Chap. 9.] ESTATES AT WILL. and having sown the land, which is for the good of the public, upon a reasonable presumption, the law will not suffer him to be a loser by it. But it is otherwise, and upon reason equally good, where the tenant himself determines the will; for in this case the landlord shall have the profits of the land. (e) What act does, or does not, amount to a determination of the will on either side, has formerly been matter of great debate in our courts. But it is now, I think, settled, that (besides the express determination of the lessor's will, by declaring that the lessee shall hold no longer; which must either be made upon the land, (f) or notice must be given to the lessee) (g) (10) the exertion of any act of ownership by the lessor, as entering upon the premises and cutting timber, (h) taking a distress for rent, and impounding it thereon, (i) or making a feoffment, or lease for years of the land, to commence immediately; (k) (11) any act of desertion by the lessee, as assigning his estate to another, or committing waste, which is an act inconsistent with such a tenure, (7) (12) or, which is instar omnium, the death or outlawry of either lessor or lessee: (m) puts an end to or determines the estate at will. The law is, however, careful that no sudden determination of the will by one party shall tend to the manifest and unforeseen prejudice of the other. This appears in the case of *emblements before mentioned; and, by a parity of reason, the lessee, after the determination of the lessor's will, shall [*147] have reasonable ingress and egress to fetch away his goods and utensils. (n) And if rent be payable quarterly or half-yearly, and the lessee determines the will, the rent shall be paid to the end of the current quarter or half year. (0) And, upon the same principle, courts of law have of late years leaned as much as possible 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 so long as both parties please, especially where an annual rent is reserved : (13) (m) 5 Rep. 116. (f) Ibid. Co. Litt. 57, 62. (g) 1 Ventr. 248. (h) Co. Litt. 55. (10) As to the necessity of notice in order to determine an estate at will at the common law, see Ellis v. Paige, 2 Pick. 71 and note. Notice is generally provided for by statutes in the United States. If notice is given in any case, and possession is not surrendered in compliance with it, it will be deemed to be waived if the landlord shall afterwards accept rent for the premises for a period subsequent to the time specified in the notice for the surrender; or shall do any other act inconsistent with an intention to insist upon the notice. Prindle v. Anderson, 19 Wend. 391; Collins v. Canty, 6 Cush. 415; Jackson v. Sheldon, 5 Cow. 448. (11) See Benedict v. Morse, 10 Metc. 223; Kelly v. Waite, 12 id. 300; Curtis v. Galvin, 1 Allen, 215; Howard v. Merriam, 5 Cush. 563. If the landlord take possession of part of the premises, or commit waste thereon, this is a determination of the tenancy at the election of the tenant. Dickinson v. Goodspeed, 8 Cush. 119. (12) See Daniels v. Pond, 21 Pick. 367; Phillips v. Covert, 7 Johns. 1. (13) A tenancy from year to year is where tenements are expressly or impliedly demised by the landlord to the tenant to hold from year to year, so long as the parties shall respectively please; and there cannot be such a tenancy determinable only at the will of the tenant, for then it would operate as a tenancy for his life, which is not creatable by parol, but only by feoffment or other deed. 8 East, 167. What was formerly considered as a tenancy at will, has, in modern times, been construed to be a tenancy from year to year, and from a general occupation such a tenancy will be inferred, unless a contrary intent appear. 3 Burr. 1609; 1 T. R. 163; 3 id. 16; 8 id. 3. And so in the cases in which the statute against frauds, 29 Car. II, c. 3, declares that the letting shall only have the effect of an estate at will, it operates as a tenancy from year to year. 8 T. R. 3; 5 id. 471. So where rent is received by a landlord, that raises an implied tenancy from year to year, though the tenant was originally let in under an invalid lease. 3 East, 451. So if a tenant hold over by consent after the expiration of a lease, he becomes tenant from year to year; 5 Esp. R. 173; even where the lease was determined by the death of the lessor tenant for life in the middle of a year. 1 H. Bl. 97. But if the circumstances of the case clearly preclude the construction in favor of such a tenancy, it will not exist; as where a party let a shed to another for so long as both parties should like, on an agreement that the tenant should convert it into a stable, and the defendant And it should have all the dung for a compensation, there being no reservation referable to any aliquot part of a year, this was construed to be an estate at will. 4 Taunt. 128. 427 must by no means be understood that a strict tenancy at will cannot exist at the present day, in which case they will not suffer either party to determine the tenancy even at the end of the year, without reasonable notice to the other, which is generally understood to be six months. (p) (14) There is one species of estates at will that deserves a more particular regard than any other; and that is, an estate held by copy of court-roll: or, as we usually call it, a copyhold estate. This, as was before observed, (q) was in its original and foundation nothing better than a mere estate at will. But, the kindness and indulgence of successive lords of manors having permitted these estates to be enjoyed by the tenants and their heirs, according to particular customs established in their respective districts; therefore, though they still are held at the will of the lord, and so are in general expressed in the court-rolls to be, yet that will is qualified, restrained and limited, to be exerted according to the custom of the manor. This custom being suffered to grow up by the lord, is looked upon as the evidence and interpreter of his will: his will is no longer arbitrary and precarious; but fixed and ascertained by the custom to be the same and no other, that has time out of mind been exercised and declared by his ancestors. A copyhold tenant is therefore now full as properly a tenant by (p) This kind of lease was in use as long ago as the reign of Henry VIII, when half a year's notice seems to have been required to determine it. (T. 13 Hen. VIII, 15, 16.) (g) Page 93. for it may clearly be created by the express agreement of the parties. 5 B. and A. 604; 1 Dowl. and R. 272. So under an agreement that the tenant shall always be subject to quit at three months' notice, he is not tenant from year to year, but from quarter to quarter. 3 Camp. 510.] Estates at will are never regarded with favor, and by construction of law will be changed into estates from year to year whenever the circumstances are such that an intention that they shall continue for at least a year can fairly be implied. This implication is generally a necessary one where an annual rent is reserved, and if, after the expiration of one year, the tenant is allowed to hold over, he will be regarded as in for another year, on the same terms as before. Conway v. Starkweather, 1 Denio, 113: Prindle v. Anderson, 19 Wend. 393; Prickett v. Ritter, 16 Ill. 96; Williamson v. Paxton, 18 Grat. 475. But the holding over must be for such time and under such circumstances that the consent of the landlord thereto may fairly be implied. Den v. Adams, 7 Halst. 99. And the tenant is then entitled, in the absence of statutory regulation, to a six months' notice to quit, the notice to terminate at the end of a year. 1 Washb. Real Prop. 382. If the rent is payable at periods less than a year, the tenant is in for the whole of one of such periods, and the same rule as to holding over for the period covered by the payment of rent, will afterwards apply as is above stated where the rent is annual. And the notice to quit must expire at the end of one of such periods. Hanchett v. Whitney, 1 Vt. 311; Prescott v. Elm, 7 Cush. 346. A vendee put in possession of land by the vendor, under an executory contract of sale which is silent on the subject of possession, is a species of tenant at will. Dakin v. Allen, 8 Cush. 33. But he is under no obligation to pay rent while not in default on his contract. Dwight v. Cutler, 3 Mich. 566; McNair v. Schwartz, 16 Ill. 24. And his possession may be terminated at any time without the notice which tenants at will, properly so called, are entitled to. (14) [When a lease or demise is determinable on a certain event, or at a particular period, no notice to quit is necessary, because both parties are equally apprised of the determination of the term: 1 T. R. 162; but in general when the tenancy would otherwise continue, there must be given half a year's notice to quit expiring at that time of the year when the tenancy commenced, whether the tenancy was of land or buildings: 1 T. R. 159; and where the tenant enters on different parts of the premises at different times, the notice should be given with reference to the substantial and principal part of them, and will be good for all, and what is the substantial part is a question for the jury. See instances 2 Bla. R. 1224; 6 East, 120; 7 id. 551; 11 id. 498. As to the case of lodgings, that depends on a particular contract, and is an exception to the general rule. The agreement between the parties may be for a month or less time, and there a much shorter notice may suffice: 1 T. R. 162; and usually the same space of time for the notice is required as the period for which the lodgings were originally taken, as a week's notice when taken by the week, and a month's notice when taken by the month, and so on. 1 Esp. Rep. 94; Adams 124. If lodgings are taken generally at so much per annum, it is construed to be only a taking for one year, and no notice to quit is necessary. 3 B. and C. 90. When it is doubtful at what time of the year the tenancy commenced, it is advisable to serve a notice "to quit at the expiration of the current year of your tenancy, which shall expire next after one half year from the time of your being served with this notice." 2 Esp. R. 589. See further as to notices to quit, the service and waiver thereof, Adams on Ejectment, 96 to 140; I Saunders, by Patteson and Williams, 276, note a.] Chap. 9.] ESTATES AT WILL. [*148] the custom as a tenant at will; the custom *having arisen from a series of uniform wills. And, therefore, it is rightly observed by Calthorpe, (r) that" copyholders and customary tenants differ not so much in nature as in name; for although some be called copyholders, some customary, some tenants by the verge, some base tenants, some bond tenants, and some by one name and some by another, yet do they all agree in substance and kind of tenure; all the said lands are holden in one general kind, that is, by custom and continuance of time; and the diversity of their names doth not alter the nature of their tenure." Almost every copyhold tenant being therefore thus tenant at the will of the lord according to the custom of the manor; which customs differ as much as the humour and temper of the respective ancient lords (from whence we may account for their great variety), such tenant, I say, may have, so far as the custom warrants, any other of the estates or quantities of interest, 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 curtesy, 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, promulgated 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 Yet none of these interests timber, the non-payment of a fine, and the like. amount to a 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 seisin or true legal possession, of certain parcels thereof, to these his customary tenants at will. The reason of originally granting out this complicated kind of interest, so that the same man shall, with regard to the same land, be at one and the same [*149] time tenant in fee-*simple, and also 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, or even for years absolutely, was an immediate enfranchisement of the villein. (t) 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; 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 lands of all must necessarily rest and abide somewhere, the law supposed it still 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 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 tenure, which are derived from the ancient tenants in villein-socage, (u) 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; (v) who are sometimes called customary freeholders, being allowed to have a freehold interest, though not a freehold tenure. (3) Litt. (r) On copyholds, 51, 54 81. 2 Inst. 325. (u) See page, 98, &c. 12 Bro. Abr. tit. custom, 2, 17; tenant per copie, 22. 9 Rep. 76. Co. *However, in common cases, copyhold estates are still ranked (for the [ *150] 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 inhertance, 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. III. An estate at sufferance, is where one comes into possession 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 a 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. (w) (15) 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. (2) 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 cannot maintain an action of trespass 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. (16) *Thus stands the law with regard to tenants by sufferance, and land[*151] lords are obliged in these cases to make formal entries upon their lands, (2) and recover possession by the legal process of ejectment; (17) and at the utmost, by the common law, the tenant was bound to account for the profits of the land so by him detained. (18) 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 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, (15) [At the common law, in the absence of any special agreement, after the execution of a legal mortgage, 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. and R. 107; 2 B. and Ad. 473.] After entry (16) Jackson v. Parkhurst, 5 Johns. 128; Rising v. Stannard, 17 Mass. 282. made, the owner may maintain trespass against the tenant; Dorrell v. Johnson, 17 Pick, 266; unless the statute requires notice to terminate the tenancy, in which case the tenant will not be liable to trespass before such notice. (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 cannot take possession; but see 7 T. R. 431; 1 Price Rep. 53; 1 Bing. Rep. 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 defence 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.] See Jones v. Chapman, 2 Exch. 803; Harvey v. Brydges, 14 M. and W. 437; Davis v. Burrell, 10 C. B. 821; Pollen v. Brewer, 7 C. B., N. S. 371. (18) Where the tenancy, by the statute, is to be determined by notice, the tenant holding over after notice is liable to pay rent. Hogsett v. Ellis, 17 Mich. 357. Chap. 10.1 ESTATES UPON CONDITION. 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. (19) CHAPTER X. 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; (1) 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, (2) or finally defeated. (a) (3) 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. (a) Co. Litt. 201. (19) For still more summary remedies, see the statutes 1 and 2 Vic. c. 74, and 9 and 10 Vic. c. 94, s. 122. Some of the American statutes entitle a tenant at sufferance to notice before proceedings are taken to dispossess him. It is not quite clear what these mean, but it is assumed that the mere holding over does not entitle the occupant to notice, unless the holding is continued under circumstances from which an implication of assent on the part of the owner can arise. See Rowan v. Lytle, 11 Wend. 616; Livingston v. Tanner, 12 Barb. 481, and 14 N. Y. 64; Allen v. Carpenter, 15 Mich. 25. (1) [As to things executed (a conveyance of lands, for instance), a condition, to be valid, must be created and annexed to the estate at the time that it is made, not subsequently; the condition may, indeed, be contained in a separate instrument, but then, that must be sealed and delivered at the same time with the principal deed. Co. Litt. 236, b; Touch. 126. As to things executory (such as rents, annuities, &c.), a grant of them may be restrained by a condition created after the Littleton (in his 328th and three following sections) execution of such grant. Co. Litt. 237, a. so that," says, divers words there be, which, by virtue of themselves, make estates upon condition. Not only the express words, "upon condition," but also the words "provided always," or will make a feoffment, or deed, conditional. And again (in his 331st section) he says, the words "if it happen" will make a condition in a deed, provided a power of entry is added. Without the reservation of such a power, the words "if it happen" will not, alone, and by their own force, 'on condition," are the most make a good condition. This distinction is also noticed in Sheph. Touch. 122, where it is also so that," and " laid down, that although the words "proviso,' proper words to make a condition; yet they have not always that effect, but frequently serve for other purposes; sometimes they operate as a qualification or limitation, sometimes as a covenant. And when inserted among the covenants in a deed, they operate as a condition, only when attended with the following circumstances: 1st. When the clause wherein they are found is a substantive one, having no dependence upon any other sentence in the deed, or rather, perhaps, not being used merely in qualification of such other sentence, but standing by itself. 2d. When it is compulsory upon the feoffee, donee, or lessee. 3d. When it proceeds from the part of the feoffor, donor, or lessor, and declares his intention, (but as to this point, see Whichcote v. Fox, Cro. Jac. 398; Cromwell's Case, 2 Rep. 72, and infra). 4th. When it is applied to the estate, or other subAs to what words will constitute a condition, see Whichcote v. Fox, Cro, Jac. 398; ject matter. Co. Litt. 203, b.; Englefield's Case, Moor, 307; S. C., 7 Rep. 78; Berkley v. The Earl of Pembroke, Moor, 707; S. C., Cro. Eliz. 306, 560; Browning v. Beeston, Plowd. 131.] (2) [A particular estate may be limited, with a condition, that, after the happening of a certain event, the person to whom the first estate is limited shall have a larger estate. Such a condition may be good and effectual, as well in relation to things which lie in grant as to things which lie in livery, and may be annexed as well to an estate-tail, which cannot be drowned, as to an estate for life or years, which may be merged by the access of a greater estate.] (3) [It is a rule of law, that a condition, the effect of which is to defeat or determine an estate to which it is annexed, must defeat the whole of such estate; not determine it in part only, leaving it good for the residue. Jermin v. Arscot, stated by Chief Justice Anderson, in Corbet's Case, I Rep. 85, b., and see ibid. 86, b.; Chudleigh's Case, 1 Rep. 138, b.] 431 |