Sivut kuvina

God, the tenant, or his executors, shall have the emblements in the same manner that a tenant for life, or his executors, shall be entitled thereto.2 Not so, if it determine by the act of the party himself; as, if tenant for years does any thing that amounts to a forfeiture; in which case the emblements shall go to the lessor, and not to the lessee, who hath determined his estate by his own default.ali


II. Estates II. The second species of estates not freehold are estates at at will.

will. An estate at will is where lands and tenements are let by one man to another, to have and to hold at the will of the lessor ; and the tenant by force of this lease obtains possession.b Such tenant hath no certain indefeasible estate, nothing that can be assigned to him by any other; because the lessor may determine his will, and put him out whenever he pleases. But every estate at will is at the will of both parties, landlord and tenant; so that either of them may determine his will, and quit

his connections with the other at his own pleasure.c Yet this [146] must be understood with some restriction. For, if the tenant

at will sows his land, and the landlord, before the corn is ripe, or before it is reaped, puts him out, yet the tenant shall have the emblements, and free ingress, egress, and regress, to cut and carry away the profits. And this for the same reason upon which all the cases of emblements turn; viz., the point of uncertainty: since the tenant could not possibly know when his landlord would determine his will, and, therefore, could make no provision against it; and having sown the land, which is for the good of the public, upon a reasonable presumption, the law will not suffer him to be a loser by it. But it is otherwise, and upon reason equally good, where the tenant himself determines the will; for in this case the landlord shall have the prof

its of the land.e Determina

What act does or does not amount to a determination of the tion of the will. will on either side, has formerly been matter of great debate in

our courts. But it is now, I think, settled, that (besides the express determination of the lessor's will, by declaring that the lessee shall hold no longer; which must either be made upon the land, or notice must be given to the lesseeg*) the exertion of any act of ownership by the lessor, as entering upon the 2 Co. Litt., 56.

d Ibid., 56. Ibid., 55.

e Ibid., 55. b Litt., Ø 68.

f Ibid., 55. c Co. Litt., 55.

& 1 Ventr., 248.


(11) As to emblements, vide ante, p. 122.

* A tenancy at will, or by sufferance, created by the tenant's holding over his term, or otherwise, may be terminated by the landlord's giving one month's notice in writing to the tenant, requiring him to remove (1 R. S., 745, $ 7); and if, after such notice, he willfully holds over, he may be compelled to pay to the landlord at the rate of double the yearly value of the land.-(1 R. S., 745, \ 8–11.)

146 premises and cutting timber,h taking a distress for rent and impounding it thereon, or making a feoffment, or lease for years of the land to commence immediately ;k any act of desertion by the lessee, as assigning his estate to another, or committing waste, which is an act inconsistent with such a tenure ;' or, which is instar omnium, the death or outlawry of either lessor or lessee ;m puts an end to or determines the estate at will.

The law is, however, careful that no sudden determination of the will by one party shall tend to the manifest and unforeseen prejudice of the other. This appears in the case of emblements before mentioned ; and, by a parity of reason, the [147] lessee, after the determination of the lessor's will, shall have reasonable ingress and egress to fetch away his goods and utensils. And, if rent be payable quarterly or half yearly, and the lessee determines the will

, the rent shall be paid to the end of the current quarter or half year. And, upon the same principle, courts of law have of late years leaned as much as possible against construing demises, where no certain term is mentioned, to be tenancies at will ; but have rather held them to be tenancies from year to year so long as both parties please, Tenancies

from year to especially where an annual rent is reserved ; in which case they year. will not suffer either party to determine the tenancy even at the end of the year, without reasonable notice to the other, which is generally understood to be six

b Co. Litt., 55. [9 Mee. & W., 643.] • Salk., 414. 1 Sid., 339. i Ibid., 57.

p This kind of lease was in use as k 1 Roll. Abr., 860. 2 Lev., 88. long ago as the reign of Henry VIII., 1 Co. Litt., 57.

when half a year's notice seems to have 12 5 Rep., 116. Co. Litt., 57, 62. been required to determine it.—(T. 13 * Litt., 9 69.

Hen. VIII., 15, 16.)


(12) Where rent is agreed to be paid Statute of Frauds, 29 Car. II., c. 3, s. 1, in this manner, the tenancy is from year enacts that all leases, estates, &c., made to year, or for some other recurrent pe- by parol, and not put in writing, and riod, and not at will. (Vide ante, p. signed by the parties making the same, 145, n.)

or their agents lawfully authorized by

writing, shall have the force and effect (13) See the note, ante, p. 144. Ten- of leases or estates at will only. But (ancies from year to year, being in a man- by the 3d section are excepted leases, ner dependent on the will of each party not exceeding the term of three years for their continuance, though not so un- from the making thereof, whereon the conditionally as a tenancy at will in the rent reserved shall be two thirds, at technical sense of the word, and fre- least, of the annual value. Under this quently arising out of a holding originally statute, it has been held that entry upon strictly at will, are often popularly call- a parol demise for more than three ed tenancies at will, and the term has years, followed by payment of rent, or a sometimes been so misapplied even by promise to pay rent, creates a yearly lawyers.

tenancy upon the terms (except as to It has been already observed that the the duration of the demise) mentioned payment of rent at or in respect of regu. in the parol lease. (5 T. R., 471; 8 Id., Iar periods, converts an indefinite ten- 3; 3 Moo. & P., 281; 5 Scott, 58.) But ancy into a tenancy from year to year; before any such payment or promise, it and upon this principle, a tenancy under is a mere estate at will. (2 M. & W., a parol lease, void as such by reason of 365.) the Statute of Frands, has frequently of course, by express agreement, an been held to be from year to year. The estate at will may be created, and may

Copybolds were es.

There is one species of estates at will that deserve a more tates at will. particular regard than any other; and that is, an estate held

by copy of court roll; or, as we usually call it, a copyhold estate. This, as was before observed,q was, in its original and foundation, nothing better than a mere estate at will. But the kindness and indulgence of successive lords of manors, having permitted these estates to be enjoyed by the tenants and their heirs, according to particular customs established in their respective districts; therefore, though they still are held at the will of the lord, and so are, in general, expressed in the court rolls to be, yet that will is qualified, restrained, and limited to be exerted according to the custom of the manor. This custom, being suffered to grow up by the lord, is looked upon as the evidence and interpreter of his will: his will is no longer arbitrary and precarious; but fixed and ascertained by the custom to be the same, and no other, that has time out of mind been exercised and declared by his ancestors. A copyhold tenant is, therefore, now full as properly a tenant by the cus.

tom as a tenant at will, the custom having arisen from a se[ 148 ] ries of uniform wills. And, therefore, it is rightly observed by

Calthorpe, that "copyholders and customary tenants differ not so much in nature as in name; for, although some be called copyholders, some customary, some tenants by the virge, some base tenants, some bond tenants, and some by one name, and some by another, yet do they all agree in substance and kind of tenure: all the said lands are holden in one general kind, that is, by custom and continuance of time; and the diversity

of their names doth not alter the nature of their tenure.” Copyholder Almost every copyhold tenant being, therefore, thus tenant ant varices at the will of the lord, according to the custom of the manor ;" ly, according which customs differ as much as the humor and temper of the

respective ancient lords (from whence we may account for their great variety), such tenant, I say, may have, so far as the custom warrants, any other of the estates or quantities of inter

to the custom.

9 Page 95.

1 On Copyholds, 51, 54.

subsist, notwithstanding the payment of favor of a yearly tenancy does not arise. an annual rent. But an intention to this See, also, the cases between mortgagor effect must clearly appear; a mere agree, and mortgagee, cited in note (17) to p. ment to hold “at will" would not be 150. sufficient. Where no rent or periodical compensation is paid, as where stables (14) As to the copyhold tenure in the are let indefinitely, with an agreement north of England, called “ tenant right," that the lessor shall have all the dung which is not said to be held at the will (4 Taunt., 128), or where a purchaser is of the lord, see 4 East, 270; 4 Per. & let into possession before the execution D., 579. An estate held by copy of of the conveyance (5 Moo. & P., 370; court roll according to the custom of the 5 Mee. & W., 14), or where a minister manor, though not expressed to be at the is allowed by the trustees for a congre- will of the lord, comes under the gengation to occupy a house rent free (10 eral description of a copyliold. (2 Cr., B. & Cr., 718; see 2 Cr. & J., 636 ; 9 M. & R., 503.) Car. & P., 494), there the inferenco in

est, which we have hitherto considered, or may hereafter consider, and hold them united with this customary estate at will. A copyholder may, in many manors, be tenant in fee-simple, in fee-tail, for life, by the courtesy, in dower, for years, at sufferance, or on condition : subject, however, to be deprived of these estates upon the concurrence of those circumstances which the will of the lord, promulged by immemorial custom, has declared to be a forfeiture or absolute determination of those interests ; as, in some manors, the want of issue male, in others, the cutting down timber, the non-payment of a fine, and the like. Yet none of these interests amount to freehold; for the freehold of the whole manor abides always in the lord only,s who hath granted out the use and occupation, but not the corporeal seizin or true legal possession, of certain parcels thereof, to these his customary tenants at will.

The reason of originally granting out this complicated kind Why copy. of interest, so that the same man shall

, with regard to the same not freeland, be at one and the same time tenant in fee-simple, and also holds. tenant at the lord's will, seems to have arisen from the nature of villenage tenure ; in which a grant of any estate of freehold, [149] or even for years absolutely, was an immediate enfranchisement of the villein. The lords, therefore, though they were willing to enlarge the interest of their villeins, by granting them estates which might endure for their lives, or sometimes be descendible to their issue, yet not caring to manumit them entirely, might probably scruple to grant them any absolute freehold; and for that reason it seems to have been contrived that a power of resumption at the will of the lord should be annexed to these grants, whereby the tenants were still kept in a state of villenage, and no freehold at all was conveyed to them in their respective lands; and, of course, as the freehold of all lands must necessarily rest and abide somewhere, the law supposed it still to continue and remain in the lord. Afterward, when these villeins became modern copyholders, and had acquired by custom a sure and indefeasible estate in their lands, on performing their usual services, but yet continued to be styled in their admissions tenants at the will of the lord—the law still supposed it an absurdity to allow that such as were thus nominally tenants at will could have any freehold interest; and, therefore, continued, and now continues to determine, that the freehold of lands so holden abides in the lord of the manor, and not in the tenant; for, though he really holds to him and his heirs forever, yet he is also said to hold at another's will. But with regard to certain other copyholders, of free or privileged Customary tenure, which are derived from the ancient tenants in villein socage, and are not said to hold at the will of the lord, but only according to the custom of the manor, there is no such absurdity # Litt., 9 81. 2 Inst., 325.

u See page 98, &c. Mirr., c. 2, Ø 28. Litt., Ø 204, 5, 6.



Certain cop


[CHAP. IX. in allowing them to be capable of enjoying a freehold interest; and, therefore, the lord doth not suppose the freehold of such lands to rest in the lord of whom they are holden, but in the

tenants themselves, who are sometimes called customary free[150] holders, being allowed to have a freehold interest, though not

of a freehold tenure.''

However, in common cases, copyhold estates are still rankyholds little interior to ed (for the reasons above mentioned) among tenancies at will;

though custom, which is the life of the common law, has established a permanent property in the copyholders, who were formerly nothing better than bondmen, equal to that of the lord himself, in the tenements holden of the manor; nay, sometimes even superior ; for we may now look upon a copyholder of inheritance, with a fine certain, to be little inferior to an absolute freeholder in point of interest, and in other respects, particularly in the clearness and security of his title, to be frequently in a better situation.'



Fitz. Abr., tit. Corone, 310; Cus. Litt., 59. Co. Copyh., 0 32. Cro. Car., tom, 12.

Bro. Abr., tit. Custom, 2, 17; 229. 1 Roll. Abr., 562. 2 Ventr., 143. Tenant per Copie, 22. 9 Rep., 76. Co. Carth., 432. Lord Raym., 1225.

(15) See Blackstone's Considerations estate, resume their copybold character. on Copyholders, Law Tracts, 5th ed., (Watk., Cop., 362; 1 Jac. & W., 621; 4 vol. 1. The places in which the great- East, 270.) But an absolute enfranchise er part of these customary freeholds ex- ment is not hindered by the limited exists, are Cumberland, Westmoreland, tent of the copyholder's estate ; who, if Oversands, in Lancashire, the south- he be only tenant for life, will take at western parts of Durham and Northum- common law a fee-simple, subject to a berland, and the northern border of York- trust in equity for those in remainder. shire. Among females of equal degree, (Id.; 1 B. c. C., 515; 1 B. & Cr., 457; the whole estate sometimes descends to 2 D. & Ry., 511.) Enfranchisement has the eldest, instead of being divided. been said not to alter the descent of a (See Third Real Property Report, p. 20; copyhold fee descended ex parte mater4 Per. & D., 579.)

nâ (1 B. & Cr., 457); but this is quite

inconsistent with principle. Enfran- (16) The customary tenure may be Extinguishment is effected hy a union chisement put an end to either by enfranchisement of the copyhold and the freehold titles and extin- or by extinguishment.

in the same person, and is distinguished guishment

Enfranchisement is a conveyance or from enfranchisement by the circum. of copyholds. release (for it is immaterial in what form stance that the copyholder by enfran.

the transaction is effected, so that it is chisement always gains the freehold; done either by feoffment and writing, or but by extinguishment, he either parts by deed, and the intention is manifest) with all his interest, or takes back, at by the lord (or his alienee) of his free. most, an estate for years at common law. hold estate, or of his seigniorial rights, to Some extinguishments destroy the tenthe tenant; whereupon the latter imme- ure irretrievably, others do not. If the diately becomes seized of the lands in extinguishment happen by an escheat or common socage, as tenant to the same surrender of the copyhold to the lord, superior of whom the lord holds the the lands remain parcel of the manor, inanor (4 T. R., 443); and the lands are and may, at a future time, be regranted or forever and irretrievably discharged redemised to hold by copy as before; but from all their customary incidents, rights if once the particular lands become sepof common, &c. (Cro. Jac., 253.) The arated from the manor, while the copy. enfranchisement is in its nature a release hold tenure is suspended or extinguishof the reversion, and passes only such ed, they can never afterward be granted estate as the lord may have, and is, there to hold by copy. But in no case can fore, incomplete unless he has the fee- the demisable quality of the lands be simple. If he had a mere life estate, forever destroyed without the act of the the lands, upon the expiration of that owner of the fee-simple of the manor.

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