- Quia Emptores
Quia Emptores (
medieval Latinfor "because the buyers", the incipitof the document) was a statutepassed by Edward I of Englandin 1290 that prevented tenants from alienating their lands to others by subinfeudation. Quia Emptores, along with its companion statute of Quo Warranto, was intended to remedy land ownership disputes and consequent financial difficulties that had resulted from the decline of the traditional feudal system during the High Middle Ages.
As there had been no survey of land titles since the
Domesday Bookof William The Conquerorin 1086, outright title to land had become seriously clouded in many cases and was often in dispute. Furthermore, free tenants were able to grant away their land such that the Lords who held outright title of such land did not have any power over the sub-tenant to collect taxes or enforce feudal duties, a practice known as alienation. Quia Emptores mandated that when land was alienated, the grantee was required to assume all tax and feudal obligations of the original tenant, known as "substitution". By effectively ending the practice of subinfeudation, Quia Emptores hastened the end of feudalism per se in England, which again had already been on the decline for quite some time. Cash rents and outright sales of land increasingly took the place of direct feudal obligations that had been made impractical and outmoded by Quia Emptores. This gave rise to the practice of 'livery and maintenance' or bastard feudalism, the retention and control by the nobility of land, money, soldiers and servants via direct salaries, land sales and rent payments. Such in turn was one of the underlying causes of the Wars of the Roses, the English civil wars fought by the House of Yorkand House of Lancasterfor control of the English Crown from 1455-1485. By the mid-fifteenth century the major nobility, particularly the Houses of York and Lancaster, were able to assemble vast estates, considerable sums of money and large private armies on retainer through post-Quia Emptores land management practices and direct sales of land. The two noble Houses thus grew more powerful than the Crown itself, with the consequent wars between the two Houses for control of the realm. Ultimately the statutes of Quia Emptores and Quo Warranto became the foundation of modern real estate and landlord/tenant relations law.
Background leading to the statute Quia Emptores
Prior to the
Norman Conquestin 1066, Anglo-Saxon rule of land law was allodial title. Tribal lands were held in perpetuityby the group as a whole. The Normans changed this system by mandating primogenitureinheritance (the inheritance by the eldest son, at the expense of the other sons). The exact nature of allodialism as it existed in Anglo-Saxon England has been debated, but to no definitive end. On one side, it has been argued in the Mark System, that Saxon allodialism was a highly idealistic socialist state. Countering this utopian view was Numa Denis Fustel de Coulangesin his essay "The Origins of Property in Land", and Frederic William Maitlandwho found it to be inconsistent with extant Anglo-Saxon documents from pre-Norman times.
In English law after the Normans, the lord remained a grantor after the grant of an estate in
fee-simple. There was no land in England without its lord: " _fr. Nulle terre sans seigneur" was the feudal maxim. The principal incidents of a seignorywere an oath of fealty, a quit or chief rent; a relief of one year's quit rent, and the right of escheat. In return, for these privileges the lord was liable to forfeit his rights if he neglected to protect and defend the tenant or did anything injurious to the feudal relation. After Quia Emptores, every existing seignory must have been created prior to the enactment of the statute.
At the time of the Conquest,
William I of Englandgranted fiefs to his lords in the manner of a continental beneficeor feudal beneficewhich assured little beyond a life tenure. These grants were in turn subject to subinfeudation. Immediately after the Conquest, the English charters were careful to avoid saying the donee was to take the estate for life, or whether the heir was to have any rights. At this time, there is abundant evidence that lords refused to regrant on any terms to the deceased tenant's heirs. The practice of demanding a monetary payment for regranting of tenancy to the heirs quickly became the norm. In 1100, the Charter of Henry I of Englandcontained the clause:
"If any of my earls, barons or other tenants in chief die, his heir shall not redeem his land as he did in the time of my brother (i.e.
William II of England), but shall take it up with a just and lawful relief. The men of my barons shall take up ( relevabunt) their lands from their lords with a just and lawful relief." [Stubbs "Select Charters" and Robertson, "Laws of the Kings of England"]
The purpose of this charter was to establish the hereditary principle that the tenants in chief would have a superior status within the law as opposed to the sub-tenants. These overlords further subinfeudated those under them.
Relief later was set at a rate per fee in the
The intent of
primogenitureinheritance was to keep large land holdings in the hands of a relatively few, trustworthy lords. In reality, the whole feudal structure was a patchwork of smaller land holders. The history of the major landholding lords is fairly well recorded. The nature of the smaller landholders has been difficult to reconstruct. By the time of Bracton it was settled law that the word " fee" connoted inheritability and the maximum of legal ownership. The word "fee" is associated with the Norman feudal system and is in contradistinction to the Anglo-Saxonallodial system. It became common practice to subinfeudate to the younger sons. There are cases from the time, in which a writ of the court was granted demanding that the eldest, inheriting son be forced to "accept in homage" the younger sons as a way of enforcing their subinfeudation.
The usage of land by tenants (serfs and peasants) was more difficult. Some families stayed on the land for generations. When the nominal head of the family died, it was usually of little consequence to the lord, or the owners of the title to the land. The practice of
socagewhereby the peasants pledged a payment (either in agricultural goods or money) for the privilege to inhabit and farm the land became the standard practice. After the payment, the peasant was considered "soked", that is, paid in full. It was discovered that agricultural land would be more economically tended if the peasants were assured an inheritance of the land to their descendants. This right to inherit was quickly followed by the right to alienation. i.e. the right to sell the inheritance to an outside party. Disputes arose when a family member wanted to leave inherited land to the Church, or wanted to sell the land to a third party. Questions concerning the rights of the overlord and the other family members were frequently heard in the courts prior to Quia Emptores. In general, it was held that a donor should pay the other parties who had an interest to give them relief. However, the results were haphazard and the rulings of various courts were patchwork. There was little established stare decisisfrom jurisdiction to jurisdiction.
This difficulty is illustrated in statements made by
Ranulf de Glanvill(died 1190), the chief justicere of Henry II of England:
"Every freeman, therefore, who holds land can give a certain part in marriage with his daughter or any other woman whether he has an heir or not, and whether the heir is willing or not, and even against the opposition and claim of such an heir. Every man, moreover, can give a certain part of his free tenement to whomsoever he will as a reward to his service, or in charity to a religious place, in such wise that if
seisinhas followed upon the gift it shall remain perpetually to the donee and his heirs if it were granted by hereditary right. But if seisin did not follow upon the gift it cannot be maintained after the donor's death against the will of the heir, for it is to be construed rather than a true promise of a gift. It is moreover generally lawful for a man to give during his lifetime a reasonable part of his land to whomsoever he will according to his fancy, but this does not apply to deathbed gifts, for the donor might then, (if such gifts were allowed) make an improvident distribution of his patrimony as a result of a sudden passion or failing reason, as frequently happens. However, a gift made to anyone in a last will can be sustained if it was made with the consent of the heir and confirmed by him." [Glanvill, vii, 1, restated in Plucknett p, 526] It has been commented that this illustrates a desire in Glanvill's time to formalize the practices of the day, in which someone having a tenancy could dispose of his land before death. While several problems were addressed (land given in marriage, land given on a whim, or on a death bed), the rules were still vague, when compared to similar cases in contemporaneous France. In the latter, strict rules had arisen defining exact amounts which could be allotted in situations such as "alienation of one-third, or alienation of one-half" of a patrimonyor conquest. Glanvill is imprecise, using terms such as "a reasonable amount" and "a certain part".
The statute Quia Emptores
Quia Emptores was a kind of legislative afterthought meant to rectify confusion in:
* economic delution It indirectly affected the practices of:
distraint(also called: distress or districtio), previously legislated in Statute of Marlborough, (1267)
Statute Quia Emptores is but one of a long list of legislative acts from the reign of
Edward I of Englandwhich had the purpose of concentrating power in the monarchy. England had a panoply of courts and varying legal traditions. Some direction toward order had been laid in the Magna Carta, the Provisions of Oxfordand the scanty legislation of Simon de Montfort, 6th Earl of Leicester. Edward I set about to rationalize and modernize the law. He reigned for thirty-five years. The first period, from 1272-90 consisted of the enactment of Statutes of Westminster(1275) and the Statute of Gloucester(1278), and the incorporation of recently conquered Wales into the realm. These were followed by the Statute Quo Warrantoand the Statute of Mortmain(1279). The latter was designed to stop the increasing amount of lands which were ending up in Church ownership. The Second Statute of Westminster(1285) contained the clause De Donis Conditionalibuswhich shaped the system of entailing estates. The Statute of Winchesterwas passed in 1285. This was followed by the Statute Quia Emptores (1290), which was only about 500 words in length. It was meant to deal with various unsettled complications. It provided that subtenants could not be allowed to alienate land to other persons while retaining the nominal possession and feudal rights over it. The seller had to relinquish all rights and duties to the new buyer, and retained nothing. This was the end of subinfeudation. The middle lords or mesnelords (who could be common persons) and had granted land for service to those lower on the social scale could no longer exist. The old feudal sequence was: the King granted land to a great lord, who then granted to lesser lords or commoners, who in turn repeated the process, becoming lesser lords (mesne lords) themselves. This was subinfeudation. The effect was to make the transfer of land a completely commercial transaction, and not one of feudalism. There were no provisions placed upon the Crown.
Quia Emptores ended the ancient practice of
frankalmoignwhereby lands could be donated to a Church organization to be held in perpetuity. Frankalmoign created a tenure whereby the holder (the Church) was exempt from all services, except trinoda necessitas. Quia Emptores allowed no new tenure in frankalmoign, except by the Crown. [Pollock and Maitland, vol. 1, p.218-230] The issues arising from frankalmoign had been addressed by the Statute of Mortmain. Quia Emptores took Mortmain one step further by banning outright, the formation of new tenures, except by the Crown.
The questions inevitably arise about the Statute Quia Emptores: was it proactive or reactive? And who benefited: King, lords or free tenants? Historians are still divided. But it is logical to conclude that Quia Emptores attempted to formalize practices of exchanging money for land, which had been going on for some centuries. There were other problems in inheritance which had festered since the time of William I. In a proclamation from 1066, William swept away the entire tradition of familial or allodial inheritance by claiming that "every child be his father's heir." The reality was different, and resulted in primogeniture inheritance. The reorganization of the country along the lines of feudalism was both shocking and difficult. Traitors forfeited their land to the Crown. This principle was designed to weaken opposition to the Crown. Frequently, it punished innocent members of the traitor's family. This was not popular. There was a saying from Kent: "Father to the bough, son to the plough (the father hanged for treason, the son continues to work the land)." The rule in Kent was that confiscated lands would be restored to the innocent family members. Seized lands throughout England were often restored to the family, despite what royal decrees may have indicated. [Plucknett] It is arguable that the institution of inheritance and subsequent alienation rights by tenants ended feudalism in England. Quia Emptores only formalized that end. In essence, feudalism was turned on its head. The ones with the apparent rights were the tenant class, while the great lords were still beholden to Crown. [Roebuck]
The issue of alienation of
serjeantyhad been settled long before Quia Emptores. In 1198 the itinerant justices were directed to make an inquiry into the nature of the king's serjeanties. This was repeated in 1205 by King John who ordered the seizure of all Lancaster serjeanties, thegnages and dregnages that had been alienated since the time of Henry II of England. These could not be alienated without a royal license. The Charter of 1217reaffirmed this doctrine. Henry III of Englandissued an important ordinance in 1256. In it the King asserted that it was an intolerable invasion of royal rights that men should without his special consent, enter by way of purchase or otherwise, the baronies and fees that were holden to him in chief. Anyone who defied the decree was subject to seizure by the sheriff. Later case law indicates jurists remained largely ignorant of this decree, which suggests the Crown was reluctant to enforce it. [Pollock and Maitland vol. 1, pp. 335-336]
Quia Emptores addressed the question of outright sales of land rights. It declared that every freeman might sell his tenement or any part of it, but in such a manner that the
feoffeeshould hold the same lord and by the same services, of whom and by which the feofforheld. In case only a part was sold, the services were to be apportioned between the part sold and the part retained in accordance with their quantities. [Pollock and Maitland vol. 1, p. 337]
The Statute was considered a compromise. It allowed a continuance of the practice of selling (alienating) land, tenancy, rights and privileges for money or other value, but by substitution. One tenant could be replaced by many. In this, the great lords were forced to concede to the right of alienation to the tenants. They had been at risk of losing their services by
apportionmentand economic dilution. This practice had been going on for some time. Quia Emptores merely attempted to rationalize and control these practices. The great lords gained by ending the practice of subinfeudation with its consequent depreciation of escheat, wardshipand marriage. History would indicate the great lords were winners as well as the Crown, since land bought from lowly tenants had a tendency to stay within their families, as has been noted supra.
Nothing in Quia Emptores addressed the king's rights. No one seemed to have imagined that the tenants in chief of the crown were set free to alienate without royal license. On the contrary, at the time the right of alienation by substitution was being set in Statute, the king's claim to restrain any alienation by his tenants was strengthened. In the opinion of Pollack and Maitland, it is a mistake to conclude that Quia Emptores was enacted in the interest of the great lords. The one person who had all to gain and nothing to lose was the king. [Pollock and Maitland, vol 1, p. 337]
The process of
escheatwas affected by Quia Emptores. In Glanvill's day, there was an occasional mention of ultimus heres; the land escheats ( excadere) to the lord in the absence of a clear tenant heir. If a tenant was outlawed or convicted of a felony the king could exercise the ancient right of wasting the criminal's land for a year and a day. After that, the land returned to the lord. There was a distinction between felony and treason. One guilty of treason forfeited all lands to the king. John and his heirs frequently insisted on seizing terrea Normannorum, the English land of those who preferred to be Frenchmen rather than Englishmen when the victories of Philip Augustusforced a proclamation of allegiance. Frequently, disavowal of a feudal bond was considered a felony. In this, the lords could escheat land from those who refused to be true to their feudal services. On the other hand, there were tenants who were sluggish in performing their duties, while not being outright rebellious against the lord. Remedies in the courts against this sort of thing, even in Bracton's day, were available. But they were considered laborious, and frequently ineffectual in compelling the desired performance. The commonest mechanism would be distraint, also called distress (districtio): the lord would seize some chattel, and hold it until performance was achieved. This practice had been dealt with in the 1267 Statute of Marlborough. Even so, it remained the most common extra-judicial method applied by the lords at the time of Quia Emptores. Expulsion of tenants from the land for failure to perform was always a difficult idea, and usually necessitated a lengthy court battle. The lord who escheated could not profit from the land, and had to hold it open for the tenant who could fulfill the obligation at a future date. Quia Emptores laid out, with some definition which had previously been lacking in the issue of tenures. In a sense, the old stereotypes were locked in place. Every feoffment made by a new tenant could not be in frankalmoign, since the donee was a layman; it would be reckoned by the laws of socage. Socage grew at the expense of frankalmoign. Subinfeudation was ended. The tenant in chief could not alienate without the license of the king. Petty serjeantycame to be treated as "socage in effect". [Pollock and Maitland vol. 1 p. 355-366]
Quia Emptores in Colonial America
* Grants of the English Colonies
* De Peyster v. Michael, New York
* Van Renssalaer v. Hayes, New York
* Miller v. Miller, Kansas
* Mandelbaum v. McDonnell, Michigan
* Cuthbert v. Kuhn, Pennsylvania
* New York State Constitution The English colonies in North America were founded upon royal grants or licenses. Specifically,
British colonization of North Americawas by charter colonyor proprietary colony. In this sense, they were founded upon the principles outlined by Quia Emptores. The territories were granted under conditions by which English law controlled private estates of land. The colonies were royal grants. An entire province, or any part of it, could be leased, sold or otherwise disposed of like a private estate. In 1664, the Duke of Yorksold New Jersey to Berkeley and Carteret. The sale was effected by deeds of lease and release. In 1708, William Pennmortgaged Pennsylvania, and under his will devising the province legal complications arose which necessitated a suit in chancery. Over time, Quia Emptores was suspended in the colonies. Arguably, certain aspects of it may still be in effect in some of the original colony states such as New York, Virginia, Maryland and Pennsylvania. However, like everything else involving Quia Emptores, opinion varies, and some element of confusion reigns. Some U. S. state court decisions have dealt with Quia Emptores. Prominent among these was the 1852 New York case of De Peyster v. Michael. [6,NY 467; quoted in 28 Am. Jur 2nd Estates, section 3 and 4] There the court record is useful in describing the nature of English feudalism: "At common law a feoffment in fee did not originally pass an estate in the sense in which the term is now understood. The purchaser took only a usufructary interest, without the power of alienation in prejudice of the lord. In default of heirs, the tenure became extinct and the land reverted to the lord. Under the system of English feudal tenures, all lands in the Kingdom, were supposed to be holden mediately or immediately of the King who was styled the 'lord paramount', or above all. Such tenants as held under the King immediately, when they granted out portions of their lands to inferior persons, also became lords with respect to those inferior persons, since they were still tenants with respect to the King, and thus partaking of a middle nature were called "mesne' or 'middle lords'. So, if the King granted a manor to A and A granted a portion of the land to B, now B was said to hold of A, and A of the King; or in other owrds, B held his lands immediately of A and mediately of the King. The King was therefore styled 'Lord Paramount'; A was both tenant and lord,or a mesne lord, and B was called 'tenant paravail', or the lowest tenant. Out of the feudal tenures or holdings sprung certain rights and incidents, among those which were fealty and escheat. Both these were incidents of socage tenure. Fealty is the obligation of fidelty with the tenant owed to the lord. Escheat was the reversion of the estate on a grant in fee simple upon a failure of the heirs of the owner. Fealty was annexed to and attendant on the reversion. They were inseparable. These incidents of feudal tenure belonged to the lord of whome the lands were immediately holden, that is to say, to him of whom the owner for the time being purchased. These grants were called subinfeudations."
In this case. the New York court offered the opinion that Quia Emptores had never been effect in the colonies. A different opinion was rendered by the New York court in the 1859 case of Van Rensselaer v. Hays (12 NY 68) where is was written that Quia Emptores had always been in effect in New York and all the colonies. There, the court noted: "In the early vigor of the feudal system, a tenant in fee could not alienate the feud without the consent of the immediate superior; but this extreme rigor was soon afterward relaxed, and it was avoided by the practice of subinfeudation, which consisted in the tenant enfeoffing another to hold of himself by the fealty and such services as might be reserved by the act of feoffment. Thus, a new tenure was created upon every alienation; and thus there arose a series of lords of the same lands, the first called the 'chief lord' holding immediately of the sovereign, the next grade holding of them, and so on, each alienation creating another lord and another tenant. This practice was considered detrimental to the great lords, since it deprived them to a certain extent the fruits of their tenure, such as escheats, marriages,wardships and the like." [Case text repeated in 28 Am Jur 2nd Estates sections 3 and 4]
From 28 Am Jur 2nd Estates section 4: "The effect of Statute Quia Emptores is obvious. by declaring that every freeman might sell his lands at his own pleasure, it removed the feudal restraint which prevented the tenant from selling his land without the license of his grantor, who was his feudal lord. Hence by virtue of the Statute, passed in 1290, subinfeudation was abolished and all person except the King's tenants, in capite were left at liberty to alien all or any part of their lands at their own pleasure and discretion. Quia Emptores is by express wording, extended only to the lands held in fee simple. Included in it applications, however are leases in fee and fee farmlands. Property in the U. S., with few exceptions, is allodial. This is by virtue of state constitutional provisions, organic territorial acts incorporated into legal systems of states subsequently organized, statutes and decisions of the courts. They are subject to escheat only in the event of failure of successors in ownership."
In the 1913 case of Miller v. Miller, the Kansas court stated: "Feudal tenures do not and cannot exist. All tenures in Kansas are allodial." [Miller v. Miller, 91 Kan 1, 136 P 953]
The Supreme Court of Michigan expressed the opinion that whether Statute Quia Emptores ever became effectual in any part of the United States by express or implied adoption or as part of the common law did not have to be ascertained. It was clear that no such statute was ever needed in Michigan or in any of the western states, because no possibility of reverter or escheat in the party converying an estate ever existed. Al all times, escheat could only accrue to the sovereign, which in Michigan, is the state. [Mandelbaum v. McDonell, 29 Michigan 78]
The Statute Quia Emptores was stated not to be in effect in the state of Pennsylvania in Cuthbert v. Kuhn [ 3 Whart. Pa 357 ]
The New York Constitution makes any question of Quia Emptores moot by stating: "all lands within this state are declared allodial, so that, subject only to liability to escheat, the entire and absolute property is vested in the owners, according to the nature of their respective estates." [New York State Constitution Article 1; 12]
Legacy of Quia Emptores in United States Law
Although it is a matter of debate whether Quia Emptores was the effective law with in the colonies, the effect of the Statute is still present in United States land laws. Without a doubt, the U.S. Constitution, and various state constitutions and legislative acts have made Quia Emptores moribund in fact. But the language of land law still sounds medieval, and takes its concepts from the time of Edward I and before. The following list of words common in U.S. land law are from Norman England (with their modern meaning in the United States):
Alienation- "a sale"
Appurtenant- "belonging to"
Damum Absque Injuria- "injury without wrong"
Demise- "to lease" or "let" premises
Enfeoff- "to give land to another"
Estate- "an interest in land"
Feoffee- "a party to whom a fee is conveyed"
Feoffment- "physical delivery of possession of land by feoffeor to the feofee"
Leasehold- "an estate in land held under a lease"
Livery of Seisin- "delivery of possession"
Mesne- "intervening"; related to the term " mesne conveyance" meaning an intervening conveyance
Purchase- "voluntary transfer of property"
Seisin- "possession of a freehold estate"
Tenant- "one who holds or occupies the land under some kind of right or title"
Writ of Fieri Facias- "writ of execution on the property of a judgment debtor"
The terms "fee", "fee tail", "fee tail estate", "fee tail tenant", "fee simple" and the like are essentially the same as they were defined in
De Donis Conditionalibusin 1285.
There are four kinds of deeds in common usage:
warranty deed, which contains covenants for title.
special warranty deedin which the grantor only covenants to warrant and defend the title.
deed without covenantsin which the grantor purports to convey in fee simple
quitclaim deedin which the grantor makes no convenants for title but grants all rights, title and interest.
The last two are directly related to Quia Emptores. Other changes came after the
Statute of Uses, 1535 and the Statute of Frauds.
* 28 American Jurisprudence 2nd Estates
* 61 American Jurisprudence 2nd Perpetuities and Restraints on Alienation
* Henderson, E. F., "Select Historical Documents of the Middle Ages", George Bell and Sons, London, 1910 (pp.149-150)
* Holdsworth, W. S., "A History of English Law", Little, Brown and Co., Boston, 1927
* Holdsworth, W. S., "Some Makers of English Law, The Tagore Series, 1937-1938", Cambridge University Press, 1938
* Kirkalfy, A. K. R. "Potter's Historical Introduction to English Law and Its Institutions", Sweet and Maxwell Ltd. London, 1962
* Plucknett, Theodore, "A Concise History of the Common Law, Fifth Edition", Little, Brown and Company, Boston, 1956
* Pollock and Maitland, "The History of the English Law, Second Edition", Cambridge University Press, 1968. Specifically, from Volume 1, pp. 332-335; 337; 354-356; 608-610; Volume 2 pp. 292-294
* Robertson, A. J., "Laws of the Kings of England", Cambridge University Press, 1925
* Roebuck, Derek, "Background of the Common Law", Oxford, 1990
* Stoner, James R., "Common Law and Liberal Theory", University of Kansas Press, Lawrence, Kansas, 1992
* Stubbs, W. H., "Select Charters and the Illustrations of English Constitutional History", Clarendon Press, 1903
* [http://socserv2.mcmaster.ca/~econ/ugcm/3ll3/fustel/Property.pdf "The Origins of Property in Land"] Numa Denis Fustel de Coulanges (McMaster University)
* [http://www.willamette.edu/~blong/LegalHistory/QuiaEmptores.html Quia Emptores legal history]
* [http://www.yale.edu/lawweb/avalon/medieval/land.htm Quia Emptores (Yale)]
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