Legal Terms in Wills and Land Records


Presentation © B S Sharples, Bosbury, Herefordshire November 2011.
See also Inventory Terms and Occupations. Return to local history page.

Terms that appear in deeds, legal proceedings, and queries in genealogy groups. The laws relating to land records are often dealt with by common law (law based on custom and judicial precedent rather than laws passed by the government), and determining legal rights can be highly intricate.

Legal and Other Terms

  • Accession - Adding on. In civil law, the right to all that one’s property produces, not just the property itself.
  • Adminstration, Letters of - A grant to the next-of-kin (or some other person or persons) who applied to administer the property of an estate of someone who died intestate.
  • Adminstrator(m)/administratrix(f) - A person appointed by the court to settle the estate of someone who died intestate.
  • Admit - see Copyhold.
  • Ad quod damnum - A writ causing an evaluation of damages that might result from someone’s actions. Example: you wish to dam a stream on your land to power a mill. The pond may damage another’s land.
  • Ad valorem Duties - Taxes which are charged in proportion to the cost or market value of an asset. Stamp Duty, which is charged on transfers of shares and property as a percentage of the value, is an example.
  • Adverse Possession - Gaining title to another’s land by exercising the rights of ownership of that land unchallenged for a period of time, typically on the order of five to ten years, and meeting other requirements. See seizin.
  • Alien - To transfer (lands, title) to another.
  • Alienation - A transfer of title or property to another.
  • Allodial - see alodium
  • Alodium - Land owned independently, without rent or other obligation to another. See Freehold Estate. The alodial (also ‘allodial’) system is opposed to the feudal system.
  • Apprisor - Someone who ‘appraises’ or estimate the value of an article.
  • Appurtenances - The rights attached to real property including easements, grazing rights, rights of way, a pew in church or agreements attached to the holding of manorial land.
  • Armiger - someone entitled to bear heraldic arms.
  • Assignee - See assigns. Often seen in conjunction with land warrants which were assigned (sold) to speculators.
  • Assignment - Grant of property or a legal right, benefit, or privilege to another person. In medieval times the process could be lengthy, involving payment of consideration to the crown, obtaining a receipt from the treasurer, getting an auditor’s certificate, getting the land surveyed and recorded. The right to the land could be “assigned” at any time in the process to a third party. It was not unusual to have six or seven assignments before the final recording.
  • Assigns - Anyone acting on behalf of or in place of the nominal owner. The owner may have transferred or sold his rights to someone else or appointed an attorney to act on his behalf.
  • At will - Terminable by the lord of the manor at any time.
  • Bann(s) - A public announcement of an intended marriage to allow advance notice should someone desire to protest. In medieval times, many churches would read the banns on three consecutive Sundays prior to the marriage.
  • Bargain - Mutual agreement among two or more people to exchange or purchase goods.
  • Bargain and Sale Deed - A type of deed in which title is transfered but in which there is usually no guarantee as to the validity of title.
  • Behoofe - use, benefit, advantage.
  • Bequest - A gift of personal property made in a will. Verb ‘bequeath’, see also devise.
  • Bond for Deed/Title - A promise to convey land when paid at some point in the future.
  • Burgage - A tenure in which burgesses or townsfolk held lands or tenements of the lord, usually for a fixed rent within an ancient borough. In Scotland the term related to tenure in property in the royal burghs.
  • Burgess - A freeman in a medieval town holding a burgage.
  • Cadastral Map - Land ownership map. Generally used for tax purposes.
  • Cattels and Chattels - Movable property. ‘Catel’ is the Old French word used by the Normans in England (which could include livestock, hence cattle). This changed it’s spelling to ‘Chatel’ in France by the end of the 13th century. Our legal documents linked the two terms. French pronunciation also changed at this time; the Normans gave us the hard ch as in ‘chamber’ whereas back in France it became soft as in ‘chevron’. This duality still occurs; we say the i in ‘grapevine’ in the Old French manner but ‘ravine’ as in modern French.
  • Candlemas - The Feast of the Purification of the Blessed Virgin Mary, 2nd of February. The ceremony at mass includes the blessing and offering of candles.
  • Caution - In the U.K., Canada, and elsewhere, a restriction on disposition of property by the registered owner, placed by a person who claims a right on the property in question.
  • Cesser - Failure of a tenant who holds land in return for services to perform those services.
  • Chattel - A tangible, movable article of personal property, as opposed to real property.
  • Claim - see Entry.
  • Codicil - An addition made to a will
  • Collateral - Property put up by someone getting a loan. If they fail to repay the loan, the collateral goes to the person granting the loan.
  • Color of Title - A deed appearing to convey title but in fact not conveying title, either because the grantor did not have title to convey or because the conveyance was flawed in some way.
  • Condemn - The taking of privately owned land for public use by eminent domain.
  • Consideration - The money (or other property) used to purchase land. Generally an exchange of items of value to legalise a transaction.
  • Convey - To transfer property or the title to property from one person to another.
  • Conveyance - The written instrument to convey property or title..
  • Copyhold - A tenancy at will that was recorded in a manorial court ownership roll recorded by the lord of the manor’s steward. Copyholds were not, strictly speaking, inheritable, but were customarily so. The land reverted to the landowner who would then “admit” the heir to the lands of the decedent. The freehold mineral and timber rights remained with the lord but he could not enjoy them if he disturbed the copyholder’s occupation.
  • Covenant - A stipulation. A promise to do or not do something.
  • Covin - A secret agreement between two or more persons to defraud and prejudice another of his rights. Used in the phrase ‘fraud or covin’.
  • Customary Estate - see copyhold
  • Decedent - one who has died.
  • Deed - A document giving the holder the title to property. More generally, any document sealing an agreement, contract, etc. The most common types of deeds Bargain and Sale, Quitclaim, and Warranty. In 1536 Parliament the Statute of Enrollment, which stated that all deeds of Bargain and Sale which involved inheritance or conveyance of freeholds had to be enrolled, or they were ineffective.
  • Deed of trust - A transfer of property to someone to be held in trust for another. See trust.
  • Deed poll - A deed not indented, that is, a deed made by one party only. See indenture.
  • Deforce - To forcibly withhold property from its rightful owner.
  • Demesne - 1) Possession of land as one’s own ie not as a tenant. 2) The part of an estate worked for the owner. 3) Land adjoining the manor house retained by the lord.
  • Demise - To convey by will or lease an estate either ‘in Fee’ i.e. hereditarily, or for a term. Also a noun, synonym for ‘lease’.
  • Deponent - One who makes a statement on oath (verbal or written) in connection with a legal case.
  • Deposition - A written testimony by a witness for use in court in his or her absence.
  • Devise - A gift of real property made in a will. See also bequest.
  • Dower - A wife’s interest in her husband’s property, inheritable at his death. English probate law set this at 1/3. “Her thirds” was a phrase used for this. In the U.S.A. it was common for a woman to formally relinquish her dower claim on land sold by the husband. This further guaranteed that the property was clear of all obligations. In some areas the lack of a dower relinquishment at the time of sale was proof that the man was single or widowed. Note: dower later became dowry and the meaning changed to ‘the property or money a bride brings to her husband at their marriage’. See also jointure.
  • Easement - Use of a portion of property for some stated purpose without remuneration. Easements are not estates in that they do not convey ownership, but rather the use of the property in so far as needed for the stated purpose. An example is the easement a city may have to dig up part of your land to repair the water main.
  • Ejectment - A suit by an owner to reclaim ownership from a tenant who has overstayed the terms of a lease. Originally it was a suit brought by a fictitious tenant to try the title of the landlord in order to acquire the land under lease.
  • Emolument - Profit derived from employment or labor, including wages and other compensation.
  • Encroachment - To gain unlawfully or infringe on the property of another.
  • Encumbrance - A burden on a property, generally one that affects the ability to transfer title, or one which affects the condition of the property. Examples are liens, mortgages, taxes, easements, water rights, etc.
  • Enfeoff - To invest with an estate held in fee.
  • Enfeoffment - Giving ownership in fee. A deed or legal document giving ownership in fee.
  • Entail - To create a fee tail, or to create one from fee simple.
  • Entry - Filing of the intention to get a land grant or patent. This was the first step of a multi-step process of getting land, the other steps generally being Survey, and Grant.
  • Escheat - Land ownership reverting to the Crown, government, or estate owner because of a lack of heirs.
  • Esse - In esse (Latin). In existence. See also posse.
  • Estate - A property right held by someone. There can be many estates held on a single piece of property, for example, relating to specific uses of the property. Mineral rights, water rights, and so on are examples. Estates can be subordinate (lower in rank) to other estates.
  • Et al - Latin et alia, for "and others".
  • Et ux - Latin et uxor, for "and wife".
  • Exception - A clause in a deed whereby the seller retains some right currently held on the land being sold, for example, "my land except 3 acres...", "my land except mineral rights...". In both cases the seller owned the thing being excepted. See also Reservation.
  • Exception and Reservation - A general term found in deeds when a seller retains some kind of interest in the property. Technically the language should refer to a reservation or exception as needed but many deeds are written with this catchall phrase.
  • Executor(m)/executrix(f) - The person named in a will to carry out the terms of the will. See administrator.
  • Fee - Heritable land held in return for service to a lord.
  • Fee simple - Ownership of land that can be inherited by any heirs. To hold in fee means to possess.
  • Fee tail - Ownership of land restricted to a specified class of heirs, generally direct descendants.
  • Fem Covert - A married woman.
  • Feoff - (Fief) See fee
  • Feoffee - One who benefits from a fief.
  • Feoffment - Transfer of heritable land from a lord to a servant under the feudal system.
  • Feud - See fee.
  • Feudal system - The system of land holding in exchange for service, ultimately to the king. This is opposed to the alodial system.
  • Fief - See fee.
  • Fieri Facias - A common law writ to enforce collection of a debt. Typically executed by the sheriff, the property of the debtor is sold to satisfy the claim.
  • Freehold - see fee simple
  • Freemen - there are three meanings to this word: a man who was free of trade taxes and who shared in the profits of the borough in which he lived and traded, a tenant who was free of feudal service and a man who had served his apprenticeship and who could then work at his trade in his own right.
  • Grant - Transfer of title from the government to the first titleholder of a piece of property. This term is generally used by states and the federal government. See also patent.
  • Grantee - The person receiving a grant, or buying property.
  • Grantor - The person issuing the grant, or selling property.
  • Hereditament - Any property that can be inherited. A corporeal hereditament is tangible real or personal property that can be inherited. An incorporeal hereditament includes intangible appurtenances, rents, and the like.
  • Heriot - Hearking back to the feudal system, a due paid to a lord when a tenent died. The tenant's best beast or chattel or its cash equivalent.
  • Importation right - See headright.
  • Improve - To make land more valuable by clearing and planting. Land that was not improved by the owner might revert to the government.
  • Incumbrance - See encumbrance.
  • Indefeasible Estate - An estate that cannot be changed under any circumstances.
  • Indenture - A written agreement. (In medieval times the document was written out twice on the same piece of parchment which was then ‘indented’, or cut into two pieces with a wavy line so the bearers could compare them later for authenticity.) See also deed poll.
  • In personam - Latin - A legal action against a person.
  • In rem - Latin - A legal action to affect the interests of people in a thing such as a parcel of land. Examples would be partitioning an estate or foreclosing. See also in personam.
  • Intangible property - The opposite of tangible property. Examples are property rights, easements, copyrights and other things of value that have no physical presence. Also, certificates or other items that have no inherent value but which represent something physical.
  • Intestate - Having no will. If someone dies intestate, the court appoints an administrator to settle the estate.
  • Instrument - Legal document.
  • Inventory - A list of personal and household goods left by the deceased, with their appraised value.
  • Investiture - See livery of seizin.
  • Joint tenancy - Ownership by two or more people, with rights of survivorship. Tenants can act individually to partition or sell their interest in the property, but such actions create a tenancy in common. See also tenancy by the entirety.
  • Jointure - An agreement, made before marriage, whereby the groom’s family guarantees specific money, property and goods to go the bride if her husband dies before she does. This is aside from or in addition to whatever is written in his will. It differs from dower in the way in which the bride’s future is protected.
  • Leasehold - Property or land leased to an individual for life but not held by title.
  • Lien - A charge or claim upon someone’s property as security for a debt. A lien does not confer title. The law recognizes the right to have a debt satisfied out of someone’s property.
  • Life(time) Estate - An estate with duration limited to the lifetime of the holder or some other person. See remainder.
  • Livery - Delivery of ownership.
  • Livery of Seizin - An open public ceremony conferring ownership of a freehold estate. It was ‘livery in deed’ where the parties went together upon the land, and there a twig, clod, key, or other symbol was delivered in the name of the whole. ‘Livery in law’ was where the same ceremony was performed, not upon the land itself, but in sight of it.
  • Locator - A person who determines or establishes the boundaries of land or a mining claim.
  • Messuage - A dwelling house with its adjacent buildings and lands appropriated to the use of the household, possibly strips of communal field or pasture rights on open common land.
  • Moiety - One half. One of two equal parts. A share or portion.
  • More or less - This term is frequently used in deeds to qualify acreage, e.g. “50 acres, being the same more or less”. Even accurate surveys have some error in the calculation of area and this phrase recognizes that fact.
  • Mortgage - Today we think of this as a secured loan (for example, a loan with a house as collateral). In older times it was often written as a regular deed of sale with a condition attached such that the sale was void if certain payments are made by a certain date. With a mortgage, if the borrower fails to pay the mortgage note off, the mortgagor must successfully sue in order to sell the property and recover the loan. See deed of trust for a different way of establishing security for a loan.
  • Nuncupative will - A will made by word of mouth, normally by an individual at the point of death, written down and sworn to by witnesses, but not signed by the deceased.
  • Overseers - Persons named and assigned in the will to oversee the administration of the estate.
  • Parcel - A piece of land. A tract.
  • Patent - Transfer of title from the government to the first titleholder of a piece of property. This term was generally used by the Crown or its representative. See also grant.
  • Peppercorn Rent - When a piece of property was given by deed either as a gift or reward for good service a nominal rent was charged as a reminder that the tenant was not the outright owner. A single peppercorn (or a single rose i.e. rose rents) was among the most popular forms of this style of “quit rent”. The Feast of St. Michael or Michaelmas (September 29) is one of the standard days for paying rent or settling debts.
  • Personalty - Personal property, goods, chattels, credit etc. as opposed to realty.
  • Ploughgate - A ploughgate or plowland, also known as a ‘carucate’ equaled 8 oxgangs or bovates. A uniform (clerks) ploughgate appeared to be around 104 acres, but it could range from 60 to 120 acres.
  • Posse - In posse (Latin). In the future or which might exist in the future. See also esse.
  • Possessory - Relating to ownership.
  • Premises - A somewhat fluid term meaning land and its appurtenances, or land and its buildings and structures.
  • Privity - A relationship between parties having a direct or indirect interest in a legal matter. Class actions are an example where parties not involved in a suit have a privity relation to it. Parties in estate transactions necessarily have privity, and so do heirs of an estate.
  • Prove Up - See Improve.
  • Probate - The process of proving a decedent’s will and settling the estate. The signing of a will was typically witnessed by neighbors, who would later swear in court that they saw the decedent sign the will prior to death. This “proved” that the will was actually that of the decedent.
  • Property - Any kind of thing which has a value and which one can exercise the rights of ownership upon, including possession, use, and disposal.
  • Quitclaim Deed - A common type of deed in which the seller relinquishes claim to whatever rights were held on the property, but does not guarantee that that the property is actually free of claims by others.
  • Quitrent - A rent paid in lieu of required feudal services. See fee and socage. The quitrent can be considered a real estate tax.
  • Realty (Real property, Real Estate) - Land and buildings or interests therein. See also personalty.
  • Regnal date - The date expressed in terms of the number of years of a monarch’s reign. For example, 7 Henry VI = 7th year of the reign of Henry the Sixth. He ruled from 31 Aug 1422, so that is when his regnal year begins. 7 H VI, thus means, sometime between 31 Aug 1429 and 30 Aug 1430. See also Regnal Year/Calendar Year Converter.
  • Remainder - Transfer of ownership to someone on the death of another. For example, land may be sold to person A for use during their lifetime, but then remaindered to person B at the death of A.
  • Remise - To relinquish a claim to something, specifically to release or quitclaim an interest in real estate.
  • Renunciation - When an executor declines to apply for probate.
  • Replevin An action for recovery of property that has been illegally withheld from the rightful owner, plus damages for its detention. This is generally not an action to recover the value of the withheld property, but the actual property itself.
  • Reservation - A clause in a deed wherein seller retains a right in the land being sold but the specific right did not previously exist. ‘Reserving a right of way’ is an example if the right of way did not previously exist. See also Exception.
  • Revert - Return of ownership to a former owner (or heirs).
  • Right of Way - An easement for passage across someone’s land.
  • Room - ‘in the room of’ means in the place of, instead of.
  • Scire Facias - A writ requiring a party to show why a judgment should not be vacated, executed, or annulled.
  • Seised/Seized - Legally owning and possessing real property.
  • Seisin/Seizin - Ownership or ‘in fact’ possession of a freehold estate. Inferred here is an increasing degree of ownership with the passage of time, as the possessor makes productive use of the land. Seizin was originally not an estate, but a way to gain one, as by adverse possession. This is rooted in the Roman concept that whoever worked the land should be its owner.
  • Sergeantry - Non-military service to a lord in exchange for land.
  • Socage - Holding of land by a feudal tenant in return for fixed payment or for non-military service to the lord. After the decay of feudalism, socage tenure became freehold. See quitrent.
  • Soke - The jurisdiction of a court.
  • Specialties and Obligations - An unusual legal phrase which referred to money owing (debt).
  • Special Warranty Deed - A warranty deed constrained to the period during which seller owned the property. Claims for title defects that predate the seller’s ownership period are not warranteed.
  • Stallage - Payment to be allowed to erect a market stall.
  • Straw Deed, Strawman Deed - Two deeds filed in succession, the first from party A to party B, second from B back to A. This was used to sidestep legal restrictions of sales between spouses or joint owners, or to incorporate a new survey description. Party B is a trusted intermediary, either a close friend or attorney.
  • Tack - A lease. The document by which a tenancy is constituted (last used in Scotland).
  • Tangible property - The opposite of intangible property. Examples are land or other movable personal property that has a physical reality.
  • Tenancy by the entirety - A form of joint tenancy held by husband and wife. Title automatically transfers to the survivor upon the death of one party. Neither party can sell or divide the property without the consent of the other.
  • Tenancy in common - Title held by two or more people where each person can sell their interest without the consent of the other owners. There are no rights of survivorship.
  • Tenement - Permanent property such as buildings and land.
  • Testament - A written document that determines the disposition of personal property after death.
  • Teste - (Latin). Witness.
  • Testate - Having a will. See intestate.
  • Testator(m)/testatrix(f) - A person who died leaving a valid will.
  • Thirds - see dower
  • Title - Legal ownership as evidenced by a deed or other instrument.
  • To wit - That is to say.
  • Tract - A piece of land. A parcel.
  • Trespass - In common law, a suit to recover damages directly made to one’s person, property, or rights.
  • Trespass on the case - Similar to trespass, but for damages suffered indirectly.
  • Trust - Confidence placed in someone by giving them property to be held or used for another’s benefit. The property held in trust.
  • Trustee - A person or agent holding the legal title to property until any outstanding loans or liens are paid off in full.
  • Try Title - To test the validity of someone’s title to property.
  • Vacate - 1) To set aside or render void, 2) to move out.
  • Viz., Vizt. - Videlicet (Latin). That is to say, namely.
  • Warrant - A government order authorizing some action. An ‘arrest warrant’ instructs a sheriff to arrest someone; a ‘land warrant’ instructs a state to issue land to someone.
  • Warranty Deed - A deed in which the seller warrants having a valid title and that the property is clear of any encumbrances. See also Special Warranty Deed.
  • Waste Land - Land that has not been claimed, or which has escheated.
  • Will - A written document by which a person declares his or her intent for the disposition of property and rights after his or her death, normally signed and witnessed, and including disposal of the body. Originally a will was used to dispose of only real property, and a testament was used to dispose of personal property, hence the phrase ‘last will and testament’ covered both aspects.(see Testament)

Sources:

Proceedings of the Wills Group of the EPE Ledbury history project 2006-9
Land Record Reference (Direct Line Software, USA)
Dave Tylcoat, Burrington, Devon
Randy Jones (rootsweb.com)
Cardiff Records: volume 5 (1905), pp. 557-98 from ‘British History Online’
Glossary of Probate Terms, Metcalf Waslin Genealogy at http://www.metcalfwaslin.org/