CHAPTER 1

HISTORY AND DEVELOPMENT OF LAND

OWNERSHIP AND CONVEYANCING

§101. Introduction. In order to understand the fundamentals of title practice, it is first necessary to
comprehend certain basic concepts. The term title refers to the ownership of certain estates or interests
in land, or, strictly speaking, the means by which the ownership of land is acquired or established. W hen
one has acquired title to land, title may be said to have vested in him. Land may be defined as not only
the surface of the soil within a particular area, but also so much of the area above and below the surface
which may be used or enjoyed. Thus the term may include grass, trees, and shrubbery, which grow from
the soil, and any minerals which exist on or below its surface, including water. Structures which have been
erected on the land, such as buildings or other improvements, are also embraced within its definition.

W hen we speak of the ownership of land, we refer to the nature of the estates or interests
acquired or held therein. Land is also known as real estate or real property or realty, as distinguished
from personal property or personalty. The former is characterized b y its permanency or immobility, while
the latter is distinguished by its mobility. A fixture is an item o f personal pro perty which, by virtue of its
permanent annexation to real estate, becomes part of the real estate; i.e., it loses its character as personal
property and becomes real property. A good example of this is building material which is used to
construct a house. A brick, taken by itself, is clearly an item of personalty; but once it is incorporated into
a house, it becomes a fixture; i.e., part of the realty.

W hen one speaks of "searching the title" to a particular piece of prop erty, one refers to a
complex procedure by which the ownership of various estates and interests in that parcel of land are
determined and classified. For example, a title search of no. 123 Main Street might reveal that John Doe
is the "owner" (i.e., that the title is vested in John Doe), subject to a mortgage held by XYZ Bank, a lease
given to Richard Roe, and a right-of-way easement In favor of Mary Smith. Thus, the "ownership" of land
is often broken up into several different estates or interests. Land ownership has traditionally been
represented metaphorically by the phrase “bundle of sticks” or “bundle of straws”. Absolute ownership
(i.e., a fee simple estate) is represented by a complete bundle. Rights or interests given to or retained by
others diminish the size of the bundle.

§102. Historical Background; Feudalism. Because New Jersey was form erly a colony of the Crown of
England, the history and development of our entire legal system, including, but not limited to, our system
of land ownership, has its roots in England. For our purposes, the development of land ownership began
with the successful invasion of England by the Normans in the year 1066, under the lead ership of W illiam
the Conqueror (King W illiam I). W illiam I introduced the feudal system to England. Feudalism is based
on the concept that all land is held, whether immediately or mediately, of the sovereign. In other words,
all land is owned by the King, and all others having an estate or interest in land ultimately derive their
interests from the King.1

By way of illustration, let us assume that the entire nation of England was one huge tract of land.
The king
conveyed large parcels of land to his chief noblemen, often as a reward for services rendered. They in turn
conveyed small portions to lesser noblemen, who in turn reconveyed still smaller tracts to others, and so
forth. These conveyances created a pyramid-like structure with the King at the top and the serfs at the
bottom. However, it would be inaccurate to suppose that these conveyances enabled the transferees to

1
Tiffany on Real Property, §11 (3d Ed. 1939).

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own the lands conveyed. Under this system, one merely possessed or held land, subject to the superior
rights of the transferor, whose position was immediately above the transferee in the feudal pyramid. 1 The
foregoing suggests that feudal estates can probably best be characterized as a series of leaseholds and
subleaseholds. O n the other hand, these estates descended to the heirs of the possessor thereof, and were
transferable under certain circumstances; they are therefore sometimes referred to by the term base fee.2
The estate acquired under feudalism was known as a tenement; the party in possession as a tenant; and
the manner of possession as a tenure.3

Just as tenants and lessees pay rent today, so did the feudal tenants owe various forms of service
to their landlords. These services ranged from agricultural to military duties. 4 In addition, the landlords
were entitled to certain incidents, such as escheat, by virtue of their superior position.5 Each tenant thus
held his tenement in consideration of the services due to his superior; the nature of these services defined
one's tenancy. Owing in part to the personal nature of these obligations, and in part to the mystical nature
of seisin (the process by which the tenant took possession of the tenement), feudalism was not merely a
scheme of land ownership; it was also a moral, ethical and social system, which defined the relationship
among different classes in M edieval English society.6

As noted above, feudal tenures were to some extent transferable. During the reign of Edward
I, the practice of transferring estates, through a device known as subinfeudation, became widespread.7
The economic burdens imposed on a tenant by the feudal obligations (services and incidents) owed to his
landlord could be significant. T herefore, if A enfeoffed B of Blackacre, B might attempt to avoid or
minimize his obligations to A by subinfeudating C. This would effectively create a new tenurial
relationship, wherein B was the overlord and C was the tenant. However, subinfeudation, in addition to

1
2 Blackstone's Commentaries, ch. 4 (8th Ed.).

2
Id.

3
Id.

4
Id. For example, tenure by knight service required the tenant to devote a certain number of days
of military service per year to this lord, while frankalmoin tenure obligated the tenant with respect to
religious services. Socage tenure was generally characterized by services of a profitable or agricultural
nature. The services were also distinguished by their quality (free vs. base) and by their quantity (certain
vs. uncertain).

5
Id. If the tenant died without leaving heirs, or forfeited his lands by virtue of conviction of a
felony or treason, his estate was said to escheat to the overlord. [See Chapter 58.] Other incidents were
known as: aids (which included the duty to ransom the lord if he was taken prisoner); relief (a payment
made to the lord for the privilege of taking over an estate if the former tenant had died or forfeited same);
wardship (the lord's right to custody of the body and lands of a deceased tenant's heir until the heir
reached the age of 21 (if male) or 16 (if female); and marriage (the lord's right to arrange marriages,
including the right to sell same, on behalf of his ward).

6
1 Thompson on Real Property, §§31 et seq. (1980).

7
Id. at §34 & 35.

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complicating the feudal system, also had the effect of diminishing the incidents which the overlord (in this
case, A) would receive.1

§103. Statute Quia Em ptores. Since these incidents were of great economic value to the overlords, they
naturally turned to the King for assistance. His response was the enactment of the statute Quia Emptores
Terrarum. 2 The name of the law is taken from the opening words of the [Latin] text. It means "W hereas
purchasers of land...."

Although it is unclear from a literal reading, this statute was interpreted to prohibit further
subinfeudation. But most significantly for our purposes, it also gave the tenant (in fee simple) the right
to substitute another in his place without obtaining the permission of the overlord; the transferee then
stood in the same position vis-a-vis the overlord as did his transferor. This was of course a very radical
concept, which was completely at odds with the pyramid-like structure of feudalism. Thus was created the
modern fee simple estate in land, because the tenant in fee simple was now the owner in fee simple. His
relationships with his transferor and transferee were allodial, the opposite of tenurial or feudal.

Of course, the King still remained as the source of all title to land. Nevertheless, the prohibition
on subinfeudation, coupled with the right of substitution, eventually caused the system to be vastly
simplified, because the transferor of land was no longer involved in the pyramid-like structure; the
transferee took his place. W hile this enactment did not cause the overnight collapse of feudalism, it
marked the beginning of the end. It is ironic that Q uia Emptores brought about the destruction of the
system it was intended to preserve.3

§104. Decline & Collapse of the Feudal System. As noted above, the statute Quia Emptores marked the
beginning of the end of the feudal system. Its decline was abetted by changing social and economic
conditions, as well as by certain legislative enactments. For exam ple, by the Statute of Tenures, 4 most
feudal obligations were converted into free and common socage, which am ounted (in practice) to the
payment of rent in cash.

In New Jersey the statute Quia Emptores has been re-enacted as part of our statutes. 5 W hile this
law may seem archaic and unnecessary in contemporary society, it must be viewed in the context of a
legislative scheme which sought to eradicate the last vestiges of feudalism in New Jersey and to prevent
its establishment at some future date. Accordingly, other sections of Title 46 serve to abolish feudal
tenures; 6 to eliminate feudal services and incidents in favor of free and common socage; 7 and to provide

1
Id. Plucknett, Concise History of the Common Law, 538 (5th Ed. 1956).

2
18 Edw. I, ch. 1, St. W estminster III (1290).

3
1 Thompson on Real Property, §34 (1980); accord, Walsh on Property, §82 (2d Ed. 1927).

4
12 Car. II, Ch. 24 (1660).

5
N.J.S.A. 46:3-5.

6
N.J.S.A. 46:3-1.

7
N.J.S.A. 46:3-2, -3, & -4.

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that conveyances from the State shall be allodial (and not feudal) in nature.1 It is true that the feudal
system never really took hold in America, because it was dying out in England by the time colonization
occurred. Nevertheless, some of its remnants can be found in the references to the payment of forty (40)
beaver skins yearly in the original grant of New Jersey from King Charles II to the Duke of York in 1664.2
In any event, the Legislature believed it was prudent to take measures to guard against the institution of
feudalism in this State. As a result, feudalism has no place in New Jersey today.

§105. Conveyancing Under the Feudal System; Importance of Seisin. By the term conveyancing is meant
the method by which the transfer of estates in realty is effectuated. Under the feudal system, transfers
were accomplished by a ceremony known as livery of seisin, wherein the feoffer (grantor or seller) and the
feoffee (grantee or purchaser) went physically onto the land and performed a prescribed ritual. Seisin (at
early common law) was synonymous with possession.3 However, seisin was more than a legal principle,
it was also a metaphysical concept, arising fro m the lord's (moral) duty to protect the tenant, and the
tenant's (moral) duty of loyalty to his overlord.4 Today, seisin refers to the ownership of a freehold estate.
It is common to say, for example, that "X is seized of an estate in fee simple in Blackacre”.

§106. Later Developments. W ith the enactment of the Statute of Uses, 5 livery of seisin was no longer
necessary to transfer ownership of land. 6 This vastly simplified the means of conveyancing. Transfers by
deed of bargain & sale became common at this time. Subsequently, the Statute of Wills permitted the
transfer of real estate by the W ill of a decedent.7 As noted above, by the Statute o f Tenures, 8 most feudal
obligations were converted into free and common socage, which amounted (in practice) to the payment
of rent in cash. Finally, the Statute of Frauds required that transfers of estates in real property be in
writing. 9 As a result of these enactments, the system of conveyancing which was employed by the Colonists
was substantially similar to that in use in New Jersey today.

The forms of deeds, mortgages and other documents which were developed in the Seventeenth
and E ighteenth Centuries to create and transfer estates and interests in realty are remarkably similar to
those in New Jersey until quite recently (when the "plain language" forms were developed). The term
indenture, with which many instruments traditionally began, refers to the ancient practice of writing two
(or more) copies of the document on one large sheet of parchment. They were then cut apart with a wavy
line [an "indenture"], and a copy was given to each party to the instrument. Subsequently, the parties

1
N.J.S.A. 46:3-6.

2
N.J.S.A., Acts Saved from Repeal, pp. XXXIX et seq.; see §601, infra.

3
2 Blackstone's Commentaries, 332 (8th Ed.).

4
1 Thompson on Real Property, §§31 et seq. (1980)

5
27 Hen. VIII, c. 10 (1536). See §10901, infra.

6
See §10901, infra.

7
32 Hen. VIII, c. 1 (1540); see §5311, infra.

8
12 Car. II, Ch. 24 (1660).

9
29 Car. II, c. 3 (1677). See §§519 & 3701, infra.

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could compare their copies by placing them together; if the lines matched, the documents were the same.1
The persons who wrote the documents were known as scriveners. Thus, even today, we sometimes refer
to a mistake in the text of an instrument as a scrivener's error.

In the following chapters, the various estates and interests in land and their respective
characteristics are discussed.

1
2 Blackstone's Commentaries, 295 (8th Ed.). In contrast, only one copy was made of a deed-poll,
which had a smooth edge. Id.

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