Vol. 3, No. 5, Pg. 19. Words of Inheritance: Ending the Feudal Reign.

• Author: By E. Warren Moise

South Carolina Lawyer

1992.

Vol. 3, No. 5, Pg. 19.

Words of Inheritance: Ending the Feudal Reign

19Words of Inheritance: Ending the Feudal ReignBy E. Warren MoiseSouth Carolina continues to follow the common law stricture that a deed of realty must contain words of inheritance to convey property in fee simple absolute, the most complete form of land ownership. See generally D. Means, Words of Inheritance in Deeds of Land in South Carolina: A Title Examiner's Guide, 5 S.C.L.Q. 313-72 (1953), for a discussion of property law in this area.

To give an example, a deed of land from Kathryn Jones "to John Smith" must be followed by the words of inheritance, "and his heirs," or the implication will be that a life estate was granted. If John Smith receives only a life estate, the property returns at his death to Kathryn Jones.

This article will examine American and English jurisprudence in this high risk area, where a defective property conveyance can involve losses costing millions of dollars and result in allegations of malpractice. Compelling reasons will be suggested for reforming the common law rule, and a proposed statute to replace the ancient law will be offered.

The Common Law Rule: Development and Rationale

The requirement of words of inheritance to convey realty in fee simple absolute is feudal in origin. Feudal law was a primitive body of rules brought to England by William the Conqueror after his invasion in 1066. William rewarded his victorious Norman knights with large tracts of land, but feudal law (and medieval society of that era) assumed that the grants were temporary, usually for the life of the recipient. See E. Rabin, Fundamentals of Modern Real Property Law 173 (2d ed. 1982). Courts required special language in the deed to rebut the legal presumption that only a life estate was intended to be conveyed. The words "his heirs" became the formal language required under the common law to alienate property in fee simple absolute after D'Arunclers Case, Bracton's Notebook at 1054 (1225). See generally R Powell, Powell on Real Property 11-21 (1968) (discussing development of real property law).

The presumption of a life estate under early common law was justified by the needs of the feudal society which gave it birth. The Crown needed knights to defend England from Viking attacks and to maintain orderly government of an untamed, non-centralized island. See, e.g., 1 W. Churchill, A History of the English-Speaking Peoples 172 (1956).

In return for land, many tenants were...