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Property I
Rutgers University, Newark School of Law
Sclar, Diana

I. Up from Feudalism
II. Tenure – a person’s position in terms of their of their relationship to the land
i. King – Tenant in Chief – Mesne Lord – Tenant in Demesne
ii. Tenants in Chief had to provide Services to the King usually by subinfeudation
iii. Seisin – freeholders (which included fee simple, fee tail, and life estate) had possessory use of the land and it could be only be transferred by “livery of seisin”
iv. Freehold = fee simple, fee tail, and life estate (responsible for feudal incidence and services)
v. Nonfreehold = leasehold interest (no feudal services or incidence only possession)

III. Feudal tenures and services (military, economic or socage and support of the church or frankalmoign)
1) Even though they were sometimes nominal they were important because they were evidence of tenure relationship.
2) Villeinage was unfree tenure – the servants on king and lords manor

IV. Feudal Incidents – fixed obligations that kept pace with inflation and maintained value

1) Homage and Fealty – got protection from allegiance
2) Aids – Lords Financial Emergency are limited to 3 occasions -ransoming lord captors, knighting of eldest son, marriage of eldest daughter
3) Forfeiture – if breached oath or refused services Land taken away
4) Wardship and marriage – when tenant died Lord became heir’s guardian, keeping profits of the land until heir is of age (21) and has the ability to sell heir in marriage
5) Relief – when a tenant diespayment heirs had to pay lord to claim their rightful inheritance once they come of age (maybe a years rent)
6) Escheat – when tenant died without heirs, land goes to the lord, (in modern the land goes to the state)

V. Avoidance of Taxes (feudal incidents) continuing effort to avoid taxes
§ Substitution (analogous to assignment) – a tenant who did not want to remain in the feudal ladder could substitute another tenant in his place with his lord’s consent. (Different for subinfeudation in that with substitution the tenant substituted another tenant in his place in the feudal ladder, whereas with subinfeudation the tenant created a new tenant beneath him. (O to A and A substitutes B, If B does fulfill services then A owes a personal obligation to O and not a land obligation)
§ Subinfeudation (analogous to sublease) – (when a tenant subinfeudates became mesne or middle lord) new tenant under you that provides you the services and allows you to avoid feudal incidents.
o If O subinfeudates to A, A must perform services, and A will have the right to current enjoyment of the land. O gives up his right to present possession. A may then subinfeudate to B. If A fails to perform services to O and B refuses or is unable, then O may remove B from the land.
o “A tenant in chief and a lesser tenant could not shift a service from the land, which was forfeited if the services were not performed.”

VI. Statute Quia Emptores (1290) prohibited subinfeudation in fee simple
§ Allowed substitution without consent so it increased alienability but allowed more land to be directly owned by King
§ Alienability is desirable because other wise B will not agree to buy land if it’ll only last as long as A lives

VII. The Fee Simple
A. Fee Simple– (to “A and his heirs”), an interest in land that may endure forever; was created b/c the estate no longer escheated to O, unless A died w/o heirs.
i. The fee simple is absolute ownership, to convey at will, and to be reached by creditors.
ii. The heirs have no pre

G. Cole v. Steinlauf (Buying a Lawsuit: “Cloud on title)
i. Facts: D and P entered into K for sale of property. K indicated that if title had a defect, P could reject the K and all fees would be repaid. Title mistakenly said “and assigns forever” instead of “heirs” (the defect) which would make the conveyance a fee simple. ∏ wants discharge from the acceptance of deed an all monies expended.
ii. Issue: did deed convey the real estate to P w/o a flaw that would eventually make the title unmarketable.
iii. Holding: The title is unmarketable b/c it is ambiguous; it places an intolerable burden at a future time to make ∏ prove the intent of the grantor. Since the deed didn’t make reference to the word “heirs” it could be construed as a life estate only.
iv. Reasoning: To create an inheritable estate in land by deed in CT the word “herirs” must be included. By common law rule, the terms “assigns forever” vests only a life estate in the grantee. You can’t determine the intent of the parties making 1945 title and you are only able to use what is on record, can’t make someone buy a lawsuit (O’s heirs might have claim to ownership by reversion). Options: (1) ∆ can attempt to track down conveyor to learn what intent was (2) See what predecessor paid for it, was it full property value which would indicate a fee simple.
Quiet Title: Makes a title free from dispute and litigation. (get clouds of title)