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humour and temper of the respective antient lords (from whence we may account for their great variety), such tenant, I say, may have, so far as the custom warrants, any other of the estates or quantities of interest, which we have hitherto considered, or may hereafter consider, to hold united with this customary estate at will. A copyholder may, in many manors, be tenant in fee-simple, in fee-tail, for life, by the curtesy, in dower, for years, at sufferance, or on condition; subject however to be deprived of these estates upon the concurrence of those circumstances which the will of the lord, promulged by immemorial custom, has declared to be a forfeiture or absolute determination of those interests; as in some manors the want of issue male, in others the cutting down timber, the non-payment of a fine, and the like. Yet none of these interests amount to freehold; for the freehold of the whole manor abides always in the lord only," who hath granted out the use and occupation, but not the corporal seisin or true? possession, of certain 9 parts and parcels thereof, to these his customary tenants at will.

The reason of originally granting out this complicated kind of interest, so that the same man shall, with regard to the same land, be at one and the same time tenant in fee-simple [149] and also tenant at the lord's will, seems to have arisen from the nature of villenage tenure; in which a grant of any estate of freehold, or even for years absolutely, was an immediate enfranchisement of the villein. The lords therefore, though they were willing to enlarge the interest of their villeins, by granting them estates which might endure for their lives, or sometimes be descendible to their issue, yet did not

s Litt. 81. 2 Inst. 326.

t Mirr. c. 2. 28. Litt. 204, 5, 6.

9 Ninth edition reads, "and hold them."

9 Ninth edition inserts, "legal."

9 Ninth edition omits.

care to manumit them entirely; and for that reason it seems to have been contrived, that a power of resumption at the will of the lord should be annexed to these grants, whereby the tenants were still kept in a state of villenage, and no freehold at all was conveyed to them in their respective lands: and of course, as the freehold of all lands must necessarily rest and abide somewhere, the law supposed it9 to continue and remain in the lord. Afterwards, when these villeins became modern copyholders, and had acquired by custom a sure and indefeasible estate in their lands, on performing 5 their usual services, but yet continued to be stiled in their admissions tenants at the will of the lord, -the law still supposed it an absurdity to allow, that such as were thus nominally tenants at will could have any freehold interest: and therefore continued and still continues to determine, that the freehold of lands so holden abides in the lord of the manor, and not in the tenant; for though he really holds to him and his heirs forever, yet he is also said 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-socage," and are not said to hold at the will of the lord, but only according to the custom of the manor, there is no such absurdity in allowing them to be capable of enjoying a freehold interest: and therefore the law doth not suppose the freehold of such lands to rest in the lord of whom they are holden, but in the tenants themselves; who are u See page 98, etc.

v Fitzh. Abr. tit. corone. 310. custom. 12 Bro. Abr. tit. custom. 2. 17. tenant per copie 22. 9 Rep. 76. Co. Litt. 59. Coyph. 32. Cro. Car. 1 Roll. Abr 562. 2 Ventr. 143. Carth. 432. Lord Raym. 1225. 9 Ninth edition reads "not caring."


9 Ninth edition inserts, ", might probably scruple to grant them any absolute freehold."

8 Previously, "supposes."

9 Ninth edition inserts, "still."

5 Previously, "the."

9 Ninth edition reads "now."


* sometimes called customary freeholders, being allowed to have a freehold interest though not a freehold tenure. [150] However, in common cases, copyhold estates are still ranked (for the reasons above-mentioned) among tenancies at will; though custom, which is the life of the common law, has established a permanent property in the coryholders, who were formerly nothing better than bondmen, equal to that of the lord himself, in the tenements holden of the manor; nay sometimes even superior; for we may now look upon a copyholder of inheritance, with a fine certain, to be little inferior to an absolute freeholder in point of interest, and in other respects, particularly in the clearness and security of his title, to be frequently in a better situation.

III. * An estate at sufferance, is where one comes into possession of land by lawful title, but keeps it afterwards without any title at all. As if a man takes a lease for a year, and, after the year is expired, continues to hold the premises without any fresh leave from the owner of the estate. Or, if a man maketh a lease at will, and dies, the estate at will is thereby determined: but if the tenant continueth possession, he is tenant at sufferance. But, no man can be tenant at sufferance against the king, to whom no laches, or neglect, in not entering and ousting the tenant, is ever imputed by law: but his tenant, so holding over, is considered as an absolute intruder. But, in the case of a subject, this estate may be destroyed whenever the true owner shall make an actual entry on the lands and oust the tenant; for, before entry, he cannot maintain an action of trespass against the tenant by sufferance, as he might against a stranger: and the reason is, because the

W Co. Litt. 57.

X Ibid.

y Ibid.

- Quoted, 11 Wend. 618; 4 Johns. 156; 4 Am. Dec. 259; 20 John. 305: 4 Leigh, 18; 38 Cal. 563; 71 Ga. 70.

+ Quoted, 7 Halst. 101.

tenant being once in by a lawful title, the law (which presumes no wrong in any man) will suppose him to continue upon a title equally lawful* unless the owner of the land by some public and avowed act, such as entry is, will declare his continuance to be tortious,† or, in common language, wrongful.‡

[151] Thus stands the law, with regard to tenants by sufferance; and landlords are obliged in these cases to make formal entries upon their lands, and recover possession by the legal process of ejectment: and at the utmost, by the common law, the tenant was bound to account for the profits of the land so by him detained. But now, by statute 4 Geo. II. c. 28. in case any tenant for life or years, or other person claiming under or by collusion with such tenant, shall wilfully hold over after the determination of the term, and demand made and notice in writing given,8 by him to whom the remainder or reversion of the premises shall belong, for delivering the possession thereof; such person, so holding over or keeping the other out of possession, shall pay for the time he detains the lands, at the rate of double their yearly value. And, by statute 11 Geo. II. c. 19. in case any tenant, having power to determine his lease, shall give notice of his intention to quit the premises, and shall not deliver up the possession at the time conz 5 Mod. 384.



8 Previously, "in writing for recovering the possession of the premises."

8 Previously, "thereof."

8 Previously, "continues."

8 Previously, "the yearly value of the lands so detained."

- Quoted, 24 Miss. 275; 38 Miss. 390; 77 Am. Dec. 648.

+-+ Quoted, 17 Mass. 288.

2- Quoted, 20 Johns. 306.

- Quoted, 4 Leigh, 18; 25 Cal. 35.

- Quoted, 16 Mass. 4; 2 Conn. 13.

#Cited, 34 N. H. 223, 224, 225; 4 Denio, 188; 14 N. Y. 66, 69; 11 Wend. 619; 2 Conn. 12, 13; 3 Conn. 44; 5 Conn. 301; 13 Am. Dec. 65; 7 Halst. 101; 24 Miss. 276; 38 Miss. 390; 77 Am. Dec. 648; 7 Marsh. J. J. 320; 15 Mich. 34, 42; 17 Mich. 368; 47 Md. 511; 79 Me. 522.

tained in such notice, he shall thenceforth pay double the former rent, for such time as he continues in possession. These statutes have almost put an end to the practice of tenancy by sufferance, unless with the tacit consent of the owner of the tenement.


(35) An estate for years is a contract for the possession of lands, page 140.

Much labor has been spent in vain in the effort to explain the difference between the possession of the tenant for years and the seisin of the tenant for life, and why the former, though for a thousand years, is "less" than the latter. Even the last edition of the Encyclopedia Britannica evidently regards it as an insoluble problem, how "there can be possession of a term of years but no seisin." (Vol. 19, p. 561, n. 4.) The distinction is thus looked for where it cannot be found. There is no natural difference between the two words. Both were used indifferently for the termor's possession and the freeholder's, at least to the time of Bracton. (Fol. 27, 220, quoted by Digby, pp. 125, 126.) The termor had always a sufficient possession of the land itself to make a feoffment, and thus give a seisin (though tortious) to his feoffee. It was not till legal writers found it needful to discriminate possession of the freehold by a distinct word that they began to set apart seisin for that use, and left off applying it to leaseholds, copyholds, and even chattels. Even to the present day there is a clear survival of this original usage, in the recognition of "remainders" and "reversions" after terms of years. (See ch. 11, post, p. 165.) Bracton discriminates not the possession, but the thing possessed: the termor has only the usufruct (fol. 160 a), or the superficies, the surface of the land, according to Roman ideas, while the freeholder has the land itself. 8 Previously, "This has."

2 BLACKST.-22.

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