fubjects in general, by virtue of the ftatute 23 Hen. VIII. c. 6. amended by 8 Geo. I. c. 25. which direct such recognizances to be enrolled and certified into chancery. But thefe by the ftatute of frauds, 29 Car. II. c. 3. are only binding upon the lands in the hands of bona fide purchasors, from the day of their enrolment, which is ordered to be marked on the record.

e

V. ANOTHER fimilar conditional eftate, created by operation of law, for fecurity and fatisfaction of debts, is called an eftate by elegit. What an elegit is, and why so 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 statute of Weftm. 2. by which, after a plaintiff has obtained judgment for his debt at law, the fheriff 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 easy to obferve, that this is also a mere conditional estate, 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 softened 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 ftatúte therefore of Westm. 2. permits only so 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 statute de mercatoribus (paffed in the fame year 8) 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 these eftates, by statute merchant, statute staple, and elegit, with the ob

fervation of fir Edward Coke, "These tenants have un"certain interests 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 estate 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 shall have the fame remedy (by afsise) as a tenant of the freehold shall have i, yet it is but the simili❝tude of a freehold, and nullum fimile eft idem." This indeed only proves them to be chattel interests, 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 contradistinction to other uncertain interests, shall vest in the executors of the tenant and not the heir; which is probably owing to this: that, being a security 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 fecurity and remedy should bevefted in those to whom the debts if recovered would be long. 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 discharged, this intereft in the lands fhall be a chattel interest, and on the death of such executor fhall go to his executor: because they, being liable to pay the original teftator's debts, so far as his affets will extend, are in reason entitled to possess that fund, out of which he has directed them to be paid.

h

1 Inft. 42, 43.

i The words of the ftatute de mer

catoribus are, "puisse porter bref de no

"vele diffeifine, auxi ficum de franktene

"ment."

k Co. Litt. 42.

CHAPTER THE ELEVENTH.

OF ESTATES IN POSSESSION, REMAINDER, AND REVERSION.

H'

ITHERTO we have confidered eftates folely with regard to their duration, or the quantity of intereft which the owners have therein. We are now to confider them in another view; with regard to the time of their enjoy ment, 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 respect 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 reverfion.

I. Or eftates in poffeffion, (which are fometimes called eftates executed, whereby a prefent intereft paffes 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 eftates we have hitherto spoken of are of this kind; for, in laying down general rules, we usually apply them to fuch eftates as are then actually in the tenant's poffeffion. But the doctrine of eftates in expectancy contains fome of the nicest and most abftrufe learning in the English law. Thefe will therefore require a minute difcuffion, and demand fome degree of attention,

L 2

*

II. AN

II. AN eftate then in remainder may be defined to be, an estate limited to take effect and be enjoyed after another estate is determined. As if a man feifed in fee-fimple granteth lands to A for twenty years, and, after the determination of the said 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 these interests are in fact only one eftate; the prefent term of years and the remainder afterwards, when added together, being equal only to one estate in fee. They are indeed different parts, but they constitute 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 eftate 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 C and his heirs. And here also the first estate, 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 eftate in fee-fimple: because a fee-fimple is the higheft and largest estate, that a subject is capable of enjoying; and he that is tenant in fee hath in him the whole of the estate: a remainder therefore, which is only a portion, or refiduary part, of the estate, cannot be referved after the whole is difpofed of. A particular eftate, with all

a Co. Litt. 143.

Plowd. 29. Vaugh. 269.

the

the remainders expectant thereon, is only one fee-fimple; as 40/. is part of 100l. and 60l. is the remainder of it: wherefore, after a fee-simple once vefted, there can no more be a remainder limited thereon, than after the whole 100l. is appropriated there can be any refidue subsisting.

THUS much being premised, we fhall be the better enabled to comprehend the rules that are laid down by law to be obferved in the creation of remainders, and the reasons upon which thofe rules are founded.

1. AND, first, there must neceffarily be fome particular eftate, precedent to the estate in remainder . As, an estate for years to A, remainder to B for life; or, an estate for life to A, remainder to B in tail. This precedent estate is called the particular estate, as being only a small part, or particula, of the inheritance; the refidue or remainder of which is granted over to another. The necessity of creating this preceding particular eftate, in order to make a good remainder, arifes from this plain reafon; that remainder is a relative expreffion, and implies that some part of the thing is previously disposed of: for where the whole is conveyed at once, there cannot poffibly exist a remainder; but the intereft granted, whatever it be, will be an eftate in poffeffion.

An estate created to commence at a distant period of time, without any intervening eftate, is therefore properly no remainder it is the whole of the gift, and not a refiduary part. And fuch future eftates can only be made of chattel interefts, which were confidered in the light of mere contracts by the antient law, to be executed either now or hereafter, as the contracting parties fhould agree: but an eftate of freehold must be created to commence immediately. For it is an antient rule of the common law, that an cftate of freehold cannot be created to commence in futuro; but it ought to take effect prefently either in poffefsion or remainder: because at com

c Co. Litt. 49. Plowd. 25.

• 5 Rep. 94.

d Raym. 151.

L 3

mon