could prevent any alienation by his tenant which was detrimental to his interests.3 Conflicting Interests as to Alienability 19. Each tenant in the feudal ladder would be subject to conflicting considerations of self-interest in his attitude towards the development of alienability. In so far as his feudal superior was concerned, he would wish to have full power of alienation, and when he in turn came to grant to a feudal inferior, he would wish to impose as much inalienabilty as possible. The same conflict appears in modern times. The owner of property, when he is a donor, wishes to have his power of dominion increased. When he is a donee, his interest is the other way. It will thus appear that the development of the notion of alienability has been a very complex process. Development of Alienability 20. Whatever the feudal theory was, real property was gradually made alienable and liable for debts, and inalienability is the exception in modern times. In Pennsylvania, land and rights in land have from the first been freely alienable and liable for the debts of the owner. There is, therefore, no occasion for us to consider, in a treatise on Pennsylvania law, any of the conflicting steps which have entered into the development of the theory of alienability. The only ancient theory which persists in Pennsylvania today, in so far as this 3 "We cannot hold that the free alienability of the fee simple is the starting point of English law. We must be content with a laxer principle, with some such idea as this: that the tenant may lawfully do anything that does not seriously damage the interests of his lord. He may make reasonable gifts but not unreasonable. The reasonableness of the gift would perhaps be a matter for the lord's court. A tenant would be entitled to the judgment of his peers." Pollock & Maitland, Hist. of Eng. Law, Vol. I, 1 ed., p. 324, 2 ed., p. 343. It is to be observed that alienability in feudal times was conceived of as an actual delivery of the land itself. The notion of the transfer of rights in land was of much later growth. The transfer, furthermore, might be by way of settlement or for services to be rendered, and we thus observe the same distinction in those days as we have now between the case of a gift without consideration and a transfer for value. The attitude of the lord and his tenant would be different in the case of each kind of a transfer. 4 The various English statutes and decisions are referred to by Mr. Gray, Restraints on Alien., 2 ed. (1895), §4. Mitchell, Real Est. & Conv. in Penna. (1830), pp. 352, 487. 5 subject is concerned, is the conception of the power of dominion. The question for our consideration in this connection is this: how far may the donor in the exercise of his power of dominion take away the quality of alienability, voluntary or involuntary, with respect to the property which he gives to the donee? MODIFIED FEES Preliminary 21. The estate in fee simple presents no difficulty, so far as the matter in hand is concerned. A number of variations of this estate have occurred which are of some importance. These have been classified as modified fees, and are as follows: (1) conditional fees, (2) estates tail, (3) base fees, (4) qualified fees, and (5) determinable fees. They will be discussed in this order. Conditional Fees 22. A conditional fee was where the inheritance was restricted to the heirs of the body of the donee. It was said that he took the estate subject to the condition that he have the heirs. By the construction adopted by the judges, the fee was alienable if the donee has heritable issue born, but if no alienation was made it descended to the issue named. Down to the end of the twelfth century, however, the tenant in fee very commonly had to seek the consent of his heirs before making a conveyance. This restriction disappeared in the next century. The construction put upon these gifts interfered with the plans of the aristocracy, who had sought by this means to settle their estates so that they would remain in their families. They obtained the passage of the Statute De Donis, which modified the conditional fee, and which will be referred to in the next section. 8 6 Challis, Real Prop., 2 ed. (1892), p. 52. Mr. Challis seems to have been the first writer to accurately distinguish the modifications of the fee. 7 Challis, Real Prop., 2 ed. (1892), Chap. 18, p. 224; Pollock & Maitland's Hist. Eng. Law, Vol. 2., 1 ed., p. 14, and 2 ed., p. 19; 2 Law Quar. Rev., 8 Pollock & Maitland's Hist. Eng. Law, 1 ed. and 2 ed., Vol. 2, p. 13. Estates Tail 23. Conditional fees were turned into estates tail by the provisions of the Statute De Donis. The statute in effect provided that the estate should descend as specified in the gift. An estate tail was, therefore, a fee simple conditional modified by the Statute the Statute De Donis.10 No conditional fee, therefore, has been created since the thirteenth century: hence, the term conditional fee is entirely out of place in describing any limitation in modern times. The estate tail continued in the descent designated, it could not be aliened by the tenant in tail, and the remainders limited after it were indestructible. This state of affairs did not long continue. By various decisions of the courts, and with the help of several statutes, the estate tail became alienable, and the reversions and remainders limited after it became destructible.2 A tenant in tail was permitted, by a cumbersome process known as a common recovery, to turn his estate tail into a fee, and bar the issue in tail and remainders. The Statute De Donis is in force in Pennsylvania. No conditional fee, therefore, has ever existed in Pennsylvania, and estates tail were introduced into Pennsylvania as part of the common law, and were barrable by a common recovery.5 Common recoveries fell into disuse after the Act of January 16, 1799, which provided that an entailed estate could be barred by deed duly recorded. By the Act of April 27, 1855,8 it was provided that any gift, conveyance or devise which, under existing laws, would create an estate tail, should be construed to create an estate in fee. Since this Act, estates tail have ceased to be of practical importance 913 Edward I., C. 1. (1285) commonly known as the Statute of Westmin. II. 10 Challis, Real Prop., 2 ed. (1892), Chap. 20, p. 259. 1 The phrase, however, is occasionally misused by the judges: see $$28, 29. 2 Gray, Rule Perp., 2 ed. (1906), §19. 3 For discussion of a common recovery, see Lewis, Perp., (1843), Chap. III, "of the unfettering of entails;" Mitchell, Real Est. & Convey. in Pa. (1890), p. 109, n. 4 Report of the Judges, 3 Binney, 595 at 603 (1808). 5 Act of Jan. 27, 1750; 1 Smith's Laws, 203, §1; Dunwoodie v. Reed, 3 63 Smith's Laws, 338, §1. 7 For an instance of such a deed, see Eichelberger v. Barnitz, 9 Watts, 447 (1840), and for a recent case of a deed barring an old entailed estate, see Cochran v. Cochran, 127 Pa. 486 (1889). 8 P. L. 368, §1; see Pepper & Lewis's Digest, title "Estates Tail," Vol. 1, Col. 1877, et seq. A judicial sale of an estate tail or a decree in partition will operate as a common recovery under the Act of April 15, 1859, P. L. 670, §1. See Curtis v. Longstreth, 44 Pa. 297 (1863). in Pennsylvania. The Act in turning the estate tail into a fee, does not displace the remainder, which may be limited thereon. It can take effect as an executory devise.10 Act of 1855 Misunderstood by the Supreme Court 24. There were two cases which might arise at common law: (1) where there was a gift of a life estate followed by words importing an indefinite failure of issue, which sometimes had the effect of enlarging the life estate to an estate tail; (2) the gift of a fee followed by words importing an indefinite failure of issue, which sometimes had the effect of reducing the fee to an estate tail. Where the words imported a definite failure of issue within a life in being, the life estate was not enlarged and the fee not reduced.1 Yet in Nicholson v. Bettle, where there was a gift of a fee with words which were construed to import a limitation over on a definite failure of issue in the first taker, Strong, J., in the Supreme Court, seemed to think it necessary to apply the Act of 1855, and to say that the supposed estate tail was turned into a fee simple. At common law, without the Act, the result would have been the same, as there was no fee tail at all. The ultimate limitation was valid as an executory devise, because being limited after the definite failure of issue at the death of the first taker of the fee, it must take effect within the period prescribed by the rule against perpetuities.3 Base Fee 25. A base fee is a fee descendible to the heirs general upon which subsists a remainder or reversion in fee simple. rently overruling some earlier cases to the contrary. 10 Nicholson v. Bettle, 57 Pa. 384 (1868). The remarks of the court in this case, that the Act of 1855 remits us to the common law before the Statute De Donis, seem to be open to objection. If it did, the grantee could not alienate before he had heritable issue born, and nobody ever contended that such was the law in Pennsylvania. Lewis, Perp., (1843), pp. 187, 188. 9 The Act does not apply to estates tail created by the will of a testator dying before the passage of the Act, but does apply to an estate created by will dated before the Act, where the testator has died after the Act; Reinhart v. Lantz, 37 Pa. 488 (1860). For other cases of estates tail created before the Act, see Price v. Taylor, 28 Pa. 95 (1857); Morris v. Fisher, 8 D. R. 161 (1899); Kinsel v. Ramey, 87 Pa. 248 (1878); Titzell v. Cochran, 7 Sad. Cases, 15 (1887). An estate tail descends in Pennsylvania as at common Guthrie's App., 37 Pa. 9 (1860), appa- out issue. law; 1 2 57 Pa. 384 (1868). 3 See §336, post, as to gift on death with 4 As no fee descendible to the heirs general which arises by mere limitation can have subsisting upon it any remainder or reversion, a base fee can only arise by the conversion of a fee tail into a fee descendible to the heirs general by some method which does not destroy the remainder or reversion properly subsisting on the fee tail. A base fee cannot exist in Pennsylvania today except by a conveyance by the tenant of an old estate tail. It seems that under the decision in Nicholson v. Bettle, the Act of April 27, 1855, does not have the effect of turning an estate tail into a base fee. No case of a base fee has been found in Pennsylvania, and it is not likely that such a case has ever existed. The term base fee has been improperly used.' 8 9 5 Qualified Fee 6 26. A qualified fee simple was a fee limited to a man and the heirs of any ancestor in the paternal line whose heir he was. Mr. Challis says that the rare occurrence of this species of estate, if it ever has actually occurred, has prevented it from receiving much notice. It is not worth while, therefore, to spend much time on so hypothetical a subject. The phrase qualified fee has, however, been used inaccurately in Pennsylvania. 10 It has been said 11 that in the case where the court recognizes the validity of an executory devise, there is a qualified fee simple, as it is the very essence of such an executory devise to reduce the estate upon which it is limited from an absolute fee simple to a qualified fee simple. The notion is without weight. There is nothing in the definition or idea of a qualified fee simple to sustain the remark. Furthermore, as 4 Challis, Real Prop., 2 ed. (1892), Chap. 22, p. 297. 557 Pa. 384 (1868), see §24, ante. P. L. 368, 81, see $23, ante. 7 See Slegel v. Lauer, 148 Pa. 236 (1892). Reporter in the head line to the syllabus in Evangelical Luth. Church v. Township, 35 Pa. C. C. 348 (1908); there is nothing in the opinion of the court to sustain this notion of the reporter. 8 Challis, Real Prop., 2 ed. (1892), p. 241. 11 Mr. Edward Brooks, Jr., 32 Amer. Law Reg., N. S. 1044 (1893); Mr. Henry Budd in note to 2 Sharswood & Budd's Leading Cases, 482; per Master in the court below in Fisher v. Wister, 154 Pa. 65 at 71 (1893); called a conditional fee by Woodward, P. J., in the court below in Barnet v. Deturk, 43 Pa. 92 at 94 (1862); Gordon, J., in Wentz's App., 106 Pa. 301 at 308, 309 (1884). |