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(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


In some states terms of more than a certain number

fire of years are expressly declared freeholds, e. g., Ohio

and Missouri. In the statute of frauds, leases of three he 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 d attention away from the old distinction.

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

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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 d 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

of the

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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 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

qui tradidit, seysinam restituet cum dannis; quia talis restitutio non multum differt a disseysina. "No one can eject a farmer from his farm [term] any more than a tenant from his freehold. And even if his lessor have ejected him, he shall restore his seisin with damages; for such a remedy does not differ much from that of disseisin." (Fol. 220 b.)



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; being such whose existence depends upon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or enlarged, or finally defeated. And these conditional estates I have chosen to reserve till last, because they are indeed more properly qualifications of other estates, than a distinct species of themselves; seeing that any quantity of interest, a fee, a freehold, or a term of years, may depend upon these provisional restrictions. Estates then upon condition, thus understood, are of two sorts: 1. Estates upon condition implied: 2. Estates upon condition expressed under which last may be included, 3. Estates held in vadio, gage, or pledge: 4. Estates by statute merchant or statute staple: 5. Estates held by elegit.

I. Estates upon condition implied in law, are where a grant of an estate has a condition annexed to it inseperably, from it's essence and constitution, although no condition be expressed in words. As if a grant be made to a man of an office, generally, without adding other words; the law tacitly annexes hereto a secret condition, that the grantee shall duly execute his office,† on breach of which condition [153] it is lawful for the grantor, or his heirs, to oust him, and grant it to another

a Co. Litt 201

b Litt. 378.

**Quoted, 31 Conn. 475; 1 Wis. 474. Cited, 42 Ark. 347.
+21 Ind. 522; 83 Am. Dec. 371.

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