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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 fin 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 pos- III. Estate by session of land by lawful title, but keeps it afterwards with- where one in

sufferance is

(u) Fitz. Abr. tit. Corone, 310 ; Cro. Car. 229; 1 Roll. Abr. 562 ; Custom, 12; Bro. Abr. tit. Custom, 2 Ventr. 143 ; Carth. 432; Lord 2, 17 ; Tenant per copie, 22 ; 9 Rep. Raym. 1225. 76; Co. Litt. 59; Co. Copyh. s. 32 ;

(20) See ante, the 4th sect. of chapter 6, (pp. 98—101,) with the notes thereto.

possession of
land lawfully
(as by lease),
holds after the

title.

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,

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.

(w) Ibid.

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(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

Such demand may be made for that purpose, several weeks after the expi. ration of the term, if the landlord have done no act in the mean time to acknowledge the continuation of the tenancy, and he may recover the double value, from the time of such demand. (Cobb v. Stokes, 8 East, 361.) And 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.

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,

(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.)

next page,

lord's remedies

against the tenant by sufferance, as he might against a stranger (2): 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.

*Thus stands the law, with regard to tenants by suffer- of the land. ance: 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).

(2) Co, Litt. 57.

(y) 5 Mod. 384.

(23) Mr. Christian observes, that validity of these notices under the “ the double value may be recovered statutes, to entitle the landlord to though it is not mentioned in the no- double value. tice to quit. (1 T. R. 53.) The notice " If the tenant hold over after the by the landlord must be in writing ; expiration of his term, or after the end but that by the tenant, under 11 Geo. of the year, when he has had a proper II. c. 19, may be parol. (3 Bur. 1603.) notice to quit, the landlord may turn The double value can only be recover- his cattle upon the premises, but withed by action of debt; but the double out force, and the cattle cannot be rent may be recovered by distress or distrained as damage feasant, by the otherwise, like single rent. (1 Bl.535.) tenant. (7 T. R. 431.)" No length of time is necessary to the

152

CHAPTER X.

OF ESTATES UPON CONDITION.

Of estates upon condition.

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

" and "on

(1) As to things executed, (a con- condition. This distinction is also veyance of lands, for instance,) a con- noticed in Sheph. Touch. 122, where dition to be valid, must be created it is also laid down, that although the and annexed to the estate at the time

words “proviso,"

so that,' that it is made, not subsequently; the condition,” are the most proper words condition may, indeed, be contained in to make a condition; yet they have a separate instrument, but then, that not always that effect, but frequently must be sealed and delivered at the serve for other purposes ; sometimes same time with the principal deed. they operate as a qualification or limi(Co. Litt. 236 b; Touch. 126.) As to tation, sometimes as a covenant. And things executory, (such as rents, an- when inserted among the covenants in nuities, &c.,) a grant of them may be a deed, they operate as a condition, restrained by a condition created after only when attended with the following the execution of such grant. (Co. Litt. circumstances : lst. When the 237 a.) Littleton (in his 328th and wherein they are found is a substanthree following sections) says, divers tive one, having no dependence upon words there be, which, by virtue of any other sentence in the deed, or themselves, make estates upon con- rather, perhaps, not being used merely dition, Not only the express words, in qualification of such other sentence,

upon condition,” but also the words but standing by itself. 2nd. When it is “provided always,” or“ so that,” will compulsory upon the feoffee, donee, or make a feoffment, or deed, conditional. lessee. 3rd. When it proceeds from the And again (in his 331st section) he part of the feoffor, donor, or lessor, and says, the words “if it happen” will declares his intention (but as to this make a condition in a deed, provided point, see Whichcote v. Fox, Cro. Jac. a power of entry is added. Without 398 ; Cromwell's case, 2 Rep. 72, and the reservation of such a power, the infra). 4th. When it is applied to the words“ if it happen” will not alone, estate, or other subject matter. and by their own force, make a good The word “ provided” may operate

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certain event, whereby the estate may be either originally created, or enlarged (2), or finally defeated (a) (3). And

(a) Co. Litt. 201.

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as a condition and also a covenant : as well in relation to things which lie thus, if the words are, “provided al- in grant, as to things which lie in lj. ways, and the feoffee doth covenant"

very, and may be annexed as well to an that neither he nor his heirs shall do estate-tail, which cannot be drowned, such an act ; this, if by indenture, is as to an estate for life or years, which both a condition and a covenant, for may be merged by the access of a the words will be considered as the greater estate. But, such increase of words of both parties. (Whichcote v. an estate by force of such a condition, Fox, Cro. Jac. 398.) But if the clause ought to have four incidents. 1. There have dependence on another clause in must be a particular estate founthe deed, or be the words of the feof- dation for the increase to take effect fee to compel the feoffor to do some- upon ; which particular estate, Lord thing; then it is not a condition, but a Coke held, must not be an estate at covenant only. So, if the clause be will, nor revocable, nor contingent. applied to some other thing, and not 2. Such particular estate ought to conto the substance of the thing granted, tinue in the lessee or grantee, until the then it is no condition. As, if a lease increase happens, or at least no alterabe made of land, rendering rent at B., tion in privity of estate must be made provided that if such a thing happen it by alienation of the lessee or grantee ; shall be paid at C., this does not make though the alienation of the lessor or the estate conditional. And a proviso grantor will not affect the condition ; that a lessor shall not distrain for rent, and the alteration of persons by demay be a good condition to bind him ; scent of the reversion to the heirs of but not a condition annexed to the the grantor, or his alienee, or of the estate. (See Co. Litt. 233 b; Engle- particular estate to the representatives field's case, Moor, 307 ; S. C. 7 Rep. of the grantee, will not avoid the con78; Berkeley v. The Earl of Pem- dition. Neither need such increase broke, Moor, 707 ; S. C. Cro. Eliz. take place immediately upon

the

par306, 560; Browning v. Beeston, ticular estate, but may enure as a rePlowd. 131.)

mainder to the donee of the particular The word “ if” frequently creates a estate, or his representatives, subsecondition, but not always ; for some- quent to an intermediate remainder to times it makes a limitation ; as where somebody else. 3. The increase must a lease is made for years, if A. B. shall vest and take effect immediately upon so long live. Conditions may be an- the performance of the condition; for, nexed to demises for years, without if an estate cannot be enlarged at the any of these formal words, where the very instant appointed for its enlargeintent that the estate should be con- ment, the enlargement shall never ditional is apparent. (Co. Litt. 204 a, take place. 4. The particular estate 214 b; Sheph. Touch. 123.)

and the increase ought to derive their (2) A particular estate may be li- effect from one and the same instrumited, with a condition, that, after the ment, or from several deeds delivered happening of a certain event, the per- at one and the same time. (Lord son to whom the first estate is limited Stafford's case, 8 Rep. 149–153.) shall have a larger estate. Such a (3) It is a rule of law, that a concondition may be good and effectual, dition, the effect of which is to defeat

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