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no more than the actual damages which the premises have sustained. (a)

Under the head of permissive waste, the tenant is answerable, if the house or other buildings on the premises be destroyed by fire through his carelessness or negligence; and he must rebuild, in a

convenient time, at his own expense. (b)2 The statute of 6 * 82 Anne, c. 31, guarded the tenant * from the consequences of accidental misfortune of that kind, by declaring, that no suit should be brought against any person in whose house or chamber any fire should accidentally begin, nor any recompense be made by such person for any damage suffered or occasioned thereby. Until this statute, tenants by the courtesy and in dower, were responsible, at common law, for accidental fire; and tenants for life and years, created by the act of the parties, were responsible, also, under the statute of Gloucester, as for permissive waste. (a)2 There does not appear to have been any question raised, and judicially decided

(a) Parker J., in Linton v. Wilson, Kerr (N. B.), 239, 240. By the New York Revised Statutes, vol. ii. 334-338, 343, the writ of waste, as a real action, is essentially abolished; but an action of waste is substituted, in which the first process by summons is given; and the judgment to be rendered is, that the plaintiff recover the place wasted and treble damages. If the action be brought by a joint tenant, or tenant in common, against his co-tenant; the plaintiff, if he recover, may, at his election, take judgment for the treble damages, or have partition of the premises, with a deduction of the damages from the share of the defendant. In Rhode Island and Ohio, the action of waste is still in use, for the recovery of the freehold wasted. Loomis v. Wilbur, 5 Mason, 13. Statutes of Ohio, 1831, 252. This is, probably, the general law in this country. But as the statute of 3 and 4 Wm. IV. c. 27, abolished the writ of waste, it is now considered in England that the place wasted cannot be recovered. (b) Lord Coke says, that burning the house by negligence or mischance, is waste; and Lord Hardwicke speaks generally, that the destruction of the house by fire is waste, and the tenant must rebuild. Co. Litt. 53, a. 1 Vesey, 462. (a) Harg. note 377, to Co. Litt. lib. 1. A tenant from year to year is not liable for permissive waste, nor for the wear and tear of the premises. Torriano v. Young, & Carr. & Pa. 8.

2 When the waste is not wilful and the tenant neglects to repair, a subsequent tenant, making the repairs, cannot charge them upon the inheritance. Sharshaw v. Gibbs, 23 Eng. L. & Eq. 381.

1 A tenant for life, holding under a will which required him to keep the premises "in good and tenantable repair," was held liable to rebuild, the house having been destroyed by acci dental fire. In re Skingley, 3 Eng. L. & Eq. 91.

2 In Virginia, money received on insurance of a building in which there is a life-estate, is to be applied to the repairing of the building. Brough v. Higgins, 2 Gratt. 408. And in a similar case the tenant was held entitled to interest on the insurance money for life. Graham ❤. Roberts, 8 Ired. Eq. 99.

in this country, respecting the tenant's responsibility for accidental fires, as coming under the head of this species of waste. I am not aware that the statute of Anne has, except in one instance, been formally adopted in any of the states. (b) It was intimated, upon the argument in the case of White v. Wagner, (c) that the question had not been decided; and conflicting suggestions were made by counsel. Perhaps the universal silence in our courts upon the subject of any such responsibility of the tenant for accidental fires, is presumptive evidence that the doctrine of permissive waste has never been introduced, and carried to that extent, in the commonlaw jurisprudence of the United States. (d)

Estates for life were, by the common law, liable to forfeiture, not only for waste, but by alienation in fee. Such an alienation, according to the law of feuds, amounted to a renunciation of the feudal relation, and worked a forfeiture of the vassal's estate to the person entitled to the inheritance in reversion or remainder. (e) Alienation by feoffment, with livery of seisin, or by matter of record, as by fine or recovery, of a greater estate than the tenant for life was entitled to, by divesting the seisin, and * 83 turning the estate of the rightful owner into a right of entry, operated as a forfeiture of the life-estate, unless the person in remainder or reversion was a party to the assurance. (a) But an

(b) The statute was adopted in New Jersey, in 1795. Elmer's Digest, 593. (c) 4 Harr. & Johns. 381-385.

(d) In covenants on the part of the tenant to pay rent, he is bound to pay, though the premises be accidentally destroyed by fire. See supra, vol. iii. 468. A tenant from year to year, according to the case of Izon v. Gorton, 5 Bing. (N. C.) 501, is liable for use and occupation, though the premises be destroyed by fire.

A valuable treatise on the Law of Dilapidations and Nuisances, by David Gibbons, Esq., was published in London, 1838, in which waste of every description by tenants for life and for years; by mortgagor and mortgagee; by joint tenants and tenants in common; and in which dilapidations of party-walls, fences, highways, bridges, and sewers, are treated at large with learning and accuracy.

(e) "Nihil de jure facere potest quis quod vertat ad exhæredationem Domini sui; si super hoc convictus fuerit fœdum de jure amittet." Glanville, lib. 9, c. 1. Litt. sec. 415. 2 Blacks. Comm. 274.

(a) Co. Litt. 251, b. 252, a. 356, a. 2 Inst. 309. Statute of Gloucester, 6 Edw. I. c. 7. Preston on Abstracts of Title, vol. i. 352-356. In Sir Wilham Pelham's case, 1 Co. 14, b, it was adjudged, that if a tenant for life conveyed in fee, by bargain and sale, and then suffered a common recovery, he forfeited his life-estate. But in Smith v. Clyfford, 1 Term Rep. 738, it was held, that the estate of a tenant for life was not forfeited by suffering a recovery. Mr. Preston thinks the elder case the better decision and authority (1 Preston on Convey. 202); but Mr. Ram, in his Outline of the Law of Tenure and Tenancy, 125-140, has discussed this point, and examined those

alienation for the life of the tenant himself did not work any wrong; and, therefore, says Lord Coke, (b) it was not within the statute of Gloucester. So, a mere grant or release by the tenant for life, passed, at common law, only what he might lawfully grant.1 In Massachusetts, Connecticut, New York, Pennsylvania, and Kentucky, this feudal notion of forfeiture is expressly renounced, and the doctrine placed upon just and reasonable grounds. Any con

veyance by a tenant for life, or years, of a greater estate than 84 he possessed, or could lawfully convey, passes *only the title

and estate which the tenant could lawfully grant. (a) It is, therefore, an innocent conveyance, whatever the form of the conveyance may be, and produces no forfeiture of the particular estate.1 It does not, like a feoffment with livery at common law, ransack the whole estate, and extinguish every right and power connected with it.

The same conclusion must follow from the general provision in the statute of Virginia, of December, 1783, and from the forms of conveyance in use in other states. A conveyance in fee by a tenant for life, by bargain and sale, or by lease and release, does not work a discontinuance. Conveyances under the Statute of Uses are innocent conveyances, since they operate only to the extent of the grantor's right, and occasion no forfeiture; though, if a general warranty be annexed to these conveyances, it would, at common law, work a discontinuance, when the warranty descends upon

authorities, with much ability; and he holds the later decision to be sound, on the ground that the recovery, being absolutely void, was harmless. We, in this country, have very little concern with such questions; but this instance strikingly illustrates the matchless character of the English jurisprudence for stability, and the spirit which sustains it. Here were two cases, at the distance of two centuries apart, on an abstruse and technical point of hard law; and the attention of two learned lawyers is immediately attracted by the apparent contrariety between them. The one justifies the later case, by showing that it went on new ground, furnished by the statute of 14 Eliz. subsequent to the first case; whereas, the other, not being able to reconcile the cases on principle, condemns the later decision with unceremonious and blunt severity. (b) 2 Inst. 309.

(a) New York Revised Statutes, vol. i. 739, secs. 143, 145. Massachusetts Revised Statutes, 1835, part 2, c. 59, sec. 6. M‘Kee v. Prout, 3 Dallas, 486. 11 Conn. 557. 1 B. Monr. (Ken.) 94.

1 See Bell v. Twilight, 2 Foster, 500.

1 A levy of land on a judgment collusively obtained by tenant for life, does not work a forfeiture. Quimby v. Dill, 40 Maine, 528.

him who has the right to the lands. (6) We have never adopted, in this country, the common-law conveyance by feoffment and livery, and we rarely use that by fine, or common recovery, or any other than the conveyance by lease and release, or, more commonly, by deed of bargain and sale. In New Jersey, by an Act in 1798, alienations by the husband of the wife's lands or of his courtesy, or by a dowress, having an estate in dower, or other estate for life, and whether made with or without warranty, do not produce any prejudice to the persons entitled to the inheritance, but the dowress forfeits her particular estate. If, however, there be, in any state, a forfeiture of the life-estate by the act of the tenant for life, the party entitled to enter by reason of the forfeiture, is not bound to enter, and may wait until the natural termination of the life-estate. (c) 2

(b) Co. Litt. 329, a.

Gilbert on Tenures, tit. Discontinuance, 112.

(c) Elmer's Dig. 77. Doe v. Danvers, 7 East. 299. Wells v. Prince, 9 Mass. 508. Jackson v. Mancius, 2 Wendell, 357. By statute, in Kentucky, in 1798, no conveyance by the husband of the wife's estate works a discontinuance thereof; nor does any alienation pass a greater estate than might lawfully be conveyed, or bar the residue of the estate, except that, if the alienation be with warranty, the heirs will be barred to the value of the heritage descended. 3 Dana (Ken.), 291, 292.

2 Moore v. Luce, 29 Penn. State, 260.

LECTURE LVI.

OF ESTATE FOR YEARS, AT WILL AND AT SUFFERANCE.

(1.) Of estates for years.

A lease for years is a contract for the possession and profits of land for a determinate period, with the recompense of rent;1 and it is deemed an estate for years, though the number of years should exceed the ordinary limit of human life. An estate for life is a higher and greater estate than a lease for years, notwithstanding the lease, according to Sir Edward Coke, (a) should be for a thousand years or more; and if the lease be made for a less time than a single year, the lessee is still ranked among tenants for years. (b) 2

In the earlier periods of English history, leases for years were held by a very precarious tenure. The possession of the lessee was held to be the possession of the owner of the freehold, and the term was liable to be defeated at the pleasure of the tenant of the freehold, by his suffering a common recovery. (c) In the reign of Henry VI., it would seem that the law gave to the lessee, who was unduly evicted, the right to recover, not only damages for the loss of the possession, but the possession itself. (d) But the interest of the lessee was still insecure, until the statute

(a) Co. Litt. 46, a. See supra, vol. ii. p. 342.

(b) Litt. sec. 67.

(c) Co. Litt. 46, a. Lord Parker, in Theobalds v. Duffoy, 9 Mod. 102. (d) F. N. B. 198, cites 19 Hen. VI.

1 Where a servant occupies as incident merely to his employment, his right to occupy terminates when such employment ceases. Spurgin v. White, 2 Giff. 473. The occupancy of land under a contract to purchase does not create the relation of landlord and tenant, and there is no liability for rent although the contract is abandoned by reason of a defect in the vendor's title. Sylvester v. Ralston, 31 Barb. (N. Y.) 286.

2 Under a parol demise the law implies no agreement for good title, although it does imply one for quiet enjoyment. Bandy v. Cartwright, 20 Eng. L. & Eq. 374.

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