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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;

l; 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

, u according to the custom of the manor, there is no such absurdity s Litt., § 81. 2 Inst., 325.

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

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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. Certain cop

However, in common cases, copyhold estates are still rankyhold or little ed (for the reasons above mentioned) among tenancies at will ; inferior to freeholds. though custom, which is the life of the common law, has estab

lished 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. 16

"Fitz. Abr., tit. Corone, 310; Cus. Litt., 59. Co. Copyh., $ 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.

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(15) See Blackstone's Considerations estate, resume their copyhold 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 ex. ists, 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.)

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

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

in the same person, and is distinguished guishment Enfranchisement is a conveyance or from enfranchisement by the circumof 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, manor (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 copyenfranchisement 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.

III. Estates at sufferance.

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III. An estate at sufferance is, where one comes into possession of land by lawful title, but keeps it afterward without any title at all. As, if a man takes a lease for a year, and, after the year is expired, continues to hold the premises without any fresh leave from the owner of the estate. Or, if a man maketh a lease at will, and dies, the estate at will is thereby determined; but if the tenant continueth possession, he is tenant at sufferance. But no man can be tenant at sufferance against the king, to whom no laches, or neglect, in not entering and ousting the tenant is ever imputed by law; but his tenant, so holding over, is considered as an absolute intruder.But, in the 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 can not maintain an action of tres

w Co. Litt., 57.

* Ibid.

(Cro. El., 459; 5 Mau. and S., 154.) is recovered against the lord by false EnfranThus, if the lord, being tenant in fee, verdict or erroneous judgment; in these chisement enfeoff a stranger of the particular lands, cases, till the land is recovered or the and extinand the copyholder surrender to the use judgment reversed by the lord of the guishment of the feoffee, the demisable quality of manor, the land was not demised or de- of copyholds. the copyholds is gone forever; but if a misable, and yet, after the land is recopyholder bargain and sell his copy- continued, it is grantable again by copy; holds to the lord, or surrender to his use, but if the land so forfeited or escheated, the lord, or any future lord, may at any before any new grant made, is extended time regrant them to hold by copy, or upon a statute or recognizance acknowlmay destroy their grantable quality by edged by the lord, or if the wife of the conveying them to a stranger. If in ei- lord, in a writ of dower, has this land ther of these cases the lord had been assigned to her, although these impeditenant for life, the customary nature of ments are by acts in law, yet, inasmuch the lands would have been restored on as the interruptions are lawful, the lands his death. (1 Russ. & M., 33.) And if can never after be granted by copy. If the union of the interests take place in a copy holder accepts a lease for years of different rights, as where a copyholder the lord of his copyhold, the copyhold is marries a feme seignioress, or the lord destroyed forever, and can never be marries a feme copyholder, the tenure granted again. If the copyholder takes is only suspended during such union, a lease for years of the manor, by that (Co. Copyh., s. 62.) Again, if a partial his copyhold has not continuance; but estate only in the copyhold is passed to such lessee may regrant the copyhold to the freeholder, there is only a suspen- whom he will, for this land was always sion pro tanto. (Id., s. 34.)

demised or demisable." (4 Rep., 31; - If a copyhold is forfeited to the lord, see 3 B. & Al., 153.) or escheats, or otherwise comes to the Such are the common-law rules as to lord's hands, if the lord makes a lease the destruction and enfranchisement of for years, or for life, or other estate, by copyholds. By a recent statute (4 & 5 deed or without deed, this land can Vict., c. 35, amended by 6 & 7 Vict., c. never after be regranted by copy, for 23), provision is made for the enfranthe custom is discharged, because, dur- chisement of copyholds by lords having ing such estates, the land was not de limited interests, and for the commutamised nor demisable by copy. So, if tion of manorial rights, by agreement of the lord makes a feoffment in fee there- a certain proportion of the parties interof upon condition, and afterward enters ested, with the approbation of “The for the condition broken, yet it can nev- Copyhold Commissioners" (at present er be regranted by copy: But if the the Tithe Commissioners). When an lord keeps the land in his hands for a enfranchisement is made under the act, long time, or lets it at will, he, his heirs the tenant does not lose his commonable or assigns, may well regrant it at his rights; and the new estate follows the pleasure. So, if the interruption is course of devolution to which the old wrongful, or if the lord is disseized, and copyhold estate was subject. the disseizor dies seized, or if the land

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pass against the tenant by sufferance, as he might against a stranger ;y 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.

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(17) A tenant at sufferance is where payment. In courts of law, however, a man cometh to the possession first nothing but the strict legal rights of the lawfully, and holdeth over; but there is parties, as manifested by their express a diversity when one cometh to a par. contracts and acts, are regarded. ticular estate in land by the act of the In the absence of any special agreeparty, and where by act in law, for if ment, after the execution of a legal mort the guardian hold over, he is an abator, gage, the mortgagor, so long as he retains because his interest came by act in law. possession, is tenant at sufferance of the (Co. Litt., 271, a.) This is because there mortgagee; but if there is a general can be no presumption of the owner's agreement, either verbal or by writing, assent. So, if the tenant pretend to any that he shall retain the possession, and larger estate, he is a disseizor. The im- no term is specified, he is tenant at will. portant distinction between an estate at (See 1 Salk., 209;

3 Scott, 271; 1 T. R., will and a holding at sufferance is, that 378; 3 Man. & R., 107; 2 B. & Ad.,

in the former case there is a privity of 473.) Tenancy un- contract, express or implied, between But the mortgage-deed often contains der mortga- the parties, which does not exist in the å stipulation that the mortgagor shall

latter. Both tenants are equally subject retain the possession, or that the mortto immediate ejection; but before an gagee shall have possession, in certain action of ejectment can be commenced events. The effect of clauses of this to recover the possession from a tenant kind depends upon their particular terms. at will, the landlord must put an end to In Sheppard's Touchstone, p. 272, the the will by notice or demand of posses- law is thus laid down: "If a man make sion; which is not requisite in case of a

a feoffment in fee, or other estate, upon holding at sufferance, under which, in- condition that if such a thing be or be deed, the only privilege which the ten- not done at such a time, that the feoffor ant enjoys is, to be excused from liabili- &c., shall re-enter; it is the common ty as a trespasser in respect of his past course, to the end that in this case the occupation.

feoffor, &c., may have the land and conSome discussion has 'arisen as to the tinue in possession until that time, to exact description of the situation of a make a covenant that he shall hold and mortgagor in possession, after he has take the profits of the land until that conveyed the legal estate to the mortga- time; and the covenant in this case will gee. A mortgage at law is a conveyance make a good lease for that time, if the of a legal estate, upon condition to be uncertainty of the time (whereunto care void upon repayment of a sum of money must be had) do not make it void. And, on a certain day; after the execution of therefore, if A. bargain and sell his land which conveyance, the mortgagor (i. e., to B., on condition to re-enter if he pay the person who borrows the money and him £100, and B. doth covenant with conveys the estate as a security) is usu- A. that he will not take the profits until ally allowed to retain the possession, default in payment, or that Ā. shall take and to act in most respects as owner of the profits until default of payment; in the estate, so long as he duly pays inter- this case, howbeit this may be a good est on the debt, and the mortgagee does covenant, yet it is no good lease. And not require the use of his principal. On if the mortgagee covenant with the mortdefault of payment on the day appoint- gagor that he will not take the profits of ed, the estate belongs absolutely to the the land until the day of payment of the mortgagee at law; but this circumstance money; in this case, albeit the time be is always neglected, it being the prac- certain, yet this is no good lease, but a tice of courts of equity to compel a re- covenant only. If one give a bond for conveyance on payment of the principal the quiet holding of a close for three and interest, even after the lapse of years, it seems this is no lease in law." many years from the day appointed for in the first instance given in this pas

over.

cases.

Thus stands the law with regard to tenants by sufferance ; Tenants

holding and landlords are obliged, in these cases, to make formal ensage, of a covenant that A. shall take to have, hold, occupy, possess, and en- Tenancy anthe profits until default, the objection joy the premises, until default in pay, der mortgaintended by the author of the Touch- ment of principal or interest, was held ges. stone seems to be, that the time of de- to be a redemise; and the court relied fault is not specified, and so the cove- upon the passage in Bac. Ab. already nant is no lease for want of certainty of referred to. time; and this is a good objection to In Doe v. Goldrin (2 Q. B. Rep., 143), the operation of the covenant as a de- L., who enjoyed an estate in right of mise ; although it seems to be open to his wife, had let it to the defendant as a the mortgagor to contend that the pro- yearly tenant; the husband and wife viso gives him an estate of freehold. then conveyed the estate to F. by way But in the second example the objection of security for an annuity, and apon is, that, although the time be certain, trust to permit the wife to enjoy until the words are negative only (that the default had been made for sixty days in feoffee shall not take, not that the feof payment of the annuity. It was held fee shall take, the profits); and this is that this declaration of trust was a remore questionable, although the distinc- demise to the wife ; and if the annuity tion has been acted upon in some recent was granted for a term of

years (which The passage cited from Bacon's does not appear in the report), this was Abridgment (ante, p. 144, n. (9)) has a correct decision, since the lease had a been frequently recognized, and shows certain termination; but if the annuity that any indication of intention that one was for a life, then the case comes unperson shall not have, or that the other der the first class mentioned in the shall have, the possession for a certain Touchstone, and the lease was bad for time, is sufficient to make a lease, un- uncertainty. less a contrary intention appear. Now

In Doe v.

Lightfoot (8 Mee, and W., such intention is just as clearly express- 553) it was held that a covenant by the ed by the negative words in the second mortgagor, that. the mortgagee should case as by the positive words in the first. enter into, have, hold, and enjoy the And the authority of the Touchstone is premises at all times after default, did much weakened by the consideration not imply a redemise to the mortgagor; that the strictness of the old authorities and the court cited and approved of the has been relaxed in many modern cases. passage in the Touchstone, holding, also, Thus, in Cro. Jac., 172, it was held that that this was a mere qualification of the a covenant to levy a fine to the use of covenants for title. In that case, howB. on condition that if A. should pay ever, the mortgagee had not executed £100 within thirteen years to B., he the deed, so that a redemise was out of might re-enter, and a covenant that B. the question. and his heirs should enjoy the land until Lastly, in Doe v. Day (2 Q. B. Rep., the end of the thirteen years, was no 147), the mortgage-deed provided that demise to B., on the ground of the dis- if the mortgagor did not pay on a day tinction between the words enjoy and certain, it should be lawful for B., the hold; a distinction which would certain- mortgagee, after giving one month's ly not be recognized at the present day, notice, to enter into possession of the and is contradicted by several old cases. lands, to let and to sell them; and B. (See 5 H. VII., 1; 2 Keb., 561, pl. 60; covenanted that he would sell or lease, Vin, Ab., Estate (U. a.) (X. a.), where without giving a month's notice. It a variety of contradictory authorities on was held, upon an ejectment brought this point are collected); 2 Salk., 588, after the day, that the mortgagor had no pl. 3; 11 Mod., 42, pl. 1.

term, on the ground both that the time In Cro. Jac., 659, it seems to have was uncertain, and that the covenant been thought that a proviso in a mort- was not affirmative. gage that the mortgagee, his heirs and No one of the above cases, it will be assigns, should not meddle with the act- observed, goes the length of supporting ual possession of the premises or the the second proposition cited from the perception of the rent until default in Touchstone, although it was mentioned payment (on a day fixed), was no re- with approbation in several of them. demise to the mortgagor; but the point There are some other points, as to was not raised by the case.

tenancy under mortgages, which are In Wilkinson v. Hall (4 Scott, 301), worthy of notice. If the mortgagor, bea covenant that it should be lawful for ing in possession under such a redemise the mortgagors, their heirs and assigns, as has been considered, hold over after

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