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Chapter the ninth.

Of ESTATES, LESS than FREEHOLD.

Of eftates, that are lefs than freehold, there are three forts ; 1.Eftates for years :2.Eftates at will :3.Eftates by fufferance.
I. An eftate for years is a contract for the poffeffion of lands or tenements, for fome determinate period : and it happens where a man letteth them to another for the term of a certain number of years, agreed upon between the leffor and the leffee ^a, and the leffee enters thereon ^b.If the leafe be but for half a year, or a quarter, or any lefs time, this leffee is refpected as a tenant for years, and is ftiled fo in fome legal proceedings ; a year being the fhorteft term which the law in this café takes notice of ^c. And this may, not improperly, lead us into a fhort explanation of the divifion and calculation of time by the Englifh law.
The fpace of a year is a determinate and well-known period, confifting commonly of 365 days : for, though in biffextile or
.{FS}
^aWe may here mark, once for all, that the terminations of “-or” and “-ee" obtain. In law, the one an active, the other a paffive fignification ; the former ufually denoting the doer of any act, the latter him to whom it is done the feoffor is he that haketha feoffment ; the feoffee is he to whom it is made : the donor is one that giveth lands in tail ; the donee is he who receiveth it : he that granteth a leafe is denominated the leffor ; and he to whom it is granted the leffee. (Litt. §. 57.)
^bIbid. 58.
^cIbid. 67.
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leap-years
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Leap-years it confifts properly of 366, yet by the ftatute 21 Hen. III. the increafing day in the leap-year, together with the preceding day, fhall be accounted for one day only. That of a month is more ambiguous : there being, in common ufe, two ways of calculating months ; either as lunar, confifting of twenty eight days, the fuppofed revolution of the moon, thirteen of which make a year ; or, as calendar months, of unequal lengths, according to the Julian divifion in our common almanacs, commencing at the calends of each month, whereof in a year there are only twelve. A month in law is a lunar month, or twenty eight days, unlefs otherwife expreffed ; not only becaufe it is always one uniform period, but becaufe it falls naturally into a quarterly divifion by weeks. Therefore a leafe for “twelve month” in the fingular number, it is good for the whole year ^d. For herein the law recedes from it's ufual calculation, becaufe the ambiguity between the two methods of computation ceafes ; it being generally underftood that by the fpace of time called thus, in the fingular number, a twelvemonth, is meant the whole year, confifting of one folar revolution. In the fpace of a day all the twenty four hours are ufually reckoned ; the law generally rejecting all fractions of a day, in order to avoid difputes e”. Therefore, if I am bound to pay it before twelve o'clock at night ; after which the following day commences. But to return to eftates for years.
These eftates were originally granted to mere farmers or hufbandmen, who every year rendered fome equivalent in money, provifions, or other rent, to the leffors or landlords ; but, in order to encourage them to manure and cultivate the ground, they had a permanent intereft granted them, not determinable at the will of the lord. And yet their poffeffion was efteemed of to little confequence, that they were rather confidered as the bailiffs or fervants of the lord, who were to receive and account for the
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^d6 Rep. 61.
^eCo. Litt. 135.
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profits
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profits at a fettled price, than as having any property of their own. And therefore they were not allowed to have a freehold eftate : but their intereft (fuch as it was) vefted after their deaths in their executors, who were to make up the accounts of their eftator with the lord, and his other creditors, and were intitled to the ftock upon the farm. The leffee's eftate might alfo, by the antient law, be at any time defeated, by a common recovery fuffered by the tenant of the freehold ^f ; which annihilated all leafes for years then fubfifting, unlefs afterwards renewed by the recoveror, whofe title was fuppofed fuperior to his by whom thofe leafes were granted.
While eftates for years were thus precarious, it is no wonder that they were ufually very fhort, like our modern leafes upon rack rent ; and indeed we are told ^g that by the antient law no leafes for more than forty years were allowable. becaufe any longer poffeffion (efpecially when given without any livery declaring the nature and duration of the eftate) might tend to defeat the inheritance. Yet this law, if it ever exifted, was foon antiquated : for we may obferve, in Madox's collection of antient inftruments, fome leafes for years of a pretty early date, which confiderable exceed that period ^h ; and long terms, for three hundred years at leaft, were certainly in ufe in the time of Edward III. ^I, and probably of Edward I ^k. But certainly, when by the ftatute 21 Hen. VIII. c. 15. the tremor (that is, he who is intitled to the term of years) was protected againft thefe fictitious recoveries, and his intereft rendered fecure and permanent, long terms began to be more frequent than before ; and were afterwards extenfively introduced, being found extremely convenient for family fettlements and mortgages : continuing fubject, however, to the fame rules of fucceffion, and with the fame inferiority to freeholds,
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^fCo. Litt. 46.
^gMirror. C.2. §. 27. co. Litt. 45, 46.
^hMadox Formulare Anglican. n^o. 239. fol. 140. Demife for eighty years, 21 Ric. II.………….Ibid. n^o. 245. fol. 146. : for the like term, A. D. 1429……………Ibid. n^o. 248. fol. 148. for fifty years, 7 Edw. IV.
^I32 Aff. Pl. 6.
^kStat. Of mortmain, 7 Edw. I.
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as
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as when they were little better than tenancies at the will of the landlord.
Every eftate which muft expire at a period certain and prefixed, by whatever words created, is an eftate for years. And therefore this eftate is frequently called a term, terminus, becaufe it's duration or continuance is bounded, limited, and determined : for every fuch eftate muft have a certain beginning, and certain end ^l. But id certum eft, quod certum redid poteft : therefore if a man make a leafe to another, for fo many years as J. S. fhall name, it is a good leafe for years ^m ; for though it is at prefent uncertain, yet when J. S. hath named the years, it is then reduced to a certainty. If no day of commencement is named in the creation of this eftate, it begins from the making, or delivery, of the leafe ⁿ. A leafe for fo many years as J. S. fhall live, is void from the beginning ^o ; for it is neither certain, nor can ever be reduced to a certainty, during the continuance of the leafe. And the fame doctrine holds, if a parfon make a leafe of his glebe for fo many years as he fhall continue parfon of Dale ; for this is ftill more uncertain. But a leafe for twenty or more years, if J. S. fhall fo long live, or if he fhall fo long continue parfon, is good ^p : for there is a certain period fixed, beyond which it cannot laft ; though it may determine fooner, on the death of J. S. or his ceafing to be parfon there.
We have before remarked, and endeavoured to affign the reafon of, the inferiority in which the law places an eftate for years, when compared with an eftate for life, or an inheritance : obferving, that an eftate for life, even it be pur auter vie, is a freehold ; but that an eftate for a thoufand years is only a chattel, and reckoned part of the perfonal eftate ^q. Hence it follow, that a leafe for years may be made to commence in futuro, though a leafe for life cannot. As, if I grant lands to Titius to hold from
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^lCo. Litt. 45.
^m6 Rep. 35.
ⁿCo. Litt. 46.
^oIbid. 45.
^pIbid.
^qIbid. 46.
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Michaelmas
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Michaelmas next for twenty years, this is good ; but to hold from Michaelmas next for the term of his natural life, is void. For no eftate of freehold can commence in futuro ; becaufe it cannot be created at common law without livery of feifin, or corporal poffeffion of the land : and corporal poffeffion cannot be given of an eftate now, which is not to commence now, but hereafter ^r. And, becaufe no livery of feifin is neceffary to a leafe for years, fuch leffee is not faid to be feifed, or to have true legal feifin, of the lands. Nor indeed does the bare leafe veft any eftate in the leffee ; but only gives him a right of entry on the tenement, which right is called his intereft in the term, or intereffe termini : but when he has actually fo entered, and thereby accepted the grant, the eftate is then and not before vefted in him, and he is poffeffed, not properly of the land, but of the term of years ^s : the poffeffion or feifin of the land remaining ftill in him who hath the freehold. Thus the word, term, does not merely fignify the time fpecified in the leafe, but the eftate alfo and intereft that paffes by that leafe : and therefore the term may expire, during the continuance of the time ; as by furrender, forfeiture, and the like. For which reafon, if I grant a leafe to A for the term of three years, and after the expiration of the faid term to B for fix years, and A furrenders or forfeits his leafe at the end of one year, B's intereft fhall immediately take effect : but if the remainder had been to B from and after the expiration of the faid three years, or from and after the expiration of the faid three years, or from and after the expiration of the faid time, in this café B's intereft will not commence till the time is fully elapfed, whatever may become of A's term ^t.
Tenant for term of years hath incident to, and infeparable from his eftate, unlefs by fpecial agreement, the fame eftovers, which we formerly obferved ^u that tenant for life was entitled to ; that is to fay, houfe-bote, fire-bote, plough-bote, and hay-bote ^w : terms which have been already explained ^x.
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^r5 Rep. 94.
^dCo. Litt. 46.
^tIbid. 45.
^upag. 122.
^wCo. Litt. 45.
^xpag. 35.
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With
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With regard to emblements, or profits of land fowed by tenant for years, there is this difference between him, and tenant for life : that where the term of tenant for years depends upon a certainty, as if he holds from midfummer for ten years, and in the laft year he fows a crop of corn, and it is not ripe and cut before midfummer, the end of his term, the landlord fhall have it ; for the tenant knew the expiration f his term, and therefore it was his own folly to fow what he never could reap the profits of ^y. But where the leafe for years depends upon an uncertainty ; as, upon the death of the leffor, being himfelf only tenant for life, or being a hufband feifed in right of his wife ; or if the term of years be determinableupon a life or lives ; in all thefe cafes, the eftate for years not being certainly to expire at a time foreknown, but merely by the act of God, the tenant, or his executors, fhall have the emblements in the fame manner, that a tenant for life or his executors fhall be intitled thereto ^z. Not fo, if it determine by the act of the party himfelf ; as if tenant for years does any thing that amounts to a forfeiture : in which café the emblements fhall go to the leffor, and not to the leffee, who hath determined his eftate by his own default ^a.
II.The fecond fpecies of eftates not freehold are eftates at will. An eftate at will is where lands and tenements are let by one man to another, to have and to hold at the will of the leffor ; and the tenant by force of this leafe obtains poffeffion ^b. Such tenant hath no certain indefeafible eftate, nothing that can be affigned by him to any other ; for that the leffor may determine his will, and put him out whenever he pleafes. But every eftate at will is at the will of both parties, landlord and tenant, fo that either of them may determine his will, and quit his connexions with the other at his own pleafure ^c. Yet this muft be underftood with fome reftriction. For, if the tenant at will fows his land,
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^yLitt. §. 68.
^aCo. Litt. 56.
^zIbid. 55.
^bLitt §. 68.
^cCo. Litt. 55.
.{FE}
T
and
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and the landlord before the corn is ripe, or before it is reaped, puts him out, yet the tenant fhall have the emblements, and free ingrefs, egrefs, and regrefs, to cut and carry away the profits ^d. And this for the fame reafon, upon which all the cafes of emblements turn ; viz. the point of uncertainty : fince the tenant could not poffibly know when his landlord would determine his will, and therefore could make no provifion againft it ; and having fown the land, which is for the good of the public, upon a reafonable prefumption, the law will not fuffer him to be a lofer by it. But it is otherwife, and upon reafon equally good, where the tenant himfelf determines the will ; for in this café the landlord fhall have the profits of the land ^e.
What act does, or does not, amount to a determination of the will on either fide, has formerly been mater of great debate in our courts. But it is now, I think fettled, that (befides the exprefs determination of the leffor's will, by declaring that the leffee fhall hold no longer ; which muft either be made upon the land ^f, or notice muft be give to the leffee ^g) the exertion of any act of ownerfhip by the leffor, as entering upon the premifes and cutting timber ^h, taking a diftrefs for rent and impounding them thereon ^I, or making a feoffment, or leafe for years of the land to commence immediately ^k ; any act of defertion by the leffee, as affigning his eftate to another, or committing wafte, which is an act inconfiftent with fuch a tenure ^l ; or, which is inftar omnium, the death or outlawry, of either leffor or leffee ^m ; puts an end to or determines the eftate at will.
The law is however careful, that no fudden determination of the will by one party fhall tend to the manifeft and unforefeen prejudice of the other. This appears in the café of emblements
.{FS}
^dCo. Litt. 56.
^eIbid. 55.
^fIbid.
^g1 Ventr. 248.
^hCo. Litt. 55.
^IIbid. 57.
^k1 Roll. Abr. 860.2 Lev. 88.
^lCo. Litt. 57.
^m5 Rep. 116. Co. Litt. 57. 62.
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before-
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before-mentioned ; and, by a parity of reafon, the leffee after the determination of the leffor's will, fhall have reafonable ingrefs and egrefs to fetch away his goods and utenfils ⁿ. And, if rent be payable quarterly or half-yearly, and the leffee determines the will, the rent fhall be paid to the end of the current quarter or half-year ^o. And, upon the fame principle, courts of law have of late years leant as much as poffible againft conftruing demifes, where no certain term is mentioned, to be tenancies at will ; but have rather held them to be tenancies from year to year fo long as both parties pleafe, efpecially where an annual rent is referved : in which café they will not fuffer either party to determine the tenancy even at the end of the year, without reafonable notice to the other.
There is one fpecies of eftates at will, that deferves a more particular regard than any other ; and that is, an eftate held by copy of court roll ; or, as we ufually call it, a copyhold eftate. This, as was before obferved ^p, was in it's original and foundation nothing better than a mere eftate at will. But, the kindnefs and indulgence of fucceffive lords of manors having permitted thefe eftates to be enjoyed by the tenants and their heirs, according to particular cuftoms eftablifhed in their refpective diftricts ; therefore, though they ftill are held at the will of the lord, and fo are in general expreffed in the court rolls to be, yet that will is qualified, reftrained, and limited, to be exerted according to the cuftom of the manor. This cuftom, being fuffered to grow up by the lord, is looked upon as the evidence and interpreter of his will : his will is no longer arbitrary and precarious ; but fixed and afcertained by the cuftom to be the fame, and no other, that has time out of mind been exercifed and declared by his anceftors. A copyhold tenant is therefore now full as properly a tenant by the cuftom, as a tenant at will, the cuftom having arifen from a feries of uniform wills. And therefore it is rightly obferved by Calthorpe ^q, that “copyholders and cuftomary tenants differ not
.{FS}
ⁿLitt. §. 69.
^oSalk. 414.1 Sid. 339.
^ppag. 93.
^qon copyholds. 51. 54.
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T 2
“fo
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“ fo much in nature as in name : for althugh fome be called “ copyholders, fome cuftomary, fome tenants by the virge, fome “ bafe tenants, fome bond tenants, and fome by one name and “ fome by another, yet do they all agree in fubftance and kind of “ tenure : all the faid lands are holden in one general kind, that “ is, by cuftom and continuance of time ; and the diverfity of “ their names doth not alter the nature of their tenure.”

Almost every copyhold tenant being therefore thus tenant at the will of the lord according to the cuftom of the manor ; which cuftoms differ as much as the humour and temper of the refpective antient lords, ( from whence we may account for their great variety) fuch tenant, I fay, may have, fo far as the cuftom warrants, any other of the eftates or quantities of intereft, which we have hitherto confidered, or may hereafter confider, to hold united with this cuftomary eftate at will. A copyholder may, in many manors, be tenant in fee-fimple, in fee-tail, for life, by the curtefy, in dower, for years, at fufferance, or on condition : fubject however to be deprived of thefe eftates upon the concurrence of thofe circumftances which the will of the lord, promulged by immemorial cuftom, has declared to be a forfeiture or abfolute determination of thofe interefts ; as in fome manors the want of iffue male, in others the cutting down timber, the nonpayment of a fine, and the like. Yet none of thefe interefts amount to freehold ; for the freehold of the whole manor abides always in the lord only ^r , who hath granted out the ufe and occupation, but not he corporal fei9fin or true poffeffion, of cercupation, but not the corporal feifin or true poffeffion, of certain parts and parcels thereof, to thefe his cuftomary tenants at will.

The reafon of originally granting out this complicated kind of intereft, fo that the fame man fhall, with regard to the fame land, be at one and the fame time tenant in fee-fimple and alfo tenant at the lord's will, feems to have arifen from the nature of villenage tenure; in which a grant of any eftate of freehold, or

.{FS}
^r Litt. §. 81. 2 Inft. 325.
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even
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even for years abfolutely, was an immediate enfranchifement of the villein ^s. The lords therefore. Though they were willing to enlarge the intereft of their villeins, by granting them eftates which might endure for their lives, or fometimes by defcendible to their iffue, byet did not care to manumit them entirely ; and for that reafon it feems to have been contrived, that a power of refumption at the will of the lord, fhould be annexed to thefe grants, whereby the tenants were ftill kept in a ftate of villenage, and no freehold at all was conveyed to them in their refpective lands : and of courfe, as the freehold of all lands muft neceffarily reft and abide fomewhere, the law fuppofes it to continue and remain in the lord. Afterwards, when thefe villeins became modern copyholders, and had acquired by cuftom a fure and indefeafible eftate in their lands, on performing the ufual fervices, but yet continued to be ftiled in their admiffions tenants at the will of the lord, --- the law ftill fuppofed it an abfurdity to allow, that fuch at were thus nominally tenants at will could have any freehold intereft : and therefore continued, and ftill continues, to determine, that the freehold of lands fo holden abides in the lord of the manor, and not in the tenant : for though he really holds to him and his heirs for ever, yet he is alfo faid to hold at another's will. But, with regard to certain other copyholders of free or privileged tenure, which are derived from the antient tenants in villein-focage ^t, and are not faid to hold at the will of the lord, but only according to the cuftom of the manor, there is no fuch abfurdity in allowing them to be capableof enjoying a freehold intereft ; and therefore the law doth not fuppofe the freehold of fuch lands to reft in the lord of whom they are holden, but in the tenants themfelves ^u; who are allowed to have freehold inthereft, though not a freehold tenure.

However, in common cafes, copy hold eftates are ftill ranked ( for the reafons above – mentioned ) among tenancies at

.{FS}
^s Mirr. c. 2. §. 28. Litt. §. 204, 5, 6.
^t See page 98, & c.
^u Fitzh. Abr. tit. Corone. 310. cuftom. 12. Bro. Abr. tit. Cuftom. 2. 17. tenant per copie. 22. 9 Rep. 76. Co. Litt. 59. Co. Copyh. §. 32. Cro. Car. 229. 1 Roll. Abr. 562. 2 Ventr. 143. Carth. 432. Lord Raym 1225.
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will ;
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will ; though cuftom, which is the life of the common law, has eftablifhed a permanent property in the copyholders, who were formerly nothing better than bondmen, equal to that of the lord himfelf, in the tenements holden of the manor : nay fometimes even fuperior ; for we may now look upon a copyholder of inheritance, with a fine certain, to be little inferior to an abfolute freeholder in point of intereft, and in other refpects, particularly in the clearnefs and fecurity of his title, to be frequently in a better fituation.

III. A n eftate at fufferance, is where one comes into poffeffion of land by lawful title, but keeps it afterwards without any title at all. As if a man takes a leafe for a year, and, after the year is expired, continues to hold the premifes without any frefh leave from the owner of the eftate. Or, if a man maketh a leafe at will, and dies, the eftate at will is thereby determined ; but if the tenant continueth poffeffion, he is tenant at fuffernce ^w. But no man can be tenant at fufferance againft the king, to whom no laches, or neglect, in not enteringand oufting the tenant, is ever imputed by law : but his tenant, fo holding over, is confidered as an abfolute intruder ^x. But, in the café of a fubject, this eftate may be deftroyed whenever the true owner fhall make an actual entry on the lands and ouft the tenant ; for, before entry, the cannot maintain an action of trefpafs againft the tenant by fufferance, as he might againft a ftranger ^y : and the reafon is becaufe the tenant being once in by a lawful title, the law ( which perfumes no wrong in any man) will fuppofe him to continue upon a title equally lawful ; unlefs the owner of the land by fome public and avowed act, fuch as entry is, will declare his continuance to be tortuous , or, in common language, wrongful.

Thus ftands the law, with regard to tenants by fufferance ; and landlords are obliged in thefe cafes to make formal entries upon their lands ^z, and recover poffeffion by the legal procefs of

.{FS}
^w Co. Litt. 57.
^x Ibid.
^y Ibid.
^z 5 Mod. 384.
.{FE}
ejectment :

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ejectment : and at the utmoft, by the common law, the tenant was bound to account for the profits of the land fo by him detained. But now, by ftatute 4 Geo. II. c.2. in café any tenant for life or years, or other perfon claiming under or by collufion with fuch tenant, fhall willfully hold over after the determination of the term, and demand made in writing for recovering the poffeffion of the premifes, by him to whom the remainder or reverfion thereof hall belong ; fuch perfon, fo holding over, fhall pay, for the time he continues, at the rate of double the yearly value of the lands fo detained. This has almoft put an end to the practice of tenancy by fufferance, unlefs with the tacit confent of the owner of the tenement.