CHAPTER 4

FREEHOLD ESTATES

I. INTRODUCTION

A.  Feudalism in brief:  American property law is in large part derived from English land law. English land law, in turn, is in important part a product of English society as it existed during the Middle Ages. In particular, it is helpful to understand a little bit about feudalism, which was the economic structure of England during at least the 13th through the 15th Centuries.

1. Nature of feudalism:  In feudal times, all land was treated as owned, in the first instance, by the king. He then in turn gave possession (but not what we would consider untrammeled ownership) of various parcels to his lords and barons, who had a corresponding obligation to provide the king with a certain number of soldiers (knights).

a. Subinfeudation:  Each lord then had the right to give possession of a parcel to an underling, in return for either production of a certain number of soldiers, or for other services (e.g., farming of the parcel). The party receiving possession was said to be a vassal. His holding of the land was said to be in tenure. He could in turn give possession of this land to someone else, creating a new tenure. This process of tenures within tenures was called subinfeudation.

b. No substitution:  The key aspect of subinfeudation was that each person in the chain who at one point held possession kept his place in the chain. Thus if A held Blackacre “of the king” (i.e., the grant of the land by the king was directly to A), and A wished to give possession to B, he made sure that B held in tenure from him, not from the king. That is, B had to render his services (e.g., production of knights) directly to A, not to the king.

c. Incidents of tenure:  A tenant (one who had possession) owed certain duties to his lord, and had certain liabilities to him. These duties and liabilities were known as the “incidents of tenure.” For instance, under the incident of “wardship,” if a tenant died leaving an heir under 21, the lord automatically got to be the heir’s guardian, and was entitled to possess the land (and collect its rents and profits) until the heir turned 21. Similarly, under the incident of “relief,” when a tenant died, his heir had to pay the lord a sum (e.g., a year’s rent) to gain possession of his inheritance. See generally DKA&S, pp. 187-89.

d. Tax evasion, and combatting it:  Many of the rules we will encounter during this chapter were responses by the king and the high-level lords to attempts by rich landpossessors to evade the feudal incidents of tenure, and thereby in effect to evade taxes. Id. at 189-190. For instance, the Statute of Uses (infra, p. 88) was such an anti-tax evasion measure.