Confusion in terminology as to modified fees in Pennsylvania. § 28

Title acquired in eminent domain..

Summary as to modified fees..

§ 29

§ 30

Alienability of Land in Feudal Times

18. Two theories have been entertained as to the alienability of land at the early common law. The first theory is that land was alienable, and that restrictions on that alienability gradually grew up. The other, that land was inalienable, and that powers of alienation were subsequently acquired from time to time.2 The latest authority on the subject says that we cannot start from absolute alienability or absolute inalienability, but from a state of affairs in which the lord

This was the view held by Coke, 2nd Inst., 65; Coke, Lit., 43a.

2 This was the view held by Blackstone, Com. II, 71, 72.

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. ior was concerned, he would alienation, and when he in 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.

In so far as his feudal superwish to have full power of turn came to grant to a feudal

Development of Alienability

4

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.5 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. 5 Mitchell, Real Est. & Conv. in Penna. (1890), pp. 352, 487.

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

e 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.

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., 276 (1886); Gray, Rule Perp., 2 ed. (1906), §14, n. 3. The conditional fee was the first attempt at a settlement: Lewis, Perp., (1843), pp. 28, 29.

8 Pollock & Maitland's Hist. Eng. Law, 1 ed. and 2 ed., Vol. 2, p. 13.

Estates Tail

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2

23. Conditional fees were turned into estates tail by the provisions of the Statute De Donis." 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 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. 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 isted 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

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9 13 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.

3

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).