144 Estate for Life-Dower-Curtesy. lege, which descended to the issue, of rendering the bar complete by being vouched in a Recovery (a). The lowest state of freehold (b) is an Estate for Life (c). Tenancy for life arises from the act of some party, or by operation of law. Tenant for term of life by act of the party is, where a man conveys lands or tenements to another for the term of the life of the lessee, or for term of the life of another or others (" pur autre vie"). Such an estate being a freehold, livery of seisin was necessary to perfect the title of the tenant (d); he did fealty but not homage, this honor was reserved for those who had an estate in fee-simple or fee-tail (e). *There are two descriptions of estates for term of life created by [*145] operation of law which demand particular notice,-these are, tenancy by the curtesy, and in dower (f). Tenancy by the curtesy is where a man takes a woman to wife, who is seised in fee-simple, fee-tail general, or as heir in tail special, and by whom he has, or has had issue born alive, which by possibility might inherit those lands after her death-he then becomes tenant for his life by the curtesy of England (g). Tenant in dower by Common Law is, where a man is seised of certain lands or tenements in fee-simple, fee-tail general, or as heir in special tail, and takes wife and dies; the wife after the death of the husband becomes entitled to be endowed of the third part of such lands and tenements as were her husband's at any time during the coverture, to hold to the wife in severalty, by metes and bounds, for term of her life, whether she has issue by her husband or not (h). The right to dower, as thus defined, was probably finally established, when, by the operation of the law of primogeniture, some of the children were left unprovided for. Dower as well as gifts in frankmarriage, or for dowry, are noticed in the charter of Hen. I., granted at his coronation, A. D. 1101 (i). The Statute 3 & 4 Will. IV. c. 105, which, however, does not extend to dower of any widows who shall have been married on or before the 1st of January, 1834, or to any will or contract made or entered into before that time, has made some material alterations in regard to dower; those which more properly apply to this place are, that widows are no longer entitled to dower, as against the dispositions of their husbands in their life-times, or by their wills, and that dower may be barred by a declaration of the husband by deed or by will (k). Tenant in tail after possibility of issue extinct is another estate for life by operation of law, as distinguished from a conventional estate for life (1). What words in a deed will convey an estate in fee (a) Hayes' Introd. to Convey. i. 186. (b)" An essential characteristic of a freehold estate is, that it is of uncertain and indefinite duration," see 2 Bla. Comm. by Sweet, 105, note. (c) Litt. § 56; 2 Bla. Comm. 120. (d) Ibid. (e) Litt. § 90, 91. 93. (ƒ) Both these estates being created by law, the tenants might by Common Law be prohibited from doing waste, Bract. fo. 34, et seq.; Co. Litt. 54 a.` (g) Litt. § 35; Co. Litt. 29 b, 30 a. (h) Littleton, § 36; dower is treated of by Glanville, vi. c. 1, vii. c. 1, and he there notices the distinction between the dos of the English law and dos or dowry of the Anc. L. i. 499. (1) As to which, see 2 Bla. Comm. 124; Litt. § 32. Tenant for Years-Tenant by Copy of Court Roll. 145 or in tail or for life will be noticed hereafter, under the title Construction of Deeds. The estates which have hitherto been noticed are called estates of freehold; we now proceed to those which are less than freehold; and, *first, of Tenant for years. Tenant for years is, when a man lets [*146] his lands or tenements to another for term of certain years as agreed upon (a). Originally an estate for years might be made without deed, but whether made with or without deed, no livery of seisin was necessary; it is indeed rather an usufructuary interest than an estate, as the freehold remains in the lessor. The lessee must complete his title by entry, which he may do at any time during the term (b). Bracton mentions long terms for years (c), and it is evident from the statute de religiosis, 7 Edw. I., that such terms were created at this time as one of the contrivances to evade the Statutes of Mortmain; from whence have arisen those extensive terms for 1000 or more years, which are now so frequent in conveyances; and which, as will be noticed hereafter, have been used by the Court of Chancery to serve many important purposes (d). The lowest interest in land is Tenancy at Will, as where lands are let by one man to another to hold at the will of the lessor. Here the tenant has no certain interest, as the lessor may put him out at what time it pleaseth him (e). But the courts of law have of late years leaned against construing demises where no certain term is mentioned to be tenancies at will, but have rather held them to be tenancies from year to year, and to be determined only on reasonable notice (f). There is also Tenancy by sufferance, which is, when one comes into possession by lawful title, but keeps it afterwards without any title at all (g). These were the several estates or interests in land which existed, and now exist, to use the language of legal writers, at Common Law. Estates of the same nature grew up by Custom as regards the holdings of tenants by copy of Court Roll. The origin and nature of this kind of tenure have been already noticed. Tenant by copy of Court Roll is thus described by Littleton. It is as if a man be seised of a manor, within which manor there is a custom which hath been used time out of mind, that certain tenants within the same manor have used to have lands and tenements to hold to them and their heirs in fee-simple, fee-tail, or for term of life, &c., at the will of the lord, according to the custom of the same manor (h)—and, forasmuch as the title or estate of the copy (a) Litt. § 58. (6) Litt. 59. 66; Bract. 318, 2; Bla. Comm. 145. "Usus fructus," according to the Roman law, is defined to be "jus, alienis rebus, utendi fruendi salvâ rerum substantia," Just. Inst. ii. 4, i. Leases for years will be further noticed under the head of Personal Estate. (c) "Terminum--quamvis longissimum," fo. 318 a. (d) 2 Bla. Comm. 270. By stat. 8 & 9 Vict. c. 112, satisfied terms are to cease VOL. I.-13 * [*147] from 1 Dec. 1845. The effect of this sta- (f) 2 Bla. Comm. 147. See Sweet's (h) Litt. § 73, 75,-"At the will of the lord," was omitted as regards those who held the king's demesnes, who were said to hold in privileged villeinage, Co. Copyholder, c. 32. 147 Customary Freeholds-Frankalmoigne—Parceners. holder was not created by feoffment or livery, but entered upon a roll, whereof the steward delivered to him a copy, he was called tenant by copy of Court Roll, or a copyholder (a). These copyholders were quite distinct from the freeholders of the manor holding by feoffment, who were the barons or judges of the Courts Baron. The copyholders, as has been noticed before, had their own court (which was of Norman introduction) for the admission of copyhold tenants on surrenders or descent: the titles of the claimants being regulated according to the customs of the respective manors, the copyholders were the best witnesses as to these matters, but the lord or his steward was the judge in this court (b). Generally speaking, the same estates may exist in customary lands, as in those held at Common Law (c). The copyholder of the present day holds still by the same kind of tenure as that which is above described; the customs in regard to the nature and qualities of his interest varying now as they did in early times. There were also some lands of a freehold nature, held of particular lords, which could not be passed by the tenant by feoffment or livery, but only by surrender into the hands of the lord, to be by him regranted according to the custom. These lands differed from copyhold lands particularly in this, that the freehold was in the tenant after the grant, and not, as was the case in copyhold lands, in the lord; they were called "Customary Freeholds" (d). Many of them still exist, particularly in the north of England. Tenure in frankalmoigne, which is a fee-simple tenure, is of a peculiar nature. Lands can only be held on this tenure by ecclesiastical persons; the services are wholly ecclesiastical, as saying prayers, and the like. The tenant in frankalmoigne did not do fealty like other freehold tenants (e), and such lands are not held to the tenant and his heirs, but to him and his successors. Bodies politic, such as bishops, parsons, vicars, &c., or lawfully incorporate by letters patent or prescription, as deans and chapters, colleges, &c., alone have capacity to take in succession, and therefore can alone hold an estate in frankalmoigne (f). It is to be observed, that bishops and abbots could not alien without the assent of the king, the reason given being, that their baronies were held of the gift of the king and his ancestors (g). *This tenure still [*148] subsists, the nature of the services having been modified at the Reformation. Estates in land and tenements have hitherto been considered as in the enjoyment of one person, or in Severalty. But each of these estates, down to an estate for years, may be enjoyed Jointly by more than one person. Joint owners of estates are either parceners (or co-parceners), joint tenants, or tenants in common. Parceners are either by the general (a) Co. Litt. 58 a; in Bracton's time, as before noticed, they were called villanos sockmannos, or by some similar designation. (b) Co. Litt. 58 a. (c) 2 Bla. Comm. 148; see the Additional Note. (d) Co. Litt. 49 a, n. (6), 59 b. (ƒ) Ib. fo. 95 a. Joint-Tenants-Tenants in Common. 148 law or by custom; parceners of the former description were called parceners at the Common Law. When an estate in fee or in tail descends on two or more daughters as heirs, they are parceners by the Common Law (a), and are considered as one heir (b). Sons to whom lands descend by the custom of gavelkind are parceners by Custom (c). Parceners, as a matter of right, might at Common Law obtain a partition by a writ of partition, so as to have their respective shares set out to them to be enjoyed in severalty (d). Joint tenants are another description of joint holders; they always take their estates by grant or by purchase, that is, by some title other than descent or mere act of law. Thus, where lands are granted to two or more persons to hold to them and their heirs, and there are no restrictive, exclusive, or explanatory words, they are joint tenants in fee, that is, there is an equal estate in all, and each is as it were seised of the whole estate (e). Joint tenancy may also arise on a grant to two or more for the term of their lives, or of another's life, or for years (f). The estate of joint tenants differs in many respects from that of parceners. The interest of each parcener, being several, descends to the heir; but with joint tenants, unless the joint tenancy be severed by the act of the parties, (which each has the power to do as regards himself,) the interest of each joint tenant as he dies devolves upon the others, the last surviving joint tenant taking the whole estate to himself (g): so if a horse or any other chattel personal be given to many, the survivor takes it (h). But parceners and joint tenants have this quality in common with coparceners, that they hold their lands by one joint title and in one right (i). The remaining estate enjoyed by two or more persons, is that of Tenants in common. A tenant in common is one who holds in fee for *life, or for any other fixed estate, jointly with others by several titles, or by one title and by several rights (k). Thus if one of [*149] two parceners or joint tenants alien to a stranger, the alienee holds as tenant in common with the other parcener or joint tenant, whether the subject be an estate in land or an interest in chattels real or personal (1). Tenants in common having several estates, their respective estates or interests do not survive. Lands may be conveyed to two or more expressly as tenants in common. Neither joint tenants nor tenants in common, at the time Littleton wrote (Edward IV.), were compellable to make partition (m), though they might make a partition between themselves by agreement. But by two statutes passed in the 21st and 32d years of Hen. VIII., partition might be enforced by joint tenants and tenants in common of estates in fee for life and for years. Now compulsory partitions are universally made through the medium of the Court of Chancery (n). by 3 & 4 Will. IV. c. 27, § 36. (e) 2 Bla. Comm. 180. (f) Co. Litt. 179 b, &c.; Litt. § 281. (i) Co. Litt. 189 a. (n) No voluntary partition can now be 149. Hitherto we have considered what estates may be enjoyed at Common Law in corporeal or tangible hereditaments. I proceed shortly to consider Incorporeal hereditaments, and the nature of the estates and interests which may be enjoyed in them. The most important kind of property which comes under this description is that kind of annual payment which is denominated a Rent. Rents, as we have before seen, are of high antiquity. A rent by the Common Law is a certain profit payable yearly, though it is not necessary that it should be payable every successive year. It can only be reserved out of lands and tenements corporeal (a). A reservation of an annual sum in a grant of an incorporeal hereditament can only operate as a personal contract. Incorporeal Hereditaments-Rents-Rent Charge. There were in ancient times three kinds of rent known to the Common *After the statute quia emptores, which has been mentioned in Where a rent was granted out of lands by deed, the grantee had no made by the parties excepting by deed, 8 & (b) Cruise, iii. p. 272. § 4, 4th ed. No- escheat. (c) Cruise, ubi sup.; Litt. § 214. (e) Litt. § 214, 215, 216; Cruise, ubi sup. (g) Litt. § 347; v. inf. p. 153, n. (ƒ). |