(Ref: John Bouvier, A Law Dictionary Adapted to the Constitution and Laws of the United States of America and the Several States of the American Union, Childs & Peterson, c1856.)

SUBINFEUDATION, estates, English law. The act of an inferior lord by which he carved out a part of an estate which he held of a superior, and granted it to an inferior tenant to be held of himself.

  It was an indirect mode of transferring the fief, and resorted to as an artifice to elude the feudal restraint upon alienation: this was forbidden by the statute of Quia Emptores, 18 Ed. I; 2 Bl. Com. 91; 3 Kent, Com. 406.

Primary ref: Colin Rhys Lovell's English Constitutional and Legal History, Oxford University Press, c1962.


  The Statute of Gloucester of 1278 directed commissioners to empanel juries to find out what where the private rights held by specific persons in every county and recorded them on the "Hundred Rolls." In the "Statute of Gloucester," Edward instituted "quo warranto" proceedings in 1290, summoning holders of prescriptive rights to show by what warrant or right they exercised them.

"We must find out what is ours, and due to us, and others, what is theirs and what is due to them." The assumption of the statute was that every liberty belonged to the Crown unless the holder of it had sufficient warrant by charter and from time immemorial. (For this purpose, "time immemorial" was deemed to date from the coronation of Richard I in 1189.)

The commissioners/ justices heard the royal pleas that a prescriptive right, even if exercised continuously, could not stand against royal wished without a specific grant or charter and those without charter were disenfranchised.


  "The Statute of Westminster I" and "The Statute of Rageman" declared by Edward I further expanded on the nature of the obligations of tenure under the feudal system as set forth in the Magna Carta. In addition, Edward converted all obligations of tenure to scutage and socage (money). The statutes were a unilateral declaration by the king of the duties of all vassals, regardless of whom they held. Henceforth a vassals obligations to his lord rested upon this royal statement. In actuality, the statute marked the end of the feudal system which had rested on a bilateral contract between lord and vassal and became a unilateral monarchial one.

  The 1285 the Second Statute of Westminster or De Donis Conditionalibus declared that the courts were to comply with the wishes of the grantor in matters relating to the descent of land, as indicated in the original written conveyance. The grantor could set very broad or very narrow lines of descent in his entailing of the land in his original grant. The grant conveyed only a limited title to the grantee who did not receive "fee simple" but a "fee tail" from which ownership had been cut, so that his estate was "entailed" (taille') or cut off from the "fee." The possessory owner in fee tail could alienate the land only during his lifetime, The heir of the possessory owner in fee tail must receive the estate in its entirety and, if descent was checked, the land reverted to the grantor (often the king.) The new hereditable estates created by the act were called estates tail because the were "cut off" (taille') from the fee. It caused increased chance of reversion of land to nobles and the King. It also stated that "The will of the donor manifestly expressed in the charter of the gift is to be observed henceforth." (Until then the recipient had been able to alienate gifts of land, thus frustrating the intent of the donor. The result of this statute was to keep entailed estates within the family circle until the present day.

  The 1290 Third Statute of Westminster known as Quia Emptores, dealt with land held not upon condition, but in fee simple. Land acquired in this way could be freely alienated, but in the future the new owner held his land from the lord of the seller by the same service and customs as were attached to it before the sale. This protected the overlord (most often the king) from the monetary effects of escheat. The effects of the two statutes was to leave almost all free-holders royal tenants in chief. This called a halt to sub-infeudation.


The greatest conflict between law and equity was in the "use" of lands. The statues of Mortmain and De Donis led to a practice whereby the possessor of land alienated not its title, but its "use" to another. In the eyes of law which saw only title, nothing had changed. Equity regarded the transfer of the use of land as a solemn obligation resting on the grantor and his heirs, who, under this practice would inherit title to the land in question and nothing else but the burdens of feudal dues and taxes.

The "doctrine of uses" was elaborated in the fourteenth and fifteenth centuries. The person with title to the land whose use was held by another was the "trustee," obligated to uphold the rights of the "beneficiary" or "cestui que use" or "cestui." The beneficiary possessed only the use of the land and not the title, enjoying the use without the burdens of feudal dues or taxes. The user could alienate his use (which he did hold) freely, but not the title (which he did not hold) to another. He could also mortgage his use. Equity enforced the rights of the cestui against the title holder. All issues arising from land held in use fell to equity and not the law.

In the mid-fourteenth century, the Chancery made a decision to refuse to enforce a use beyond the lifetime of a single trustee, and if he somehow managed to transfer title, Chancery would not enforce against new title-holder. The Chancery soon reversed itself and decreed that true equity required enforcement of a use forever and forever.

The king in the sixteenth century saw almost every acre of land in England held in use, depriving him of wardships, escheats and other servitudes lying in title. In 1536, the "Statute of Uses" turned all holders in use into title-holders of their lands, which thereby ceased to be estates in equity and became estates in law. Holders at once became liable for the usual obligations of title-holders and restored common law jurisdiction over land possession.]