CHAPTER THE NINTH. OF ESTATES LESS THAN FREEHOLD. Of estates, that are less than freehold, there are three sorts: 1. Estates for years: 2. Estates at will: 3. Estates by sufferance. I. * An estate for years is a contract for the possession of lands [see note 35, page 253] or tenements, for some determinate period: * and it takes place where a man letteth them to another for the term of a certain number of years, agreed upon between the lessor and the lessee, and the lessee enters thereon. If the lease be but for half a year, or a quarter, or any less time, this lessee is respected as a tenant for years and is stiled so in some legal proceedings; a year being the shortest term which the law in this case takes notice of. And this may, not improperly, lead us into a short 9 explanation of the division and calculation of time by the English law.† 9 The space of a year is a determinate and well-known period, consisting commonly of 365 days: for, though in [141] bissextile or leap-years it consists properly of 366, yet by the statute 21 Hen. III. the increasing day a We may here remark, once for all, that the terminations of "or" and "ee" obtain, in law, the one an active, the other a passive signification; the former usually denoted the doer of any act, the latter him to whom it is done. The feoffor is he that maketh a 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 lease is denominated the lessor; and he to whom it is granted the lessee. (Litt. 2 57.) 9 Ninth edition reads, " digression, concerning." **Quoted, 17 Cal. 231; 92 N. C. 200. + Cited, 10 Mass. 325. showing that such estates are not real; 12 Met. 302; 94 Ill. 93; 95 U. S. 250; 5 Binn. 230; 9 Leigh, 448; 33 Am. Dec. 254; 100 Pa. St. 209; 8 Minn. 431. in the leap-year, together with the preceding day, shall be accounted for one day only.* That of a month is more ambiguous: there being, in common use, two ways of calculating months; either as lunar, consisting of twenty-eight days, the supposed revolution of the moon, thirteen of which make a year: or, as calendar months of unequal lengths, according to the Julian division 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 twentyeight days, unless otherwise expressed; not only because it is always one uniform period, but because it falls naturally into a quarterly division by weeks.? Therefore a lease for "twelve months" is only for forty-eight weeks; but if be for "a twelvemonth" in the singular number, it is good for the whole year.a For herein the law recedes from its usual calculation, because the ambiguity between the two methods of computation ceases; it being generally understood that by the space of time called thus, in the singular number, a twelvemonth, is meant the whole year consisting of one solar revolution. In the space of a day all the twenty-four hours are usually reckoned, the law general rejecting all fractions of a day, in order to avoid disputes. Therefore, if I am bound to pay money on any certain day, I discharge the obligation if I pay it before twelve o'clock at night; after which the following day commences. But to return to es tates for years.** d 6 Rep. 61. e Co. Litt. 135. *Cited, 5 Ind. 197. + Quoted, 3 Brev. 474; 1 Jones (N. C.) 90; Dud. (Ga.)107. Cited and discussed, 1 Jones (N. C.) 88. +- Quoted, 5 Conn. 360. Cited, 2 Har. (Del.) 549; 21 Ala. 46. | Cited, 19 Ill. 156; 68 Am. Dec. 587; 69 Ind. 354. 1 Cited, 51 Ala. 450. **Cited as to fractions of a day, 104 U. S. 474; 28 Pa. St. 518; 43 Ala. 329; 51 Ala. 450. These estates were originally granted to mere farmers or husbandmen, who every year rendered some equivalent in money, provisions, or other rent to the lessors or landlords; but, in order to encourage them to manure and cultivate the ground, they had a permanent interest granted them, not determinable at the will of the lord. And yet their possession was esteemed of so little consequence, that they were rather considered as the bailiffs or servants of the lord, who were to [142] receive and account for the profits at a settled price, than as having any property of their own. And therefore they were not allowed to have a freehold estate but their interest (such as it was) vested after their deaths in their executors, who were to make up the accounts of their testator with the lord, and his other creditors, and were entitled to the stock upon the farm. The lessee's estate might also, by the antient law, be at any time defeated, by a common recovery [see note 36, page 257] suffered by the tenant of the freehold; which annihilated all leases for years then subsisting, unless afterwards renewed by the recoverer, whose title was supposed superior to his by whom those leases were granted.* While estates for years were thus precarious, it is no wonder that they were usually very short, like our modern leases upon rack rent; and indeed we are told that by the antient law no leases for more than forty years were allowable, because any longer possession (especially when given without any livery declaring the nature and duration of the estate) might tend to defeat the inheritance. Yet this law, if ever it existed, was soon antiquated; for we may observe, in Madox's collection of antient instruments, some leases for years. of a pretty early date, which considerably exceed that: f Co. Litt. 46. g Mirror. c. 2. 27. Co. Litt. 45, 46. *Cited, 95 U. S. 250; 4 Bland, 300; 22 Am. Dec. 250. 2 BLACKST. - 21. period; and long terms, for three hundred years 5or a thousand, were certainly in use in the time of Edward III, and probably of Edward I. But certainly, when by the statute 21 Hen. VIII. c. 15. the termor (that is, he who is entitled to the term of years) was protected against these fictitious recoveries, and his interest rendered secure and permanent, long terms began to be more frequent than before; and were afterwards extensively introduced, being found extremely convenient for family settlements and mortgages: continuing subject, however, to the same rules of succession, [143] and with the same inferiority to freeholds, as when they were little better than tenancies at the will of the landlord. * Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years.* And therefore this estate is frequently called a term, terminus, because it's duration or continuance is bounded, limited, and determined: for every such estate must have a certain beginning, and certain end.1 But id certum est, quod certum reddi potest: therefore if a man make a lease to another, for so many years as J. S. shall name, it is a good lease for years; m for though it is at present 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 estate, it begins from the making, or delivery of the lease. A lease for so many years as J. S. shall live, is void from the beginning; for it is neither certain, nor h Madox Formulare Anglican, n.o 239. fol. 140. Demise for eighty years, 21. Ric. II. . . . . Ibid. n.o 245 fol. 146. for the like term, A. Ď. 1429.. Ibid. n.o 248. fol. 148. for fifty years, 7 Edw. IV. i 32 Ass. pl. 6. 5 Bro. abr. t. mordauncestor. 42. spoliation. 6.5 k Stat. of mortmain, 7 Edw. I. 5 Previously, "at least." **Quoted, 22 Ind. 125; 39 Ind. 523; 5 Binn. 230. can ever be reduced to a certainty, during the continuance of the lease. And the same doctrine holds, if a parson make a lease of his glebe for so many years as he shall continue parson of Dale; for this is still more uncertain. But a lease for twenty or more years, if J. S. shall so long live, or if he should so long continue parson, is good; P for there is a certain period fixed, beyond which it cannot last; though it may determine sooner, on the death of J. S. or his ceasing to be parson there. We have before remarked, and endeavoured to assign the reason of, the inferiority in which the law places an estate for years, when compared with an estate for life, or an inheritance: observing, that an estate for life, even if it be pur auter vie, is a freehold; but that * an estate for a thousand years is only a chattel, and reckoned part of the personal estate. Hence it follows, that a lease for years may be made to commence in futuro, though a lease for life cannot.† As, if I grant lands to Titius to hold from Michaelmas next for [144] twenty years, this is good; but to hold from Michaelmas next for the term of his natural life, is void. For no estate of freehold can commence in futuro; because it cannot be created at common law without livery of seisin, or corporal possession of the land: and corporal possession cannot be given of an estate now, which is not to commence now, but hereafter. And, because no livery of seisin is necessary to a lease for years, such lessee is not said to be seised, or to have true legal seisin of the lands. Nor indeed does the bare lease vest any estate in the lessee; but only gives him a right of entry on the tenement, which right is called his interest in the term, or p Ibid. q Ibid. 46. r 5 Rep. 94. 2 Probably a typographical error in first edition. + Cited, 16 N. H. 268. |