Page images
PDF
EPUB
[blocks in formation]

statute 27 Hen. 8, c. 10, commonly called the Statute of Uses, which enacts, "that when an estate is made in possession or use to husband and wife and his heirs, or to the heirs of their two bodies, or of one of their bodies, or to them for their lives, or for the wife's life (which is the ordinary case), for her jointure, she shall not have dower." To effect, however, a perfect jointure within this statute, so far as to bar a wife of her claim of dower, six requisites must be punctually observed:-1. The jointure must be made to take effect for her life, in possession or profit, immediately on the death of her husband. 2ndly. It must be for the term of her own life, or of some greater estate, and not for years, or pur autre vie. 3rdly. It must be made to herself, and no other in trust for her. 4thly. It must be made in satisfaction of her whole dower, and not of a part of it. 5thly. It must be either expressed or be averred to be in satisfaction of dower (q). 6thly. It must be made either before or after marriage; but if it be made before marriage, the wife cannot waive it (even if she were an infant, and not a party to the deed of jointure) and claim her dower at the common law, as she may do when it is made after marriage. This statute does not extend to copyholds, because dowers of copyholds are warranted by special custom; but if the wife hath a compensation for it, it shall in equity be deemed a satisfaction for her freebench in copyhold lands, which is in the nature of a customary dower. There are some advantages attending tenants in dower, that do not extend to jointresses; and so, vice versa, jointresses are in some respects more privileged than tenants in dower. Tenant in dower, by the old common law, is subject to no tolls or taxes; nor can the King distrain on her estate for his debt, if it be contracted during

the coverture. But on the other hand, a widow may enter without any formal process on her jointure land; whereas a very tedious method of proceeding is necessary to compel a legal assignment of dower. Dower is forfeited by the treason of the husband, or by the wife's adultery; but lands settled in jointure remain unimpeached to the widow. The above relates to a legal jointure, but the wife may also be barred of her dower by a mere equitable jointure; if she be an infant the provision must be as certain as her dower (r).

CHAP. XX.

ESTATES LESS THAN FREEHOLD.

[See 1 Black. Com. ch. 9; 1 Steph. Com. ch. 5; Litt. Ten. p. 32-44.]

The estates of which we have spoken in the preceding two chapters were estates of freehold at the least; now we have to speak of estates less than freehold, which are for years, at will, and by suffer

ance.

Estate for years.]-An estate for years is where a man has an interest and possession of lands or tenements for some determined period; as where a man lets them to another for the term of a certain number of years, agreed upon between the lessor and lessee, and the lessee enters thereon. A tenant for half a year, or quarter of a year, is considered as a tenant for years; for a year is the shortest time which the law in this case will take notice of (a). Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years; and therefore this estate is frequently called a term, because its duration or continuance is bounded, limited, and determined; for every such estate must have a certain beginning

and certain end. But id certum est quod certum reddi potest: therefore if a man make a lease to another for so many years as J. S. shall name, it is a good lease for years; for though it is at present uncertain, yet when J. S. hath named the years, it is then reduced to a certainty. If no day of commencement is named in the creation of this estate, it begins from the making or delivery of the lease. A lease for so many years as J. S. shall live, is void from the beginning. But a lease for twenty or more years, if J. S. shall so long live, or if he shall so long continue parson, is good.

Chattel interest.—Interesse termini.—It is to be observed that an estate for life, even if it be pur autre vie, is a freehold; but that an estate for a thousand years is only a chattel, and reckoned part of the personal estate. Hence it follows that a lease for years may be made to commence in futuro, though a lease for life cannot. As, if I grant lands to A to hold from Michaelmas next for twenty years, this is good; but to hold from Michaelmas next for the term of his natural life is void. For no estate of freehold could, at the common law, commence in futuro; because it could not be created at common law without livery of seisin, or corporal possession of the land; and corporal possession cannot be given of an estate now, which is not to commence now, but hereafter. And because no livery of seisin is necessary to a lease for years, such lessee is not said to be seised, or to have true legal seisin of the lands (b). Nor indeed does the bare lease vest any estate in the lessee; but only gives him a right of entry on the tenement, which right is called his interest in the term, or interesse termini: but when he has actually so entered, and thereby accepted the grant, the estate

EMBLEMENTS, ETC.

151

is then, and not before, vested in him (though he may grant it over before entry), and he is possessed, not properly of the land, but of the term of years; the possession or seisin of the land remaining still in him who hath the freehold. Thus the word term does not merely signify the time specified in the lease, but the estate also and interest that passes by that lease; and therefore the term may expire during the continuance of the time; as by surrender, forfeiture, and the like.

Tenant for term of years hath incident to, and inseparable from his estate, unless by special agreement, the same estovers which the tenant for life is entitled to.

Emblements. With regard to emblements, or profits of land sowed by tenant for years, there is this difference between him and tenant for life:that where the term of tenant for years depends upon a certainty, as if he holds from Midsummer for ten years, and in the last year he sows a crop of corn, and it is not ripe and cut before Midsummer, the end of his term, the landlord shall have it; for the tenant knew the expiration of his term. But where the lease for years depends upon an uncertainty, the estate for years not being certainly to expire at a time foreknown, but merely by the act of 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. Not so, however, if it determined by the act of the party himself; as by doing an act of forfeiture (c).

Estate at 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

« PreviousContinue »