Hello Reader, this time Tabir Hukum will discuss about the doctrine of worthier title and seisin.
THE DOCTRINE OF WORTHIER TITLE
If O device (makes a grant of real property by will) "to A for life, remainder to A's heirs", A, as we have just seen, gets an immediate fee simple, because of the combined effect of the Rule in Shelley's Case and the doctrine of merger. What if O devises "to A for life, remainder to O's heirs" ?. The Rule in Shelley's Case does not apply, because the remainder here is not to the heirs of the person who received the life estate. But because this grant, too, might shield estate owners from feudal incidents, the courts developed the Doctrine of Worthier Title. In a grant or device of a life estate, followed, in the same instrument, by an attempted remainder to the heirs of the grantor or testator, the attempted remainder is void and the grantor or estate of the testator gets a reversion in fee simple.
Using the example of a device from O "to A for life, remainder to O's heirs", we would expect, if we didn't know about the Doctrine of Worthier Title, that A would get a life estate and O's heirs a remainder in fee simple. Because a will is effective only on the testator's death, we can identify O's heirs. Nonetheless, the Doctrine of Worthier Title transforms the remainder in the heirs into a reversion in O. Again, the heirs lose. The result is the creation of a reversion rather than a remainder.
SEISIN
Some of you may have wondered about the meaning of the word "seisin" in the feudal incident called "primer seisin". Seisin is the right to immediate possession of a freehold estate. To understand the significance of this definition, we have to distinguish three important real property concepts : ownership, possession and seisin.
One of the rights in the bundle of rights and obligation that makes up ownership is the right to immediate possession. In the absence of a claim based on ownership, the right to possession derives from the fact of physical control. To prevent free-for-alls, the law protects quiet possession, except against a claim based on ownership. Possession does not make you an owner, but in the absence of an owner, gives you rights that no one else can challenge.
With leasehold estates, the right to possession may be separated from the bundle oh rights and obligations that belongs to the owner of the fee simple. When O grant a leasehold estate in property that O owns in fee simple, O retains the fee simple in reversion but transfers the right to immediate possession to the leaseholder, L. Although L has the immediate right to possession, L does not have a freehold estate, because L's right to possession of the property at the end of L's lease, or possibly sooner if L breaches some terms of the lease, retains the freehold estate and also seisin. At common law, a leaseholder's right to possession was not seisin because seisin was the right to possession of a freehold estate. O has seisin because O has a freehold estate and the right to possession at the end of the leasehold.
In feudal times, despite L's right to possession, O was the more important person from the lord's point of view because O had sworn loyalty to the lord, and the lord looked to O for feudal services and incidents. And since lords wanted to keep track of who had seisin, at common law freehold estates could be transferred only by a formal ceremony called "feoffment by livery of seisin". Grantor and grantee went on the property where the grantor would pick up a clod of earth or a stone or a tree branch and pass it (physically) to the grantee, while uttering the appropriate words of conveyance, such as "To A and heirs". The grantor would then leave the land, transferring vacant possession to the grantee.
When only the privileged had the opportunity to became literate, and land transactions were not recorded, the public nature of the ceremony of livery of seisin helped establish the rights and obligations of the new owner in the community where they would be enforced. Indeed, some authors report that grantor and grantee would line up a group of small boys to observe the feoffment ceremony, and at the end each boy would be hit on the head to impress the occasion on his memory - a procedure that is not recommended as an aid to remembering the rules of real property.
A feofment by livery of seisin operated to transfer the right to immediate possession of freehold estate, and the grantee had to be there to take possession. When livery of seisin was the only way to transfer a freehold estate, no estate of freehold could be created to commence in the future - there could be no abeyance of seisin. But what about all those remainders and reversions ?. Although, as we shall see, the creation of equitable estates permits conveyancers to do all manner of things not permitted at common law, it is not possible to create a legal freehold estate to vest in interest in the future - an estate that is transferred in the present but in which no rights come into existence until some later time. But one can create an estate that vests in interest at the time of the grant, although enjoyment of the estate in possession is postponed until after the expiration of some intervening freehold estate.
Suppose that O, the owner of an estate in fee simple, promises on January 1 to transfer the fee simple to A on February 1. If this promise is supported by consideration, A may have some contractual remedies if O reneges on the promise, but at common law, the promise gives A no rights in the land. No transfer of the legal freehold estate will take place without livery of seisin. If livery of seisin takes place on January 1, the fee shifts irrevocably on January 1, not a month later, regardless what the parties to the transaction intended. If there is no livery of seisin, there is no transfer of rights in the land. But if O divides the full circle of rights and obligation into two parts, so as to convey one part "to A, for as long as A lives", and the rest "to B and heirs", O has divided the fee simple estate into two freehold estates, a life estates and a fee simple in remainder. O retains nothing, as A and B together have the full circle of rights and obligations that make up ownership in fee simple. Seisin is transferred immediately to the life tenant by a feoffment by livery of seisin, and, on A's death, seisin transfers to the remainderperson, without the necessity for a new feoffment.
Suppose that this conveyance took place on January 1, and A dies on February 1. For the month of January, A will own the land, subject to the restrictions on life tenants that we saw earlier. On A's death, B will be entitled to possession of the land and will have all of the other rights that go with ownership of an estate in fee simple. But B has had some rights since January 1. Since B has been given an estate that is not subject to conditions precedent or contingencies, B's estate vest in interest on January 1. B knows with certainty on January 1 that the fee simple in possession will be hers when A dies. O has already given it up. Until A dies, B owns an estate called a fee simple in remainder. Although some of the rights and obligations of ownership, such as the right to possession, are postponed until A's death, B already has an estate that can be transferred inter vivos or mortgaged or can descend to B's heirs if B dies before A. As we saw with the lease, a person can have ownership rights in property that do not include the right to possession.
But how can B receive a freehold estate on January 1 without a feoffment by livery of seisin ?. And how can A, the life tenant, transfer seisin to B, because B's right to possession arises only on A's death ?. The common law recognized the validity of B's future interest (a present estate with possession deferred to the future) if it was preceded by a freehold estate carrying an immediate right to possession. Here, the owner of the fee simple has transferred seisin to A, the life tenant, in a ceremony of livery of seisin. That ceremony suffices for all grants in the same conveyance, no matter to how many grantees. A then takes the seisin for himself, for life, and as a sort of conduit for B.
The life estate in A and the remainder in fee simple in B both vest on January 1 : the life estate vests in possession and the remainder vests in interest, with possession and postponed until the end of the life estate. While livery of seisin immediately conveyed the freehold (and the freehold could not be conveyed without livery of seisin), the conveyance divided the circle of rights and obligations between two grantees, neither of whom could exercise the full rights of fee simple ownership : the life tenant will never have them; the remainderperson will have them only at the end of the life estate. Similarly, if O granted a life estate to A and retained the fee simple in reversion, the grant would be effective at common law only with a feoffment by livery of seisin to A, who would take seisin for himself and as a conduit for its return to O at the end of the life estate. Seisin goes to the person who owns the legal freehold estate carrying the immediate right to possession.
One final and very important point to remember about seisin : seisin is a common law concept, and applies only to estates created by common law grants. We call these estates "legal estates", to distinguish them from equitable estates created by conveyance to the uses and recognized by the court of equity. The rules about seisin do not restrict the creation of equitable interests in land, so long as there is someone seised of a supporting legal estate.
Umpteen posts of tabir hukum about the doctrine of worthier title and seisin, hopefully the writing of tabir hukum about the doctrine of worthier title and seisin can be beneficial.
Books : In Writing Tabir Hukum :
Alan M. Sinclair and Margaret E. McCallum, 2005. An Introduction to Real Property Law (Fifth Edition). LexisNexis : Canada.
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| Figure Property Law : Freehold Estates - The Doctrine of Worthier Title and Seisin |
