by the antient law, be at any time defeated by a common recovery suffered by the tenant of the freehold (f); which annihilated all leases for years then subsisting, unless afterwards renewed by the recoveror, whose title was supposed superior to his by whom those leases were granted (5). While estates for years were thus precarious, it is no wonder that they were usually very short, like our modern leases upon rack rent; and indeed we are told (g) that by the antient law no leases for more than forty years were allowable, because any longer possession (especially when given without any livery declaring the nature and duration of the estate) might tend to defeat the inheritance. Yet this law, if ever it existed, was soon antiquated; for we may observe in Madox's collection of antient instruments, some leases for years of a pretty early date, which considerably exceed that period (h): and long terms, for three hundred years or a thousand, were certainly in use in the time of Edward III. and probably of Edward I. (k). (f) Co. Litt. 46. (g) Mirror. c. 2, s. 27. Co. Litt. 45, 46. (h) Madox Formulare Anglican. No. 239, fol. 140. Demise for eighty years, 21 Rich. II. ..... Ibid. No. 245, fol. (i), But certainly, when by the 146, for the like term. A. D. 1429. .... (i) 32 Ass. pl. 6. Bro. Abr. t. Mor- Being precarious, estates for years were usually short. (5) At this day, the same just rule prevails in every case of recovery by bond fide suit, where the title of the recoveror is prior to that of the tenant for years, and the principle of the old doctrine went no further. (Flower v. Rigden, Cro. Eliz. 284. Pledgard v. Lake, Cro. Eliz. 718). In practice, however, if a termor was not permitted to falsify the proceedings, his estate might have been wrongfully defeated by the fraud and covin of the tenant of the freehold, in not properly defending a feigned action brought against him. For this evil some remedy, but not an adequate one, was provided by the statute of statute 21 Hen. VIII. c. 15, the termor (that is, he who is entitled to the term of years) was protected against these fictitious recoveries, and his interest rendered secure and permanent, long terms began to be more frequent than before; and were afterwards extensively introduced, being found extremely convenient for family settlements and mortgages: continuing subject, however, to the same rules of [*143] succession, and with the same inferiority to freeholds, as when they were little better than tenancies at the will of the landlord. What constitutes an estate for years. Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years (6). And therefore this estate is frequently called a term, terminus, because its duration or continuance is bounded, limited, and determined: for every such estate must have a certain beginning, and certain end (1). But id certum est, quod certum reddi potest: therefore, if a man make a lease to another, for so many years as J. S. shall name, it is a good lease for years (m); for though it is at present uncertain, yet when J. S. hath named the years, it is then reduced to a certainty. If no day of commencement is named in the creation of this estate, it bgins from the making, or delivery, of the lease (n). A lease for so many years as J. S. shall live, is void from the beginning (0); for it is neither certain, nor can ever be reduced to a certainty, during the continuance of the lease. And the same doc. trine holds, if a parson make a lease of his glebe for so many years as he shall continue parson of Dale; for this is still more uncertain. But a lease for twenty or more years, if J. S. shall so long live, or if he should so long continue parson, is good (p): for there is a certain period fixed, beyond which it cannot last; though it may determine sooner, on the death of J. S., or his ceasing to be parson there. A lease for years may be made to commence in futuro; not so, a lease for life. We have before remarked, and endeavoured to assign the reason of, the inferiority in which the law places an estate for years, when compared with an estate for life, or an inheritance: observing, that an estate for life, even if it be pur auter vie (7), is a freehold; but that an estate for a thousand years is only a chattel, and reckoned part of the personal estate (q). Hence it follows, that a lease for years may be made to commence in futuro, though a lease for life cannot (8). As, if I grant lands to Titius to hold from Michaelmas next for *twenty years, this is good; but to [*144 ] hold from Michaelmas next for the term of his natural life, is void. For no estate of freehold can commence in futuro; because it cannot be created at common law without livery of seisin, or corporal possession of the land; and corporal possession cannot be given of an estate now, which is not to commence now, but hereafter (r). And, because no livery of seisin is necessary to a lease for years, such lessee is not said to be seised, or to have true legal seisin of the lands. Nor indeed does the bare lease vest any estate in the lessee; (7) See ante, note (1) to the eighth such cases, a freehold interest may be chapter. (8) For, a chattel interest for years concerns the occupation only; but a lease for life, if made by a common law conveyance, requires livery of seisin, provided the estate leased consist of a corporeal hereditament, of which the lessor has the possession as well as the seisin. Where the estate consists of incorporeal hereditaments, seisin, of course, cannot be given; and where the freehold interest is granted by bargain and sale, or other assurance taking effect by virtue of the statute of uses, livery of seisin is not required: in effectually limited to commence in Tenant for years same estovers as tenant for life. but only gives him a right of entry on the tenement, which right is called his interest in the term, or, interesse termini: but when he has actually so entered, and thereby accepted the grant, the estate is then, and not before, vested in him, and he is possessed, not properly of the land, but of the term of years (s); the possession or seisin of the land remaining still in him who hath the freehold. Thus the word, term, does not merely signify the time specified in the lease, but the estate also and interest that passes by that lease; and therefore the term may expire, during the continuance of the time; as by surrender, forfeiture, and the like. For which reason, if I grant a lease to A. for the term of three years, and after the expiration of the said term to B. for six years, and A. surrenders or forfeits his lease at the end of one year, B's. interest shall immediately take effect: but if the remainder had been to B. from and after the expiration of the said three years, or from and after the expiration of the said time, in this case B's. interest will not commence till the time is fully elapsed, whatever may become of A's. term (t). Tenant for term of years hath incident to and inseparable is entitled to the from his estate, unless by special agreement, the same estovers (9) which we formerly observed (u) that tenant for life was entitled to; that is to say, house-bote, fire-bote, ploughbote, and hay-bote (w); terms which have been already ex[145] plained (x). Where a lease for years is cer tain, the tenant is not entitled to emblements; otherwise, where it depends upon an uncertainty. *With regard to emblements (10), or the profits of lands sowed by tenant for years, there is this difference between him and tenant for life: that where the term of tenant for years depends upon a certainty, as if he holds from midsummer for ten years, and in the last year he sows a crop of corn, and it is not ripe and cut before midsummer, the end (y) Litt. s. 68. (*) Co. Litt. 56. (11) Unless a custom prevails in the district where the land is situated, that the tenant shall be entitled to an outgoing crop. (12) When a woman, who is entitled to tenancy durante viduitate only, sows corn, and marries before it is cut, she is clearly not entitled to the emblements, if the land be in her own occupation: but if she had let the land before her marriage, and her lessee had sown it, some doubt may exist whether he would, or would not, be allowed to enjoy the benefit of his industry and ma (a) Ibid. 55. (b) Litt. s. 68. nurance. In the report of Oland's A parson who resigns his living is II. Estates at lands, &c. are let to one, to will-where hold at the will of the lessor. |