pass against the tenant by sufferance, as he might against a stranger; 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, wrongful." y Co. Litt., 57. (17) A tenant at sufferance is where a man cometh to the possession first lawfully, and holdeth over; but there is a diversity when one cometh to a particular estate in land by the act of the party, and where by act in law, for if the guardian hold over, he is an abator, because his interest came by act in law. (Co. Litt., 271, a.) This is because there can be no presumption of the owner's assent. So, if the tenant pretend to any larger estate, he is a disseizor. The important distinction between an estate at will and a holding at sufferance is, that in the former case there is a privity of Tenancy un- contract, express or implied, between der mortga. the parties, which does not exist in the latter. Both tenants are equally subject to immediate ejection; but before an action of ejectment can be commenced to recover the possession from a tenant at will, the landlord must put an end to the will by notice or demand of possession; which is not requisite in case of a holding at sufferance, under which, indeed, the only privilege which the tenant enjoys is, to be excused from liability as a trespasser in respect of his past occupation. ges. Some discussion has arisen as to the exact description of the situation of a mortgagor in possession, after he has conveyed the legal estate to the mortgagee. A mortgage at law is a conveyance of a legal estate, upon condition to be void upon repayment of a sum of money on a certain day; after the execution of which conveyance, the mortgagor (i. e., the person who borrows the money and conveys the estate as a security) is usually allowed to retain the possession, and to act in most respects as owner of the estate, so long as he duly pays interest on the debt, and the mortgagee does not require the use of his principal. On default of payment on the day appointed, the estate belongs absolutely to the mortgagee at law; but this circumstance is always neglected, it being the practice of courts of equity to compel a reconveyance on payment of the principal and interest, even after the lapse of many years from the day appointed for payment. In courts of law, however, nothing but the strict legal rights of the parties, as manifested by their express contracts and acts, are regarded. In the absence of any special agree ment, after the execution of a legal mort gage, the mortgagor, so long as he retains possession, is tenant at sufferance of the mortgagee; but if there is a general agreement, either verbal or by writing, that he shall retain the possession, and no term is specified, he is tenant at will. (See 1 Salk., 209; 3 Scott, 271; 1 T. R., 378; 3 Man. & R., 107; 2 B. & Ad., 473.) But the mortgage-deed often contains a stipulation that the mortgagor shall retain the possession, or that the mortgagee shall have possession, in certain events. The effect of clauses of this kind depends upon their particular terms. In Sheppard's Touchstone, p. 272, the law is thus laid down: "If a man make a feoffment in fee, or other estate, upon condition that if such a thing be or be not done at such a time, that the feoffor &c., shall re-enter; it is the common course, to the end that in this case the feoffor, &c., may have the land and continue in possession until that time, to make a covenant that he shall hold and take the profits of the land until that time; and the covenant in this case will make a good lease for that time, if the uncertainty of the time (whereunto care must be had) do not make it void. And, therefore, if A. bargain and sell his land to B., on condition to re-enter if he pay him £100, and B. doth covenant with A. that he will not take the profits until default in payment, or that A. shall take the profits until default of payment; in this case, howbeit this may be a good covenant, yet it is no good lease. And if the mortgagee covenant with the mortgagor that he will not take the profits of the land until the day of payment of the money; in this case, albeit the time, be certain, yet this is no good lease, but a covenant only. If one give a bond for the quiet holding of a close for three years, it seems this is no lease in law." In the first instance given in this pas Thus stands the law with regard to tenants by sufferance; Tenants and landlords are obliged, in these cases, to make formal en- over. 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 feoffee 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 expressed 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 to have, hold, occupy, possess, and en- Tenancy nn joy the premises, until default in pay der mortga ment of principal or interest, was held ger. 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, be ing 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, * 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 i 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 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.) to 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.)t Therefore, a person who wrongfully may be created between the occupier of land and the legal owner, by any mutual 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 exist ence 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 mortgagor, 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. holding the tenant was bound to account for the profits of the land so Tenants 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.1o 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 uL Nev. & M., 513; 9 B. & Cr., 245; 1 der mortga Per. & D., 256; 1 Scott, N. R., 9.)* (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 mortgagees 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 mortgaged 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 Doug., 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 Íb., 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 payment 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 *. ges 152 CHAPTER X. Estates upon condition. I. Implied 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. Estate's 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,b1 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.d 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 |