supposed it still 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 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 now 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 for ever, yet he is also said to hold at another's will. But with regard to certain other copyholders, of free or privileged tenure (20), which are derived from the ancient 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 (u); who are sometimes called customary freeholders, being allowed to have a freehold interest, though not a freehold tenure. *However, in common cases, copyhold estates are still [ *150] 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 copyholders, 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. sufferance is III. An estate at sufferance, is, where one comes into pos- III. Estate by session of land by lawful title, but keeps it afterwards with- where one in (u) Fitz. Abr. tit. Corone, 310; Custom, 12; Bro. Abr. tit. Custom, 2, 17; Tenant per copie, 22; 9 Rep. 76; Co. Litt. 59; Co. Copyh. s. 32; Cro. Car. 229; 1 Roll. Abr. 562; (20) See ante, the 4th sect. of chapter 6, (pp. 98-101,) with the notes thereto. possession of out 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 expiration of his without any fresh leave from the owner of the estate. Or, term without title. 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 (v) (21). 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 (w) (22). 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 (v) Co. Litt. 57. (21) Lord Coke tells us (in 2d Instit. 134) this diversity is to be observed, that where a man cometh to a particular estate by the act of the party, there if he hold over, he is a tenant at sufferance; but where he cometh to the particular estate by act of law, as a guardian for instance, there, if he hold over, he is no tenant at sufferance, but an abator. The same doctrine is laid down in 1 Instit. 271. Formerly, tenants at sufferance were not liable to pay any rent for the lands, because it was the folly of the owners to suffer them to continue in possession, after the determination of their rightful estate. (Finch's case, 2 Leon. 143.) But by the statute of 4 Geo. II. c. 28, cited by our author in the next page, it is enacted, that when any tenant holds over, after demand made, and notice in writing to deliver up the possession, he shall pay double the yearly value of the lands so detained, for so long time as the same are detained; against the recovery of which penalty there shall be no relief in equity. Where a demise is for a time certain, no notice to quit is necessary, in order to put an end to the tenancy, though a demand of possession, and notice in writing, are necessary, to entitle the landlord to double rent or value. a further remedy is given to landlords by the statute of 1 Geo. IV. c. 87, enabling them more speedily to recover possession of lands and tenements unlawfully held over by tenants. But this statute only applies to cases where the term or interest of a tenant holding under a lease, or agreement in writing, for any term or number of years certain, or from year to year, has expired or been regularly determined. It was held, therefore, in the case of Doe on dem. of Pemberton v. Roe, (7 Barn. & Cress. 2,) that a tenancy for years determinable on lives is not within the act. (22) As laches is never imputed to the crown, a lessee of the crown lands will never be considered tenant by sufferance, but the law will account him to be a bailiff of his own wrong, and so to be accountable to the crown, but no intruder, till office be found. (Sir Moyle Finch's case, 2 Leon, 143.) against the tenant by sufferance, as he might against a stranger (x): and the reason is, because the 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. lord's remedies *Thus stands the law, with regard to tenants by suffer- of the landance and landlords are obliged in these cases to make for- for the recovery of possession. mal entries upon their lands (y), and recover possession by [151] 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 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 contained 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 (23). (x) Co, Litt. 57. (23) Mr. Christian observes, that "the double value may be recovered though it is not mentioned in the notice to quit. (1 T. R. 53.) The notice by the landlord must be in writing; but that by the tenant, under 11 Geo. II. c. 19, may be parol. (3 Bur. 1603.) The double value can only be recovered by action of debt; but the double rent may be recovered by distress or otherwise, like single rent. (1 Bl. 535.) No length of time is necessary to the (y) 5 Mod. 384. validity of these notices under the "If the tenant hold over after the 152 CHAPTER X. OF ESTATES UPON CONDITION. condition. Of estates upon BESIDES the several divisions of estates, in point of interest, which we have considered in the three preceding chapters, there is also another species still remaining, which is called an estate upon condition (1); being such whose existence depends upon the happening or not happening of some un (1) As to things executed, (a conveyance of lands, for instance,) a condition to be valid, must be created and annexed to the estate at the time that it is made, not subsequently; the condition may, indeed, be contained in a separate instrument, but then, that must be sealed and delivered at the same time with the principal deed. (Co. Litt. 236 b; Touch. 126.) As to things executory, (such as rents, annuities, &c.,) a grant of them may be restrained by a condition created after the execution of such grant. (Co. Litt. 237 a.) Littleton (in his 328th and three following sections) says, divers words there be, which, by virtue of themselves, make estates upon condition. Not only the express words, upon condition," but also the words "provided always," or so that," will make a feoffment, or deed, conditional. And again (in his 331st section) he says, the words "if it happen" will make a condition in a deed, provided a power of entry is added. Without the reservation of such a power, the words" if it happen" will not alone, and by their own force, make a good 66 66 condition. This distinction is also noticed in Sheph. Touch. 122, where it is also laid down, that although the words "proviso,' ," "so that," and "on condition," are the most proper words to make a condition; yet they have not always that effect, but frequently serve for other purposes; sometimes they operate as a qualification or limitation, sometimes as a covenant. And when inserted among the covenants in a deed, they operate as a condition, only when attended with the following circumstances: 1st. When the clause wherein they are found is a substantive one, having no dependence upon any other sentence in the deed, or rather, perhaps, not being used merely in qualification of such other sentence, but standing by itself. 2nd. When it is compulsory upon the feoffee, donee, or lessee. 3rd. When it proceeds from the part of the feoffor, donor, or lessor, and declares his intention (but as to this point, see Whichcote v. Fox, Cro. Jac. 398; Cromwell's case, 2 Rep. 72, and infra). 4th. When it is applied to the estate, or other subject matter. The word "provided" may operate certain event, whereby the estate may be either originally created, or enlarged (2), or finally defeated (a) (3). And (a) Co. Litt. 201. as a condition and also a covenant: thus, if the words are, "provided always, and the feoffee doth covenant" that neither he nor his heirs shall do such an act; this, if by indenture, is both a condition and a covenant, for the words will be considered as the words of both parties. (Whichcote v. Fox, Cro. Jac. 398.) But if the clause have dependence on another clause in the deed, or be the words of the feoffee to compel the feoffor to do something; then it is not a condition, but a covenant only. So, if the clause be applied to some other thing, and not to the substance of the thing granted, then it is no condition. As, if a lease be made of land, rendering rent at B., provided that if such a thing happen it shall be paid at C., this does not make the estate conditional. And a proviso that a lessor shall not distrain for rent, may be a good condition to bind him ; but not a condition annexed to the estate. (See Co. Litt. 233 b; Englefield's case, Moor, 307; S. C. 7 Rep. 78; Berkeley v. The Earl of Pembroke, Moor, 707; S. C. Cro. Eliz. 306, 560; Browning v. Beeston, Plowd. 131.) The word "if" frequently creates a condition, but not always; for sometimes it makes a limitation; as where a lease is made for years, if A. B. shall so long live. Conditions may be annexed to demises for years, without any of these formal words, where the intent that the estate should be conditional is apparent. (Co. Litt. 204 a, 214 b; Sheph. Touch. 123.) (2) A particular estate may be limited, with a condition, that, after the happening of a certain event, the person to whom the first estate is limited shall have a larger estate. Such a condition may be good and effectual, as well in relation to things which lie in grant, as to things which lie in livery, and may be annexed as well to an estate-tail, which cannot be drowned, as to an estate for life or years, which may be merged by the access of a greater estate. But, such increase of an estate by force of such a condition, ought to have four incidents. 1. There must be a particular estate as a foundation for the increase to take effect upon; which particular estate, Lord Coke held, must not be an estate at will, nor revocable, nor contingent. 2. Such particular estate ought to continue in the lessee or grantee, until the increase happens, or at least no alteration in privity of estate must be made by alienation of the lessee or grantee ; though the alienation of the lessor or grantor will not affect the condition; and the alteration of persons by descent of the reversion to the heirs of the grantor, or his alienee, or of the particular estate to the representatives of the grantee, will not avoid the condition. Neither need such increase take place immediately upon the particular estate, but may enure as a remainder to the donee of the particular estate, or his representatives, subsequent to an intermediate remainder to somebody else. 3. The increase must vest and take effect immediately upon the performance of the condition; for, if an estate cannot be enlarged at the very instant appointed for its enlargement, the enlargement shall never take place. 4. The particular estate and the increase ought to derive their effect from one and the same instrument, or from several deeds delivered at one and the same time. (Lord Stafford's case, 8 Rep. 149-153.) (3) It is a rule of law, that a condition, the effect of which is to defeat |
