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fimple and also tenant at the lord's will, seems to have arisen from the nature of villenage tenure ; in which a grant of any eftate of freehold, or even for years absolutely, was an ima mediate enfranchisement of the villeine. 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 did not care to manumit them entirely; 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 to continue and remain in the lord. Afterwards, 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 stiled 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 still 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 for ever, yet he is also said to hold at another's will. But with regard to certain other copyholders, of free of privileged tenure, which are derived from the antient 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 in allowing them to be capable of enjoying a freehold interest': and therefore the law 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 freeholders, being allowed to have a freehold interest, though not a freehold tenure.
i Mirr.c. 2. §. 28. Litt. $ 204, 5, 6, tenant per copie. 22. 9 Rep. 76. Co. u See page 98, &c.
Litt. 59. Co. Copyh. $ 32. Cro. Car. v Fitzh. Abr, tit, corone. 310. cuf- 229. i Roll. Abr. 562. 2 Ventr. 143. Iran. 12. Bro. Abr, tit. cupom, 2. 17. Carth. 432. Lord Raym, 1225. '.
HOWEVER, in common cafes, copyhold estates are fill ranked (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 secu. rity of his title, to be frequently in a better situation.
III, An eftate at sufferançe, is where one comes into polfeffion of land by lawful title, but keeps it afterwards 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 eftate. 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 fufferance W. But, no man can be tenant at fufferance against the king, to whom no laches, or neglect, in not entering and ousting the tenant, is ever imputed by law: but his tenant, fo holding over, is considered as an absolute intruder*, But, in the cafe of a subject, this estate may be destroyed whenever the true owner Thall 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 strangery: 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, org in common language, wrongful. w Co. Litt. 57
y Ibid Ibid,
Thus stands the law, with regard to tenants by sufferance; and landlords are obliged in these cases to make formal entries upon their lands?, and recover poffeffion by the legal process of ejectment: and at the 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 in writing for recovering the poffeffion of the premises, by him to whom the remainder or reversion thereof Ahall belong; fuch person, fo holding over, shall pay, for the time he continues, at the rate of double the yearly value of the lands so detained. This has almost put an end to the practice of tenancy by sufferance, unlefs with the tacit consent of the owner of the tenement,
CHAPTER THE TENTH.
OF ESTATES UPON CONDITION.
DESIDES the several divisions of eftates, in point of
D 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 a. 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 forts : 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 Maple : -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 it's essence and constitution, although no condition be expreffed 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 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-ufer or non-user, both of which are breaches of this implied condition. 1. By misufer, 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 adminiftration 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 occafioned in the affairs of the public, which require a constant attention : but, private offices not require ing fo regular and unremitted a service, the temporary nego lect of them is not necessarily productive of mischief; upon which account some special lofs 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 loft and forfeited, like offices, either by abuse or by neglect. '
a Co. Litt. 201. sz. I b Litt. §. 378.
Upon the same principle proceed all the forfeitures which are given by law of life estates and others; for any acts done by the tenant himself, that are inconipatible with the estate which he holds. As if tenants for life or years enfeoff a stranger in fee-fimple : 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 feodat donation. . ..
į Litt. $. 370.
d Co. Litt, 233.
€ 9 Rep. 50.