8. The fee simple

An estate is a length of time. If the maximum length cannot be stated in years, it is freehold. If it can, it is a lease. A freehold that can be inherited is a fee. A life estate cannot be inherited. It ends with the measuring life.

Fee means inheritable. The estate lasts while there is an heir. Simple means the heir can be any heir, not a particular class. Absolute means nothing else will cut it short: no condition, no determining event. In possession means the grantee is entitled now, even if a tenant is in occupation under a lease. A fee simple that falls in only after a life estate is not in possession.

"To P and his heirs" shows the old split between words of purchase and words of limitation. P is the purchaser, the person who takes. "And his heirs" measure what P takes. They give the heirs nothing of their own. IRC v Gribble is cited for the technical meaning of purchaser.

At common law only "and his heirs" would pass a fee simple. The Conveyancing Act 1881, section 51, which applies in Sierra Leone through the schedule to the adoption legislation, allowed the words "in fee simple". "In fee", without "simple", was not enough. Re Ethel and Mitchell and Butler's Contract held that it passed a life estate only.

Section 60 of the Law of Property Act 1925 is not the Sierra Leone rule. The local rule is section 58(1) of the Imperial Statutes (Law of Property) Adoption Act, Cap 19 of the 1960 laws. A conveyance of freehold land without words of limitation passes the fee simple, or the whole interest the grantor can convey, unless a contrary intention appears. Section 28 of the Wills Act 1837 does the same work for a devise.

The fee simple owner may sell, give, lease, mortgage, and leave the land by will. The English Inheritance (Provision for Family and Dependants) Act 1975 does not apply in Sierra Leone, so testamentary freedom is wider here. Enjoyment of the surface, the fruits and the minerals is subject to the limits in the chapter on what land is.

Other fees exist, and they are rarer. A determinable fee ends by itself if an event occurs: "to K and his heirs as long as the cotton tree stands". If the event is certain to happen, it is not a determinable fee. "Until O dies" is not one, because O will die. A fee simple on condition subsequent is a complete fee with a defeasance clause added: "on condition that", "provided that", "but if". The determining words of a determinable fee are part of the limitation itself. The condition subsequent is an extra clause, and it gives a right of re-entry rather than an automatic end. Pennycuick V-C in Re Sharp's Settlement Trusts called the distinction extremely artificial. Porter MR in Re King's Trusts was ruder.

A condition that is a total restraint on alienation is void, and is struck out, so the fee becomes absolute. A partial restraint can stand. Re Macleay upheld a condition not to sell out of the family. The same restraint written as a determinable limitation ("so long as he does not mortgage") was treated as valid. A condition against marriage altogether is void. A partial restraint, such as not marrying a named person, can be valid. A determining event that is void for public policy pulls the whole determinable gift down with it. Uncertainty does the same. In Sifton v Sifton a gift "so long as she continues to reside in Canada" failed for uncertainty.