ancient Statuta et Consuetudines, collected by Puffendorf, i. 81, 172, 195; ii. 50, etc.) Planck, however, asserts the right of the tenant to retain possession against the landlord and his vendee. (Ib. p. 244.)

Azo's statement of the civilian doctrine of his time is very clear. The possession is with the locator, or dominus, and therefore he or his singular successor, e. g., purchaser, can evict the termor, conductor temporalis. (Summa in Cod. iv. 65, fol. 617.) For, although the lessee holds corporeally, he seems to possess not for himself, but for the owner, domino rei. (Ib. vii. 30, fol. 1007.)

But he distinguishes such a termor, for a brief space, from a conductor ad non modicum tempus, and puts the latter on the saine footing with the fructuary or emphyteuta, as having natural possession and jus in re. (Ib. vii. 32, fol. 1013; also fol. 617, ubi supra.) I do not recall any reference to this distinction in Bracton: he says expressly that even a term of any length (quamvis longissimum) exceeding men's lives, comes under the same rule.

It is not easy to determine with a word just how far the law of leasehold was taken from Roman or from native sources. Certainly there was no blind following of Roman dicta, without reference to the requirements of English law. Thus, their personal character as chattels real was a clear deviation from the letter of the code, by which not only every conductio perpetua was transmitted to the heir (of course in the Roman sense of the word), but also the condictio temporalis intra tempora locationis was not only transmitted, but was also binding on the heir; a point of more importance, when so many provisions had to be made to keep the cultivators on the land. (Cod. Just. lib. 4, tit. 65, 22 10, 11.)

But the rule that such a lease was abrogated by a sale of the property, unless the vendor stipulated that it

should not be, may be traced directly to the same code. (Ib. 9, 32, 33, 34.) Perhaps in this last case the Roman and German law did not differ, as we may infer from the well-known maxim of the latter that a lease is avoided by sale of the property. The same rule is found in proverbial form, both in French, Vendage ou achat passe lounge, Loysel, Institutes Coutum. No. 471, and in German, Kauf bricht miethe. Some German writers admit that it was borrowed from the Roman law. (Hillebrand, Deutsche Rechtssprichworter, 105. See, also, Eisenhart, 390.) And the philosopher Kent has attempted its defense. (Metaphys. Grundsatze, pp. 129, 168.) But the defense only amounts to this, that the rule being so, the tenant knew when he took the lease that this was one of its conditions; and that it might (now) be avoided with the lessor's consent; except so far as he follows the civilians in basing it on the general principle that rights in rem must necessarily prevail over rights in personam, when the two come in conflict. As to which, see Gluck, Ausf. Erl. 1061; Bd. 19, pp. 14-18. Contra, criticising the rule, Weiske, Rechtslexikon, vii. 796, 797.

But if the rule was originally Roman and not Ger'manic, it is very singular that it should have been the primitive rule in England, and changed so as to sustain the termor's rights at the very period when the influence of Roman law seems to have been greatest. Bracton tells us that as the termor could only reach his lessor, and not the purchaser or any other ejector, by the writ of covenant, for breach of the contract of lease, therefore by a recent innovation de consilio curia he had a writ of entry de termino qui nondum præteriït to recover his unexpired term against either of them, and thus was in a position not unlike that of the freeholder so far as recovery of possession with damages went. (Lib. iv. c. 36, fol. 220.) The action thus introduced was that afterward so well known as ejectio firma,

(Upon the later doubts as to its effect, and conflicting dicta on the subject, see note 44,3 Com. 285, and the note immediately following this, number 36.)

Chattels real are in recent law constantly tending to be governed by the same rules with real property. Land, whether held by a chattel or freehold interest, is in nature as a matter of fact immovable and not movable. Per Selborne, Ch., in Freke v. Lord Carbery, Law R. 16 Eq. 463 (quoted in Hardcastle on Statutes, p. 226), where it was held that an English leasehold owned by a testator domiciled in Ireland was governed as land by the provisions of the Thellusson Act.

In some states terms of more than a certain number of years are expressly declared freeholds, e. g., Ohio and Missouri. In the statute of frauds, leases of three years and over are put on the footing of land; i. e., governed by the same rule with conveyances of the freehold. In most recent statutes relating to mortgage, executions, attachments, etc., and in recording acts, such leases are ranked with real, not personal property. The very term "real property" has this effect to lead attention away from the old distinction.

(36) The lessee's estate might at any time be defeated by a common recovery, page 142.

Such a recovery by one "whose title was supposed superior to his by whom those leases were granted" (as Blackstone adds), would of course annul the leases of the party recovered against, and thus render nugatory his right to recover possession by a writ of entry which supposed such a lease. (See preceding note, 35.) The recovery therefore would be resorted to whenever an undesirable lease was to be got rid of. It was probably due to this that the tenant's right to his term and possession under it continued to be "little better than tenancies at the will of the landlord” (p. 143) down to

the reign of Edward IV., or later, in spite of the clear statement of the law in their favor, and provision of a writ to help them, in the time of Bracton. (Lib. 4, c. 36, fol. 220.) See further on this point book 3 of these Commentaries, page *200, and note 44, page 285.

It is remarkable how persistent in the minds of English lawyers this conviction of the primitive feebleness of terms for years has been. Mr. Challis, the latest writer who has given original thought to the entire doctrine of real property — his very able little work was published in 1885- has stated it even more sweepingly than Blackstone did a century ago.

"But terms of years were by the common law liable to destruction at the will of the reversioner having the freehold. If the latter suffered judgment to go against him by default in a collusive action of recovery, a lease previously granted by him for years had no validity as against the recoveror, who claimed and obtained judgment upon a supposed title paramount to the title of the reversioner; and this destruction of his estate could not be hindered by the termor, because having no freehold, he had no locus standi to intervene in an action of recovery. This hardship was partly remedied by the statute of Gloucester, 6 Edw. I., and completely remedied by the 21 Hen. VIII. c. 15, which enabled termors to falsify recoveries obtained on feigned titles. 2 Inst. 321, 322; Co. Litt. 46 a." (H. W. Challis, The Law of Real Property, London, 1885, ch. 8, p. 46.)

Mr. Challis would hardly think it fair to say that the lessee of land to-day held an estate "liable to destruction at the will of his lessor," merely because the latter might by a collusive use of fraud and forgery enable a claimant to destroy both of their interests by recovering "judgment upon a supposed title paramount." Yet the legal rule by which that might be done now is precisely the same by which the termor was ousted under a feigned

recovery. That the trick was often performed, and safer in the thirteenth century is probable. But so far was the termor from being "liable to destruction at the will of the reversioner" that he had a writ of entry ad terminum qui nondum præteriit against his reversioner or lessor, and any one else who interfered with his possession (quoscunque dejectores), to recover both the unexpired term and damages: and that, too, with all the advantages of a freeholder in a real action, grand cape, petty cape, and all! (Bracton, lib. 4, tr. 1, c. 36, fol. 220.) As to the doubts that were long afterwards raised about the right to recover the term, something must be said in another note. It is sufficient here to show the state of the case at least twenty years before the statute of Gloucester.

But Mr. Challis goes still further when he says: "The foregoing considerations warrant the conclusion that terms of years originally pushed themselves into the rank of legal estates only by virtue of the statute 21 Hen. VIII. c. 15. This conclusion as to the primitive legal status of terms of years is confirmed by the fact that the word "seisin" is used by the old writers synonymously with possession: showing that they recognized no possession unaccompanied by an estate of freehold." (Ib. p. 47.)

The fact of this "synonymous" use of the two terms by Bracton (not by later writers during a long period) is certain; but so also is his use of seisina for the termor's possession. The natural inference is the reverse of that drawn above.

In conclusion, the mistakes of Blackstone and others, including Mr. Challis, as to the status or "legal rights" of the termor in this early period, could hardly be better contradicted than they are in a single sentence from the chapter of Bracton cited above. Non magis poterit aliqius firmarium ejicere de firma sua, quam tenentem aliquem de libero tenemento suo. Et unde si ille ejecerit