Quia Emptores
Encyclopedia
Quia Emptores of 1290 (medieval Latin
for "because the buyers", the incipit
of the writ
or document) was a statute
passed by Edward I
of England
that prevented tenants
from alienating their lands to others by subinfeudation
, instead requiring all tenants wishing to alienate their land to do so by substitution. Quia Emptores, along with its companion statute of Quo Warranto
, was intended to remedy land ownership disputes and consequent financial difficulties that had resulted from the decline of the traditional feudal system
during the High Middle Ages
.
of William the Conqueror
in 1086, outright title to land had become seriously clouded in many cases and was often in dispute. Furthermore, free tenants were able to grant away their land such that the Lords who held outright title of such land did not have any power over the sub-tenant to collect taxes or enforce feudal duties, a practice known as alienation
. Quia Emptores mandated that when land was alienated, the grantee was required to assume all tax and feudal obligations of the original tenant, known as substitution. By effectively ending the practice of subinfeudation, Quia Emptores hastened the end of feudalism per se in England, which had already been on the decline for quite some time. Cash rents and outright sales of land increasingly took the place of direct feudal obligations that had been made impractical and outmoded by Quia Emptores. This gave rise to the practice of livery and maintenance or bastard feudalism
, the retention and control by the nobility of land, money, soldiers and servants via direct salaries, land sales and rent payments. Such in turn was one of the underlying causes of the Wars of the Roses
, the English civil wars fought by the House of York
and House of Lancaster
for control of the English Crown from 1455 to 1485. By the mid-fifteenth century the major nobility, particularly the Houses of York and Lancaster, were able to assemble vast estates, considerable sums of money and large private armies on retainer through post-Quia Emptores land management practices and direct sales of land. The two noble Houses thus grew more powerful than the Crown itself, with the consequent wars between the two Houses for control of the realm. Ultimately the statutes of Quia Emptores and Quo Warranto became the foundation of modern real estate and landlord/tenant relations law. It was only repealed in Ireland by the Land and Conveyancing Law Reform Act, 2009.
Prior to the Norman Conquest of England
in 1066, Anglo-Saxon land law was based on allodial title
. Tribal lands were held in perpetuity
by the group as a whole. The Normans changed this system by mandating primogeniture
inheritance (the inheritance by the eldest son, at the expense of the other sons). The exact nature of allodialism as it existed in Anglo-Saxon England has been debated, but to no definitive end. On one side, it has been argued in the mark system
, that Saxon allodialism was a highly idealistic socialist state. Countering this utopian view was Numa Denis Fustel de Coulanges
in his essay "The Origins of Property in Land", and Frederic William Maitland
who found it to be inconsistent with extant Anglo-Saxon documents from pre-Norman times.
In English law after the Conquest, the lord remained a grantor after the grant of an estate in fee-simple. There was no land in England without its lord: "" was the feudal maxim. The principal incidents of a seignory
were an oath of fealty
, a quit or chief rent; a relief
of one year's quit rent, and the right of escheat
. In return, for these privileges the lord was liable to forfeit his rights if he neglected to protect and defend the tenant or did anything injurious to the feudal relation. After Quia Emptores, every existing seignory must have been created prior to the enactment of the statute.
At the time of the Conquest, William I of England
granted fiefs to his lords in the manner of a continental benefice
or feudal benefice
which assured little beyond a life tenure. These grants were in turn subject to subinfeudation
. Immediately after the Conquest, the English charters were careful to avoid saying the donee was to take the estate for life, or whether the heir was to have any rights. At this time, there is abundant evidence that lords refused to regrant on any terms to the deceased tenant's heirs; the deed phrase "to [A] and his heirs and assigns" is the product of efforts by purchasers to preserve such rights on behalf of those who might inherit or purchase the land from them. The practice of demanding a monetary payment for regranting of tenancy to the heirs quickly became the norm. In 1100, the Charter of Liberties
of Henry I of England
contained the clause:
The purpose of this charter was to establish the hereditary principle that the tenants in chief would have a superior status within the law as opposed to the sub-tenants. These overlords further subinfeudated those under them.
Relief later was set at a rate per fee in the Magna Carta
.
The intent of primogeniture
inheritance was to keep large land holdings in the hands of a relatively few, trustworthy lords. In reality, the whole feudal structure was a patchwork of smaller land holders. The history of the major landholding lords is fairly well recorded. The nature of the smaller landholders has been difficult to reconstruct. By the time of Bracton
, it was settled law that the word "fee
" connoted inheritability and the maximum of legal ownership. The word "fee" is associated with the Norman feudal system and is in contradistinction to the Anglo-Saxon
allodial system. It became common practice to subinfeudate to the younger sons. There are cases from the time, in which a writ of the court was granted demanding that the eldest, inheriting son be forced to "accept in homage
" the younger sons as a way of enforcing their subinfeudation.
The usage of land by tenants (serfs and peasants) was more difficult. Some families stayed on the land for generations. When the nominal head of the family died, it was usually of little consequence to the lord, or the owners of the title to the land. The practice of socage
whereby the peasants pledged a payment (either in agricultural goods or money) for the privilege to inhabit and farm the land became the standard practice. After the payment, the peasant was considered "soked", that is, paid in full. It was discovered that agricultural land would be more economically tended if the peasants were assured an inheritance of the land to their descendants. This right to inherit was quickly followed by the right to alienation, i.e. the right to sell the inheritance to an outside party. Disputes arose when a family member wanted to leave inherited land to the Church, or wanted to sell the land to a third party. Questions concerning the rights of the overlord and the other family members were frequently heard in the courts prior to Quia Emptores. In general, it was held that a donor should pay the other parties who had an interest to give them relief. However, the results were haphazard and the rulings of various courts were patchwork. There was little established stare decisis
from jurisdiction to jurisdiction.
This difficulty is illustrated in statements made by Ranulf de Glanvill (died 1190), the chief Justiciar
of Henry II
:
It has been commented that this illustrates a desire in Glanvill's time to formalize the practices of the day, in which someone having a tenancy could dispose of his land before death. While several problems were addressed (land given in marriage, land given on a whim, or on a death bed), the rules were still vague, when compared to similar cases in contemporaneous France. In the latter, strict rules had arisen defining exact amounts which could be allotted in situations such as "alienation of one-third, or alienation of one-half" of a patrimony
or conquest. Glanvill is imprecise, using terms such as "a reasonable amount" and "a certain part".
Quia Emptores was a kind of legislative afterthought meant to rectify confusion in:
It indirectly affected the practices of:
Statute Quia Emptores is but one of a long list of legislative acts from the reign of Edward I of England
which had the purpose of concentrating power in the monarchy. England had a plethora of courts and varying legal traditions. Some direction toward order had been laid down in the Magna Carta
, the Provisions of Oxford
, and in the scanty legislation of Simon de Montfort, 6th Earl of Leicester
. Edward I set about to rationalize and modernize the law. He reigned for thirty-five years. The first period, from 1272-90 consisted of the enactment of Statute of Westminster 1275 (1275) and the Statute of Gloucester
(1278), and the incorporation of recently conquered Wales into the realm. These were followed by the Statute Quo Warranto
and the Statute of Mortmain (1279). The latter was designed to stop the increasing amount of lands which were ending up in Church ownership. The Statute of Westminster 1285
(1285) contained the clause De Donis Conditionalibus
which shaped the system of entailing estates. The Statute of Winchester was passed in 1285. This was followed by the Statute Quia Emptores (1290), which was only about 500 words in length. It was meant to deal with various unsettled complications. It provided that subtenants could not be allowed to alienate land to other persons while retaining the nominal possession and feudal rights over it. The seller had to relinquish all rights and duties to the new buyer, and retained nothing. This was the end of subinfeudation. The middle lords or mesne
lords (who could be common persons) and had granted land for service to those lower on the social scale could no longer exist. The old feudal sequence was: the King granted land to a great lord, who then granted to lesser lords or commoners, who in turn repeated the process, becoming lesser lords (mesne lords) themselves. This was subinfeudation. The effect was to make the transfer of land a completely commercial transaction, and not one of feudalism. There were no provisions placed upon the Crown.
Quia Emptores ended the ancient practice of frankalmoign whereby lands could be donated to a Church organization to be held in perpetuity. Frankalmoign created a tenure whereby the holder (the Church) was exempt from all services, except trinoda necessitas
. Quia Emptores allowed no new tenure in frankalmoign, except by the Crown. The issues arising from frankalmoign had been addressed by the Statute of Mortmain. Quia Emptores took Mortmain one step further by banning outright, the formation of new tenures, except by the Crown.
The questions inevitably arise about the Statute Quia Emptores: was it proactive or reactive? And who benefited: King, lords or free tenants? Historians are still divided. But it is logical to conclude that Quia Emptores attempted to formalize practices of exchanging money for land, which had been going on for some centuries. There were other problems in inheritance which had festered since the time of William I. In a proclamation from 1066, William swept away the entire tradition of familial or allodial inheritance by claiming that "every child be his father's heir." The reality was different, and resulted in primogeniture inheritance. The reorganization of the country along the lines of feudalism was both shocking and difficult. Traitors forfeited their land to the Crown. This principle was designed to weaken opposition to the Crown. Frequently, it punished innocent members of the traitor's family. This was not popular. There was a saying from Kent: "Father to the bough, son to the plough (the father hanged for treason, the son continues to work the land)." The rule in Kent was that confiscated lands would be restored to the innocent family members. Seized lands throughout England were often restored to the family, despite what royal decrees may have indicated. It is arguable that the institution of inheritance and subsequent alienation rights by tenants ended feudalism in England. Quia Emptores only formalized that end. In essence, feudalism was turned on its head. The ones with the apparent rights were the tenant class, while the great lords were still beholden to Crown.
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The issue of alienation of serjeanty
had been settled long before Quia Emptores. In 1198 the itinerant justices were directed to make an inquiry into the nature of the King's serjeanties. This was repeated in 1205 by King John
who ordered the seizure of all Lancaster serjeanties, thegnages and dregnages that had been alienated since the time of Henry II of England
. These could not be alienated without a royal license. The Charter of 1217 reaffirmed this doctrine. Henry III of England
issued an important ordinance in 1256. In it the King asserted that it was an intolerable invasion of royal rights that men should without his special consent, enter by way of purchase or otherwise, the baronies and fees that were holden to him in chief. Anyone who defied the decree was subject to seizure by the sheriff. Later case law indicates jurists remained largely ignorant of this decree, which suggests the Crown was reluctant to enforce it.
Quia Emptores addressed the question of outright sales of land rights. It declared that every freeman might sell his tenement or any part of it, but in such a manner that the feoffee
should hold the same lord and by the same services, of whom and by which the feoffor held. In case only a part was sold, the services were to be apportioned between the part sold and the part retained in accordance with their quantities.
The Statute was considered a compromise. It allowed a continuance of the practice of selling (alienating) land, tenancy, rights and privileges for money or other value, but by substitution. One tenant could be replaced by many. In this, the great lords were forced to concede to the right of alienation to the tenants. They had been at risk of losing their services by apportionment
and economic dilution. This practice had been going on for some time. Quia Emptores merely attempted to rationalize and control these practices. The great lords gained by ending the practice of subinfeudation with its consequent depreciation of escheat
, wardship and marriage
. History would indicate the great lords were winners as well as the Crown, since land bought from lowly tenants had a tendency to stay within their families, as has been noted supra.
Nothing in Quia Emptores addressed the King's rights. No-one seemed to have imagined that the tenants in chief of the crown were set free to alienate without royal license. On the contrary, at the time the right of alienation by substitution was being set in Statute, the King's claim to restrain any alienation by his tenants was strengthened. In the opinion of Pollack and Maitland, it is a mistake to conclude that Quia Emptores was enacted in the interest of the great lords. The one person who had all to gain and nothing to lose was the King.
The process of escheat
was affected by Quia Emptores. In Glanvill's day, there was an occasional mention of ultimus heres; the land escheats (excadere) to the lord in the absence of a clear tenant heir. If a tenant was outlawed or convicted of a felony the King could exercise the ancient right of wasting the criminal's land for a year and a day. After that, the land returned to the lord. There was a distinction between felony and treason. One guilty of treason forfeited all lands to the King. John and his heirs frequently insisted on seizing terrae Normannorum, "lands of the Normans", the English land of those who preferred to be Frenchmen rather than Englishmen when the victories of Philip Augustus
forced a proclamation of allegiance. Frequently, disavowal of a feudal bond was considered a felony. In this, the lords could escheat land from those who refused to be true to their feudal services. On the other hand, there were tenants who were sluggish in performing their duties, while not being outright rebellious against the lord. Remedies in the courts against this sort of thing, even in Bracton
's day, were available. But they were considered laborious, and frequently ineffectual in compelling the desired performance. The commonest mechanism would be distraint
, also called distress (districtio): the lord would seize some chattel, and hold it until performance was achieved. This practice had been dealt with in the 1267 Statute of Marlborough
. Even so, it remained the most common extrajudicial method applied by the lords at the time of Quia Emptores.
Expulsion of tenants from the land for failure to perform was always a difficult idea, and usually necessitated a lengthy court battle. The lord who escheated could not profit from the land, and had to hold it open for the tenant who could fulfill the obligation at a future date. Quia Emptores laid out, with some definition which had previously been lacking in the issue of tenures. In a sense, the old stereotypes were locked in place. Every feoffment made by a new tenant could not be in frankalmoign, since the donee was a layman; it would be reckoned by the laws of socage
. Socage grew at the expense of frankalmoign. Subinfeudation was ended. The tenant in chief could not alienate without the license of the King. Petty serjeanty
came to be treated as "socage in effect".
The English colonies in North America were founded upon royal grants or licenses. Specifically, British colonization of North America was by charter colony
or proprietary colony
. In this sense, they were founded upon the principles outlined by Quia Emptores. The territories were granted under conditions by which English law controlled private estates of land. The colonies were royal grants. An entire province, or any part of it, could be leased, sold or otherwise disposed of like a private estate. In 1664, the Duke of York
sold New Jersey to Berkeley
and Carteret
. The sale was effected by deeds of lease and release. In 1708, William Penn
mortgaged Pennsylvania
, and under his will devising the province legal complications arose which necessitated a suit in chancery. Over time, Quia Emptores was suspended in the colonies. Arguably, certain aspects of it may still be in effect in some of the original colony states such as New York, Virginia, Maryland and Pennsylvania. However, like everything else involving Quia Emptores, opinion varies, and some element of confusion reigns. Some U.S. state court decisions have dealt with Quia Emptores. Prominent among these was the 1852 New York case of De Peyster v. Michael. There the court record is useful in describing the nature of English feudalism: "At common law a feoffment in fee did not originally pass an estate in the sense in which the term is now understood. The purchaser took only a usufructary interest, without the power of alienation in prejudice of the lord. In default of heirs, the tenure became extinct and the land reverted to the lord. Under the system of English feudal tenures, all lands in the Kingdom, were supposed to be holden mediately or immediately of the King who was styled the 'lord paramount', or above all. Such tenants as held under the King immediately, when they granted out portions of their lands to inferior persons, also became lords with respect to those inferior persons, since they were still tenants with respect to the King, and thus partaking of a middle nature were called "mesne
' or 'middle lords'. So, if the King granted a manor
to A and A granted a portion of the land to B, now B was said to hold of A, and A of the King; or in other words, B held his lands immediately of A and mediately of the King. The King was therefore styled 'Lord Paramount'; A was both tenant and lord,or a mesne lord, and B was called 'tenant paravail', or the lowest tenant. Out of the feudal tenures or holdings sprung certain rights and incidents, among those which were fealty and escheat. Both these were incidents of socage tenure. Fealty is the obligation of fidelty with the tenant owed to the lord. Escheat was the reversion of the estate on a grant in fee simple upon a failure of the heirs of the owner. Fealty was annexed to and attendant on the reversion. They were inseparable. These incidents of feudal tenure belonged to the lord of whome the lands were immediately holden, that is to say, to him of whom the owner for the time being purchased. These grants were called subinfeudations."
In this case, the New York court offered the opinion that Quia Emptores had never been effect in the colonies. A different opinion was rendered by the New York court in the 1859 case of Van Rensselaer v. Hays (19 NY 68) where is was written that Quia Emptores had always been in effect in New York and all the colonies. There, the court noted: "In the early vigor of the feudal system, a tenant in fee could not alienate the feud without the consent of the immediate superior; but this extreme rigor was soon afterward relaxed, and it was avoided by the practice of subinfeudation, which consisted in the tenant enfeoffing another to hold of himself by the fealty and such services as might be reserved by the act of feoffment. Thus, a new tenure was created upon every alienation; and thus there arose a series of lords of the same lands, the first called the 'chief lord' holding immediately of the sovereign, the next grade holding of them, and so on, each alienation creating another lord and another tenant. This practice was considered detrimental to the great lords, since it deprived them to a certain extent the fruits of their tenure, such as escheats, marriages,wardships and the like."
From 28 Am Jur 2nd Estates section 4: "The effect of Statute Quia Emptores is obvious. By declaring that every freeman might sell his lands at his own pleasure, it removed the feudal restraint which prevented the tenant from selling his land without the license of his grantor, who was his feudal lord. Hence by virtue of the Statute, passed in 1290, subinfeudation was abolished and all person except the King's tenants, in capite were left at liberty to alien all or any part of their lands at their own pleasure and discretion. Quia Emptores is by express wording, extended only to the lands held in fee simple. Included in it applications, however are leases in fee and fee farmlands. Property in the U. S., with few exceptions, is allodial. This is by virtue of state constitutional provisions, organic territorial acts incorporated into legal systems of states subsequently organized, statutes and decisions of the courts. They are subject to escheat only in the event of failure of successors in ownership."
In the 1913 case of Miller v. Miller, the Kansas court stated: "Feudal tenures do not and cannot exist. All tenures in Kansas are allodial."
The Supreme Court of Michigan expressed the opinion that whether Statute Quia Emptores ever became effectual in any part of the United States by express or implied adoption or as part of the common law did not have to be ascertained. It was clear that no such statute was ever needed in Michigan or in any of the western states, because no possibility of reverter or escheat in the party converying an estate ever existed. Al all times, escheat could only accrue to the sovereign, which in Michigan, is the state.
The Statute Quia Emptores was stated not to be in effect in the state of Pennsylvania in Cuthbert v. Kuhn
The New York Constitution makes any question of Quia Emptores moot by stating: "all lands within this state are declared allodial, so that, subject only to liability to escheat, the entire and absolute property is vested in the owners, according to the nature of their respective estates."
Although it is a matter of debate whether Quia Emptores was the effective law within the colonies, the effect of the Statute is still present in United States land laws. Without a doubt, the U.S. Constitution, and various state constitutions and legislative acts have made Quia Emptores moribund in fact. But the language of land law still sounds medieval, and takes its concepts from the time of Edward I and before. The following list of words common in U.S. land law are from Norman England (with their modern meaning in the United States):
The terms "fee", "fee tail", "fee tail estate", "fee tail tenant", "fee simple" and the like are essentially the same as they were defined in De Donis Conditionalibus
in 1285.
There are four kinds of deeds in common usage:
The last two are directly related to Quia Emptores. Other changes came after the Statute of Uses
, 1535 and the Statute of Frauds
.
Medieval Latin
Medieval Latin was the form of Latin used in the Middle Ages, primarily as a medium of scholarly exchange and as the liturgical language of the medieval Roman Catholic Church, but also as a language of science, literature, law, and administration. Despite the clerical origin of many of its authors,...
for "because the buyers", the incipit
Incipit
Incipit is a Latin word meaning "it begins". The incipit of a text, such as a poem, song, or book, is the first few words of its opening line. In music, it can also refer to the opening notes of a composition. Before the development of titles, texts were often referred to by their incipits...
of the writ
Writ
In common law, a writ is a formal written order issued by a body with administrative or judicial jurisdiction; in modern usage, this body is generally a court...
or document) was a statute
Statute
A statute is a formal written enactment of a legislative authority that governs a state, city, or county. Typically, statutes command or prohibit something, or declare policy. The word is often used to distinguish law made by legislative bodies from case law, decided by courts, and regulations...
passed by Edward I
Edward I of England
Edward I , also known as Edward Longshanks and the Hammer of the Scots, was King of England from 1272 to 1307. The first son of Henry III, Edward was involved early in the political intrigues of his father's reign, which included an outright rebellion by the English barons...
of England
Kingdom of England
The Kingdom of England was, from 927 to 1707, a sovereign state to the northwest of continental Europe. At its height, the Kingdom of England spanned the southern two-thirds of the island of Great Britain and several smaller outlying islands; what today comprises the legal jurisdiction of England...
that prevented tenants
Tenement (law)
A tenement , in law, is anything that is held, rather than owned. This usage is a holdover from feudalism, which still forms the basis of all real-estate law in the English-speaking world, in which the monarch alone owned the allodial title to all the land within his kingdom.Under feudalism, land...
from alienating their lands to others by subinfeudation
Subinfeudation
In English law, subinfeudation is the practice by which tenants, holding land under the king or other superior lord, carved out new and distinct tenures in their turn by sub-letting or alienating a part of their lands....
, instead requiring all tenants wishing to alienate their land to do so by substitution. Quia Emptores, along with its companion statute of Quo Warranto
Quo warranto
Quo warranto is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power they claim to hold.-History:...
, was intended to remedy land ownership disputes and consequent financial difficulties that had resulted from the decline of the traditional feudal system
Feudalism
Feudalism was a set of legal and military customs in medieval Europe that flourished between the 9th and 15th centuries, which, broadly defined, was a system for ordering society around relationships derived from the holding of land in exchange for service or labour.Although derived from the...
during the High Middle Ages
High Middle Ages
The High Middle Ages was the period of European history around the 11th, 12th, and 13th centuries . The High Middle Ages were preceded by the Early Middle Ages and followed by the Late Middle Ages, which by convention end around 1500....
.
Overview
As there had been no survey of land titles since the Domesday BookDomesday Book
Domesday Book , now held at The National Archives, Kew, Richmond upon Thames in South West London, is the record of the great survey of much of England and parts of Wales completed in 1086...
of William the Conqueror
William I of England
William I , also known as William the Conqueror , was the first Norman King of England from Christmas 1066 until his death. He was also Duke of Normandy from 3 July 1035 until his death, under the name William II...
in 1086, outright title to land had become seriously clouded in many cases and was often in dispute. Furthermore, free tenants were able to grant away their land such that the Lords who held outright title of such land did not have any power over the sub-tenant to collect taxes or enforce feudal duties, a practice known as alienation
Alienation (property law)
Alienation, in property law, is the capacity for a piece of property or a property right to be sold or otherwise transferred from one party to another. Although property is generally deemed to be alienable, it may be subject to restraints on alienation....
. Quia Emptores mandated that when land was alienated, the grantee was required to assume all tax and feudal obligations of the original tenant, known as substitution. By effectively ending the practice of subinfeudation, Quia Emptores hastened the end of feudalism per se in England, which had already been on the decline for quite some time. Cash rents and outright sales of land increasingly took the place of direct feudal obligations that had been made impractical and outmoded by Quia Emptores. This gave rise to the practice of livery and maintenance or bastard feudalism
Bastard feudalism
Bastard feudalism is a term that has been used to describe feudalism in the Late Middle Ages, primarily in England. Its main characteristic is military, political, legal, or domestic service in return for money, office, and/or influence...
, the retention and control by the nobility of land, money, soldiers and servants via direct salaries, land sales and rent payments. Such in turn was one of the underlying causes of the Wars of the Roses
Wars of the Roses
The Wars of the Roses were a series of dynastic civil wars for the throne of England fought between supporters of two rival branches of the royal House of Plantagenet: the houses of Lancaster and York...
, the English civil wars fought by the House of York
House of York
The House of York was a branch of the English royal House of Plantagenet, three members of which became English kings in the late 15th century. The House of York was descended in the paternal line from Edmund of Langley, 1st Duke of York, the fourth surviving son of Edward III, but also represented...
and House of Lancaster
House of Lancaster
The House of Lancaster was a branch of the royal House of Plantagenet. It was one of the opposing factions involved in the Wars of the Roses, an intermittent civil war which affected England and Wales during the 15th century...
for control of the English Crown from 1455 to 1485. By the mid-fifteenth century the major nobility, particularly the Houses of York and Lancaster, were able to assemble vast estates, considerable sums of money and large private armies on retainer through post-Quia Emptores land management practices and direct sales of land. The two noble Houses thus grew more powerful than the Crown itself, with the consequent wars between the two Houses for control of the realm. Ultimately the statutes of Quia Emptores and Quo Warranto became the foundation of modern real estate and landlord/tenant relations law. It was only repealed in Ireland by the Land and Conveyancing Law Reform Act, 2009.
Background leading to the statute Quia Emptores
England
England is a country that is part of the United Kingdom. It shares land borders with Scotland to the north and Wales to the west; the Irish Sea is to the north west, the Celtic Sea to the south west, with the North Sea to the east and the English Channel to the south separating it from continental...
in 1066, Anglo-Saxon land law was based on allodial title
Allodial title
Allodial title constitutes ownership of real property that is independent of any superior landlord, but it should not be confused with anarchy as the owner of allodial land is not independent of his sovereign...
. Tribal lands were held in perpetuity
Perpetuity
A perpetuity is an annuity that has no end, or a stream of cash payments that continues forever. There are few actual perpetuities in existence...
by the group as a whole. The Normans changed this system by mandating primogeniture
Primogeniture
Primogeniture is the right, by law or custom, of the firstborn to inherit the entire estate, to the exclusion of younger siblings . Historically, the term implied male primogeniture, to the exclusion of females...
inheritance (the inheritance by the eldest son, at the expense of the other sons). The exact nature of allodialism as it existed in Anglo-Saxon England has been debated, but to no definitive end. On one side, it has been argued in the mark system
Mark system
The mark system is a social organization that rests on the common tenure and common cultivation of the land by small groups of freemen. Both politically and economically the mark was an independent community, and its earliest members were doubtless blood relatives. In its origin the word is the...
, that Saxon allodialism was a highly idealistic socialist state. Countering this utopian view was Numa Denis Fustel de Coulanges
Numa Denis Fustel de Coulanges
Numa Denis Fustel de Coulanges was a French historian.Born in Paris, of Breton descent, after studying at the École Normale Supérieure he was sent to the French School at Athens in 1853, he directed some excavations in Chios, and wrote an historical account of the island.After his return he filled...
in his essay "The Origins of Property in Land", and Frederic William Maitland
Frederic William Maitland
Frederic William Maitland was an English jurist and historian, generally regarded as the modern father of English legal history.-Biography:...
who found it to be inconsistent with extant Anglo-Saxon documents from pre-Norman times.
In English law after the Conquest, the lord remained a grantor after the grant of an estate in fee-simple. There was no land in England without its lord: "" was the feudal maxim. The principal incidents of a seignory
Seignory
In English law, Seignory or seigniory , the lordship remaining to a grantor after the grant of an estate in fee simple....
were an oath of fealty
Fealty
An oath of fealty, from the Latin fidelitas , is a pledge of allegiance of one person to another. Typically the oath is made upon a religious object such as a Bible or saint's relic, often contained within an altar, thus binding the oath-taker before God.In medieval Europe, fealty was sworn between...
, a quit or chief rent; a relief
Feudal relief
Feudal Relief was a one-off "fine" or form of taxation payable to an overlord by the heir of a feudal tenant to licence him to take possession of his fief, i.e. an estate-in-land, by inheritance...
of one year's quit rent, and the right of escheat
Escheat
Escheat is a common law doctrine which transfers the property of a person who dies without heirs to the crown or state. It serves to ensure that property is not left in limbo without recognised ownership...
. In return, for these privileges the lord was liable to forfeit his rights if he neglected to protect and defend the tenant or did anything injurious to the feudal relation. After Quia Emptores, every existing seignory must have been created prior to the enactment of the statute.
At the time of the Conquest, William I of England
William I of England
William I , also known as William the Conqueror , was the first Norman King of England from Christmas 1066 until his death. He was also Duke of Normandy from 3 July 1035 until his death, under the name William II...
granted fiefs to his lords in the manner of a continental benefice
Benefice
A benefice is a reward received in exchange for services rendered and as a retainer for future services. The term is now almost obsolete.-Church of England:...
or feudal benefice
Benefice
A benefice is a reward received in exchange for services rendered and as a retainer for future services. The term is now almost obsolete.-Church of England:...
which assured little beyond a life tenure. These grants were in turn subject to subinfeudation
Subinfeudation
In English law, subinfeudation is the practice by which tenants, holding land under the king or other superior lord, carved out new and distinct tenures in their turn by sub-letting or alienating a part of their lands....
. Immediately after the Conquest, the English charters were careful to avoid saying the donee was to take the estate for life, or whether the heir was to have any rights. At this time, there is abundant evidence that lords refused to regrant on any terms to the deceased tenant's heirs; the deed phrase "to [A] and his heirs and assigns" is the product of efforts by purchasers to preserve such rights on behalf of those who might inherit or purchase the land from them. The practice of demanding a monetary payment for regranting of tenancy to the heirs quickly became the norm. In 1100, the Charter of Liberties
Charter of Liberties
The Charter of Liberties, also called the Coronation Charter, was a written proclamation by Henry I of England, issued upon his accession to the throne in 1100. It sought to bind the King to certain laws regarding the treatment of church officials and nobles...
of Henry I of England
Henry I of England
Henry I was the fourth son of William I of England. He succeeded his elder brother William II as King of England in 1100 and defeated his eldest brother, Robert Curthose, to become Duke of Normandy in 1106...
contained the clause:
The purpose of this charter was to establish the hereditary principle that the tenants in chief would have a superior status within the law as opposed to the sub-tenants. These overlords further subinfeudated those under them.
Relief later was set at a rate per fee in the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
.
The intent of primogeniture
Primogeniture
Primogeniture is the right, by law or custom, of the firstborn to inherit the entire estate, to the exclusion of younger siblings . Historically, the term implied male primogeniture, to the exclusion of females...
inheritance was to keep large land holdings in the hands of a relatively few, trustworthy lords. In reality, the whole feudal structure was a patchwork of smaller land holders. The history of the major landholding lords is fairly well recorded. The nature of the smaller landholders has been difficult to reconstruct. By the time of Bracton
Henry de Bracton
Henry of Bracton, also Henry de Bracton, also Henrici Bracton, or Henry Bratton also Henry Bretton was an English jurist....
, it was settled law that the word "fee
Fee
A fee is the price one pays as remuneration for services. Fees usually allow for overhead, wages, costs, and markup.Traditionally, professionals in Great Britain received a fee in contradistinction to a payment, salary, or wage, and would often use guineas rather than pounds as units of account...
" connoted inheritability and the maximum of legal ownership. The word "fee" is associated with the Norman feudal system and is in contradistinction to the Anglo-Saxon
Anglo-Saxon
Anglo-Saxon may refer to:* Anglo-Saxons, a group that invaded Britain** Old English, their language** Anglo-Saxon England, their history, one of various ships* White Anglo-Saxon Protestant, an ethnicity* Anglo-Saxon economy, modern macroeconomic term...
allodial system. It became common practice to subinfeudate to the younger sons. There are cases from the time, in which a writ of the court was granted demanding that the eldest, inheriting son be forced to "accept in homage
Homage
Homage is a show or demonstration of respect or dedication to someone or something, sometimes by simple declaration but often by some more oblique reference, artistic or poetic....
" the younger sons as a way of enforcing their subinfeudation.
The usage of land by tenants (serfs and peasants) was more difficult. Some families stayed on the land for generations. When the nominal head of the family died, it was usually of little consequence to the lord, or the owners of the title to the land. The practice of socage
Socage
Socage was one of the feudal duties and hence land tenure forms in the feudal system. A farmer, for example, held the land in exchange for a clearly defined, fixed payment to be made at specified intervals to his feudal lord, who in turn had his own feudal obligations, to the farmer and to the Crown...
whereby the peasants pledged a payment (either in agricultural goods or money) for the privilege to inhabit and farm the land became the standard practice. After the payment, the peasant was considered "soked", that is, paid in full. It was discovered that agricultural land would be more economically tended if the peasants were assured an inheritance of the land to their descendants. This right to inherit was quickly followed by the right to alienation, i.e. the right to sell the inheritance to an outside party. Disputes arose when a family member wanted to leave inherited land to the Church, or wanted to sell the land to a third party. Questions concerning the rights of the overlord and the other family members were frequently heard in the courts prior to Quia Emptores. In general, it was held that a donor should pay the other parties who had an interest to give them relief. However, the results were haphazard and the rulings of various courts were patchwork. There was little established stare decisis
Stare decisis
Stare decisis is a legal principle by which judges are obliged to respect the precedents established by prior decisions...
from jurisdiction to jurisdiction.
This difficulty is illustrated in statements made by Ranulf de Glanvill (died 1190), the chief Justiciar
Justiciar
In medieval England and Ireland the Chief Justiciar was roughly equivalent to a modern Prime Minister as the monarch's chief minister. Similar positions existed on the Continent, particularly in Norman Italy. The term is the English form of the medieval Latin justiciarius or justitiarius In...
of Henry II
Henry II of England
Henry II ruled as King of England , Count of Anjou, Count of Maine, Duke of Normandy, Duke of Aquitaine, Duke of Gascony, Count of Nantes, Lord of Ireland and, at various times, controlled parts of Wales, Scotland and western France. Henry, the great-grandson of William the Conqueror, was the...
:
It has been commented that this illustrates a desire in Glanvill's time to formalize the practices of the day, in which someone having a tenancy could dispose of his land before death. While several problems were addressed (land given in marriage, land given on a whim, or on a death bed), the rules were still vague, when compared to similar cases in contemporaneous France. In the latter, strict rules had arisen defining exact amounts which could be allotted in situations such as "alienation of one-third, or alienation of one-half" of a patrimony
Property
Property is any physical or intangible entity that is owned by a person or jointly by a group of people or a legal entity like a corporation...
or conquest. Glanvill is imprecise, using terms such as "a reasonable amount" and "a certain part".
The statute Quia Emptores
- land tenureLand tenureLand tenure is the name given, particularly in common law systems, to the legal regime in which land is owned by an individual, who is said to "hold" the land . The sovereign monarch, known as The Crown, held land in its own right. All private owners are either its tenants or sub-tenants...
- frankalmoign
- subinfeudationSubinfeudationIn English law, subinfeudation is the practice by which tenants, holding land under the king or other superior lord, carved out new and distinct tenures in their turn by sub-letting or alienating a part of their lands....
- mesneMesneMesne , middle or intermediate, an adjective used in several legal phrases....
lords - petty serjeantySerjeantyUnder the feudal system in late and high medieval England, tenure by serjeanty was a form of land-holding in return for some specified service, ranking between tenure by knight-service and tenure in socage...
- substitution
- apportionmentApportionmentThe legal term apportionment means distribution or allotment in proper shares.It is a term used in law in a variety of senses...
- economic delution
It indirectly affected the practices of:
- distraintDistraintDistraint or distress is "the seizure of someone’s property in order to obtain payment of rent or other money owed", especially in common law countries...
(also called: distress or districtio), previously legislated for in the Statute of MarlboroughStatute of MarlboroughThe Statute of Marlborough was a set of laws passed by King Henry III of England in 1267. There were twenty-nine chapters, of which four are still in force...
(1267) - escheatEscheatEscheat is a common law doctrine which transfers the property of a person who dies without heirs to the crown or state. It serves to ensure that property is not left in limbo without recognised ownership...
- wardship
- marriageMarriageMarriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
- socageSocageSocage was one of the feudal duties and hence land tenure forms in the feudal system. A farmer, for example, held the land in exchange for a clearly defined, fixed payment to be made at specified intervals to his feudal lord, who in turn had his own feudal obligations, to the farmer and to the Crown...
Statute Quia Emptores is but one of a long list of legislative acts from the reign of Edward I of England
Edward I of England
Edward I , also known as Edward Longshanks and the Hammer of the Scots, was King of England from 1272 to 1307. The first son of Henry III, Edward was involved early in the political intrigues of his father's reign, which included an outright rebellion by the English barons...
which had the purpose of concentrating power in the monarchy. England had a plethora of courts and varying legal traditions. Some direction toward order had been laid down in the Magna Carta
Magna Carta
Magna Carta is an English charter, originally issued in the year 1215 and reissued later in the 13th century in modified versions, which included the most direct challenges to the monarch's authority to date. The charter first passed into law in 1225...
, the Provisions of Oxford
Provisions of Oxford
The Provisions of Oxford are often regarded as England's first written constitution ....
, and in the scanty legislation of Simon de Montfort, 6th Earl of Leicester
Simon de Montfort, 6th Earl of Leicester
Simon de Montfort, 6th Earl of Leicester, 1st Earl of Chester , sometimes referred to as Simon V de Montfort to distinguish him from other Simon de Montforts, was an Anglo-Norman nobleman. He led the barons' rebellion against King Henry III of England during the Second Barons' War of 1263-4, and...
. Edward I set about to rationalize and modernize the law. He reigned for thirty-five years. The first period, from 1272-90 consisted of the enactment of Statute of Westminster 1275 (1275) and the Statute of Gloucester
Statute of Gloucester
Statute of Gloucester is one of the most important pieces of legislation enacted in the Parliament of England during the reign of Edward I. The Statute, proclaimed at Gloucester in August 1278, was crucial to the development of English law....
(1278), and the incorporation of recently conquered Wales into the realm. These were followed by the Statute Quo Warranto
Quo warranto
Quo warranto is a prerogative writ requiring the person to whom it is directed to show what authority they have for exercising some right or power they claim to hold.-History:...
and the Statute of Mortmain (1279). The latter was designed to stop the increasing amount of lands which were ending up in Church ownership. The Statute of Westminster 1285
Statute of Westminster 1285
The Statute of Westminster of 1285, like the Statute of Westminster 1275, is a code in itself, and contains the famous clause De donis conditionalibus , one of the fundamental institutes of the medieval land law of England...
(1285) contained the clause De Donis Conditionalibus
De donis conditionalibus
De donis conditionalibus is the chapter of the English Statutes of Westminster which originated the law of entail.Strictly speaking, a form of entail was known before the Norman feudal law had been domesticated in England...
which shaped the system of entailing estates. The Statute of Winchester was passed in 1285. This was followed by the Statute Quia Emptores (1290), which was only about 500 words in length. It was meant to deal with various unsettled complications. It provided that subtenants could not be allowed to alienate land to other persons while retaining the nominal possession and feudal rights over it. The seller had to relinquish all rights and duties to the new buyer, and retained nothing. This was the end of subinfeudation. The middle lords or mesne
Mesne
Mesne , middle or intermediate, an adjective used in several legal phrases....
lords (who could be common persons) and had granted land for service to those lower on the social scale could no longer exist. The old feudal sequence was: the King granted land to a great lord, who then granted to lesser lords or commoners, who in turn repeated the process, becoming lesser lords (mesne lords) themselves. This was subinfeudation. The effect was to make the transfer of land a completely commercial transaction, and not one of feudalism. There were no provisions placed upon the Crown.
Quia Emptores ended the ancient practice of frankalmoign whereby lands could be donated to a Church organization to be held in perpetuity. Frankalmoign created a tenure whereby the holder (the Church) was exempt from all services, except trinoda necessitas
Trinoda necessitas
Trinoda necessitas is a Latin term used to refer to a "threefold tax" in Anglo-Saxon times. Subjects of an Anglo-Saxon king were required to yield three services: bridge-bote , burgh-bote , and fyrd-bote...
. Quia Emptores allowed no new tenure in frankalmoign, except by the Crown. The issues arising from frankalmoign had been addressed by the Statute of Mortmain. Quia Emptores took Mortmain one step further by banning outright, the formation of new tenures, except by the Crown.
The questions inevitably arise about the Statute Quia Emptores: was it proactive or reactive? And who benefited: King, lords or free tenants? Historians are still divided. But it is logical to conclude that Quia Emptores attempted to formalize practices of exchanging money for land, which had been going on for some centuries. There were other problems in inheritance which had festered since the time of William I. In a proclamation from 1066, William swept away the entire tradition of familial or allodial inheritance by claiming that "every child be his father's heir." The reality was different, and resulted in primogeniture inheritance. The reorganization of the country along the lines of feudalism was both shocking and difficult. Traitors forfeited their land to the Crown. This principle was designed to weaken opposition to the Crown. Frequently, it punished innocent members of the traitor's family. This was not popular. There was a saying from Kent: "Father to the bough, son to the plough (the father hanged for treason, the son continues to work the land)." The rule in Kent was that confiscated lands would be restored to the innocent family members. Seized lands throughout England were often restored to the family, despite what royal decrees may have indicated. It is arguable that the institution of inheritance and subsequent alienation rights by tenants ended feudalism in England. Quia Emptores only formalized that end. In essence, feudalism was turned on its head. The ones with the apparent rights were the tenant class, while the great lords were still beholden to Crown.
Serjeanty
Under the feudal system in late and high medieval England, tenure by serjeanty was a form of land-holding in return for some specified service, ranking between tenure by knight-service and tenure in socage...
had been settled long before Quia Emptores. In 1198 the itinerant justices were directed to make an inquiry into the nature of the King's serjeanties. This was repeated in 1205 by King John
John of England
John , also known as John Lackland , was King of England from 6 April 1199 until his death...
who ordered the seizure of all Lancaster serjeanties, thegnages and dregnages that had been alienated since the time of Henry II of England
Henry II of England
Henry II ruled as King of England , Count of Anjou, Count of Maine, Duke of Normandy, Duke of Aquitaine, Duke of Gascony, Count of Nantes, Lord of Ireland and, at various times, controlled parts of Wales, Scotland and western France. Henry, the great-grandson of William the Conqueror, was the...
. These could not be alienated without a royal license. The Charter of 1217 reaffirmed this doctrine. Henry III of England
Henry III of England
Henry III was the son and successor of John as King of England, reigning for 56 years from 1216 until his death. His contemporaries knew him as Henry of Winchester. He was the first child king in England since the reign of Æthelred the Unready...
issued an important ordinance in 1256. In it the King asserted that it was an intolerable invasion of royal rights that men should without his special consent, enter by way of purchase or otherwise, the baronies and fees that were holden to him in chief. Anyone who defied the decree was subject to seizure by the sheriff. Later case law indicates jurists remained largely ignorant of this decree, which suggests the Crown was reluctant to enforce it.
Quia Emptores addressed the question of outright sales of land rights. It declared that every freeman might sell his tenement or any part of it, but in such a manner that the feoffee
Feoffee
A Feoffee is a trustee who holds a fief , that is to say an estate in land, for the use of a beneficial owner. The term is more fully stated as a feoffee to uses of the beneficial owner. The use of such trustees developed towards the end of the era of feudalism in the middle ages and became...
should hold the same lord and by the same services, of whom and by which the feoffor held. In case only a part was sold, the services were to be apportioned between the part sold and the part retained in accordance with their quantities.
The Statute was considered a compromise. It allowed a continuance of the practice of selling (alienating) land, tenancy, rights and privileges for money or other value, but by substitution. One tenant could be replaced by many. In this, the great lords were forced to concede to the right of alienation to the tenants. They had been at risk of losing their services by apportionment
Apportionment
The legal term apportionment means distribution or allotment in proper shares.It is a term used in law in a variety of senses...
and economic dilution. This practice had been going on for some time. Quia Emptores merely attempted to rationalize and control these practices. The great lords gained by ending the practice of subinfeudation with its consequent depreciation of escheat
Escheat
Escheat is a common law doctrine which transfers the property of a person who dies without heirs to the crown or state. It serves to ensure that property is not left in limbo without recognised ownership...
, wardship and marriage
Marriage
Marriage is a social union or legal contract between people that creates kinship. It is an institution in which interpersonal relationships, usually intimate and sexual, are acknowledged in a variety of ways, depending on the culture or subculture in which it is found...
. History would indicate the great lords were winners as well as the Crown, since land bought from lowly tenants had a tendency to stay within their families, as has been noted supra.
Nothing in Quia Emptores addressed the King's rights. No-one seemed to have imagined that the tenants in chief of the crown were set free to alienate without royal license. On the contrary, at the time the right of alienation by substitution was being set in Statute, the King's claim to restrain any alienation by his tenants was strengthened. In the opinion of Pollack and Maitland, it is a mistake to conclude that Quia Emptores was enacted in the interest of the great lords. The one person who had all to gain and nothing to lose was the King.
Escheat
Escheat is a common law doctrine which transfers the property of a person who dies without heirs to the crown or state. It serves to ensure that property is not left in limbo without recognised ownership...
was affected by Quia Emptores. In Glanvill's day, there was an occasional mention of ultimus heres; the land escheats (excadere) to the lord in the absence of a clear tenant heir. If a tenant was outlawed or convicted of a felony the King could exercise the ancient right of wasting the criminal's land for a year and a day. After that, the land returned to the lord. There was a distinction between felony and treason. One guilty of treason forfeited all lands to the King. John and his heirs frequently insisted on seizing terrae Normannorum, "lands of the Normans", the English land of those who preferred to be Frenchmen rather than Englishmen when the victories of Philip Augustus
Philip II of France
Philip II Augustus was the King of France from 1180 until his death. A member of the House of Capet, Philip Augustus was born at Gonesse in the Val-d'Oise, the son of Louis VII and his third wife, Adela of Champagne...
forced a proclamation of allegiance. Frequently, disavowal of a feudal bond was considered a felony. In this, the lords could escheat land from those who refused to be true to their feudal services. On the other hand, there were tenants who were sluggish in performing their duties, while not being outright rebellious against the lord. Remedies in the courts against this sort of thing, even in Bracton
Henry de Bracton
Henry of Bracton, also Henry de Bracton, also Henrici Bracton, or Henry Bratton also Henry Bretton was an English jurist....
's day, were available. But they were considered laborious, and frequently ineffectual in compelling the desired performance. The commonest mechanism would be distraint
Distraint
Distraint or distress is "the seizure of someone’s property in order to obtain payment of rent or other money owed", especially in common law countries...
, also called distress (districtio): the lord would seize some chattel, and hold it until performance was achieved. This practice had been dealt with in the 1267 Statute of Marlborough
Statute of Marlborough
The Statute of Marlborough was a set of laws passed by King Henry III of England in 1267. There were twenty-nine chapters, of which four are still in force...
. Even so, it remained the most common extrajudicial method applied by the lords at the time of Quia Emptores.
Expulsion of tenants from the land for failure to perform was always a difficult idea, and usually necessitated a lengthy court battle. The lord who escheated could not profit from the land, and had to hold it open for the tenant who could fulfill the obligation at a future date. Quia Emptores laid out, with some definition which had previously been lacking in the issue of tenures. In a sense, the old stereotypes were locked in place. Every feoffment made by a new tenant could not be in frankalmoign, since the donee was a layman; it would be reckoned by the laws of socage
Socage
Socage was one of the feudal duties and hence land tenure forms in the feudal system. A farmer, for example, held the land in exchange for a clearly defined, fixed payment to be made at specified intervals to his feudal lord, who in turn had his own feudal obligations, to the farmer and to the Crown...
. Socage grew at the expense of frankalmoign. Subinfeudation was ended. The tenant in chief could not alienate without the license of the King. Petty serjeanty
Serjeanty
Under the feudal system in late and high medieval England, tenure by serjeanty was a form of land-holding in return for some specified service, ranking between tenure by knight-service and tenure in socage...
came to be treated as "socage in effect".
Quia Emptores in Colonial America
- Grants of the English Colonies
- De Peyster v. Michael, New York
- Van Renssalaer v. Hayes, New York
- Miller v. Miller, Kansas
- Mandelbaum v. McDonnell, Michigan
- Cuthbert v. Kuhn, Pennsylvania
- New York State Constitution
The English colonies in North America were founded upon royal grants or licenses. Specifically, British colonization of North America was by charter colony
Charter colony
Charter colony is one of the three classes of colonial government established in the 17th century English colonies in North America, the other classes being proprietary colony and royal colony. The colonies of Rhode Island, Connecticut, and Massachusetts Bay were charter colonies...
or proprietary colony
Proprietary colony
A proprietary colony was a colony in which one or more individuals, usually land owners, remaining subject to their parent state's sanctions, retained rights that are today regarded as the privilege of the state, and in all cases eventually became so....
. In this sense, they were founded upon the principles outlined by Quia Emptores. The territories were granted under conditions by which English law controlled private estates of land. The colonies were royal grants. An entire province, or any part of it, could be leased, sold or otherwise disposed of like a private estate. In 1664, the Duke of York
Duke of York
The Duke of York is a title of nobility in the British peerage. Since the 15th century, it has, when granted, usually been given to the second son of the British monarch. The title has been created a remarkable eleven times, eight as "Duke of York" and three as the double-barreled "Duke of York and...
sold New Jersey to Berkeley
John Berkeley, 1st Baron Berkeley of Stratton
John Berkeley, 1st Baron Berkeley of Stratton was an English royalist soldier. From 1648 he was closely associated with James, Duke of York, and rose to prominence, fortune and fame.-First English Civil War:...
and Carteret
George Carteret
Vice Admiral Sir George Carteret, 1st Baronet , son of Elias de Carteret, was a royalist statesman in Jersey and England, who served in the Clarendon Ministry as Treasurer of the Navy...
. The sale was effected by deeds of lease and release. In 1708, William Penn
William Penn
William Penn was an English real estate entrepreneur, philosopher, and founder of the Province of Pennsylvania, the English North American colony and the future Commonwealth of Pennsylvania. He was an early champion of democracy and religious freedom, notable for his good relations and successful...
mortgaged Pennsylvania
Pennsylvania
The Commonwealth of Pennsylvania is a U.S. state that is located in the Northeastern and Mid-Atlantic regions of the United States. The state borders Delaware and Maryland to the south, West Virginia to the southwest, Ohio to the west, New York and Ontario, Canada, to the north, and New Jersey to...
, and under his will devising the province legal complications arose which necessitated a suit in chancery. Over time, Quia Emptores was suspended in the colonies. Arguably, certain aspects of it may still be in effect in some of the original colony states such as New York, Virginia, Maryland and Pennsylvania. However, like everything else involving Quia Emptores, opinion varies, and some element of confusion reigns. Some U.S. state court decisions have dealt with Quia Emptores. Prominent among these was the 1852 New York case of De Peyster v. Michael. There the court record is useful in describing the nature of English feudalism: "At common law a feoffment in fee did not originally pass an estate in the sense in which the term is now understood. The purchaser took only a usufructary interest, without the power of alienation in prejudice of the lord. In default of heirs, the tenure became extinct and the land reverted to the lord. Under the system of English feudal tenures, all lands in the Kingdom, were supposed to be holden mediately or immediately of the King who was styled the 'lord paramount', or above all. Such tenants as held under the King immediately, when they granted out portions of their lands to inferior persons, also became lords with respect to those inferior persons, since they were still tenants with respect to the King, and thus partaking of a middle nature were called "mesne
Mesne lord
A mesne lord was a lord in the feudal system who had vassals who held land from him, but who was himself the vassal of a higher lord. A mesne lord did not hold land directly of the king, that is to say he was not a tenant-in-chief. His subinfeudated estate was called a "mesne estate"...
' or 'middle lords'. So, if the King granted a manor
Manor
-Land tenure:*Manor, an estate in land of the mediaeval era in England*Manorialism, a system of land tenure and organization of the rural economy and society in parts of medieval Europe based on the manor*Manor house, the principal house of a manor...
to A and A granted a portion of the land to B, now B was said to hold of A, and A of the King; or in other words, B held his lands immediately of A and mediately of the King. The King was therefore styled 'Lord Paramount'; A was both tenant and lord,or a mesne lord, and B was called 'tenant paravail', or the lowest tenant. Out of the feudal tenures or holdings sprung certain rights and incidents, among those which were fealty and escheat. Both these were incidents of socage tenure. Fealty is the obligation of fidelty with the tenant owed to the lord. Escheat was the reversion of the estate on a grant in fee simple upon a failure of the heirs of the owner. Fealty was annexed to and attendant on the reversion. They were inseparable. These incidents of feudal tenure belonged to the lord of whome the lands were immediately holden, that is to say, to him of whom the owner for the time being purchased. These grants were called subinfeudations."
In this case, the New York court offered the opinion that Quia Emptores had never been effect in the colonies. A different opinion was rendered by the New York court in the 1859 case of Van Rensselaer v. Hays (19 NY 68) where is was written that Quia Emptores had always been in effect in New York and all the colonies. There, the court noted: "In the early vigor of the feudal system, a tenant in fee could not alienate the feud without the consent of the immediate superior; but this extreme rigor was soon afterward relaxed, and it was avoided by the practice of subinfeudation, which consisted in the tenant enfeoffing another to hold of himself by the fealty and such services as might be reserved by the act of feoffment. Thus, a new tenure was created upon every alienation; and thus there arose a series of lords of the same lands, the first called the 'chief lord' holding immediately of the sovereign, the next grade holding of them, and so on, each alienation creating another lord and another tenant. This practice was considered detrimental to the great lords, since it deprived them to a certain extent the fruits of their tenure, such as escheats, marriages,wardships and the like."
From 28 Am Jur 2nd Estates section 4: "The effect of Statute Quia Emptores is obvious. By declaring that every freeman might sell his lands at his own pleasure, it removed the feudal restraint which prevented the tenant from selling his land without the license of his grantor, who was his feudal lord. Hence by virtue of the Statute, passed in 1290, subinfeudation was abolished and all person except the King's tenants, in capite were left at liberty to alien all or any part of their lands at their own pleasure and discretion. Quia Emptores is by express wording, extended only to the lands held in fee simple. Included in it applications, however are leases in fee and fee farmlands. Property in the U. S., with few exceptions, is allodial. This is by virtue of state constitutional provisions, organic territorial acts incorporated into legal systems of states subsequently organized, statutes and decisions of the courts. They are subject to escheat only in the event of failure of successors in ownership."
In the 1913 case of Miller v. Miller, the Kansas court stated: "Feudal tenures do not and cannot exist. All tenures in Kansas are allodial."
The Supreme Court of Michigan expressed the opinion that whether Statute Quia Emptores ever became effectual in any part of the United States by express or implied adoption or as part of the common law did not have to be ascertained. It was clear that no such statute was ever needed in Michigan or in any of the western states, because no possibility of reverter or escheat in the party converying an estate ever existed. Al all times, escheat could only accrue to the sovereign, which in Michigan, is the state.
The Statute Quia Emptores was stated not to be in effect in the state of Pennsylvania in Cuthbert v. Kuhn
The New York Constitution makes any question of Quia Emptores moot by stating: "all lands within this state are declared allodial, so that, subject only to liability to escheat, the entire and absolute property is vested in the owners, according to the nature of their respective estates."
Legacy of Quia Emptores in United States Law
- AlienationAlienationAlienation may refer to:*Alienation , the legal transfer of title of ownership to another party*"Alienation", the medical term for splitting apart of the faculties of the mind...
- "a sale" - Appurtenant - "belonging to"
- Damnum absque injuriaDamnum absque injuriaIn law, damnum absque injuria is a phrase expressing the principle of tort law in which some person causes damage or loss to another, but does not injure them, and thus the latter has no legal remedy...
- "injury without wrong" - DemiseDemiseDemise, in its original meaning, is an Anglo-Norman legal term for a transfer of an estate, especially by lease...
- "to lease" or "let" premises - Enfeoff - "to give land to another"
- EstateEstate in landAn estate in land is an interest in real property that is or may become possessory.This should be distinguished from an "estate" as used in reference to an area of land, and "estate" as used to refer to property in general....
- "an interest in land" - FeoffeeFeoffeeA Feoffee is a trustee who holds a fief , that is to say an estate in land, for the use of a beneficial owner. The term is more fully stated as a feoffee to uses of the beneficial owner. The use of such trustees developed towards the end of the era of feudalism in the middle ages and became...
- "a party to whom a fee is conveyed" - FeoffmentFeoffmentFeoffment, in English law was a transfer of property that gave the new owner the right to sell the land as well as the right to pass it on to his heirs. It was total relinquishment and transfer of all rights of ownership in land from one individual to another. It was the granting of a fee simple...
- "physical delivery of possession of land by feoffeor to the feofee" - Leasehold - "an estate in land held under a lease"
- Livery of seisinLivery of seisinLivery of seisin is an archaic legal conveyancing ceremony, formerly practiced in feudal England and in other countries following English common law, used to convey holdings in property. The term "livery" is related, if not synonymous with, the word "delivery" as used in modern contract law...
- "delivery of possession" - MesneMesneMesne , middle or intermediate, an adjective used in several legal phrases....
- "intervening"; related to the term "mesne conveyance" meaning an intervening conveyance - Purchase - "voluntary transfer of property"
- SeisinSeisinSeisin is the term denoting the legal possession of a feudal fiefdom . It was used in the form of "the son and heir of X has obtained seisin of his inheritance", and thus is effectively a term concerned with conveyancing in the feudal era...
- "possession of a freehold estate" - TenantTenement (law)A tenement , in law, is anything that is held, rather than owned. This usage is a holdover from feudalism, which still forms the basis of all real-estate law in the English-speaking world, in which the monarch alone owned the allodial title to all the land within his kingdom.Under feudalism, land...
- "one who holds or occupies the land under some kind of right or title" - Writ of Fieri Facias - "writ of execution on the property of a judgment debtor"
The terms "fee", "fee tail", "fee tail estate", "fee tail tenant", "fee simple" and the like are essentially the same as they were defined in De Donis Conditionalibus
De donis conditionalibus
De donis conditionalibus is the chapter of the English Statutes of Westminster which originated the law of entail.Strictly speaking, a form of entail was known before the Norman feudal law had been domesticated in England...
in 1285.
There are four kinds of deeds in common usage:
- warranty deedWarranty deedA general warranty deed is a type of deed where the grantor guarantees that he or she holds clear title to a piece of real estate and has a right to sell it to the grantee . The guarantee is not limited to the time the grantor owned the property—it extends back to the property's origins. A General...
, which contains covenants for title. - special warranty deed in which the grantor only covenants to warrant and defend the title.
- deed without covenants in which the grantor purports to convey in fee simple
- quitclaim deedQuitclaim deedA quitclaim deed is a legal instrument by which the owner of a piece of real property, called the grantor, transfers his interest to a recipient, called the grantee. The owner/grantor terminates his right and claim to the property, thereby allowing claim to transfer to the...
in which the grantor makes no covenants for title but grants all rights, title and interest.
The last two are directly related to Quia Emptores. Other changes came after the Statute of Uses
Statute of Uses
The Statute of Uses was an Act of the Parliament of England that restricted the application of uses in English property law. The Statute was originally conceived by Henry VIII of England as a way to rectify his financial problems by simplifying the law of uses, which moved land outside the royal...
, 1535 and the Statute of Frauds
Statute of frauds
The statute of frauds refers to the requirement that certain kinds of contracts be memorialized in a signed writing with sufficient content to evidence the contract....
.