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1.
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Some 15th century definitions:
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a.
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fee simple “to A and his heirs” the highest estate, freely alienable,
not devisable, descendible generally
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b.
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fee tail “to A and the heirs of his body” it may descend only to A’s issue,
freely alienable but the alienee takes subject to the interest in the heirs
of A’s body
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c.
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dower is a life estate in the widow in 1/3 of all lands of which her
husband was seized at any time during the marriage in fee simple or fee tail,
which land the heir of the marriage, had there been any, could have
inherited
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d.
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curtesy is a life estate in the widower in all
of the lands of which his wife was entitled to be seized during the
marriage in fee simple or fee tail, which the heir of the marriage could
have inherited, so long as a child is born to the marriage who cries to the
four walls.
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2.
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The operation of warranty:
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a.
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Lord A seizes Tenant B of land and takes his homage. Then he seizes tenant
C of the same land and takes his homage.
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i.
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Tenant B on the land Tenant C. brings a writ of right in
Lord A’s court. If A tries to put C on the land novel disseisin. If A
defaults, tolt and pon; C vouches
A.
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ii.
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Tenant C on the land Tenant B brings writ right in Lord A’s court. Same
possible two results. This means that Lord A can’t do right.
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iii.
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Lord A dies; fitz A held to the same thing
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iv.
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Tenant B dies; fitz B does the same with mort d’ancestor
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Therefore, free alienability inter
vivos is the consequence of warranty.
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b.
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Lord A leaves the land to Tenant B in his will.
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i.
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If B gets on the land before fitz A, fitz A sues him in mort d’ancestor.
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ii.
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If fitz A gets on the land before B, B sues a writ of right in fitz A’s
court, but with a difference: Fitz A has no obligation to honor B’s claim, because
there’s no warranty to B. Why? No homage. You can’t do homage to a dead
man, and fitz A is not bound to warrant his ancestor’s will.
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Therefore no devisability is a consequence of warranty.
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c.
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Tenant B seizes Subtenant C of the land and takes his homage. Lord A
does not like Subtenant C.
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i.
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If Subtenant C is on the land, he is protected by novel disseisin; if he
is not, he is protected by writ of right (this time brought in B’s court),
and his heir is protected by mort d’ancestor unless Tenant B defaults in
service.
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ii.
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If Tenant B tries to substitute Subtenant C for himself, then Lord A
still has discretion; hence almost all conveyances are by subinfeudation.
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d.
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Prittlewell case
28:M04—Hugh Butler mort d’ancestor vs. C. de P., she essoins
29:M04—H. de P. essoins v. H. Butler in plea of homage
30:M04—H.B. vs. C. de P. the assize comes, she vouches H. de P.
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e.
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Walter de Grancurt’s case—no.46
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i.
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He gave the land to Hugh de Candos along with Ascelina; suppose Hugh had
survived Ascelina; if W. took Hugh’s homage case proceeds as above; if he did
not, Hugh is still entitled by the curtesy of England.
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ii.
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Now we’ll see why he may not take Hugh’s homage. Hugh de Candos and
Ascelina die without heirs of their bodies—the land should revert to Wm. and
his heirs, but if he’s taken Hugh’s homage what is to prevent Hugh’s heir
general from claiming warranty? — thus the 3–generation maritagium—K
Glanvill says in the church courts
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iii.
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Hugh and Ascelina convey to Sir Hugh Polstead and take his homage; then
little Juliana tries to claim that she is H & A’s heir; she’s s.o.l.
that’s Bracton’s rule->formedon
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iv.
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What happened here? Walter tries
to take the land back and is sued in mort d’ancestor—the real issue is are Ceclia
and Juliana entitled—possible that Walter thought the land limited to male
heirs
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f.
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Thus, the logic of warranty made for a system in which all free holdings
were freely alienable but not devisable. The logic of warranty came to
attach to the endowment at the church door leaving the heir compelled to
warrant both his mother/stepmother and the gifts of his ancestor, and
curtesy can be seen as the almost inevitable consequence of the fact that
the lord normally took the homage of the husband of the heiress. Already by
the beginning of Henry III’s reign the lord’s relation to the land has
become considerably more tenuous than what it had been fifty years earlier.
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3.
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What’s left for the lord? Knights’
fees commuted to money early—wardship, marriage, relief, escheat—let’s go
back to example (2)(c))
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a.
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Tenant B has a younger brother Subtenant C whom he seizes and takes his
homage for a rose at midsummer; Tenant B than dies and his heir is a minor;
Lord A gets a lot of roses at midsummer.
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b.
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Suppose Subtenant C dies and leaves a minor heir; he’s in his
grandfather’s wardship and Lord A is s.o.l. —> Quia Emptores
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4.
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Now we’re ready to look at the statutes (Mats. pp. V-12 to V-13):
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a.
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De Donis —> formedon in the
descender
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b.
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Quia Emptores —> end of
subinfeudation
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5.
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What we suggested gives us the answer to some very curious aspects of
all of these:
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a.
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The fee simple is freely alienable and not devisable because of the
logic of warranty. The development had already taken place around the
beginning of the 13th century. The statute Quia Emptores simply put an end to a practice whereby lords
were being deprived of the feudal incidents, the only thing about lordship
that was worth much any more; it did so by abolishing subinfeudation. All
conveyances of the fee must be by way of substitution. The lords gave up
their now nominal right to object to new tenants.
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b.
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De Donis is the product of a
much more complicated development, that begins
with the gift in maritagium.
Because no warranty is taken in such gifts, the law must develop rules
shorn of the key element that it has used in other areas. First comes curtesy, what would have happened if the lord had
taken his son-in-law’s warranty. Then comes the
curious rule that upon the birth of issue the couple have the right to
alien the fee simple. This is reversed by the statute De Donis that says that if this happens
the heirs of the body of the couple may bring a new form of action called
formedon in the descender to get it back. The statute also confirms the
practice of allowing actions of formedon in the reverter, for the father to
get the land back if the issue die out, and
formedon in the remainder, to allow the father’s alienee to get the land
back if the issue die out.
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c.
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Dower and curtesy are seen as rather old consequences of the logic of warranty,
the first from the extension of warranty to benefit the dowager and the
second the logical consequence of the fact the lord will normally take the
homage of the husband for the wife’s land.
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6.
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There may not be time for this in class, but it’s certainly worth
thinking about:
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a.
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According to Plucknett (Legislation,
pp. 131–5) the statute De Donis is perfectly clear up to ‘henceforth
observed’. At this point it descends into a total mess that seems to
confine formedon in the descender to the first generation of issue in tail.
It then proceeds to talk about ‘such woman’, though no woman has been
previously mentioned. To Plucknett this suggested that the statute was
amended to take out a phrase that dealt with women and to substitute a phrase
that was intended, clumsily, to limit the tail to the first generation.
Hengham who was the draftsman of the statute could not have been
responsible for this, and Edward I and his council, concerned about
dynasties (compare E’s dealings with his own son-in-law), may have been. Be
that as it may, Beresford’s dictum 25 years later is amazing, but it does
correspond to what we know about the 4 generation entail. According to
Plucknett it is not until 1410 that we get a clear indication of the
unbarrable entail. He does not add, though he might have, that by 1410 ways
were being found that were to culminate in the common recovery to bar
entails by clever manipulation of warranties.
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b.
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Aumeye’s Case (1305), Y.B. 33–35 Edw. 1, p. 82: Hengham, CJ: “Do
not gloss the statute, for we understand it better than you; we made it.”
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c.
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Belyng v. Anon. (1312), Y.B. 5 Edw. 2, SS vol. 31, p. 176 (C.P.),
Sources: pp. 52–3: “Bereford: He that made the statute meant the issue in
tail to be within the statute as much as the feofees until the tail should
[become fee simple] in the fourth degree. And it was only by his oversight
that he did not bring the issue by express words in the statute. So we
shall not abate this writ.”
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