FEE SIMPLE

innocent conveyance. Hist. A leaseholder's conveyance of the leaseholder's property interest — that is, something less than a fee simple. The conveyance is of an equitable interest. [Cases: Landlord and Tenant 74. C.J.S. Landlord and Tenant §§ 30, 53.]

fee tail

estate ad remanentiam (ad rem-<<schwa>>-nen-shee-<<schwa>>m). An estate in fee simple.

FEE INTERESTfee interest. 1.FEE(2).2.FEE SIMPLE. 3.FEE TAIL. 4.Oil & gas. Ownership of both thesurface interest and the mineral interest.

ALLODIUMallodium (<<schwa>>-loh-dee-<<schwa>>m), n. An estate held in fee simple absolute. — Also spelled alodium. — Also termed alod; alode. [Cases: Estates in Property 5. C.J.S. Estates §§ 11–12.] “In this country, one who has full ownership of land is said to own it allodially — that is, free of feudal services and incidents.” Thomas F. Bergin & Paul G. Haskell, Preface to Estates in Land and Future Interests 18 (2d ed. 1984).

BARGAIN AND SALEbargain and sale. 1. A negotiated transaction, usu. for goods, services, or real property. 2.Hist.A written agreement for the sale of land whereby the buyer would give valuable consideration(recited in the agreement) without having to enter the land and perform livery of seisin, so that theparties equitably “raised a use” in the buyer.

The result of the transaction was to leave the legal estate in fee simple in the seller and to create an

equitable estate in fee simple in the buyer until legal title was transferred to the buyer by delivery of a deed. In most jurisdictions, the bargain and sale has been replaced by the statutory deed of grant. [Cases: Deeds 22.C.J.S. Deeds § 16.]

BARGAINED-FOR EXCHANGEbargained-for exchange.Contracts. A benefit or detriment that the parties to a contract agreeto as the price of performance in return for a promise. • The Restatement of Contracts (Second)defines consideration exclusively in terms of bargain, but it does not mention benefit or detriment.

BARGAIN SALEbargain sale.A sale of property for less than its fair market value. • For tax purposes, thedifference between the sale price and the fair market value must be taken into account. Andbargain sales between family members may lead to gift-tax consequences. — Also termed bargainpurchase.

BARGAIN THEORY OF CONSIDERATIONbargain theory of consideration. The theory that a promise or performance that is bargainedfor in exchange for a promise is consideration for the promise. • This theory underlies all bilateralcontracts. See bilateral contract under CONTRACT. [Cases: Contracts 50. C.J.S. Contracts §87.]

“[C]lassical contract theory tended to associate the doctrine of consideration with the conceptof bargain. The emphasis of classical law shifted away from actual benefits and detriments to themutual promises which constitute a wholly executory contract. American lawyers developed fromthis trend a ‘bargain theory of consideration’ and similarly in English law a more modern basis forthe doctrine of consideration was found by some lawyers in the notion that a contract is a bargainin which the consideration is the price of the bargain. Allied to this is the supposed rule thatnothing can be treated as a consideration unless it is seen by the parties as the ‘price’ of thebargain.” P.S. Atiyah, An Introduction to the Law of Contract 119 (3d ed. 1981).

BARGAINbargain,n. An agreement between parties for the exchange of promises or performances. • Abargain is not necessarily a contract because the consideration may be insufficient or thetransaction may be illegal. See BARGAIN SALE; informal contract under CONTRACT. [Cases:Contracts 1.C.J.S. Contracts §§ 2–3, 9, 12.] — bargain,vb.“A bargain is an agreement of two or more persons to exchange promises, or to exchange apromise for a performance. Thus defined, ‘bargain’ is at once narrower than ‘agreement’ in that itis not applicable to all agreements, and broader than ‘contract’ since it includes a promise given inexchange for insufficient consideration. It also covers transactions which the law refuses torecognize as contracts because of illegality.” Samuel Williston, A Treatise on the Law of Contracts§ 2A, at 7 (Walter H.E. Jaeger ed., 3d ed. 1957).catching bargain.An agreement on unconscionable terms to purchase real property from — orloan money secured by real property to — a person who has an expectant or reversionary interestin the property.illegal bargain.A bargain whose formation or performance is criminal, tortious, or otherwisecontrary to public policy.

BITING RULEbiting rule. A rule of construction that once a deed or will grants a fee simple, a later provision attempting to cut down, modify, or qualify the grant will be held void. [Cases: Deeds 124; Wills601(2).C.J.S. Deeds § 245.]

CLAIM OF RIGHTclaim of right. 1.Hist. A criminal plea, usu. to a theft charge, by a defendant asserting that theproperty was taken under the honest (but mistaken) belief that the defendant had a superior right tothe property. • The claim of right could also be raised in defense against bigamy if a defendanthonestly believed that an earlier marriage had been legally dissolved. It has been superseded by adefense of honesty. 2.Hist. An owner's action to recover unjustly taken land in fee simple byemploying a writ of course. See WRIT OF COURSE. 3.CLAIM OF OWNERSHIP.CLAIM-OF-RIGHT DOCTRINEclaim-of-right doctrine.Tax. The rule that any income constructively received must bereported as income, whether or not the taxpayer has an unrestricted claim to it. [Cases: InternalRevenue 3086, 3118. C.J.S. Internal Revenue §§ 53–54, 63.]

CLAIM OF TITLEclaim of title. See CLAIM OF OWNERSHIP.

CLAIM PRECLUSIONclaim preclusion. See RES JUDICATA.“[T]he principal distinction between claim preclusion and issue preclusion is ... that theformer forecloses litigation of matters that have never been litigated. This makes it important toknow the dimensions of the ‘claim’ that is foreclosed by bringing the first action, but unfortunatelyno precise definition is possible.” Charles Alan Wright, The Law of Federal Courts § 100A, at 723(5th ed. 1994).

CLAIM-PROPERTY BONDclaim-property bond. See replevin bond under BOND(2).

CLAIMS ADJUSTERclaims adjuster. See insurance adjuster under ADJUSTER.

CONVEYANCERconveyancer (k<<schwa>>n-vay-<<schwa>>n-s<<schwa>>r). A lawyer who specializes inreal-estate transactions. • In England, a conveyancer is a solicitor or licensed conveyancer whoexamines title to real estate, prepares deeds and mortgages, and performs other functions relating to the transfer of real property.

CONVEYANCINGconveyancing (k<<schwa>>n-vay-<<schwa>>n-sing). The act or business of drafting andpreparing legal instruments, esp. those (such as deeds or leases) that transfer an interest in realproperty.“Conveyancing is the art or science of preparing documents and investigating title inconnection with the creation and assurance of interests in land. Despite its connection with theword ‘conveyance’, the term in practice is not limited to use in connection with old system titlebut is used without discrimination in the context of all types of title.” Peter Butt, Land Law 7 (2ded. 1988).

“Conveyancing may be regarded as the application of the law of real property in practice.”Robert E. Megarry & M.P. Thompson, A Manual of the Law of Real Property 125 (6th ed. 1993).

CONVEYANCING COUNSELconveyancing counsel. Three to six lawyers who are appointed by the Lord Chancellor toassist the High Court of Justice with opinions in matters of property titles and conveyancing. — Also termed conveyancing counsel of the Supreme Court; (formerly) conveyancing counsel to the Court of Chancery.

deed in fee. A deed conveying the title to land in fee simple, usu. with covenants.

deed in lieu of foreclosure. A deed by which a borrower conveys fee-simple title to a lender in satisfaction of a mortgage debt and as a substitute for foreclosure. • This deed is often referred to simply as “deed in lieu.” [Cases: Mortgages 293. C.J.S. Mortgages §§ 441–443.]

DEFEASIBLEdefeasible, adj. (Of an act, right, agreement, or position) capable of being annulled or avoided <defeasible deed>. See fee simple defeasible under FEE SIMPLE . — defeasibility,n.