Sivut kuvina

lord's remedies

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 against the tenant by sufferance, as he might against a stranger (ar): 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, wrong

ful. Of the land, *Thus stands the law, with regard to tenants by suffer

ance: and landlords are obliged in these cases to make forfor the recovery of possession.

mal entries upon their lands (y), and recover possession by [ *151 ] the legal process of ejectment; and at tie 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 suffer(x) Co. Litt. 57.

(y) 5 Mod. 384.

will never

be considered tenant by and so to be accountable to the crown, sufferance, but the law will account but no intruder, till office be found. him to be a bailiff of his own wrong, (Sir Moyle Finch's case, 2 Leon, 143).

ance, unless with the tacit consent of the owner of the tenement t.

+ Mr. Christian observes, that “the of time is necessary to the validity of double value may be recovered though these notices under the statutes, to enit is not mentioned in the notice to title the landlord to double value. quit. 1 T. R. 53. The notice by the If the tenant hold over after the exlandlord must be in writing; but that piration of his term, or after the end of by the tenant, under 11 Geo. II. c. 19, the year, when he has had a proper may be parol. (3 Bur. 1603). The dou- notice to quit, the landlord may turn ble value can only be recovered by ac- his cattle upon the premises, but withtion of debt; but the double rent may out force, and the cattle cannot be dis. be recovered by distress or otherwise, trained, as damage feasant, by the telike single rent. (1 Bl. 535). No length nant. 7 T. R. 431.

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Of estates upon Besides the several divisions of estates, in point of interest, condition.

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

(1) As to things executed, (a con- make a condition in a deed, provided veyance of lands, for instance), a con- a power of entry is added. Without dition, to be valid, must be created the reservation of such a power, the and annexed to the estate at the time words “if it happen" will not alone, that it is made, not subsequently; the and by their own force, make a good condition may, indeed, be contained condition. This distinction is also in a separate instrument, but then, noticed in Sheph. Touch. 122, where that must be sealed and delivered it is also laid down, that although the at the same time with the principal words "proviso," "so that,” and “on deed. (Co. Litt. 236 b. Touch. 126). condition,” are the most proper words As to things executory, (such as rents, to make a condition; yet they have annuities, &c.), a grant of them may not always that effect, but frequently be restrained by a condition created serve for other purposes; sometimes after the execution of such grant. (Co. they operate as a qualification or limiLitt. 237 a). Littleton (in his 328th tation, sometimes as a covenant. And and three following sections) says, die when inserted among the covenants in vers words there be, which, by virtue a deed, they operate as a condition, of themselves, make estates upon con- only when attended with the following dition. Not only the express words, circumstances: 1st. When the clause

upon condition,” but also the words wherein they are found is a substan“provided always,” or “so that,” will tive one, having no dependence upon make a feoffment, or deed, conditional. any other sentence in the deed, or And again (in his 331st section) he rather, perhaps, not being used merely says, the words “if it happen” will in qualification of such other sentence,

depends upon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or enlarged (2), or finally defeated (a) (3). And

(a) Co. Litt. 201.

but standing by itself. 2nd. When it is The word " if” frequently creates a compulsory upon the feoffee, donee, or condition, but not always; for somelessee. 3rd. When it proceeds from the times it makes a limitation; as where part of the feoffor, donor, or lessor, and a lease is made for years, if A. B. shall declares his intention. (but as to this so long live. Conditions may be anpoint, see Whichcote v. Fox, Cro. Jac. nexed to demises for years, without 398. Cromwell's case, 2 Rep. 72. and any of these formal words, where the infra). 4th. When it is applied to the intent that the estate should be conestate, or other subject matter.

ditional is apparent. (Co. Litt. 204 a, The word “provided” may operate 214 b. Sheph. Touch. 123). as a condition and also a covenant: (2) A particular estate may be lithus, if the words are, “provided al- mited, with a condition, that, after the ways, and the feoffee doth covenant" happening of a certain event, the perthat neither he nor his heirs shall do son to whom the first estate is limited such an act; this, if by indenture, is shall have a larger estate. Such a both a condition and a covenant, for condition may be good and effectual, the words will be considered as the as well in relation to things which lie in words of both parties. (Whichcote v. grant, as to things which lie in livery, Fox, Cro. Jac. 398). But if the clause and may be annexed as well to an have dependence on another clause in estate-tail, which cannot be drowned, the deed, or be the words of the as to an estate for life or years, which feoffee to compel the fenffor to do some- may be merged by the access of a thing; then it is not a condition, but a greater estate. But, such increase of covenant only. So, if the clause be an estate by force of such a condition, applied to some other thing, and not to ought to have four incidents. 1. There the substance of the thing granted, must be a particular estate as a founthen it is no condition. As, if a lease dation for the increase to take effect be made of land, rendering rent at B., upon; which particular estate, Lord provided that if such a thing happen it Coke held, must not be an estate at shall be paid at C., this does not make will, nor revocable, nor contingent. the estate conditional. And a proviso 2. Such particular estate ought to conthat a lessor shall not distrain for rent, tinue in the lessee or grantee, until the may be a good condition to bind him; increase happens, or at least no alterabut not a condition annexed to the tion in privity of estate must be made estate. (See Co. Litt. 203 b. Engle- by alienation of the lessee or grantee; field's case, Moor, 307, s. C. 7 Rep. though the alienation of the lessor or 78. Berkeley v. The Earl of Pem- grantor will not affect the condition; broke, Moor, 707, S. C. Cro. Eliz. 206, and the alteration of persons by de560. Browning v. Beeston, Plowd. 131). Scent of the reversion to the heirs of

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

I. Estates upon condition implied in law, are where a condition implied in law, are

grant of an estate has a condition annexed to it inseparably where the grant from its essence and constitution, although no condition be has (though unexpressed) a expressed in words. As if a grant be made to a man of an nexed to it, from office, generally, without adding other words; the law ta

citly annexes hereto a secret condition, that the grantee shall

duly execute his office () (4), on breach of which condition [ * 153 ] *it is lawful for the grantor, or his heirs, to oust him, and

grant it to another person (c). For an office, either public (6) Litt. s. 378.

its nature.


(c) Ibid. s. 379.

the grantor, or his alienee, or of the effect from one and the same instruparticular estate to the representatives ment, or from several deeds delivered of the grantee, will not avoid the con. at one and the same time. (Lord dition. Neither need such increase Stafford's case, 8 Rep. 149–153). take place immediately upon the par- (3) It is a rule of law, that a conticular estate, but may enure as a re- dition, the effect of which is to defeat mainder to the donee of the particular or determine an estate to which it is estate, or his representatives, subse- annexed, must defeat the whole of such quent to an intermediate remainder to estate; not determine it in part only, somebody else. 3. The increase must leaving it good for the residue; (Jer. vest and take effect immediately upon min v. Arscot, stated by Chief Justice the performance of the condition; for, Anderson, in Corbet's case, 1 Rep. 85 b. if an estate cannot be enlarged at the and see Ibid. 86 b. Chudleigh's case, 1 very instant appointed for its enlarge- Rep. 138 b). ment, the enlargement shall never (4) Bartlett v. Downes, 3 Barn. & take place. 4. The particular estate Cress. 619; s C. 5 Dowl. & Ryl. 529. and the increase ought to derive their

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