Old System or Common Law Conveyancing
The Feudal System
In the beginning was the Feudal System. The King held all the land. He granted Fee’s or estates to his loyal followers in exchange for their service or fealty, usually extracted by an oath of fidelity or loyalty. In turn these followers granted portions of their estates to attract others to help them perform these services, the system was called “subinfeudation”. Large numbers of different feudal estates sprang into existence, all with different rules of fealty and rights to such things as inheritance.
One minor tenure, was socage, the offering of land to a free person in exchange for money or agricultural services. This type of tenure became the norm, as other forms of feudal tenure with their onerous duties diminished or were abolished. It became known as “Fee simple”
The system was administrated by the courts. Judgements were made as to the facts in each case, and these decisions became known as "Common Law". Where the facts in each case are the same or similar those judgements are then used by judges in following cases as established law. Once followed, the judgements become known as precedents. Along with the courts the Parliaments also made statutes or legislation which affected court decisions. Legislation trumped precedent, any legislation took priority over common law.
Some Basic concepts in Old System Conveyancing Law
Here is a brief introduction to the reasons behind some of the words you will find in a typical conveyance or mortgage.
The Livery of Session; (delivery of possession of the land).When a person entered the land it was said to be seised or possessed by that person. Before most people could read and write, in order to make public the sale of land or the “feoffment” as the public sale was known, a ceremony called the “livery of seisin” was undertaken. The owner and the purchaser entered the land and the owner placed a key to the house or poured a handful of soil into the purchaser’s hand. The purchaser was said to have been “enfeoffed” and the seisin or possession delivered to the purchaser, the owner of the fee simple would “grant alien and enfeoff”. In time a deed recognising the livery was created to record the sale. The most famous act of a livery of seisin in recent time was that of Mr Whitlam, pouring soil through Vincent Lingiari’s hands at Wave Hill Station in 1975. One of the first recognitions of native title in Australia.
The Statute of Uses and the development of the bargain and sale.In the reign of Henry the eighth two statutes were created to organize the sale of land. The first was the Statute of Uses enacted in 1535.1 Under that act a person could bargain (contract to sell) and sell (receive a payment) their land without the livery of seisin. The courts held the contract to be valid however as no public display had take place it could be done in secret. In order to prevent any fraud, the Statute of Enrolments 2 required a deed of the bargain and sale to be registered and the sale would be taxed.
“To the Use of”As a result of the statute of uses, a method than arose which allowed people and organizations not necessarily entitled to do so, to hold land under the Statue, it become known as “the use”. This method allowed the transfer of land to a trustee who was legally entitled to have the land conveyed to them but was restricted to hold it “for the use of another”. In NSW it was a common way to allow married women to hold land separately from their husbands. The wording usually reads “to XXX as trustee for the use of YYY”. In this case XXX is known as a “dry trustee” as they hold no real power to convey.
Lease and release.In early Conveyancing law a person could “release” or in effect re-convey an interest in land. Under the Statue of Uses this was combined with the lease to create a method of leasing the land to a person who took possession of the property and then releasing the fee simple or ownership to the leasee. In the 17th century an adaptation of that old lease and release was developed. It combined the old lease and release with the bargain and sale. Under this method, the land was leased by the vendor by way of bargain and sale to the purchaser for a year and then the vendor released his freehold estate to the purchaser.3 So the words, “bargain and sell” and “lease and release” arose as precedents in deeds that conveyed land.
The Mortgage.In early Conveyancing various methods were tried to secure debts on land, and by the 17th century it had become the norm to convey land to a mortgagee with the proviso that if the debt was paid, the land would be re conveyed to the mortgagor. 4 The operative words are “conveys unto XXX the estate in fee simple subject to the equity of redemption” ; the provision gave the mortgagee the right to have the land re conveyed to them on payment of the debt.
Old System Conveyancing in NSWWhile we may not have inherited the feudal tenures we did inherit the conveyancing system it spawned. By the time NSW was established four main types of tenure or estate remained.
An estate in Fee SimpleThis is the highest estate and it granted the person the right to direct who inherited the land and allowed him to sell.
A Leasehold estateland held for a fixed term, while the owner retains the fee simple.
A Life Estate and an Estate in remainder.This is where a person would grant a right for someone to have the land for their life and to go to someone else on the death of the life estate. A common use was a life estate to a wife then a remainder to a son.
The estate in tail.The estate tail is where the estate is inherited, usually, by the nearest male heir. The current holder of the estate cannot direct the inheritance. Remember “Pride and Prejudice”? The Conveyance Act 1919 converted all estates tail to fee simple.5