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V. ANOTHER fimilar conditional estate, created by opera tion of law, for fecurity and fatisfaction of debts, is called an [161] eftate by elegit. What an elegit is, and why fo called, will be explained in the third part of these commentaries. At prefent I need only mention, that it is the name of a writ, founded on the ftatute of Weftm. 2. by which, after a plaintiff has obtained judgment for his debt at law, the theriff gives him poffeffion of one half of the defendant's lands and tenements, to be occupied and enjoyed, until his debt and damages are fully paid: and, during the time he fo holds them, he is called tenant by elegit. It is eafy to obferve, that this is alfo a mere conditional eftate, defeasible as foon as the debt is levied. But it is remarkable, that the feodal restraints of alienating lands, and charging them with the debts of the owner, were foftened much earlier and much more effectually for the benefit of trade and commerce, than for any other confideration. Before the ftatute of quia emptores, it is generally thought that the proprietor of lands was enabled to alienate no more than a moiety of them: the ftatute therefore of Weftm. 2. permits only fo much of them to be affected by the process of law, as a man was capable of alienating by his own deed. But by the ftatute de mercatoribus (pailed in the fame year) the whole of a man's lands was liable to be pledged in a ftatute merchant, for a debt contracted in trade; though only half of them was liable to be taken in execution for any other debt of the owner.

I SHALL conclude what I had to remark of thefe eftates, by ftatute merchant, ftatute ftaple, and elegit, with the ob fervation of fir Edward Coke", "Thefe tenants have un"certain interefts in lands and tenements, and yet they have "but chattels and no freeholds;" (which makes them an exception to the general rule)" because though they may "hold an eftate of inheritance, or for life, ut liberum tene"mentum, until their debt be paid; yet it fhall go to their "executors: for ut is fimilitudinary ; and though, to recover "their eftates, they fhall have the fame remedy (by affife) as

13 Edw. I. c. 18. f 18 Edw. I.

13 Edw. I.

hi Inft 42, 43.

"a tenant

"a tenant of the freehold shall have, yet it is but the fimili

tude of a freehold, and nullum fimile eft idem." This indeed only proves them to be chattel interefts, because they go to the executors, which is inconsistent with the nature of a freehold; but it does not affign the reason why these estates, in contradiftinction to other uncertain interefts, fhall veft in the executors of the tenant and not the heir; which is probably owing to this: that, being a fecurity and remedy provided for perfonal debts due to the deceased, to which debts the executor is entitled, the law has therefore thus directed their fucceffion; as judging it reasonable, from a principle of natural equity, that the security and remedy should be vefted in those to whom the debts if recovered would belong. For, upon the fame principle, if lands be devised to a man's executor, until out of their profits the debts due from the teftator be difcharged, this intereft in the lands fhall be a chattel intereft, and on the death of fuch executor fhall go to his executors: because they, being liable to pay the original teftator's debts, so far as his affets will extend, are in reason entitled to poffefs that fund, out of which he has directed them to be paid.

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ITHERTO we have confidered eftates folely with regard to their duration, or the quantity of interest which the owners have therein. We are now to confider them in another view; with regard to the time of their enjoyment, when the actual pernancy of the profits (that is, the taking, perception, or receipt, of the rents and other advantages arifing therefrom) begins. Eftates therefore, with refpect to this confideration, may either be in poffeffion, or in expectancy and of expectancies there are two forts; one created by the act of the parties, called a remainder; the other by act of law, and called a reversion.


I. Or eftates in ion, (which are fometimes called eftates executed, whereby a prefent interest passes to and refides in the tenant, not depending on any fubfequent circumftance or contingency, as in the cafe of eftates executory) there is little or nothing peculiar to be obferved. All the cftates we have hitherto spoken of are of this kind; for, in laying down general rules, we ufually apply them to such cftates as are then actually in the tenant's poffeffion. But the doctrine of eftates in expectancy contains fome of the niceft and most abftrufe learning in the English law. These will therefore require a minute difcuffion, and demand fome degree of attention.

II. AN eftate then in remainder may be defined to be, an eftate limited to take effect and be enjoyed after another eftate is determined. As if a man feifed in fee-fimple granteth lands to A for twenty years, and, after the determination of the faid term, then to B and his heirs for ever: here A is tenant for years, remainder to B in fee. In the first place an eftate for years is created or carved out of the fee, and given to A; and the refidue or remainder of it is given to B. But both thefe interefts are in fact only one eftate; the prefent term of years and the remainder afterwards, when added together, being equal only to one eftate in fee. They are indeed different parts, but they conftitute only one whole they are carved out of one and the fame inheritance: they are both created, and may both fubfift, together; the one in poffeffion, the other in expectancy. So if land be granted to A for twenty years, and after the determination of the faid term to B for life; and after the determination of B's eftate for life, it be limited to C and his heirs for ever: this makes A tenant for years, with remainder to B for life, remainder over to C in fee. Now here the estate of inheritance undergoes a divifion into three portions: there is first A's eftate for years carved out of it; and after that B's eftate for life; and then the whole that remains is limited to Cand his heirs. And here alfo the firft eftate, and both the remainders, for life and in fee, are one eftate only; being nothing but parts or portions of one entire inheritance; and if there were a hundred remainders, it would still be the fame thing; upon a principle grounded in mathematical truth, that all the parts are equal, and no more than equal, to the whole. And hence also it is eafy to collect, that no remainder can be limited after the grant of an estate in fec-fimple : because a fee-simple is the highest and largest estate, that a subject is capable of enjoying; and he that is tenant in fee hath in him the whole of the eftate: a remainder therefore, which is only a portion, or refiduary part, of the eftate, cannot be reserved after the whole is difpofed of. A particular eftate, with all

a Co. Litt. 143

Plowd. 29. Vaugh. 269.


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