Fee Tail and Docking It by Barbara Cox

Fee Tail and Docking It

Barbara Cox

In 1766, Nathaniel Littleton Savage petitioned the General Assembly to dock the entail on his home plantation of 950 acres. His land, and that of many others at the time, was held in fee tail or fee entail. 

Fee tail is a form of land ownership limited to an individual and his or her direct descendants. This means that the owner could not sell the land or use it as collateral for a loan (because it couldn't be foreclosed upon) or give it away or will it away. If the individual died without descendants, the property would revert to the owner (or heirs thereof) who held it before it was entailed.

Not being able to sell the property or to use it as collateral could create problems for the owner who found himself needing money.

Property held as fee tail could be converted into being held as fee simple. Fee simple is the type of ownership we are most familiar with today ... the ownership that has rights to sell or mortgage or will.  The process of converting fee tail to fee simple was "docking," and it was carried out by petition to the General Assembly. 

Petitions for docking clogged the courts in the mid-18th century, and in October of 1776, Thomas Jefferson proposed that entailing, i.e., making a property fee tail, be abolished. Hence, we don't see docking entries after 1776. Here's a copy of Jefferson's draft of a bill to abolish entails, followed by amendments to the draft.

Abolishing Entail

A Bill to enable tenants in tail to convey their lands in fee-simple. Whereas the perpetuation of property in certain families by means of gifts made to them in fee-simple is contrary to good policy, tends to deceive fair traders who give credit on the visible possession of such estates, discourages the holder thereof from taking care & improving the same, and sometime does injury to the morals of youth by rendering them independent of, and disobedient to, their parents; and whereas the former method of docking such estates tail by special act of assembly formed for every particular case employed very much time of the legislature, was burthensome to the public, and also to the individual who made application for such acts:

Be it therefore enacted by1 and it is hereby enacted by authority of the same that any person who now hath, or hereafter may have any estate in fee tail general or special in any lands or slaves in possession, or in the use or trust of any lands or slaves in possession, or who now is or hereafter may be entitled to any such estate tail in reversion or remainder after the determination of any estate for life or lives or of any lesser estate, whether such estate hath been or shall be created by deed, will, act of assembly, or any other ways or means shall have full power to pass, convey, or assure in fee-simple or for any lesser estate the said lands or slaves, or use in lands or slaves or such reversion or remainder therein, or any part or parcel thereof, to any person or persons whatsoever by deed or deeds of feoffment, gift, grant, exchange, partition, lease, release, bargain, and sale, convenant to stand seized to uses, deed to lead uses, or by his last will and testament, or by any other mode or form of conveiance or assurance by which such lands or slaves, or use in lands or slaves, or such reversion or remainder therein might have been passed, conveied or assured had the same been held in fee simple by the person so passing, conveying or assuring the same: and such deed, will or other conveiance shall be good and effectual to bar the issue in tail & those in remainder and revertor as to such estate or estates so passed, conveied, or assured by such deed will or other conveiance.

Provided nevertheless that such deed, will, or other conveiance shall be executed, acknowledged, or proved, and recorded in like manner as, and in all cases where, the same should have been done, had the person or persons so conveying or assuring held the said lands or slaves, or use of lands and slaves or such reversion or remainder in fee-simple.

Line 18. omit ‘have &c. to the end of the bill, & insert ‘from henceforth, or from the commencement of such estate tail, stand ipso facto seized, possessed, or entitled of, in, or to, such lands or slaves or use in lands or slaves so held or to be held as aforesaid in possession, reversion, or remainder in full & absolute fee-simple, in like manner as if such deed, will, act of assembly, or other instrument had conveyed the same to him in fee-simple; any words, limitations, or conditions in the said deed, will, act of assembly, or other instrument to the contrary notwithstanding.

Saving to all & every person & persons, bodies politic and corporate, other than the issue in tail & those in reversion & remainder, all such right title, interest & estate claim & demand, as they, every, or any of them could or might claim, if this act had never been made: and Saving also to such issue in tail & to those in reversion & remainder any right or title which they may have acquired by their own contract for good & valuable consideration actually & bona fide paid or performed.

The above quoted from Jefferson's works as may be found at the following link:

http://oll.libertyfund.org/Texts/Jefferson0136/Works/Vol02/HTMLs/0054-02_Pt05_1776.html

Definition from the Commentaries

The origin of Fee-tail estates:

"The expression, fee-tail, was borrowed from the feudists, among whom it signified any mutilated or truncated inheritance from which the heirs general were cut off, being derived from the barbarous word taliare to cut.—(2 Blac. Comm. 112.)

http://www.gutenberg.org/dirs/1/1/5/6/11567/11567-h/11567-h.htm

And here's an interesting example:

http://homepages.rootsweb.com/~lpproots/Pryor/will_of_elizabeth_pryor.htm

And here's an excellent discussion:

http://www.genfiles.com/legal/entail.htm

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