England Sale and Transfer of Land (National Institute)

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The original content for this article was contributed by The National Institute for Genealogical Studies in June 2012. It is an excerpt from their course English: Land and Property Records including Manorial Documents and Maps  by Dr. Penelope Christensen. The Institute offers over 200 comprehensive genealogy courses for a fee ($).

Sale And Transfer Of Land

The transfer of land or property other than by inheritance is termed conveyance. English law from early times distinguished between the conveyance (a.k.a. transfer, alienation) of rights and of real estate. Rights (strictly termed incorporeal hereditaments) were conveyed by a Deed of Grant. The type of conveyance for real estate (corporeal hereditaments) depended on whether it was freehold, copyhold or leasehold and one property, say a house, could be owned by one person, leased for a fixed period to another, who subleased for a shorter term to a third person. Three different estates would then co-exist for the one property and each had to be dealt with, or extinguished, by proper legal procedures.

Freehold Property

These were of basically two types, fee simple and fee conditional:

Fee Simple

There have been four stages in the conveyancing history of fee simple freehold estates:

Livery of Seisin and the Feoffment
This was an outright freehold which had no strings attached and in mediaeval times was conveyed by a public ceremony called livery of seisin. The existing owner took the owner-to-be on to the land and handed him a symbolic piece of the land (lump of earth, turf, blade of grass or stick) and stated the terms on which he handed over the land. The whole community witnessed the transaction, the communal memory being considered sufficient security. The new owner then turned everyone else off the land, thereby asserting his rights as owner. There was frequently no written documentation (which avoided payment of feudal dues called fines or relief to the lord) but in later times a document termed an indenture (or deed) of feoffment or deed of gift was created after the fact. Feoffments were abolished in 1925, although they had been superseded by other deeds long before.

Bargain and Sale
By the 16th century there was constant friction between the owners of land, who wanted to have secret conveyances to avoid paying fines upon entry to a property, and the manorial lords (including the crown which held the largest numbers of manors) who wanted to maximize their dues. Devious legal arrangements for avoiding fines resulted in the passage of two Acts in 1535, the Statute of Uses and the Statute of Enrolments. The law now required all transfers of freehold property to be by proper deed and to be enrolled at a royal or quarter sessions court.
However, title deeds could now be a straightforward bargain and sale, and sometimes an intermediate type is seen—the bargain and sale with feoffment. Thus no fines were payable but there was a registration fee for enrollment. A straight bargain and sale is shown below.

Chart: A Bargain and Sale

Castle Donington, Leicestershire
DG8/5 onFHL film 0477390


29 Jan 1716/17


PARTIES:

(i)(a)

             (b)           Thomas ROBY junior
                             Both of Allcott, alias Overcott in the parish of
                             Shittington, Warwickshire, yeomen
             (ii)           William WALTON of Castle Donington, clerk
Thomas and Thomas, for £80, bargain and sell to William 3 acres 3½ roods in the common fields of Castle Donington, that is one acre at the Town End in Stoneshill Field, one flat or parcel of land called Middle Furlong Flatt in Park Field, 2 roods at the Ash Trees in Trent Field.
To hold to William and his heirs and assigns forever, paying yearly to the Lord of the Manor 2/1d fee farm rent, out of the original rent of 10/6d, (see DG8/3 {a previous deed]). Thomas ROBY, senior and junior and their heirs and assigns paying the residue.

Signatures and Seals of:                         Thomas ROBY, Tho: TOBY Jun,
Witnesses to Sealing:                             Tho: RICHARDS, Tho: BUCKNALL
Witnesses to Delivery of Seisin:               Tho” HILLS, Math: PYM (X)


Chart: Indenture of Exchange

Abstract of a Yorkshire deed from an estate sale in British Columbia, Canada and used to                                                    adorn a lawyer’s office ! 

                                  [A copy is now in the Northallerton Record Office]

“This Indenture of Exchange”… was dated 30 July 1722 … and is between Robert BRAYSHAW of Pryor Hall, Malham East, Yorkshire (father of John BRAYSHAW) who holds lands called Soll Hill and Little Strip Dale in Malham on behalf of his son John. These lands were formerly held by Rowland BRAYSHAW who bequeathed them to John BRAYSHAW. The BRAYSHAWs are exchanging these lands for those known as Croosdales and Crown Flatt, also in Malham and belonging to William LUND, in order to consolidate their holdings.
There is a wavy line (indenture) at the top of the document, but by this time this had become only a token, as the two copies by that time were being written on separate sheets of parchment.


Lease and Release
Lawyers now set about devising new ways to effect secret conveyancing and to sell entailed land. The most common result from the early 17th century until 1845 was the lease and release and it is the easiest to recognize as it consisted of two documents bearing consecutive dates. It was brilliantly devious and simple!

The seller first leased the land for 6-12 months at a token rent to the buyer. The lease thus brought the buyer into actual possession. The next day the seller conveyed the reversion of the lease (his future or reversionary interest in it) to the buyer. As this was only a right (an incorporeal hereditament) it could be transferred without livery of seisin or enrollment. And, as the lease was not freehold there was no need to enroll in the courts. An example is below.

Chart: A Lease and Release
Castle Donington, Leicestershire on
FHL film 0477390

                                          Jan 1717/18 LEASE FOR YEAR DG8/7
4 George I
PARTIES:        (i)(a) Thomas ROBEY the elder of Alcot in the
                              parish of Shittington, Warwicks, yeoman
                         (b) Thomas ROBEY the younger, eldest son and
                              heir of said Thomas ROBEY the elder
                         (ii) John CROMPTON of London gent.

Thomas ROBEY, elder and younger, for 5/-d, lease to John CROMPTON, the tenement in Castle Donington, now in the tenure of George TRUSSELL; also one orchard adjoining and the close of 3 roods called Iremongers Lammas Close adjoining the orchard; also 6 Beast gates [the right to pasture one animal on the manorial common], four called Free Pastures and 2 called Groat Pastures.

To hold to John for one year at peppercorn rent.

Signature and Seal of: Tho: ROBY; Tho: ROBY junior;

Witnesses to Sealings: Tho: RICHARDS; Hugh BATEMAN
                                    junior; Joseph ATKIN


                                          10 Jan 1717/18    RELEASE   DG8/8
4 George I
PARTIES:         (i)(a) Thomas ROBEY the elder of Alcot in the
                               parish of Shittington, Warwicks, yeoman
                          (b) Thomas ROBEY the younger, eldest son and
                               heir of above Thomas ROBEY
                          (ii) John CROMPTON of London gent.

Thomas ROBEY the elder and younger, for £280, release to John CROMPTON tenement and land in Castle Donington [details in DG8/7}
To hold to the said John and his heirs forever of Thomas COKE Esq., Lord of the Manor of Castle Donington, paying to him yearly 6/10d rent.


The court roll may have references to such sales, for example in the manor of Kingston upon Thames, Surrey (film 1040053) on 31st May 1803 is presented an alienation [transfer]from the heirs of Henry 'BREWSTER to the Reverend John CUNDALL of a tenement in Canbury Lane held of this manor by yearly 'rent of 1/-; And that there is due for a relief [transfer fee to the lord for a freehold property] 1/- The relief was usually the value of one year’s rent.

Deed of Grant

After 1845 a simple conveyance was allowed to transfer land. In effect a deed of grant was now acceptable for transferring real estate as well as rights and has been in use ever since.

Fee Conditional

The inheritance of some freehold tenures was restricted, or entailed, (for example to male heirs), and the freehold was known as fee conditional. This originated in 1285 with theStatute De Donis Conditionalibus which made the sale of entailed land illegal. The land was also calledestate tail and the mode of tenure fee tail. Each successor would enjoy a life interest in the estate and it would pass to his heirs by primogeniture. In addition, family settlements or trusts became commoner from the 17th century to ensure that estates remained in the family. This had its advantages but also meant that no-one could legally sell part of an estate to raise capital for improvements. So two fictitious legal actions, both involving collusive litigation, were invented to allow sale of entailed land. They were done at the Court of Common Pleas whose status made the record binding on all parties. They were both rendered obsolete in 1834 by an Act which allowed a simple disentailing deed.


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Information in this Wiki page is excerpted from the online course English: Land and Property Records including Manorial Documents and Maps offered by The National Institute for Genealogical Studies. To learn more about this course or other courses available from the Institute, see our website. We can be contacted at wiki@genealogicalstudies.com

We welcome updates and additions to this Wiki page.