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Quia Emptores, 1290
From the first words of the Statute of Westminister III, cc. 1-3 (18 Edw. 1)
meaning “For as much as Purchasers………”
Applied to Ireland by Poynings Act, 1495
Feudal Tenure
Under the feudal system of tenure all land was held from someone else with the
Crown being at the top of the chain of ownership. Land was granted by the Lord
(the Grantor) to the Tenant ( the Grantee). The King made grants of land to his
Tenants-in-Chief, his most important and loyal supporters and by a process
known as sub-infeudation the Tenants-in-Chief made sub-grants out of the land
given to them to Mesne Tenants (the middle tier). The Mesne Tenants made
sub-sub-grants to a lower level of Tenants in Demesne and so on down the
chain.
Sub-infeudation ensured that there was no clean break with the Grantor on the
purchase of land as the Vendor (Grantor) retained an interest in the land by way
of services and incidents due to him. The consent of the lord was also required
for the Grantee to make a sub-grant of the land.
The Grants of land were made on certain terms and conditions know as services
and incidents. These were the precursors of the modern taxes as a means for
the Crown to raise revenue.
As part of the grant the Grantee had to perform services for the Grantor to them.
For example if land was held by the Tenant in Chief from the King under military
tenure (Grand Sergentry or Knights Service) the Tenant in Chief would be
obliged to provide the King with a certain number of soldiers if called on by the
King to do so.
The grant of land also imposed certain obligations on the Grantees known as
incidents. The following are the main incidents that attached to the lands as an
obligation on the Grantee on the disposition of the lands whether by inheritance
or sale;
Relief – the payment of a fine called “a relief” by an heir on inheriting the estate.
Aids
Money had to be paid to the Lord on the marriage of his eldest daughter.
Money was made available to ransom the lord if required.
Money was paid to the lord to help with the lords son becoming a knight
Homage – was performed on entry to the estate
Wardship – if the heir was minor when the estate was inherited the lord held the
lands without accounting for income until the heir reached 21 (male) or 16
(female)
Marriage – the lord had the right to dispose of his infant wards in matrimony.
Suitors would pay the lord to marry his ward
If a male ward refused a suitable match he would forfeit a sum of money equal to
the value of the marriage
If a female ward refused the lord was entitled to hold her lands until she was 21
or until he had taken the value of the marriage without accounting for profits from
the land
Escheat – on failure of the tenants heirs the lands reverted to the lord. The lord
was also entitled to the lands back under escheat if the tenant was condemned
to death or convicted of treason.
Significance of the Statute Quia Emptores
This Statute established the foundations of one of the basic principles of land law
in this jurisdiction i.e. the Rule against Inalienability by:
prohibiting further sub-infeudation after the passing of the Statute and
dispensing with the requirement to obtain the consent of the superior
tenant to dispose of the lands. This was a reflection of the public policy which
favoured the alienability of lands without restriction.
It led to the break-up of the feudal system of tenure. The abolition of further subinfeudation had the following consequences;
most land eventually came to be held directly from the crown.
Over time the feudal services due under the system of tenure were
replaced by a money payment by way of rent which eventually fell
into disuse because it was not indexed and eventually became
worthless. The finances to run the country then came not under the
system of tenure but through taxes.
Prior to Quia Emptores
Land was conveyed from one holder to the next by sub-infuedation.
The Vendor of the land under subinfeudation retained a connection
with the land in the form of services and incidents of the feudal system.
The holding in the land could not be sold without the consent of the
Superior tenant.
Post Quia Emptores
Subinfeudation was prohibited except by the King
Conveyance of land was by substitution whereby the vendor passed all
of his right, title and interest in the lands to the purchaser.
The Vendor had no more to do with the land after substitution and the
purchaser was responsible for the services and incidents directly to the
superior tenant.
Court application of the Rule against inalienability – a dilution of the
principle
Repugnancy to the nature of the estate granted
Repugnant to Public Policy
In Re Rosher 1884 26 Ch D. 801 – considered that all restrictions were
repugnant to the fee simple estate. Free alienation is an essential
characteristic of a fee simple estate and any restriction on this must be
repugnant to that rule.
In Re Macleay (1875) LR 20 Eq. 186
attempt to prevent the ‘sale out of the family’ in a will held to be
allowable as only a partial restriction. Property could be
mortgaged or leased.
In Re Dunne [1988] IR 155
attempt to prevent the property being sold or otherwise
conveyed or transferred ‘to any member of the Meredith families
of O’Moore’s Forest, Mountmellick.’
Held to be void on public policy grounds - perpetuating old
resentments not desirable.
In Re Clark [1961] NZLR 635 and In Re Richardson [1988] 3 NIJB 35
authority for the proposition that conveyances to Charitable
Trusts are not subject to the rule against holding a fee simple
inalienably.
Land and Conveyancing Law Reform Bill, 2006
Section 9 – abolishes the feudal concept of tenure
The rule against inalienability is preserved