pass; as by feoffment, lease and release, bargain and sale enrolled,* &c.

An estate in fee qualified or base may also be transferred by the same means, subject to the qualifications: but it cannot be conveyed discharged of such qualification, [although previously to the 7 & 8 Vict. c. 76, it might have been so conveyed] by wrong, as by a feoffment in fee, which would gain a fee absolute by disseisin, and turn the reversion to a right, and which right might have been barred by a fine levied by the feoffee, unless the person having such right claim within the time allowed by the statute of Hen. 8.‡

As the Author is not in this paragraph speaking of fees simple in reversion, it may be inferred that a conveyance of an estate in fee simple in reversion need not actually pass the freehold at the time the deed is executed. Such an inference is not founded in law. The freehold of the reversion must actually pass out of the grantor into the grantee immediately on the execution of the grant, and not at any future period. The necessity of the proviso in the parenthesis is not, therefore, very obvious.

† An estate gained by wrong is always a quasi fee: as the law cannot take notice of a wrong, it cannot, of consequence, set any limits to that wrong. See Hob. 323.-Note by Mr. Watkins.

It is questionable whether a feoffment by a tenant of a determinable fee would have turned the seisin under the reversion into a mere right. To a due apprehension of the position in the text, we must distinguish between a determin

L

Fearne, 546, 547.

A base or qualified fee may by possibility continue for ever; and the common law did not, therefore, permit any limitation on a fee either

This,

able and a base fee: the former arises where a testator devises an estate to Samuel Rolle, and his heirs of the name of Samuel Rolle, for ever. Here no reversion arises to the testator's heir at law, but only a possibility of reverter, which Samuel Rolle cannot bar or affect by any means. therefore, cannot be the qualified fee alluded to by the learned Author. The only determinable fee which sustains a reversion is that of the base fee described in a former page (ante, p. 138); with respect to which it is observable, that if the remainder or reversion be not turned into a right by the means resorted to for the creation of the base fee,—that is, if the base fee be created by an innocent assurance, the reversion cannot afterwards be turned into a right, either by the tenant in tail or the owner of the base fee ; -not by the former, because he being no longer seised by virtue of the entail, cannot discontinue the remainder; nor by the latter, because there is no privity between the owner of the base fee and the remainderman. See Hard. 400. Irish T. R. 567, suprà, p. 139. 1 Burr. 60, 2 Cowp. 689, 3 Price, 575, 3 Barn. & Cress. 388. If the estate tail be spent and the base fee determines, then a continuation of possession by the tenant of the base fee for five years after a fine levied by him, when seised in right of the base fee, would bar the remainderman or reversioner; which is all, perhaps, that the learned Author intended to intimate by the above passage. The conclusion of the paragraph shews his meaning: "unless the person having the right claim within the time allowed by the statute." What is that time? Five years after the right accrues; consequently the qualification is not absolutely discharged until five years after the happening of the event upon which the determinable fee depends. This, perhaps, is the inference intended by the

text.

absolute or base.*

A fee may now, indeed, be limited on a fee by way of executory devise or of shifting use; of which limitations I shall speak in subsequent chapters.

* There may be a reversion or possibility of reverter on a base or qualified fee; but the base or qualified fee could not be a particular estate supporting a remainder, because the particular estate and remainder must have been created together by the same deed, which it is evident could not be the case with a base fee and reversion.

CHAP. X.

2 Bl. Comm.

187.323.

Gilb. Ten. 72,

OF AN ESTATE IN PARCENARY.

COPARCENERS always take by descent; and,

Litt. b. 3, c. 1. as they compose but one heir, they have, as to some purposes, but one freehold; but, as to 2 Cru. Dig.391, others, several; hence they may convey to each

73.- Shep.

Touchst. 14.

ed. 4.

Com.

Dig. tit. Parc. other, either by release, by feoffment, or [they might have conveyed to each other by fine*

*Coparceners, though they have a unity have not an entirety of interest. They are properly entitled each to the whole of a distinct moiety. They may be said to have a several seisin as between themselves, and a joint seisin as it regards strangers. Being seised in moieties there is no survivorship between them. On the death of one coparcener her moiety descends to her heir at law, subject to her husband's curtesy if he be living, but the heir, (though a male, and a collateral,) or the husband as tenant by the curtesy, holds with the other coparcener in coparcenary. If the heir being a male dies in possession, leaving a widow, she it is apprehended, will be entitled to dower, and hold in coparcenary. In gavelkind the descent is to all the sons equally and they hold in coparcenary. This tenancy is destroyed by devise or alienation to a stranger. The effect of such devise or alienation is to convert the coparcenary into a tenancy in common. Co. Litt. 174, b. 175, a. But if there are three coparceners

previously to the recent statutes by which fines and recoveries were abolished.]

and one aliens, the other two hold in coparcenary as between themselves: with respect to the alienee, they hold in common. The possession of one coparcener is [in cases of descents happening upon deaths previous to the 1st January, 1834,] that of the other so as to create a seisin in the other, and carry her share by descent to her heirs, although that other never actually entered, [as where A. died seised in fee intestate, leaving two daughters his co-heirs, Elizabeth and Sarah, but by different mothers. The entry of the widow, the mother of Sarah, as her guardian in socage, was held to constitute an actual seisin in Elizabeth, so that upon her death her moiety descended to her heirs at law, and not to Sarah, who would otherwise have taken as heir to her father. Doe v. Keen, 7 T. R. 386. The effect of the new law in such a case is worthy of notice. It renders the entry of the guardian in socage nugatory, as conferring upon Elizabeth an actual seisin, for that is no longer necessary; descents being traced under the stat. 3 & 4 W. 4, c. 106, to the last purchaser or person entitled otherwise than by descent, (s. 1.) So that upon the death of Elizabeth, as she took by descent, she was not a purchaser within the meaning of the act, and the descent was, therefore, to be traced from the father, who was the last puchaser and Sarah was his heir. Had Elizabeth become a purchaser, within the meaning of the act, then upon her death intestate and without issue, her moiety would, by s. 9, have descended from her to Sarah, her sister by the half blood, as her heir.] Entry by one coparcener, when not adverse to her companions [previously to the stat. 3 & 4 W. 4, c. 27,] enured to the benefit of all, Doe v. Pearson, 6 East, 173. 2 Smith, 295: [but by s. 10, of that statute it is enacted, that no person shall be deemed to have been in possession within the meaning of the act by mere entry; and by s. 12, that the possession of one coparcener, joint-tenant or tenant