Quest for Tenure in the United States

It seems a shameful thing to confess that the quest for tenure of land in the American States, so busily carried on in modem times, reminds one of the childish game, Button, button, who has the button ? It certainly appears disrespectful to such an ancient and honorable institution as English land tenure, to associate it with so silly a game. Yet is there not a resemblance? Lands in Colonial America were undoubtedly granted by the English Crown to be held in free and common socage, as of our Manor at East-Greenwich, in the County of Kent, \u27 or, as in the patent given by Charles II to William Penn, to bee holden of Us Our heires and Successors, Kings of England, as of Our Castle of Windsor in Our County of Berks, in free and comon Socage, by fealty only for all Services, and not in Capite or by Knights Service: Yielding and paying therefore to Us, Our heires and Successors, Two Beaver Skins .... . Unquestionably there was land tenure in Colonial lands, even though of the mild and somewhat defeudalized type possible after the statute of 12 Car. II, c. 24. Then what has become of it? Look about as you may, you will see none of the familiar signs of English land tenure; no doing of homage, no swearing of fealty, no reliefs, no rent service or distress in case of grants in fee (except in Pennsylvania), no escheat to the original grantor, even though such grantor be the Federal government, but only to the State in which the land lies. There appears to be no tenure at all. Then who has the button? What can have become of that Colonial tenure, which was so very real and active as to keep the colonists in unceasing conflict and turmoil with the royal governors, or unhappy proprietaries, who attempted to take advantage of it and enforce the rendering of services reserved, here nearly always taking the form of quit rents, and which did so much to bring on the Revolution? The answer has puzzled our scholars and judges. Professor Gray thought it not probable that so fundamental an alteration in the theory of property as the abolition of tenure would be worked by a change of political sovereignty

Rights of Reverter and Statute Quia Emptores

It was little the disposition of English lawyers, wrote Professor Gray in commenting upon the meagerness of the consideration given in English Law to determinable fees, to trouble themselves about questions which did not come up practically. The same thing could even more truly be said of American lawyers. If determinable fees and rights of reverter dependent upon them were of no more frequent occurrence in the United States than in England, there would certainly be no sufficient reason for giving further time to their discussion. But such is not the case. American courts have been frequently called upon to determine the nature and validity of such estates, and the cases involving them in new and unexpected relationships appear to be increasing in number and importance. This peculiar fact is probably due to the sense of rapid change felt in a new country, even in land uses to be expected, causing grantors and testators to anticipate that the purposes and uses for which gifts of land are made may not persist in perpetuity. But whatever the reason, it is clearly desirable that American lawyers should come to a more satisfactory understanding of the true nature of rights of reverter than is now possessed

Waiver and Estoppel in Insurance Law

The twenty-two years that have passed since the Supreme Court of the United States handed down its opinion in the case of Northern Assurance Co. v. Grand View Building Assoc. have done little to clear away the wordy fog which that famous case did so much to raise about the doctrines of waiver and estoppel in insurance law. Stripped of trappings, the main point determined by that case was that an insurance company might deliver to an honest applicant for insurance a piece of paper having the appearance of an insurance policy, take from him the price of a sound contract, and leave him under the belief that he had actually secured the protection for which he had applied and paid, and still be allowed in an action at law to show that, by reason of the breach of a condition precedent, known all the time to its officiatinga gent, it had assumedn o obligationt o pay. Incidentally, in assessing the fireside equities, one recalls that in practice the insurer would not be required to return the premium unless the occurrence of a loss should afford unhappy occasion to the duped applicant to learn that he had received no consideration for his premium payment. The essential inequity of this result was recognized when in a later appeal in a case involving the same transaction and the same parties, the Supreme Court held that the insured was entitled to his money if only he went about getting it in the right way, viz.,. by a bill in equity to reform the contract

Law in Action in Medieval England

One reading the skeleton-like reports found in the Year Books from which so much of the common law has filtered through the great medieval abridgments down even to the juris- prudence of our own time often wonders what was the atmos- phere of the court room in which these cases were argued and the judgments rendered; and what were the social, economic, and political conditions that furnished the setting for the contest and afforded the stimuli to judicial action. It is quite true, as Pro- fessor Bolland has so interestingly shown,1 that one sometimes discovers in these reports touches of human interest and even incidents of historical and sociological importance; but for the most part the Year Books furnish little data for the sociologist and too often only fragmentary and unsatisfactory material for the legal historian. The apprentices, who for the most part seem to have indited the Year Book reports, were primarily interested in the rules of procedure. They desired to record and learn the correct plea and the appropriate reply, the right word which would set the crude legal machinery of the king\u27s courts in mo- tion. They manifested no interest in the philosophy of law, or in the social and economic effects that might be produced by the judgments they recorde

Restatement of the Law of Property

All are agreed that the conception of the American Institute of Law was not less than splendid. Certainly not since Justinian\u27s time had so im- pressive a plan for the formulation of the law of a great people been put in execution; and it is improbable that even the imperial government of sixth century Byzantium could have provided such munificent financial sup- port for the jurists who compiled the Corpus Juris Civilis as that which has been provided for the work of The American Law Institute by twentieth century private benefaction. The plan, grandly conceived and supported with such princely generosity, was set in operation with vigor and skill. America\u27s greatest legal scholars and the foremost among her barristers and judges were mustered and marshalled in the campaign against the error, uncertainty, confusion and conflict that have so long characterized Amer- ican law. Surely no better ordered plan could have been devised for bring- ing to bear upon the restatement of American law the best that America could afford in scholarship, experience and ability. The administration of the enterprise has been vigorous, intelligent and efficien

Rights of Reverter and Statute Quia Emptores

It was little the disposition of English lawyers, wrote Professor Gray in commenting upon the meagerness of the consideration given in English Law to determinable fees, to trouble themselves about questions which did not come up practically. The same thing could even more truly be said of American lawyers. If determinable fees and rights of reverter dependent upon them were of no more frequent occurrence in the United States than in England, there would certainly be no sufficient reason for giving further time to their discussion. But such is not the case. American courts have been frequently called upon to determine the nature and validity of such estates, and the cases involving them in new and unexpected relationships appear to be increasing in number and importance. This peculiar fact is probably due to the sense of rapid change felt in a new country, even in land uses to be expected, causing grantors and testators to anticipate that the purposes and uses for which gifts of land are made may not persist in perpetuity. But whatever the reason, it is clearly desirable that American lawyers should come to a more satisfactory understanding of the true nature of rights of reverter than is now possessed

History of the Development of the Warranty in Insurance Law

The history of the technical warranty in insurance law is instructive in showing how a rule, never very good or necessary, may, like more human creatures, so degenerate through later associations and changed conditions as to become positively bad, and so injurious to society that it must needs be brought to an end by legal process. In the United States, the reign of the technical warranty is almost over. For over a century it has been condemned by courts and text writers as an instrument of oppression and unfair dealing, and this sentence of condemnation is now being rapidly executed in the several states by the enactment of statutes wholly abolishing it as a rule of law. Even in those states, now relatively few, in which it has not been specifically abolished by statute, the warranty has been deserted even by its only friends, the underwriters. It is seldom that one now finds a trace of the warranty in the policies of reputable life insurance companies; and in the standard fire policy, now almost universally in use, warranties have been confined to a small and relatively un-objectionable field

Quest for Tenure in the United States

It seems a shameful thing to confess that the quest for tenure of land in the American States, so busily carried on in modem times, reminds one of the childish game, Button, button, who has the button ? It certainly appears disrespectful to such an ancient and honorable institution as English land tenure, to associate it with so silly a game. Yet is there not a resemblance? Lands in Colonial America were undoubtedly granted by the English Crown to be held in free and common socage, as of our Manor at East-Greenwich, in the County of Kent, \u27 or, as in the patent given by Charles II to William Penn, to bee holden of Us Our heires and Successors, Kings of England, as of Our Castle of Windsor in Our County of Berks, in free and comon Socage, by fealty only for all Services, and not in Capite or by Knights Service: Yielding and paying therefore to Us, Our heires and Successors, Two Beaver Skins .... . Unquestionably there was land tenure in Colonial lands, even though of the mild and somewhat defeudalized type possible after the statute of 12 Car. II, c. 24. Then what has become of it? Look about as you may, you will see none of the familiar signs of English land tenure; no doing of homage, no swearing of fealty, no reliefs, no rent service or distress in case of grants in fee (except in Pennsylvania), no escheat to the original grantor, even though such grantor be the Federal government, but only to the State in which the land lies. There appears to be no tenure at all. Then who has the button? What can have become of that Colonial tenure, which was so very real and active as to keep the colonists in unceasing conflict and turmoil with the royal governors, or unhappy proprietaries, who attempted to take advantage of it and enforce the rendering of services reserved, here nearly always taking the form of quit rents, and which did so much to bring on the Revolution? The answer has puzzled our scholars and judges. Professor Gray thought it not probable that so fundamental an alteration in the theory of property as the abolition of tenure would be worked by a change of political sovereignty