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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.‡

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[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 con

z 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."

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

+-+ Quoted, 17 Mass, 288,

2- Quoted, 20 Johns. 306.

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

1- 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.

As Blackstone accurately expresses it here, the termor has only a contract with the owner of the land, not the title to it.

Most of our books account for the supposed anomaly by saying that leases were little known in the middle ages, and usually held by men of low rank, not much regarded by the law. These reasons are alike untrue, and unjust to the law. The latter probably rests upon a confusion between such leases and the base estates held by unfree tenants. But a lease for years was necessarily a lease to a freeman. The mere giving of such a lease by a lord to his villein would enfranchise him. Only a freeman was capable of contracting for a definite term. Blackstone, when he speaks of termors as bailiffs or servants (p. 141), seems to confound them with the unfree tenants, although the lease for years was certainly a contract. And the true reason for the law peculiar to terms for years was that the lease was a contract, and that only. It did not create or transfer a freehold. Strictly speaking, it did not form an estate certainly not an estate in land. The entire freehold remained in the lessor: the lease was "concessio et non donatio, sicut de re concessa ad terminum annorum." (Bracton, ii. 6, 2 1, fol. 17 a.)

This seems to have been in accordance with the primitive rule of Germanic law, at least as stated by continental writers from the medieval books, such as the Sachsenspiegel and others. We are told that the “juristic gewere" in cases of lease remained with the lessor, and this corresponded almost exactly to our seisin in the sense in which it was peculiar to freehold. The consequences were that the tenant had no seisin, and also that the landlord had a claim on the personal property found on the leased premises for the payment of his rent, corresponding to the English right to distrain. (Albrecht Die Gewere, p. 73; Planck, in Zeitschrift f. deutsches Recht, x. 243, who cites also numerous proofs in the

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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 same 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.

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