Title persons. Landlord. 7, a lessor may distrain within six calendar months, after the determination of a lease for life, years, or at will, if the lessor's Of particular title or interest, and the possession of the tenant from whom such rent became due, be continuing. (a) Where a lease contained a clause of re-entry, in case the rent should be in arrear On forfeiture. twenty-one days, and there should be no sufficient distress, Lord Ellenborough, C. J. held that the landlord having distrained within the twenty-one days, but continued in possession after, did not waive his right of re-entry. (b) It has been decided that the lessor does not waive his right of re-entry, by taking an insufficient distress for the rent, by the non-payment of which the lease became forfeited. (c) Lord of a manor. In ejectment on a proviso of re-entry for a forfeiture, it has been held that the lessor bringing an action of covenant for rent subsequent to the time of the demise laid in the declaration in ejectment, is a waiver of the forfeiture. (d) Where a lease contained a general covenant to repair, and also a covenant to repair upon three months' notice, Lord Ellenborough, C. J. held that the landlord by giving notice, had not waived his right of re-entry for the breach of the general covenant.(e) In some cases the condition itself may be dispensed with, so that no forfeiture can afterwards accrue, as where the condition of re-entry is "in case the lessee or his assigns shall assign without licence," and the lessor licences the lessee to assign any part, it is a dispensation of the whole condition, and the lessee, or his assignee, may assign all the residue without licence. (ƒ) It has been already stated that an action of ejectment will lie for a manor. (g) The lord of a manor may also bring ejectment on a forfeiture of a copyhold estate by one of his copyholders (h), and this is his only remedy for waste committed by a copyholder, for as a copyholder is tenant at will, he is not within the (a) See 1 Saund. 288, notes, 5th edit. (b) Doe d. Taylor v. Johnson, 1 Stark. N. P. C. 411. (c) Brewer d. Ld. Onslow v. Eaton; cited 6 T. R. 220. (d) Roe d. Crompton v. Minshal, Bul. N. P. 96. By another report of this case it appears, that the defendant paid the amount of the rent into court, which was said to be equivalent to ac ceptance. Selw. N. P. 677, 4th edit. (e) Roe d. Goatly v. Paine, 2 Campb. N. P. C. 520. (ƒ) Dumpor's case, 4 Rep. 119, 120. 1 Saund. 288, notes. Ante, p. 435. (g) Ante, p. 486. (h) What constitutes a forfeiture, see 1 Watk. Copyh. 324 to 340, 2nd edit. Com. Dig. Copyh. (M. 3,) (M. 4). statute of Gloucester, and no action of waste, therefore, can be maintained against him (a); nor has the lord any remedy in equity. (b) The lord, and not the copyholder in remainder, is entitled to enter for the forfeiture, and therefore the lord may maintain ejectment, although there is an intermediate copyhold estate in remainder. (c) But where the reversion of a copyhold was granted by the lord to commence after the forfeiture, or other determination of the particular estate, it was held that the grantee of the reversion might enter on a forfeiture committed. (d) Title. Of particular persons. tempore. He who is dominus pro tempore, may take advantage of a Dominus pro forfeiture committed during his own time (e), and the grantee of the freehold of the copyhold, or his lessee, may also take advantage of a forfeiture. (f) The rule that no one but the dominus pro tempore can take advantage of a forfeiture, is subject to some exceptions. Thus if there be tenant for life of a manor, remainder in fee, and a copyholder commits waste, and the tenant for life dies before entry, he in remainder may enter for the forfeiture, for he had an interest in the manor at the time of the forfeiture committed, though not a present capacity to bring an action (g), and so if a copyholder holding of a manor belonging to a bishoprick, commits a forfeiture by felling timber during the vacancy of the see, the succeeding bishop may bring ejectment for such forfeiture. (h) If the act of forfeiture was such as to determine the customary estate, as if a copyholder makes a feoffment in fee, it seems that the heir of the lord in whose time it occurred, is entitled to take advantage of such forfeiture. (i) (a) Ante, p. 113. Dench v. Bamp- Copyh. 342, 2nd edit. Com Dig. Copyh. ton, 4 Ves. 700. (b) Ibid. Nor will equity relieve a copyholder tenant for life who commits wilful waste. Thomas v. Porter, 1 Ch. Ca. 96. Pr. Ch. 547; but see Amb. 511. 1 Fonbl. Eq. 396. (c) Margaret Podger's case, 9 Rep. 107, a. Gilb. Ten. 244. 1 Watk. Copyh. 341, 2nd edit. Doe d. Folkes v. Clements, 2 M. and S. 68. (d) Strode v. Dennison, 3 Lev. 94. T. Jones, 189, S. C. Com. Dig. Copyh. (M. 6). (e) Coke Copyh. S. 60. 1 Watk. (M. 6). (f) Co. Copyh. S. 60. Moor, 393. Vin. Ab. Copyh. (T. c). (g) Co. Copyh. S. 60. Gilb. Ten. 334. 1 Watk. Copyh. 343, 2nd edit. See ante, p. 107; but see Lady Montague's case, Cro. Jac. 301. (h) Read v. Allen, Bull. N. P. 107. See ante, p. 108. (i) Com. Dig. Copyh. (M.6). 1 Lutw. 801. Cornwallis v. Hammond, Palmer, 416. Latch, 226, S. C. Doe d. Tarrant v. Hellier, 3 T. R. 173. Suppl. to Co. Copyh. S. 11. Heir. Title. Of particular persons. Mortgagee. Parson. But the alienee or lessee of a manor cannot enter for a forfeiture incurred before his own time. (a) The lord cannot take advantage of a forfeiture, if he has dispensed with it, as by acceptance of rent with notice of the forfeiture (b); so if the act has been done with the licence of the lord, express or implied, it is no forfeiture. It is not necessary that any presentment of the forfeiture should be made, or that the lord should enter or seise before bringing an ejectment for the forfeiture. (c) It seems that the statute of limitations will run against the lord in case of a forfeiture of a copyhold. (d) A mortgagee, or his assignee, who has the legal estate, may maintain ejectment.(e) If there are two several mortgagees, one of whom has got the legal estate, he is entitled to recover in ejectment against the other mortgagee. (ƒ) Where leases have been granted by the mortgagor previously to the mortgage, and such leases are still subsisting, the mortgagee cannot maintain ejectment before the determination of such leases(g); but a lease made by the mortgagor after the mortgage, will not prevent the mortgagee from bringing ejectment (h), though such lease was made in the time of the original mortgagee, and before the assignment of the mortgage to the lessor of the plaintiff. (i) A parson after induction may maintain ejectment for the glebe lands, &c. (k), and he may recover against his own lessee, on the ground of the lease of the rectory being avoided, on account of his own non-residence, by force of the statute 13 Eliz. c. 20. (1) (a) Coke Copyh. S. 60. Penn v. Merrivall, Owen, 63. Cornwallis's case, 2 Vent. 39. Anon. 4 Leon. 223. See Doe d. Matthews v. Smart, 12 East, 444. (b) Com. Dig. Copyh. (M.8). 1 Watk. Copyh. 349 to 353, 2nd edit. Vin. Ab. Copyh. (A. d). (c) Bull. N. P. 107. (ƒ) Goodtitle d. Norris v. Morgan, 1 T. R. 755. (g) Doe d. Da Costa, v. Wharton, 8 T. R. 2. (h) Keech d. Warne v. Hall, Dougl 21. Birch v. Wright, 1 T. R. 383. (i) Thunder d. Weaver v. Belcher, 3 East, 449. As to staying proceedings under stat. 7 Geo. 2, c. 20, in actions (d) Doe d. Tarrant v. Hellier, 3 T. by mortgagees, see post. R. 172, S. (e) Smartle v. Williams, 1 Salk. 245. 3 Lev. 387, S. C. (k) See post, in "Evidence." (1) Frogmorton d. Fleming v. Scott, 2 East, 467. Title. A parson may maintain ejectment against a party in possession of the glebe lands, though the current year of a tenancy from year of particular to year, created by his predecessor, is unexpired. (a) persons. sentative. A personal representative of a termor may maintain ejectment, Personal reprewhether the testator or intestate had a lease for years, or from year to year, and whether the ouster was before or after his death. (b) Where a term is bequeathed to an executor, he will take it as executor, and not as legatee, until he assents to take it as legatee (c), and one of several executors may assent to a bequest to himself. (d) The statute 32 Hen. 8, c. 7, s. 7, has put tithes in the hands of Tithe owner. lay-impropriators, or which are admitted to be or abide in temporal hands, upon the same footing with corporeal hereditaments, turning them as it were into lands and tenements, and realizing them (e), so that an ejectment may now be maintained for them. (f) It has been already stated, that ejectment only lies against a party claiming title, and not against those who merely refuse to set out their tithe, and where the tithe is taken in kind, and not where an annual sum is paid in lieu. (g) when necessary. Where an ejectment is brought in an inferior court, which has of the ancient not the power of framing a rule to confess lease entry and ouster, practice, and or of enforcing obedience to such a rule (h), the claimant must proceed according to the ancient practice in this action, by actually sealing a lease upon the premises to a real person, who is ousted by a real defendant, against whom the ejectment must be (a) Doe d. Kerby v. Carter, 1 R. and M. 257. (b) Slade's case, 4 Rep. 95, a. Moreton's case, 1 Vent. 30. Doe d. Shore v. Porter, 3 T. R. 13. (c) Young v. Holmes, 1 Stra. 70. Com. Dig. Administration, (C. 5). What constitutes an assent, see 1 Saund. 279, d, (n,) 5th edition. Doe v. Sturges, 7 Taunt. 217. 40. (d) Townson v. Tickell, 3 B. and A. (e) Bally v. Wells, 3 Wils. 50. Wil mot's cases and opinions, 347, S. C. (f) Priest v. Wood, Cro. Car. 301. (g) Ante, p. 487. Doe d. Brierly v. Palmer, 16 East, 53. Gilb. Eject. 65, 2nd edit. (h) R. v. Mayor of Bristow, 1 Keb. 690. Sherman v. Cocke, 1 Keb. 795. Gilb. Eject. 38, 2nd edit. Anon. Comb. 208. Of the ancient practice, and brought. (a) So where the possession is vacant, and there is no tenant upon whom the declaration and notice can be served, the when necessary· claimant must proceed according to the ancient practice. Vacant posses sion. Where the premises are wholly unoccupied, it is not necessary for the claimant, who has the right of possession, to proceed by ejectment, for he may enter upon the premises without process of law, and if trespass be brought against him, he may justify in a plea of lib. ten. if he be the owner of the freehold. (b) A tenant having omitted to deliver up possession when his term had expired by a notice to quit, the landlord, at a time when nobody was in the house, broke open the door with a crow bar, and resumed possession, some little furniture being still in the house. The tenant having obtained a verdict in trespass against the landlord for this entry, the court granted a new trial, holding that the landlord might enter in such case. (c) Ejectment cannot be maintained, as on a vacant possession, where there is any thing left by the tenant on the premises, however trifling, for almost any matter will suffice to prevent a vacant possession (d), as if the tenant leave beer in a cellar, or hay in a barn (e); and in case of ground on which there is no house or building, if it be known where the tenant lives, the lessor of the plaintiff cannot proceed as on a vacant possession. (f) The mode of proceeding in ejectment on a vacant possession, is as follows. A lease for years being previously prepared, and when necessary, a power of attorney executed, the party claiming title, or his attorney, enters upon the premises before the essoign day of the term, and there seals and delivers the lease to the lessee, who is usually some friend of the lessor, and at the same time delivers him the possession; but an attorney cannot be lessee. (g) The lessee remains on the premises until some third person enters thereon by previous agreement, and turns him out of possession, upon which a declaration in ejectment, which has been previously prepared, is delivered on the premises to the ejector, founded upon the demise contained in the lease. (a) Adams Eject. 173, 2nd edit. (c) Turner v. Meymott, 1 Bingh. 158. (d) Per Dampier, J. Doe d. Lowe v. Roe, 2 Chitty's R. 177. (e) Savage v. Dent, 2 Str. 1064. Bul. N. P. 97, S. C. (f) Ibid. (g) R. M. 1654, S. 1 K. B. and C. B. |