I've been studying land patents and related sciences for a while now. I wanted to share this bit of research I did recently regarding allodial land title in America. I think it may be relevant to this discussion.
All US Land Patents (that I've seen, and that number is many) include the words "TO HAVE AND TO HOLD" in uppercase, bold letters.
All definitions from Black's 4th [my notes in brackets]:
HABENDUM. Portion of deed beginning with the words "To have and to hold".
The clause usually following the granting part of the premises of a deed,
which defines the extent of the ownership in the thing granted to be held
and enjoyed by the grantee.
TO HAVE AND TO HOLD. The words in a conveyance which show the estate
intended to be conveyed. Thus, in a conveyance of land in fee-simple, the
grant is to "A. and his heirs, to have and to hold the said [land] unto
and to the use of the said A., his heirs and assigns forever."
Strictly speaking, however, the words "to have" denote the estate to be
taken, while the words "to hold" signify that it is to be held of some
superior lord, i.e., by way of tenure. The former clause is called the
"habendum"; the latter the "tenendum".
[So who is the superior lord on a US land patent?]
TENURE. The mode or system of holding lands or tenements in
subordination to some superior, which, in the feudal ages, was the leading
characteristic of real property.
Tenure is the direct result of feudalism, which separated the dominium
directum (the dominion of the soil), which is placed mediately or
immediately in the crown, from the dominion utile (the possessory title),
the right to the use and profits in the soil, designated by the term
"seisin", which is the highest interest a subject can acquire.
[Sounds like the US land patent might be a feudal conveyance, the dominion
over the soil still laying in the crown (of England, I assume, or the
Pope).]
TENENDUM. To be holden. It was used to indicate the lord of whom the
land was to be held and the tenure by which it was to be held, but since
all freehold tenures have been converted to socage, the tenendum is of no
further use, and is therefore joined in the habendum--"to have and to
hold".
TENENS. A tenant.
SOCAGE. A species of tenure, in England, whereby the tenant held certain
lands in consideration of certain inferior services of husbandry to be
performed by him to the lord of the fee. In its most general and
extensive signification, a tenure by any certain and determinate service.
And in this sense it is by the ancient writers constantly put in
opposition to tenure by chivalry or knight-service, where the render was
precarious and uncertain. Socage is of two sorts--free socage, where the
services are not only certain, but honorable; and villein socage, where
the services, though certain, are of baser nature.
RENDER. In feudal law, used in connection with rents and heriots. Goods
subject to rent or heriot-service were said to lie in render, when the
lord might not only seize the identical goods, but might also distrain for
them.
DISTRAIN. To take as a pledge property of another, and keep it until he
performs his obligation or until the property is replevied by the sheriff.
It was used to secure an appearance in court, payment of rent, performance
of services, etc.
FEE [generally]. A charge fixed by law for services of public officers or
for use of a privilege under control of government. A recompense for an
offical or professional service or a charge or emolument or compensation
for a particular act or service.
FEE [estates]. A freehold estate in lands, held of a superior lord, as a
reward for services, and on condition of rendering some service in return
for it. The true meaning of the word "fee" is the same as that of "feud"
or "fief", and in its original sense it is taken in contradistinction to
"allodium", which latter is defined as a man's own land, which he
possesses merely in his own right, without owing any rent or service to
any superior.
FEE [American law]. An estate of inheritance without condition, belonging
to the owner, and alienable by him or transmissible to his heirs
absolutely and simply, and is an absolute estate in perpetuity and the
largest possible estate a man can have, being, in fact, allodial in its
nature.
[So under American law, a fee is "allodial in its nature". So, to be
clear, it is not "allodial" per se, but in the nature of allodial title,
i.e. not entirely the same.]
Originally Posted by Magnus the Destroyer
