and release, or covenant to stand seised, create a base. fee, which will not determine until the issue in tail enters.

If the owner of a determinable fee conveys in fee, the determinable quality of the estate follows the transfer; and this is founded upon the sound maxim of the common law, that nemo potest plus juris in alium transferre quam ipse habet. Within that rule, the proprietor of a qualified fee has the same rights and privileges over the estate as if he were a tenant in fee simple; all the estate is in the feoffee, notwithstanding the qualification, and no remainder can be limited over, nor any reversion expectant thereon, other than the possibility of a reverter when the estate determines, or the qualification ceases.b

a Machell v. Clarke, 2 Ld. Raym. 778. The apprentice of the Middle Temple, in the course of his learned and successful argument in Walsingham's case, (Plowden, 547. 557.) stated the distinction which has been followed by Mr. Preston, between a determinable and a base fee, and he gives the following obscure explanation of the latter : "A. has a good and absolute estate in fee simple, and B. has another estate of fee in the same land, which shall descend from heir to heir, but which is base in respect of the fee of A., and not of absolute perpetuity, as the fee of A. is." He then gives the following example, by way of illustration: "If a man makes a gift in tail, and the donee be attainted of treason, the king shall have the land as long as there are any heirs of the body of the donee; and in that case, there are two fees, for the donor has his ancient fee simple, and the crown another fee in the same land, which is but a base fee, for it is younger in time than the fee of the donor, and if the heirs of the body of the donee fail, the fee is gone, whereas the fee of the donor never perishes; it is pure and perpetual, while the other is but base and transitory." Mr. Preston, in his Treatise on Estates, vol. i. 460. 468., defines a qualified fee to be an interest given to a man and to certain of his heirs only, as to a man and his heirs on the part of his father; but this is termed in Plowden, 241. b. a fee simple conditional.

b 10 Co. 97. b. Preston on Estates, vol. i. 484. According to Lord Ch. J. Vaughan, the reverter in this case is a quasi reversion, and he did not see why a remainder might not be granted out of such a qualified fee. Gardner v. Shelden, Vaughan, 269. But the rule is probably otherwise, and on a fee simple conditional at common law, a remainder could not be created, for the fee was the whole estate. There was only a possibility, or right of reverter left in the donor, and that was

3. A conditional fee is one which restrains the fee to some particular heirs exclusive of others, as to the heirs of a man's body, or to the heirs male of his body. This was at the common law construed to be a fee simple on condition that the grantee had the heirs prescribed. If the grantee died without such issue, the lands reverted to the grantor. But if he had the specified issue, the condition was supposed to be performed, and the estate became absolute, so far as to enable the grantee to alien the land, and bar not only his own issue, but the possibility of a reverter. By having issue, the condition was performed for three purposes; to alien, to forfeit, and to charge. Even before issue had, the tenant of the fee simple condi tional might by feoffment have bound the issue of his body. But there still existed the possibility of a reverter in the donor. After-issue born, the tenant could also bar the donor and his heirs of that possibility of a reversion, but the course of descent was not altered by having issue. The common law provided the formedon in reverter, as the remedial writ for the grantor and his heirs, after the determination of the gift of the conditional fee, by the failure of heirs. Before the statute de donis, a fee on condition that the donee had issue of his body, was in fact a fee tail, and the limitation was not effaced by the birth of issue. If the donee died without having aliened in fee, and without leaving issue general or special, according to the extent of the gift, the land reverted again to the donor. But the tenant, after the birth of issue, could and did alien in fee; and this alleged breach of the condition of the grant, was the occasion of the statute of Westminster 2d. 13 Edw. I. c. 1. commonly called the statute de donis, which recited the evasion

b

not an actual estate; (Lee, Ch. J. in Martin v. Strachan, 5 Term Rep. 107. note;) and yet Mr. Preston (on Estates, vol. ii. 353.) concludes that limitations of remainders, after qualified or limited estates of inhe ritance, were in use at common law.

a Fleta, lib. 3. ch. 3. sect. 5. 2 Blacks. Com. 110.

b Bracton, lib. 2. ch. 6. 17. b. Co. Litt. 19. a.

2 Inst. 335.

F. N. B. 219.

of the condition of the gift by this subtle construction, and consequent alienation, going to defeat the intention of the donor. The statute accordingly, under that pretence, preserved the estate for the benefit of the issue of the grantee, and the reversion for the benefit of the donor and his heirs, by declaring that the will of the donor, according to the form of the deed manifestly expressed, should be observed, and that the grantee should have no power to alien the land. It deprived the owner of the feud of his ancient power of alienation, upon his having issue, or performing the condition, and the donor's possibility or right of reverter was turned into a reversion. The feud was to remain unto the issue according to the form of the gift, and if such issue failed, then the land was to revert to the grantor, or his heirs; and this is frequently considered to have been the origin of estates-tail, though the statute rather gave perpetuity, than originally created that ancient kind of feudal estate.

(4.) Of Fees tail.-The statute de donis took away the power of alienation on the birth of issue, and the courts of justice considered that the estate was divided into a particuJar estate in the donee, and a reversion in the donor. Where the donee had a fee simple before, he had by the statute only an estate tail; and where the donor had but a bare possibility before, he had, by construction of the statute, a reversion or fee simple expectant upon the estate tail. Under this division of the estate, the donee could not bar or charge his issue, nor, for default of issue, the donor or his heirs, and a perpetuity was created. The inconvenience of these fettered inheritances, is as strongly described, and

a Sir Martin Wright (Int. to Tenures, 189.) observes, that the statute de donis, did not create any new fee, aut re aut nomine. It only severed the limitation from the condition of the gift, according to the manifest intent of it, and restored the effect of the limitation to the issue, and the reversion, as the proper effect of the condition, to the donor. The fee simple conditional at common law, was declared, in the case of Willion v. Berkley, Plowd. 239, to be the same as the estate-tail under the statute de donis.

the policy of them as plainly condemned, in the writings of Lord Bacon, and Lord Coke, as by subsequent authors, and the true policy and rule of the common law is deemed to have been overthrown by the statue de donis establishishing those perpetuities. Attempts were frequently made in Parliament to get rid of them, but the bills introduced for that purpose (and which Lord Coke says he had seen) were uniformly rejected by the feudal aristocracy, because estates tail were not liable to forfeiture for treason or felony, nor chargeable with the debts of the ancestor, nor bound by alienation. They were very conducive to the security and power of the great landed proprietors and their families, but very injurious to the industry and commerce of the nation. It was not until Taltarum's case, 12 Edw. IV. that relief was obtained against this great national grievance, and it was given by a bold and unexampled stretch of the power of judicial legislation. The judges upon consultation resolved, that an estate tail might be cut off and barred. by a common recovery, and that by reason of the intended. recompense, the common recovery was not within the restraint of the statute de doms.b These recoveries were afterwards taken notice of, and indirectly sanctioned, by several acts of Parliament, and have ever since their application to estates tail, been held as one of the lawful and established assurances of the realm. They are now considered simply in the light of a conveyance on record, invented to give a tenant in tail an absolute power to dispose of his estate, as if he were a tenant in fee simple; and estates tail in England, for a long time past, have been reduced to almost the same state, even before issue born, as conditional fees were at common law, after the condition was performed by the birth of issue. A common recovery removes all limitations upon an estate tail, and an absolute, unfettered, pure fee simple, passes as the legal effect and operation

a Lord Bacon on the use of the law.-Co. Litt. 19. b. 6 Co. 40. b Co. Litt. 19. b. Mildmay's case, 6 Co. 40. Mary Portington's case, 10 Co. 35.

of a common recovery. It is the only mode of conveyance in England, by which a tenant in tail can effectually dock the entail. If he conveys by deed, he conveys only a base or voidable fee, and he will not exclude his heirs per formam doni. Even by fine he only bars his issue, and not subsequent remainders. He conveys only a base or qualified fee, though the remainder-man will be barred by limitation of time, as a stranger would upon a fine levied with proclamations. It is the common recovery Only the passes an absolute title.a In Mary Portington's case, Lord Coke says, that the judgment in 12 Edw. 1. was no new invention, but approved of by the resolutions of the sages of the law; who, "perceiving what contentions and mischiefs had crept in to the disquiet of the law by these fettered inheritances, upon consideration of the act, and of the former exposition of it by the sages of the law, always after the said act, gave judgment that in the case of a common recovery, where there was a judgment against the tenant in tail, and another judgment against the vouchee to have in value, the estate should be barred."

Estates tail were introduced into this country with the other parts of the English jurisprudence, and they subsisted in full force before our revolution, subject equally to the power of being barred by a fine or common recovery. But the doctrine of estates tail, and the complex and multifarious learning connected with it, have become quite obso lete in most parts of the United States. In Virginia, estates tail were abolished as early as 1776, and in New-York, as early as 1782, and all estates tail were turned into estates in fee simple absolute. So, in North Carolina, Kentucky, Tennessee, Georgia, and Missouri, estates tail have been entirely abolished by being converted by statute into estates

a Martin v. Strachan, 5 Term Rep. 107. note. This case was affirmed in the House of Lords, Willes's Rep. 444.

b 10 Co. 38.

c Act of Virginia, of 7th October, 1776.

Laws of N. Y. sess. 6. ch. 2.-sess. 9. ch. 12. N. Y. Revised Statutes, vol. i. 722. sec. 3.