Jordan v. Record

Barrows, J. The defendant seeks to sustain his demurrer by a distinction too subtle to be admitted. It is true the statute requires the demandant to “set forth the estate he claims in the premises, whether in fee simple, fee tail, for life or for years;” and failing to do this his declaration would be fatally defective. [531] But the terms “fee” and “fee simple” are used indifferently by the best law-writers to express the same quantity of estate. Thus, 2 Blackstone Com. 104-106: “Tenant in fee simple (or, as he is frequently styled, tenant in fee) is he that hath lands, tenements, or hereditaments, to hold to him and his heirs forever, generally, absolutely and simply ; without mentioning what heirs, but referring that to his own pleasure, or to the disposition of the law. . . . And hence it is that, in the most solemn acts of law, we express the strongest and highest estate that any subject can have, by these words: ‘he is seized thereof in his demesne as of fee.’ ” “A fee therefore, in general, signifies an estate of inheritance; being the highest and most extensive interest that a man can have in a fend; and when the term is usedjsimply, without any other adjunct or has the adjunct of simple annexed to it (as a fee, or a fee simple), it is used in contradistinction to a fee conditional at the common law, or a fee tail by the statuteetc., etc. “Where the term ‘simple’ is applied, it means no more than ‘fee’ when standing by itself, as understood in respect to modern estates.” Washburn Ii. E., 1st ed. 51. And so are all the precedents of declarations. American Precedents, ed. 1802, p. 292, et seq. Oliver’s Precedents, 4th ed. 806-811. Exceptions overruled, Appleton, C. J., Walton, Virgin and Libbby, JJ., concurred.