will take nothing," and that, in the case of a grant of an immediate estate in possession, the grantee must be in esse, and a deed of that kind may be avoided by showing that the grantee came into being subsequently to the delivery of the deed.

[The court then held that the sheriff's deed should be set aside and the decree of the court below was for that reason affirmed.]

The same result is reached in the case of a devise to the children of a living person, there being such in esse at the time of the testator's death. Theobald on Wills (7th Ed.) 310, 311.

CHAPTER VI

FREEHOLD INTERESTS SUBJECT TO A TERM

POLLOCK ON THE LAND LAWS, pp. 137, 138: Leaving exceptional cases aside, we pass on to consider the position of the tenant who holds either for a term of years, or as tenant from year to year. In the feudal plan of society there is no place for him; and accordingly the legal doctrine starts from the conception that the relation between the landlord and the tenant is simply a personal contract. This conception is at the bottom of all the differences between freehold and leasehold tenure, and, though largely qualified in its effects, must be borne in mind in order to understand even the most modern form of the law. The lessee's interest is now beyond question property, not the mere right to the performance of a contract. Still, being in legal theory the creature of contract, it has neither the dignities nor the burdens peculiar to freehold tenures. It is not the subject of feudal modes of conveyance, nor of the feudal rules of inheritance. No particular form of words is necessary for its creation; and the custom of creating it by deed has become a legal requirement (and that not in every case) only by modern statutes. It could always be disposed of by will if the tenant died before the expiration of the term; and in case of such death the law deals with it in the same way as cattle or money, and it goes to the executor, as part of the "personal estate," to be administered by the same rules as movable property. If undisposed of by will, the leasehold tenant's interest belongs on his death to the same persons, and in the same proportions, as cash or railway shares which he has not disposed of. There is no such thing as an heir of leaseholds. In one word, which for the lawyer includes all that has been said, a leasehold is not real but personal estate. From a strictly feudal point of view there is not an estate at all, only a personal claim against the freeholder to be allowed to occupy the land in accordance with the agreement. But as early as the thirteenth century two points were settled, which together constituted a true right of property in the tenant. If he was ejected in breach of his landlord's agreement, he could recover not merely compensation for being turned out, but the possession itself; and this not only against the original landlord, but against a purchaser from him. Already the purchaser could not say to the tenant whom he found on the land, "I have made no contract with you, look for your redress to the man with whom you did contract." The farmer's possession was as secure while his estate lasted as the freeholder's. On the foundation thus laid the modern law has been completed, partly by

KALES FUT. INT.-16

judicial usage and partly by express legislation. Broadly speaking, both the landlord's and the tenant's successors in title enjoy, while the term of the tenancy lasts, the rights conferred at its creation upon the landlord and tenant respectively, and are subject to the burdens imposed on them. Exceptions may still occur, too rare and technical to be now further specified, which are just enough to show that the old notion of a mere personal agreement, though decayed, is not dead.”

CHALLIS' REAL PROPERTY (3d Ed.) 99: The seisin [of the immediate freehold estate] is quite independent of, and unaffected by, the existence of any term or terms of years. Therefore, so far as the seisin is concerned, there can exist no such thing as a remainder of freehold expectant upon a term of years. The existence of a prior term of years does not prevent the first vested estate of freehold from being an estate of freehold in possession. (Litt. § 60: "If the termour in this case entreth before any livery of seisin made to him, then is the freehold and also the reversion in the lessor.") Words and phrases which grammatically import futurity, such as "then," "when," "from and after," and the like, when they refer to the determination of a prior term of years, do not make the subsequently limited freehold contingent, or postpone the vesting of it until the expiration of the term; but under such circumstances the freehold is vested immediately. (Boraston's Case, 3 Rep. 19.) During the continuance of a prior term, the first estate of freehold is properly described, not as being a remainder of freehold expectant upon the term of years, but as being the freehold in possession subject to the term. But since the possession of the freeholder is in such a case subject to the rights of the termor, and since these rights may, and in practice usually do, deprive the freeholder of the immediate use and occupation of the lands during the term, the result is, for many practical purposes, much the same as if the freehold subsisted only as a veritable remainder. In this sense the word remainder is often applied to estates of freehold limited after a term of years. But when this language is used the reader must bear in mind (1) that a prior term of years does not prevent a subsequent vested estate of freehold from being an estate of freehold in possession; and (2) that a prior term of years does not prevent a subsequent contingent estate of freehold from being void in its inception, as being an attempt to create a freehold in futuro.

LEAKE ON PROPERTY IN LAND (2d Ed.) 35: If a lease were made for years with a contingent remainder of freehold, the limitation in remainder was wholly void, because it left the seisin in abeyance until the happening of the contingency; nor could livery be given for such an estate for want of a present certain grantee of the freehold. (Co.

Lit. 217a.) Thus, "it is a general rule, that wherever an estate in contingent remainder amounts to a freehold, some vested estate of freehold must precede it." (Fearne, Cont. Rem. 281. See Loyd v. Brooking, 1 Vent. 188.)

LIT. § 60. But if a man letteth lands or tenements by deed or without deed for term of years, the remainder over to another for life, or in tail, or in fee; in this case it behooveth, that the lessor maketh livery of seisin to the lessee for years, otherwise nothing passeth to them in the remainder, although that the lessee enter into the tenements. And if the termor in this case entereth before any livery of seisin made to him, then is the freehold and also the reversion in the lessor. But if he maketh livery of seisin to the lessee, then is the freehold together with the fee to them in the remainder, according to the form of the grant and the will of the lessor.

NOTE ON THE DISTINCTION BETWEEN FREEHOLD INTERESTS SUBJECT TO TERMS AND THOSE SUBJECT TO A PARTICULAR ESTATE OF FREEHOLD SO FAR AS THE EXISTENCE OF SEISIN IS CONCERNED.-Freehold interests limited after terms for years, if valid at all, are present interests and the seisin of the freeholder is a present seisin. Challis' Real Property (3d Ed.) 70, 89-90. The freeholder's wife or husband has dower (Scribner on Dower [2d Ed.] 233) or curtesy. The freeholder, even though not the original purchaser, constitutes a new stock of descent. Bushby v. Dixon (1824) 3 B. & C. 298 (4 Gray's Cas. on Prop. 10). On the other hand, a remainderman has no seisin at all. After mentioning that the reversioner has a sort of seisin because of the services rendered him, the learned authors of Pollock and Maitland's History say (2 Pollock & Maitland, History of English Law, 39): "On the other hand, we cannot find that any sort of kind of seisin was as yet attributed to the remainderman. He was not seised of the land in demesne, and he was not, like the reversioner, seised of it in service, for no service was due him." The absence of seisin in the remainderman seems always to have continued, for Hargrave says (the italics are his): "But, in opposition to what may be termed the expectant nature of the seisin of those in remainder or reversion the tenant in possession is said to have the actual seisin of the lands." Co. Lit. (Hargrave's note) 217. It followed, from the fact that the remainderman had no seisin that he did not render feudal services. 2 Pollock & Maitland, History of English Law, 39. He could not bring a writ of right. Lit. § 481. In order to transfer a remainder the co-operation by attornment of the tenant was necessary, so that the actual seisin of the freehold in possession might be held for the grantee of the remainderman, Mystery of Seisin, by F. W. Maitland, 2 L. Q. R. 481, 490-493. A remainderman, other than one who was an original purchaser did not constitute a new stock of descent. 4 Kent, Com. 387. In this respect also the remainder was on the footing of a mere right of entry by ene disseised. The Mystery of Seisin, by F W. Maitland, 2 L. Q. R. 481, 485. The consequences arising from the fact that the remainderman had no seisin have come down to us in the rule that there can be no dower or curtesy in a remainder. Co. Lit. 29a, 32a; Scribner on Dower (2d Ed.) 233, 321. In this respect the remainder was on the footing of a mere right of entry by one disseised. Mystery of Seisin, 2 L. Q. R. 481, 485, et seq.-Ed.

SCATTERWOOD v. EDGE.

(Court of Common Pleas, 1699. 1 Salk. 229.)

In ejectment a special verdict was found, viz. Robert Edge devised to trustees for eleven years, and then to the first son of A. and the heirs males of his body, and so on to the second, third, &c. sons in tail male, "provided they the said sons shall take on them my surname; and in case they or their heirs refuse to take my surname, or die without issue, then I devise my land to the first on of B. in tail male, provided he take my surname; and if he refuse, or die without issue, then to the right heirs of the devisor." A. had no son at the time of the devise, and died without issue; and B. had a son who was living at the time of the devise, who took the surname of the devisor. The whole court agreed, 1st, that the devise to the first son of A. was not a contingent remainder, but by way of executory devise, because the precedent estate is for years, which cannot support a remainder; for a contingent remainder can never depend on a term of years, because of the abeyance of the freehold; nor can it be limited after a fee, because after such a disposal nothing remains in the owner to limit.

Et per POWELL, a devise to the first son of A. having none at that time, is void because it is by way of a present devise, and the devisee is not in esse; but a devise to the first son of A. when he shall have one, is good, for that is only a future devise, and no inconvenience, for the inheritance descends in the mean time. 2dly, they held that an executory estate, to rise within the compass of a reasonable time, is good; that 20, nay 30 years, has been thought a reasonable time. So is the compass of a life or lives; for let the lives be never so many, there must be a survivor, and so it is but the length of that life; [for Twisden used to say, the candles were all lighted at once,1] but they were not for going one step farther, because these limitations make estates unalienable, every executory devise being a perpetuity as far as it goes, that is to say, an estate unalienable, though all mankind join in the conveyance. And as to the principal case, BLENCOW, J., held the devise to the first son of A. to be future; for he supposed the testator knew A. had no son, and that the rather, because he does not name him.

POWELL, J. There are three sorts of executory estates, one where the devisor parts with his whole fee-simple, but upon some contingency qualifies that disposition, and limits another fee upon that contingency, which is altogether new in law, as appears by 1 Inst. 18. A fee cannot be limited upon a fee. Vide 1 Ro. 825, 826; 1 Cro. Pells and Brown. The second sort is, where he gives a future estate to arise upon a contingency, and does not part with the fee at present, but

1 This passage is not in the original edition of Salkeld. See Love v. Wyndham, 1 Mod. 50, 54.-Ed.