Thus stands the law with regard to tenants by sufferance; Tenants and landlords are obliged, in these cases, to make formal en sage, of a covenant that A. shall take the profits until default, the objection intended by the author of the Touchstone seems to be, that the time of default is not specified, and so the cove nant is no lease for want of certainty of time; and this is a good objection to the operation of the covenant as a demise; although it seems to be open to the mortgagor to contend that the proviso gives him an estate of freehold. But in the second example the objection is, that, although the time be certain, the words are negative only (that the feoffee shall not take, not that the feof fee shall take, the profits); and this is more questionable, although the distinction has been acted upon in some recent cases. The passage cited from Bacon's Abridgment (ante, p. 144, n. (9)) has been frequently recognized, and shows that any indication of intention that one person shall not have, or that the other shall have, the possession for a certain time, is sufficient to make a lease, unless a contrary intention appear. Now such intention is just as clearly express ed by the negative words in the second case as by the positive words in the first. And the authority of the Touchstone is much weakened by the consideration that the strictness of the old authorities has been relaxed in many modern cases. Thus, in Cro. Jac., 172, it was held that a covenant to levy a fine to the use of B. on condition that if A. should pay £100 within thirteen years to B., he might re-enter, and a covenant that B. and his heirs should enjoy the land until the end of the thirteen years, was no demise to B., on the ground of the distinction between the words enjoy and hold; a distinction which would certainly not be recognized at the present day, and is contradicted by several old cases. (See 5 H. VII., 1; 2 Keb., 561, pl. 60; Vin. Ab., Estate (U. a.) (X. a.), where a variety of contradictory authorities on this point are collected); 2 Salk., 588, pl. 3; 11 Mod., 42, pl. 1. In Cro. Jac., 659, it seems to have been thought that a proviso in a mortgage that the mortgagee, his heirs and assigns, should not meddle with the actual possession of the premises or the perception of the rent until default in payment (on a day fixed), was no redemise to the mortgagor; but the point was not raised by the case. In Wilkinson v. Hall (4 Scott, 301), a covenant that it should be lawful for the mortgagors, their heirs and assigns, holding over. to have, hold, occupy, possess, and en- Tenancy unjoy the premises, until default in pay- der mortga ment of principal or interest, was held ges. to be a redemise; and the court relied upon the passage in Bac. Ab. already referred to. In Doe v. Goldwin (2 Q. B. Rep., 143), L., who enjoyed an estate in right of his wife, had let it to the defendant as a yearly tenant; the husband and wife then conveyed the estate to F. by way of security for an annuity, and upon trust to permit the wife to enjoy until default had been made for sixty days in payment of the annuity. It was held that this declaration of trust was a redemise to the wife; and if the annuity was granted for a term of years (which does not appear in the report), this was a correct decision, since the lease had a certain termination; but if the annuity was for a life, then the case comes under the first class mentioned in the Touchstone, and the lease was bad for uncertainty. In Doe v. Lightfoot (8 Mee. and W., 553) it was held that a covenant by the mortgagor, that the mortgagee should enter into, have, hold, and enjoy the premises at all times after default, did not imply a redemise to the mortgagor; and the court cited and approved of the passage in the Touchstone, holding, also, that this was a mere qualification of the covenants for title. In that case, however, the mortgagee had not executed the deed, so that a redemise was out of the question. Lastly, in Doe v. Day (2 Q. B. Rep., 147), the mortgage-deed provided that if the mortgagor did not pay on a day certain, it should be lawful for B., the mortgagee, after giving one month's notice, to enter into possession of the lands, to let and to sell them; and B. covenanted that he would sell or lease, without giving a month's notice. was held, upon an ejectment brought after the day, that the mortgagor had no term, on the ground both that the time was uncertain, and that the covenant was not affirmative. It No one of the above cases, it will be observed, goes the length of supporting the second proposition cited from the Touchstone, although it was mentioned with approbation in several of them. There are some other points, as to tenancy under mortgages, which are worthy of notice. If the mortgagor, being in possession under such a redemise as has been considered, hold over after ges. tries upon their lands, and recover possession by the legal process of ejectment;"* and at the utmost, by the common law, z 5 Mod., 384. Tenancy un- the term has expired, he is a tenant at der mortga- sufferance. (3 Lev., 387; 1 Salk., 245; 2 Moo. & P., 749.) If the mortgagor, being tenant at sufferance, retains possession after the death of the mortgagee, he holds at the sufferance of the mortgagee's heir, while if, upon the mortgagor's death, his heir were to enter upon the vacant possession, he would be a disseizor. (1 Nev. & P., 205.) And the payment on the one hand, and the acceptance on the other, of interest upon the debt, would not be such a recognition of the occupation as to convert it into a tenancy at will. For the interest is paid in respect of the personal debt, and not of the land, which is but a collateral security; and in case of a mortgage in fee, upon the deaths of the mortgagor and mortgagee, the right in equity to the estate would descend to the heir of the one, and the legal title to the heir of the other, while the parties to pay and receive the interest and principal would be the respective executors of the mortgagor and mortgagee. (2 Moo. & P., 758; 2 B. & Ad., 473.) A question often arises as to the liability of an under-tenant. The governing rule in these cases is, that a tenancy (17) It has been a generally received notion that if a tenant for a term, from year to year, at will, or at sufferance, hold over, and do not quit on request, the landlord is put to his action of ejectment, and can not take possession; but see 7 T. R., 431; 1 Price, 53; 1 Bingh., 158; 6 Taunt., 202-7; from which it appears that if the landlord can get possession without committing a breach of the peace, he may do so; and, indeed, if he were to occasion a breach of the peace, and be liable to be indicted for a forcible entry, still he would have a defense to any action at the suit of the party wrongfully holding over, because the plea of liberum tenementum, or other title in the lessor, would necessarily be pleadable in bar. (7 Moore, 574.) Therefore, a person who wrongfully may be created between the occupier of land and the legal owner, by any mu tual acknowledgment of the existence of such a tenancy; and that an occupier who has once admitted that he holds of another person can not afterward dispute that person's title to grant such a tenancy, though he may show that his title has subsequently determined. (3 Nev. & P., 194.) If a lease is in existence at the time of making the mort gage, of course it is not affected, and the mortgagee is entitled to demand the rent; but until he gives notice to the tenant, the latter is justified in paying the rent to the mortgagor, although he may refuse to do so. (3 Nev. & M., 193.) If the tenant has come in subsequently to the mortgage, and under the mortga gor, he is a trespasser (unless the mortgagor had a term redemised to him), and may be ejected as such. (8 B. & Cr., 767; 2 Moo. & P., 749.) But if the mortgagee recognize his tenancy, and give him notice to pay rent to himself, and the tenant assent to that ar rangement, or by any act acknowledge that he holds of the mortgagee, this creates a new tenancy between the two parties, and the mortgagee may then distrain holds over can not distrain the cattle of the landlord put on the premises (7 T. R., 471), or sue him in trespass for his entry. (1 Bingh., 158.)-[CHITTY.] If the entry is illegal, however, it should seem that the possession gained by it would be also illegal, and therefore could not be relied upon to support a plea of liberum tenementum. But suppose the landlord to enter peaceably, and without any intention to break the peace, it is not clear that he might not, having thus acquired a lawful possession, turn the late tenant out, even by force, if that should be necessary. (See stat. 5 Rich. II., st. 2, c. 8; 8 Hen. VI., c. 9; 1 Hawk., P. C., c. 64; 7 B. & Cr., 397; 8 Scott, 156; 1 Scott, N. R., 474; infra, vol. iv., p. 147.) * Instead of making entry upon the land, the tenancy is terminated by notice to quit (see ante, 146, n. *); and instead of recovering possession by the legal process of ejectment, a new, expeditious, and cheap mode of turning out of possession a tenant who holds over has been adopted in New York by a course of summary proceedings had before a local magistrate.-(2 R. S., 512, § 28, et seq.) This doctrine is approved by the Supreme Court of New York, in Wilds v. Cantillon, 1 Johns. Cas., 123; Hyatt v. Wood, 4 Johns. R., 150. the tenant was bound to account for the profits of the land so Tenants holding by him detained. But now, by statute 4 Geo. II., c. 28, in case over. any tenant for life or years, or other person claiming under or by collusion with such tenant, shall willfully 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 sufferance, unless with the tacit consent of the owner of the tenement.1 upon or sue the tenant for the rent as such; otherwise the tenant is only liable to an action for the value of his use and occupation of the premises; and in any of these cases the tenant may defend himself from a demand of rent by the mortgagor, by showing that, before the rent claimed fell due, he received notice from the mortgagee to pay rent to him. But by no means can the mortgagee entitle himself to rent which falls due be fore he gives notice to the tenant. (5 Tenancy un Nev. & M., 513; 9 B. & Cr., 245; 1 der mortga Per. & D., 256; 1 Scott, N. R., 9.)* ges (18) The proceedings of landlords to recover possession are facilitated by the stat. 1 Geo. IV., c. 87 (see 2 B. & Ad., 922); and in cases where the term does not exceed seven years, and the rent is not above twenty pounds a year, by the stat. 1 & 2 Vict., c. 74.t *All doubt and uncertainty as to the respective rights of mortgagors and mort gagees is removed in America by the adoption in our courts of law of the equity doctrine that the mortgage is a mere security for the debt, and only a chattel interest; and that, until foreclosure, the mortgagor continues the real owner of the fee, having the right to lease, sell, and in every respect to deal with the mort. gaged premises as owner, subject to the lien created by the mortgage. Some of the English cases at law gave countenance to this doctrine at an early day, although it can not be denied that even down to the present time the law upon this subject in England is directly the reverse from what it is held here, as is manifest from the decisions cited in note (17). In support of the doctrine of our courts, see Chinnery v. Blackman, 3 Dong., 391, where Lord Mansfield said, as early as 1784, that until the mortgagee takes possession, the mortgagor is owner as to all the world. See, also, The King v. St. Michaels, Doug. R., 630; The King v. Edington, 1 East's R., 288; Jackson v. Willard, 4 Johns. R., 41; Runyan v. Mersoreau, 11 Id., 534; Hitchcock v. Harrington, 6 Id., 290; Coles v. Coles, 15 Id., 319; Wilson v. Troup, 2 Cowen, 195; Astor v. Hoyt, 5 Wendell, 603; Huntington v. Smith, 4 Conn. R., 235; Clark v. Beach, 6 Id., 142; Willington v. Gale, 7 Mass. R., 138; Goodwin v. Richardson, 11 Ib., 469; Eaton v. Whiting, 3 Pick., 484; Blanchard v. Brooks, 12 Ib., 47; Fay v. Cheney, 14 Ib., 399; M'Call v. Lenox, 9 Serg. & Rawle, 392; Ford v. Philpot, 5 Hav. & Johns., 312. Formerly, in New York, an action of ejectment was sustained, after default in pay. ment of the mortgage money, at the suit of the mortgagee, against the mortgagor, the latter being considered as a tenant at will, entitled to notice to quit before suit brought (2 Johns. R., 75; 4 Ib., 216; 18 Ib., 487); but now, by statute, an action of ejectment can not be maintained by the mortgagee, or his assigns or representatives, for the recovery of the possession of the mortgaged premises.—(2 R. S., 312, 57.) † See ante, p. 151, note *. 152 CHAPTER X. Estates upon condition. I. Implied condition OF ESTATES UPON CONDITION. 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 inseparably from its 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,b on breach of which condition it is lawful for the [153] grantor, or his heirs, to oust him, and grant it to another person. For an office, either public or private, may be forfeited by mis-user or non-user, both of which are breaches of this implied condition. 1. By mis-user, or abuse; as if a judge takes a bribe, or a park-keeper kills deer without authority. 2. By non-user, or neglect; which in public offices, that concern the administration of justice, or the commonwealth, is of itself a direct and immediate cause of forfeiture; but non-user of a private office is no cause of forfeiture, unless some special damage is proved to be occasioned thereby. For, in the one case, delay must necessarily be occasioned in the affairs of the public, which require a constant attention; but private offices not re quiring so regular and unremitted a service, the temporary neglect of them is not necessarily productive of mischief; upon which account some special loss must be proved, in order to vacate these. Franchises, also, being regal privileges in the hands of a subject, are held to be granted on the same condition of making a proper use of them; and, therefore, they may be lost and forfeited, like offices, either by abuse or by neglect.e Upon the same principle proceed all the forfeitures which Forfeitures. are given by law of life estates and others, for any acts done by the tenant himself, that are incompatible with the estate which he holds. As if tenants for life or years enfeoff a stranger in fee-simple; this is, by the common law, a forfeiture of their several estates; being a breach of the condition which the law annexes thereto, viz., that they shall not attempt to create a greater estate than they themselves are entitled to.f So, if any tenants for years, for life, or in fee, commit a felony, the king or other lord of the fee is entitled to have their tenements, because their estate is determined by the breach of the condition, "that they shall not commit felony," which the law tacitly annexes to every feodal donation." tion ex II. An estate on condition expressed in the grant itself, is [154] where an estate is granted, either in fee-simple or otherwise, II. Condiwith an express qualification annexed, whereby the estate pressed. granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition.g These conditions are, therefore, either precedent or subsequent. Precedent Precedent are such as must happen or be performed before the or subseestate can vest or be enlarged; subsequent are such, by the failure or non-performance of which an estate already vested may be defeated. Thus, if an estate for life be limited to A., upon his marriage with B., the marriage is a precedent condif Co. Litt., 215. e 9 Rep., 50. (2) This is not so as to estates for years, which do not escheat to the landlord on conviction, but are forfeited to the crown, as part of the goods and chattels of the offender, and not by reason of any feudal condition.* (3) The defeasance or condition may be contained in a separate deed. There is a diversity between inheritances executed and inheritances executory; as land executed by livery, &c., can not, by indenture of defeasance, be defeated afterward. And so, if a disseizee release a disseizor, it can not be defeated by in Ibid., 201. dentures of defeasance made afterward; * In New York, the conviction of no offense whatever (except upon an outlawry for treason) works a forfeiture of any estate in lands, or of goods or chattels.-(2 R. S., 701, § 22.) quent. VOL. II.-M 177 |