repairs, laws

defined the rights associated with such laying-up and required neighboring farmers to assist under some circum-stances.[FN59]

After Norman settlement rights in Normandy were formalized in 911, fundamental changes in Norman legal

customs began to occur. At first, Rolf's followers insisted on maintaining their egalitarian social status. Until the

early years of Richard II's reign, which began about 998, widespread non-feudal landholding, peasant independ-

ence, and loyalty to pagan creeds persisted. [FN60]However, the Normans' need to fit into emerging French so-





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ciety changed these cultural characteristics. They gradually adopted a new language and reduced their pirate

activity. Constant threats from aggressive neighbors in adjacent lands, who were not restrained by any natural

barriers of topography, created pressures to feudalizefor landholders to seek security by submitting lands and

lives to powerful warrior lords in return for physical protection. Many Normans, recognizing these inexorable

forces, readily accepted feudal landholding, the emerging French language, and even Christianity.

Apprehensive of French hostility, Richard I (942-995) took the first halting steps toward feudalism. Military

service began to be organized on the basis of feudal duties, replacing the traditional method of calling up all

freemen. As a result, some allodial (non-feudal) tenures were changed to *164 feudal tenures, and many free

peasants lost their independent status. A serious but unsuccessful revolt of free peasants under the subsequent

reign of Richard II probably was a protest against these changes and undoubtedly slowed the spread of feudal

practices into the lower classes. The eventual result was a Norman style of feudalism with a highly organized

military structure, but with servile status in the lower classes less pervasive than elsewhere in France.

Approximately 100 to 120 feudal baronies existed in Normandy under Richard I. [FN61]A vassal of one of

these barons would have held his land as a sort of tenant at will, a tenure known in Roman law as a precarium.

[FN62]By the time of Richard II (998-1026), a vassal who swore fealty to a lord would receive an interest in

land known as a beneficiumunder Roman law, which granted the right to hold the property for life. As develop-

ments that had already taken place during the dominance of the Carolingian empire were imitated in Normandy,

the vassal's interest evolved into the hereditary fief, orfeudum, which could descend from father to son. In return

for giving up the right to revoke the land grant, the lord eventually gained the right of wardship, the right to a

succession duty upon inheritance, and the right to choose a husband for a vassal's heiress. [FN63]These changes

occurred in no orderly or consistent fashion within the duchy, but were gradual and uneven.

Vassals' duties were defined or clarified only gradually, [FN64]but the more powerful lay magnates and

churchmen, probably the most important landholders before the Conquest, held their land by some sort of milit-

ary tenure, meaning that they had a duty to provide the services of a specific number of fully-equipped knights.

[FN65]Because such military tenures were rarely evident prior to 1047, they probably were developed in largemeasure by William after he assumed power as duke in Normandy. He may have seen such arrangements as an

effective response*165to the serious internal and external threats against his early rule. [FN66]

Indeed the fiefland tenure derived from obligatory military serviceplayed an important part in William's

military resources. Under some conditions, he could summon every man holding at least a knight's fee. On less

serious occasions he might call up only some men holding military tenures, and then only for forty days' service.

Under the worst circumstances, he could call out all free tenants. [FN67]The system in Normandy was still be-

ing shaped at the time of the Conquest, although apparently William did much to spread the principle of a fixed

rate of knight service.[FN68]

Subinfeudation occurred in Normandy and further complicated the military tenures. For example, a vassal

owing the service of five knights might let his land out to others for ten. More commonly, a tenant might hold

land from several lords or hold a mere fraction of a knight's fee. Vassals who made grants in subinfeudation had

a relationship with their tenants similar to the duke's relationship with them. [FN69]

When the Normans brought their incipient feudal customs to England, they found an Anglo-Saxon society

where most land already was occupied under some sort of manorial economy. Within the manorial systemtyp-

ical over much of Anglo-Saxon England, the lord of the manor held the land, but peasants actually worked and





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occupied the land and owed services and rents to the lord. In addition, the peasants were in some form of per-

sonal servitude to the lord in return for rights to occupy and till their plots ofland. Personally free peasant farm-

ers were more numerous in the eastern and northern areas of England, where Viking invaders and settlers of the

ninth and tenth centuries had been most dominant.

*166 IV. CHANGES IN ENGLISH LAND LAW IMMEDIATELY FOLLOWING THE NORMAN CON-

QUEST

After the Norman Conquest, which began in 1066, the landholding arrangements among the peasants sur-

vived, but most English lands changed lords. Within two decades, the 4,000-5000 English lords who had held

land before the Conquest had been replaced by 1,400-1,500 Norman lords. The Norman feudal customs, which

established the conditions under which land was held by the tenants-in-chief who held directly of the king,

began to replace their Englishcounterparts by placing greater emphasis on the military obligations of chief ten-

ants and bringing about greater overall uniformity in landholding practices. Inheritability, the most important at-

tribute of property, had become widely recognized by the beginning of the twelfth century.

Along with inheritability, other important property rights, such as alienability and devisability, achieved in-

creasing acceptance during the Middle Ages. The persistent impulse on the part of some to render land freely

alienable so that its inherent market value could be realized was countered by others who sought to limit the

ability of descendants to transfer portions of great family holdings. Courts recognized the principal forms of

landholding, called estates in land, but royal decree or statute often restricted or even abolished these forms of

landholding. The various kinds of estates, with their individual attributes or incidents, formed a complex and

highly technicalsystemof property rights.

Repeated uprisings profoundly altered William's plans for administering his English lands and eventually

worked a mighty change in English land law. William may at one time have intended simply to rule England as

the legitimate heir of Edward the Confessor. However, redistribution of lands to his followers as tenants-

in-chief began immediately after the revolt in Hastings and accelerated after each successive revolt. By the time

of the Domesday Survey in 1086, only two Anglo-Saxon lords of high rank were left in the realm. [FN70]

That William assumed tenurial lordship over all English land is clear, *167 but what theory this claim was

based on is not clear. If William was the legitimate successor to Edward, then he simply would have assumed

Edward's prerogatives over English land, much of which (especially bookland) may have been held as freehold,

without obligation to the king except for the occupants' customary duties of military service, road building, and

fortress repairs. [FN71] He also could claim ultimate ownership of lands forfeited by those English lords who

had opposed him in 1066 and after. However, any claim to ownership over all English land more logically

would be based on the right and result of conquest, a position objectionable to William in his striving for legit-

imacy in his rule of England. Not until 1086, twenty years after Hastings, did William require an oath of fealty

from all free men, which would be consistent with his claim to ultimate ownership of all English land. [FN72]

This oath of fealty may have allowed the common-law governments to be sovereign over all land in their juris-

diction.

As stated above, William's earlier intention apparently was to rule over a genuine Anglo-Norman state, with

Norman barons replacing only those English nobles who actively opposed him. Until 1069, this was still a real-

istic possibility. Despite the forfeitures resulting from Hastings, in 1069 more than two-thirds of England still

was held under English earls, and the king's writs still were written in English and sent to mostly English sher-





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iffs.[FN73]This changed after William overcame the series of rebellions that began in 1069, and, as has been

noted above, by the time of the *168 Domesday Survey in 1086, only two Englishmen held lands directly of the

king: To ten of his principal followers he gave almost one-fourth of England. To lesser barons he made grants

of the smaller fiefs or holdings of English earls and thegns. Normally, the grants were not of a compact territori-

al unit but consisted of manors scattered through several counties. [FN74]

These grants to relatives and the King's leading followers were under a form of military tenure by which the

recipient of the land was required to swear fealty to the king and agree to provide a specific number of battle-

ready knights when required by the king. Such knight service requirements, considered to burden the land itself,

even were imposed upon holders of church lands, whose quotas of knights amounted to about 800 of the 5,000

knights' services obtained by William through military tenures. The barons on whom these requirements were

imposed directly probably did not number more than 180. [FN75] With such heavy reliance on military tenure,

William undoubtedly was reluctant to depend on Englishmen who had not yet adopted the military tactics and

organization he had used with such success at Hastings.

From the beginning, a decree from William promised the English that they could have and hold the law of

King Edward in respect of their lands and all their possessions, with the addition of those decrees I have or-

dained for the welfare of the English people.[FN76]After a time of disorder following William's death, Henry

I again promised to restore to the people the law of King Edward together with such emendations to it as my

father made with the counsel of his barons.[FN77]

V. THE PROFOUND INFLUENCE OF THE DOMESDAY SURVEY

Despite William's self-restraint in matters of legal reform, he ended his *169 reign by setting in motion the

Domesday Survey, one of the most important events in England's legal history and Europe's medieval history. It

represented a methodical and comprehensive record of the most thoroughly feudal state in medieval Europe, and

its inception was noted explicitly and precisely in the contemporary record of The Anglo-Saxon Chronicle.

[FN78]

Scholarly work using Domesday information is ongoing, and important socio-economic data from the Sur-

vey will continue to be mined for many years to come. The Domesday Survey is most valuable as a confirmation

that the landholding rights and duties of most Englishmen remained unchanged after the Conquest. The relation-

ship of people to property that emerged during the centuries of Anglo-Saxon society persisted through the Nor-

man settlement and built the foundation on which the common law of real property rests today.

VI. FEUDALISM AFTER THE NORMAN CONQUEST

A. Sources of Norman Feudalism

The feudalism that the Normans introduced into England arose from several sources, none of which can be

positively identified as the crucial impetus. The sources of feudalism include: the comitatusof prehistoric Ger-

manic society, the warrior band that formed around a chief seeking to surround himself with warrior companions

and enter into a personal bond with them; the Roman institution of patronage; the Roman law recognizing a right

to occupy and use land, revocable at will and known as the precarium, the grants of which sometimes were con-





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ditioned on military service; the conditional grants of land by Merovingian monarchs, the conditions often being

the rendering of future services; and the association of landholding with judicial privileges, found in both Ro-

man and Germanic customs.[FN79]

Whatever the factors giving rise to feudalism were, they molded *170medieval European and English soci-

ety into a distinctive form of social organization. The essential characteristics of feudalism are: (1) the loyalty to

a lord, implicit in the comitatusand explicit in patronage; (2) the expression of that loyalty by relinquishing land

to a superior party (the lord) in return for protection and other benefits, and the return of that land with possess-

ory rights burdened by conditions and obligations, which increasingly denoted relatively servile and dependent

status; (3) the increasing prominence of military service as the condition of greatest importance, attached to the

landholdings of those in the upper tiers of the social hierarchy; and (4) a relinquishing of judicial and other pub-

lic functions to the larger feudal landholders, a consequence of decentralized governing authority forced by the

social disintegration of the Dark Ages. [FN80]

The principal features of feudalism included military tenure (with incidents of homage, wardship, marriage,

aid, relief, escheat, and forfeiture), serjeanty tenure, free socage tenure (eventually becoming the one great resid-

ual tenancy for almost every arrangement that was not military tenure), tenure in burgage, tenure in free alms

(frankalmoign), and the unfree tenure of villeinage, applicable to the very large majority of the English popu-

lation during the Middle Ages.[FN81]

B. Introduction of Feudal Tenures

Those who held land directly of the king almost always owed some sort of military service. The landholding

rights they enjoyed could therefore be described as military tenure. The characteristics of military tenure en-

dured in Anglo-Norman land law long after this type of military service ceased to serve the monarch's needs.

Leading landholders parceled out their obligations of knight service to others through subinfeudation, and the

basic units of land parcels sufficient to support a mounted warrior were referred to as knight's fees. The resulting

hierarchy of landowners, under military and other forms of tenure, placed all landholders other than the king in

the relation of tenant to a lord, lord to a tenant, or most commonly in both relationships simultaneously, often

with multiple dual relationships. *171 These tenurial relationships imposed on both parties rights and duties

called incidents, which eventually became the rights and duties attached to the land itself.

As the land became the means of securing loyalty, protection, and services among landholders, it also con-

tinued in its ancient role as the principal source of wealth. Land was the glue holding together family dyn-

asties and political and social relationships; therefore, landholding needed to be stabilized to assure that feudal

obligations would be met and that future generations of great families would continue their high status.

However, to realize its full value as the main source of prosperity in an active economy, land also needed to be

freely transferable, even though such transferability could jeopardize feudal and family resources.

These conflicting impulses were the driving forces behind the development of English land law in theMiddle Ages. Feudal incidents institutionalized in the early law constantly were challenged by innovative con-

veyancing practices and new forms of landholding that threatened to avoid or even overtly evade the most oner-

ous feudal obligations. Many, if not most, of the feudal incidents represented sources of income and continued

as part of the property law long after the society that spawned them had been succeeded by other relationships

and values. Even after statutes finally abolished the most persistent feudal incidents, many of their underlying

philosophical values and presumptions carried on into elements of modern property law.





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C. Incidents or Characteristics of Tenure

The most important feudal incidents in military tenures may be summarized as follows:

1. Homage. A tenant under homage was bound to do nothing that would injure the lord or the land, and thelord was so obligated to the tenant.

2. Wardship. In a Norman change from Anglo-Saxon practice, the lord, not the mother, took custody of a

minor tenant's land until the ward came of age. In most cases this was a lucrative privilege. The change was

*172 prompted by feudal values. The lord was bound by homage to act fairly, whereas the mother presumably

could remarry and shift loyalty from the minor to the new husband.

3. Marriage. The lord had a right to grant or withhold approval of the remarriage of a widow or the marriage

of a daughter. In practice, this approval was available for a price and became a source of revenue.

4. Aids. A lord could require financial or other aid from a tenant on important or exigent occasions such as

to ransom the lord, to knight the lord's eldest son, or to celebrate the lord's eldest daughter's marriage. The incid-ent of aids invited abuse as a source of revenue.

5. Relief. The lord's permission for the heir of a deceased tenant to continue the tenancy was called relief.

Relief was obtained by payment and was an important source of revenue. When the amount of relief payments

became fixed by custom, inheritability of the tenancy effectively was assured.

The feudal incidents of military tenures were economically significant. Not surprisingly, recipients of the in-

cidents would not surrender them lightly, even after the original purposes no longer pertained. Conversely, those

upon whom the incidents were imposed became more eager to escape them when the incidents became mere

money charges without contemporary purpose or function.

Other types of free tenures developed their own lists of incidents, which were frequently quite similar to

the incidents of military tenure. These other tenures included the serjeanty tenures, which usually involved a

form of personal service to the royal court, tenure in burgage for some lands in the towns and boroughs, and ten-

ure in free alms, or frankalmoign, for some lands given to the church.

All lands not held under these tenures or military tenure were held in free socage tenure. Freed of the most

burdensome incidents of military tenure, free socage tenure eventually became the greatest residual free tenancy

and the tenancy of choice. Usually the socage tenants were bound only to pay rent or perform labor services. If a

substantial lord held land in socage tenure, the lord's own tenants on the land would perform the *173 required

labor services.

The large majority of the medieval English population consisted of unfree agricultural peasants, or villeins,

who were bound to their land and rendered agricultural labor services in return for their small landholdings.

Their obligations generally were fixed by custom, but the precise work they would do from day to day remained

uncertain. Thus, these villein tenures were termed unfree. [FN82]No strict correlation existed between unfree

tenure and unfree social status. As marks of unfree status, many villein tenants were required to pay the merchet,

the lord's leave for various activities, and the tallage, a form of tax on persons, in amounts and on occasions as

defined variously by local custom. However, many villeins were not under those obligations.





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D. Duration of Tenures Under the System of Estates

1. Duration Extended by Inheritability

The free and unfree tenures, with their respective incidents and privileges, could be held under various ar-

rangements with respect to duration. These arrangements were known as estates. The development of various es-

tates derived from emerging rules about whether any of the tenures could be freely inherited or alienated. Inher-

itability of certain tenures was established earliest and was based on payment of a fixed sum relief to obtain the

lord's permission for a deceased tenant's heir to continue in the tenancy. Once inheritability was recognized for

military tenures, it spread to other tenures.

*1742. Tension Between Inheritability and Alienability

Recognition of inheritability necessarily implied rights in the heirs of a landholder, and such rights posed

obstacles to the free alienability of land. While land was not bought and sold frequently during the early Middle

Ages, gift transfers to the church were common and often raised questions about residual rights in the donor's

heirs. Consequently, consents for such transfers often would be obtained from the donor's prospective heirs be-

fore the gifts were made.

Eventually the spread of primogeniture [FN83]eliminated the risks to fulfillment of feudal obligations that

sharing of tenancies among multiple heirs posed. This rule obviated the need to obtain consents for inter vivos

transfers from other prospective heirs. Eventually, consent was no longer necessary from the eldest son as pro-

spective heir. Through inter vivos alienations, the father could completely disinherit any prospective heirs.

Another common form of transfer was subinfeudation. Through subinfeudation, holders of military tenures

transferred portions of their holdings to others in return for commitments to fulfill some part of the transferor's

original feudal obligations. Until the Statute Quia Emptores in 1290 prohibited subinfeudation, it was widely

practiced and probably required the lord's consent, which was readily obtainable upon payment of a customary

sum of money.

In some instances, a tenant desired to leave the tenancy altogether and would seek the lord's permission to

turn the tenancy over to a substitute. A tenant also could achieve this transfer by obtaining the lord's permission

upon payment of a sum of money. The Statute Quia Emptores also gave all landholders, except tenants in chief,

the right to substitute tenants without paying money to the lord.

One type of transfer that was inimical to the feudal system was a grant in mortmain (signifying dead hand).

Grants in mortmain were transfers to the church or other institutional or corporate donees whose members, be-

cause of their religious vows, were considered dead persons before the law and therefore incapable of fulfilling

feudal obligations. Because such *175 grants effectively nullified feudal obligations, some landholders would

make grants in mortmain and then continue to occupy the land as tenants. This practice was so widespread that it

was specifically prohibited by the Magna Carta [FN84]and by the Statute of Mortmain in 1279. [FN85]Even

after these prohibitions, a grant in mortmain could be made after obtaining a royal license, which often was

readily granted upon payment of a sum of money.

E. Types of Estates





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The property interest of an English landholder was defined partly by the type of tenancy under which the

landholder held the land, and the type of tenancy was characterized by whatever rights of inheritability and ali-

enability were customary for that tenancy at any given time and place. The other major component of a land-

holder's property interest was the estate by which the tenancy was held. In its most simplistic form, the estate

could be characterized by the duration of the tenancy. In time, the duration of the tenancy became the most im-

portant determinant of the various property rights associated with the tenancy. As the early distinctions between

tenancies or tenures tended to meld and finally disappear, the estates became the chief distinguishing character-

istics between different types of landholding.

The various types of estates that developed in medieval England may be summarized as follows:

1. Fee simple. The term fee signified an interest in land, and the term simple came to mean fully inherit-

ableinheritable without restrictions and potentially endless in duration. A property interest granted to a person

and heirs came to mean an inheritable estate and thus the estate of maximum duration. In addition to inheritab-

ility, after about 1200, the fee simple also became alienable without the consent of presumptive heirs. After the

Statute Quia Emptores in 1290, the fee simple became alienable even without the consent of the lord. The fee

simple estate has endured in the common law system of property rights even though the various property rights

to which it pertains have altered over time. The fee *176simple of the thirteenth century was unlike the modern

fee simple. The medieval estate consisted of only a set of feudal dues and responsibilities, which all related to

and burdened the land, whereas the modern fee is simply full ownership subject to a less onerous set of sover-

eign prerogatives.

2. Conditional fee and fee tail. Conditional fees were fee interests that were not necessarily fully inheritable.

The most common conditions that the law imposed upon these fee interests were that inheritability would arise

only upon the birth of a live child, only direct descendants could inherit from the landholder, or that a convey-

ance would be irrevocable only upon the birth of an heir of the third generation after the original grantor. Such

conditions were considered important for keeping landholdings in the family, but they were also obstacles to ali-

enability. When customs and court decisions affirming alienability began to prevail despite such conditions, theStatute De Donis Conditionalibus in 1285 decreed that fees limited to inheritability by the heirs of the grantee's

body, the fee tail, would remain conditional, with a reversion in the grantor, as long as the possibility existed

that the line of natural descendants would expire. This meant that the present holder of such an interest effect-

ively could convey only the present possessory interest and that the interests of prospective heirs were protected

from disinheritance by the alienation of property. In a later century, it became possible to convert the fee tail in-

to a fee simple rather easily.

3. Life estate. The life estate was not inheritable, but was limited in duration to the life of a specified person.

Upon the expiration of that life, the possession of the land reverted or went over to the fee tenant. Life estates

either could be created through conveyance or arise by operation of law. Dower and curtesy interests are ex-

amples of such life estates arising by operation of law. While a life tenant enjoyed broad rights of possession,

the law of waste imposed a significant restriction that the inheritance could not be damaged by depletion, de-struction, or change.

4. Term of years. While the fee estates and life estates were considered free or freeholds because of the

judicial protections available to them, the term of years struggled for recognition. One who held land as a lessee

for a specified period of time, a term of years, was at first regarded as not even having an interest in the land.

Legal actions *177 concerning the land were brought by or against the lessor until 1278 when the Statute of





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Gloucester[FN86]gave the lessee the right to intervene in such actions. For many possible reasons, including

that tenancies for terms of years were held by both free and unfree persons, the estate of term of years was

deemed an unfree tenure and was given little legal protection until the trespass action became available near the

middle of the thirteenth century.

F. Other Forms of Property Interests Within the System of Estates

Whenever one held an interest in an estate other than a fee simple, someone else necessarily held the balance

of the property interest in that estate, which was usually a reversion or a remainder. When more than one person

held an estate concurrently, the concurrent estate would be a joint tenancy, tenancy in common, tenancy in co-

parcenary, or tenancy by the entirety. If a person intended to make only a provisional conveyance to provide se-

curity for a loan, the lender would hold the land by gage or mortgage.

G. Summary of Property Interests that Arose in Medieval England

The framework of feudal tenures did much to define the extent of, and the intricate relationships between,

rights held simultaneously by several persons in the same land. Within this framework, and surviving the even-

tual disappearance of the framework, a system of land rights known as estates defined interests in land, primarily

in terms of duration. Some substantive rights in the land were dependent upon the duration of the owner's in-

terest. The estates that arose as part of the developing common law included the fee simple, the conditional fee

simple, the life tenancy (including dower and curtesy), the term of years, reversions, remainders (including con-

tingent remainders), concurrent estates (including tenancy in co-parcenary, joint tenancy, tenancy in common,

and tenancy by the entirety), the gage and mortgage, and other devices for creating security interests in land.

Land was conveyed by written charter or deed, livery of seisin, quitclaim without livery of seisin, surrender

without livery of seisin, and fine or final concord.

*178 Onerous feudal encumbrances prompted many to traffic in land interests outside of the feudal frame-work. This skirting of the feudal framework was usually achieved by conveying land to one party for the use

of another party.

H. Uses

1. Origins of Uses

The term use in English law derives from the Latin opus, which means a benefit or on behalf of. One

person could give land or chattels to another for the use or benefit of a third person. Uses were employed by

knights embarking on crusades, by persons wishing to confer the benefit of land on a religious order not author-

ized to hold land, and by villeins who could convey their land only by yielding it to the lord for the use of theintended grantee. When a wardship was taken from an unfaithful guardian and given to another, the new guardi-

an held to the use of the ward. [FN87]

Uses became quite common during the fourteenth century, as evidenced by several statutes from the latter

part of that century that dealt with uses. One statute made lands held to the use of defrauding debtors subject to

execution for their debts.[FN88]Another statute made uses for the benefit of religious houses and other corpor-





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feoffment, the grant was presumed to be for the use of the feoffor. [FN102]

Eventually, uses became so common that when a fee simple enfeoffment occurred and no use was declared,

but the transaction was without consideration, a use was presumed in the feoffor. This implied use in the feoffor

was termed a resulting use. Uses were often conveyed to several persons as joint tenants. This arrangement

offered some security against simultaneous dishonesty by all the feoffees and, through operation of survivorship,

avoided questions of dower or feudal incidents when any of*181the joint tenants died.

A use also was frequently raised by a bargain and sale. By an oral or written bargain and sale agreement, an

owner accepted monetary consideration in return for a promise to sell the land to the buyer. The promise alone

did not convey the legal title, but equity treated the bargainee as the beneficial owner who could sue in equity to

compel the bargainor to convey legal title. This arrangement was also a natural vehicle for raising a use. By bar-

gain and sale, the owner could agree to hold the land for the use or benefit of the buyer and the buyer's heirs.

Again, the buyer could compel the seller to permit the buyer's use of the land, including its rents and profits. As

early as the fifteenth century, a bargain and sale that had not proceeded to convey the legal title was deemed to

have raised a use in the bargainee. For those who actually wanted no more than the use, the bargain and sale ar-

rangement would be left in a suspended, incomplete state in which the purchaser held only equitable title in the

form of a use. According to feudal tenurial doctrine, this circumstance was significant because it meant, as men-

tioned above, that a use could be raised without a transfer of seisin. Parties also found appealing the confidenti-

ality of the transaction because without conveyance of the legal title no occasion to make a public record or dis-

play the transaction existed.

6. Enactment and Effects of the Statute of Uses (1536)

a. Circumstances Leading to the Enactment of the Statute of Uses

Conveying land to uses became widespread and resulted in much abuse, complication, and fraud. In 1536,the Statute of Uses, perhaps the most famous and significant English property law statute, wiped away most of

these problems. The desire to restore to the monarchy the feudal revenues lost through conveyances of lands to

uses was probably the factor that finally prompted the monarchy to act against uses and force such restrictive le-

gislation through Parliament.[FN103]

*182b. The Impact of the Statute of Uses on Conveyancing

The method of the Statute of Uses was simple: whoever held the use would also be deemed the holder of the

legal title.[FN104]The Statute of Uses did not alter the traditional common law methods of conveying interests:

livery of seizin conveyed a freehold estate, a grant conveyed a vested remainder or a reversion, and an agree-

ment and entry conveyed a term of years. The common law rule that a freehold to commence at some time in the

future could not be created by conveyance remained in effect. The important impact of the Statute of Uses was

to add several new possibilities for conveyancing, many of which eventually affected modern Anglo-American

conveyancing practices.

(1) Feoffment to Uses





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The feoffment to use as practiced prior to the Statute of Uses was still a legitimate vehicle for conveyancing,

but the Statute of Uses converted the interests conveyed previously as uses into legal interests. This had its ad-

vantages. Before the Statute, a man could convey a use directly to himself and his wife by a feoffment to uses. If

applied to legal interests, this conveyance was not permitted under common law. After the Statute of Uses, a

man could convey a legal estate directly to himself and his wife by means of a feoffment to uses, which was

converted by the Statute into the equivalent legal interest.

(2) Resulting Uses

Before the Statute of Uses, a landowner created a resulting use in himself when he conveyed land to another

with no consideration and no use declared. The Statute of Uses converted this resulting use in the grantor *183

into the equivalent legal interest, so that the conveyance became circular and meaningless. Conveyancers

countered this result by declaring an express use in the grantee, so that the use in the grantee, rather than the

grantor, would be executed.

(3) Bargain and Sale

Before the Statute of Uses, one used a bargain and sale to raise a use. Because the Statute converted this use

into a legal interest, the bargain and sale became an appropriate method of creating a legal estate. The Statute

vested the seller's seisin in the buyer by operation of law. Because livery of seisin was unnecessary after the

Statute, and a writing was not required for a bargain and sale, the possibility arose that oral, unrecorded, and

therefore secret conveyances of freeholds could take place by bargain and sale. These secret conveyances were

deemed undesirable. Therefore, in the same year that Parliament adopted the Statute of Uses, it enacted the Stat-

ute of Enrolments, [FN105] which required freehold conveyances by bargain and sale to be in writing, under

seal, and entered or enrolled in certain public offices.

(4) Lease and Release

Conveyancers devised the lease and release to evade the public writing requirement of the Statute of Enrol-

ments. An owner of land would convey the land to a grantee by bargain and sale for a term of years (a lease).

This conveyance was not required to be in writing or to be enrolled under the Statute of Enrolments because it

was not a conveyance of a freehold estate. The grantor's reversion would then be released by common law re-

lease to the grantee, who obtained the entire estate. The release also was not required to be in writing or enrolled

because the Statute of Enrolments applied only to bargain and sale transactions. Because the term for years was

created by bargain and sale, the grantee obtained the term without entering into possession, and the interest was

vested by operation of the Statute of Uses. Having not entered into possession, the grantee was eligible to accept

the release of the reversion. Between 1620 and 1845, the lease and release was the most popular procedure for

conveying land in*184England.[FN106]

(5) Covenant to Stand Seised

Even after the Statute of Uses, a mere agreement by one person to hold land for the use of another did not

create an enforceable use. Because a bargain and sale and a feoffment to uses lacked the element of considera-

tion, they were enforced as raising uses that were executed or converted into legal interests by operation of the





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Statute of Uses. However, not long after enactment of the Statute, a court held that such an agreement or coven-

ant to hold to the use of another, even without the traditional consideration, could be enforced as raising a use.

Such a covenant to stand seised was required to be written, under seal, and supported by the consideration of

natural love and affection (if to the use of a relative) or marriage. [FN107]Once a court had conceded that such

a covenant to stand seised raised a use, the Statute of Uses executed or converted the use into the legal estate.

The covenant to stand seised mostly was used to effect family settlements or distributions of land to family

members because, under its particular consideration requirements, it was valid only as to parties who were re-

lated by blood or marriage. The covenant to stand seised could remain secret because it was not required to be

enrolled under the Statute of Enrolments.

(6) Executory Interests

The introduction of several new types of future interests was a major effect of the Statute of Uses. Before the

statute, the only future interests that the common law recognized were reversions and remainders. These in-

terests, especially remainders, were hedged about by limits linked to the logic of tenures and estates. [FN108]For instance, the law did not permit that a legal freehold estate could be granted at one moment in time, but not

*185 actually commence as an interest until some time thereafter. However, under the practice of uses prior to

the Statute of Uses, this type of conveyance was common. For example, an owner might enfeoff land to a feoff-

ee to the use of another, but the use was not to commence until the occurrence of some future event. The trans-

action was called a springing use, but when such a use was executed into a legal interest by the Statute of Uses,

the springing use became a springing executory interest, which was formerly forbidden under the common

law. If such a conveyance was made after the Statute of Uses, the feoffor would still hold the estate in fee simple

because the conveyance to a feoffee to use would have been ineffective, but the estate would be subject to an ex-

ecutory interest in the party that formerly would have held the springing use. After the Statute of Uses and upon

the occurrence of the event that would have commenced the use, the executory interest would have become the

fee simple interest, with no interest left in the feoffor. This conveyance could be created by means of a bargain

and sale, an enfeoffment, or a covenant to stand seised.

Another future interest that the common law did not allow was a conveyance of successive future interests

with a gap in time between the end of one and the beginning of the next. However, such a conveyance to use

was another variety of springing use that was possible before the Statute of Uses. An enfeoffment to the feoffee

for the use of another for life, with the permanent use to go over to yet another party one year after the use for

life ended, was valid. These types of uses would have been executed by the Statute of Uses so that the holder of

the use for life would have a life estate, the feoffor would have a reversion for a year, and the holder of the per-

manent use would have an executory interest, which would become a fee simple one year after the life estate

ended. This conveyance could be created by means of a bargain and sale, an enfeoffment, or a covenant to stand

seised.

A third variety of springing use became a valid legal interest after the Statute of Uses. A conveyance in use,

such as a bargain and sale, to one for a term of years and then to the heirs of another who was then living, cre-

ated a contingent interest following a term of years. In this situation, the interests of the remaindermen could not

be vested until the death of the ancestor and a determination of heirship, which might be long after the end of the

preceding term. Again, the Statute of Uses executed these springing uses into valid legal estates, so that the con-

veyance became an estate for *186years, a reversion in the grantor if necessary until heirship of another was de-





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termined, and an executory interest in the nature of a springing use in those prospective heirs. This conveyance

could be created by a bargain and sale or a covenant to stand seised.

In addition to the varieties of springing uses described in the preceding paragraphs, the Statute of Uses also

executed a type of shifting use into a valid executory interest. Under the common law, a conveyance to one in

use with the use to go over to another upon the happening of a certain event, such as making a particular forbid-

den use of the property, was not possible. When the Statute of Uses executed the use, the conveyance to the

grantee became an estate in fee simple, subject to a shifting executory interest in another that would ripen into a

fee simple if the property were used in the forbidden way. This conveyance could be created by a bargain and

sale, a covenant to stand seised, or an enfeoffment.

(7) Devises

Before the Statute of Uses, one could not devise a legal estate, except in some areas by local custom, but

could declare a feoffment to uses in a will. When the Statute of Uses executed the feoffee's interest into a legal

interest, the interest could no longer be devised. In 1540, the Statute of Wills which gave limited powers of de-vise placated the strong opposition to this state of affairs.[FN109]Under this Statute, a landowner could devise

any lands held under socage tenure [FN110] and up to two-thirds of the lands held by knight tenure. [FN111]

Devisees were made liable for feudal obligations as if they had taken by descent. Because livery of seisin was

not required for an effective devise, the common law restrictions on certain types of future interests were

deemed inapplicable. Therefore one could devise springing and shifting future interests that would have been in-

appropriate as inter vivos conveyances of legal future interests. Such devises are executory devises and are in-

cluded with inter vivos shifting and springing interests as executory interests.

*187(8)Contingent Remainders

Common law contingent remainders were subject to destruction if the supporting freehold estate was for-feited through tortious alienation. [FN112]Under this destructibility rule, if the holder of the life estate attemp-

ted to convey a fee simple, the attempted alienation would be deemed tortious and th

Anglo-American Land Law - Thomas

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