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)(39) 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, (g) 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 courtrolls 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 *148] full as properly a tenant by 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 virge, 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 humor 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, (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. Tr. 13 Hen. VIII. 15. 16. (r) On copyholds, 51, 54. and from a general occupation such a tenancy will be inferred, unless a contrary intent appear. 3 Burr. 1609. I T. R. 163. 3 T. R. 16. 8 T. R. 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 T. R. 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. I H. B. 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 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. And it must by no means be understood that a strict tenancy at will cannot exist at the present day; for it may clearly be created by the express will of the parties. Id. ibid. 5 B. & A. 604. I Dowl. & 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.-CHITTY. (39) Den v. Drake, 2 N. J. 528, Green (1834). Cooke v. Neilson, I Bright. Pa., 467. It is clearly established that in a tenancy from year to year, the landlord, in order to 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 timber, the non-payment of a fine, and the like. Yet none of these interests 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 corporal seisin or true legal possession, of certain parcels thereof, to these his customary tenants at will. [*149 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 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. () 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 of all lands 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 villeinsocage, (u) and are not said to hold at the will of the lord, but only according (8) Litt. 81. 2 Inst. 325. (t) Mirr. c. 2, 28. Litt. 204, 205, 206. (u) See page 98, etc. determine the tenancy, must give due notice, otherwise the tenant cannot be ejected, but is entitled to hold over for another year. The general custom of tenants of farms in the country, of quitting at a particular season of the year, has laid a strong foundation in convenience for this rule. Otherwise a tenant ejected without notice at the first of April would be left destitute of a home and a means of earning a livelihood until the ensuing first of April; and on the other hand, the landlord whose farm is deserted by the tenant, would suffer the inconvenience and loss of having his property unoccupied until the regular time of letting comes around again. Ibid. 465. A tenant at will, at sufferance, however, or a mortgagor in possession by license from the mortgagee, are not entitled to notice to quit in the usual acceptation of the term. Wakeman v. Banks, 2 Conn. 453 (1818.) A tenant having begun his year under the lease, cannot be ejected, even by a six months' notice, before the end of the year. Boggs v. Black, 1 Binn. Pa., 334 (1808). Fahnestock v. Faustenaur, 5 S. & R. 174 (1819). If, however, the lease is determinable at a particular period, or at the occurrence of a certain event, no notice to quit is necessary. As to the case of lodgings, that depends on a particular contract, and is an exception to the general rule, the parties being governed by the agreement made. See I T. R. 162; I Esp. Rep. 94; Adams, 124; 3 B. & C. 90. Bedford v. McElheron, 2 S. & R. 50. Evans v. Hastings, 9 Barr, 273. Durell v. Johnson, 17 Pick. 263. Allen v. Jaquish, 21 Wend. 628. A tenant who controverts the title of his landlord, is not entitled to notice, and cannot set up the lack of it as a defence against ejectment. Rockwell v. Bradley, 2 Conn. II (1816). 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 to 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. (40) *150] *However, in common cases, copyhold estates are still ranked (for the 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 inheritance, 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. (41) 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. (42) 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 (v) Fitz. Abr. tit. corone; 310, custom. 12 Bro. Abr. tit. custom, 2, 17; tenant per copie, 22. 9 Rep. 76. Co. Litt. 59. Co. Copyh. 32. Cro. Car. 229. 1 Roll. (40) Allen v. Carpenter, 15 Mitch. 34 (1866). Mayor of Basingstoke v. Lord Bolton, I Dreweys Ch. Rep. 293 (1852). Merwin v. Camp, 3 Conn. 44 (1819). (41) Copyhold or customary tenure may be put an end to by a grant from the lord of the freehold or of his seignorial rights. This is called enfranchisement, and the tenant by this means become seised in common socage of the lands, which he thenceforth holds as tenant to the superior lord of whom the lord held before the grant. If again copyhold and freehold titles become united in one person, extinguishment takes place, the copyhold interest merging and becoming extinguished in the superior one. Formerly the granting of enfranchisement to a tenant was entirely within the breast of the lord, and the tenant had no means of obtaining an alteration in his tenure. Where the fine imposed by the lord upon the change of a tenant is arbitrary instead of certain, the position of the copyholder is a very disadvantageous one; and the legislature has of late years been disposed to look upon the impediments thus opposed to the free alienation of lands as a public grievance. Accordingly, several acts have been passed during the present reign (Victoria) with the object of facilitating enfranchisement, the last of which (15 & 16 Vict. c. 51) has enabled tenants to compel the lord to grant enfranchisement, and the lord, if he pleases, to compel tenants to accept it,-in either case, on terms which in case of dispute are fixed by the commissioners appointed for this purpose by the statute. -KERR. (42) If an estate is leased to a man and his wife to be held during the lives of both, and one remains in possession after the death of the other, he is a tenant by sufferance. Livingstone v. Tanner, 12 Barb. N. Y. 484 (1852). If a man sell his estate, promising to give possession upon a certain day, and holds after the time stipulated, he becomes a tenant by sufferance. Hyatt v. Wood, 4 Johnson, 156 N. Y. (1809). A continuance in possession by the grantor after a grant, must be presumed to be by the tacit consent of the grantees, and therefore not tortious, consequently trespass cannot be maintained against him until after entry or notice to quit. Keay v. Goodwin, 16 Mass. 4 (1819). Sims v. Humphrey, 4 N. Y. Denio, 188 (1847). Allen v. Carpenter, 15 Mich. 42 (1866). The tenant, however, is not a trespasser, unless he attempts to retain possession after entry by the owner. Tiedeman on Real Property, 2 ed. 189. A tenant by the month who remains in possession of the premises after his term has expired, holds by the laches of his landlord, and at common law is entitled to no notice to quit. Anderson v. Brewster, 44 Ohio, 580 (1886). A tenant by sufferance, being not by the consent, but by the laches of the owner, it follows that there can be no tenancy by sufferance where there has been no laches. Moore v. Morrow, 28 Cal. 554 (1865). A tenant by sufferance is not, by the common law, liable for rent, as he holds by reason of the laches of the owner, and the latter has a right to enter and terminate the tenancy at any time. Hogsett v. Ellis, 17 Mich. 368 (1868). Jackson v. Cairnes, 20 N. Y. Johnson 305 (1822). Williams v. Snidow, 4 Leigh, Va. 18 (1832). Hauxhurst v. Somers, 38 Cal. 563 (1869). Rowan v. Lytle, 11 Wendell, N. Y. 619 (1834). Wood, Landlord and Tenant, 12 (1 ed. 1884). Taylor, Landlord and Tenant, 53. 2 Waterman on Trespass, 421. 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)(43) 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. (x) 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. (44) *Thus stands the law with regard to tenants by sufferance, and [*151 landlords are obliged in these cases to make formal entries upon their lands, (2) and recover possession by the legal process of ejectment;(45) and at the utmost, by the common law, the tenant was bound to account for the profits of the land so by him detained. But now, by the statute 4 Geo. II. (w) Co. Litt. 57. (z) Ibid. (y) Co. Litt. 57. (43) A mortgagor who is suffered to continue in possession by the mortgagee is a tenant at sufferance. 5 B. & A. 604. So a person who has been let into possession under an agreement for a lease, and from whom the landlord has not received rent; for he, having no legal interest, may, after demand, be evicted by the landlord, (2 Taunt. 148;) though it would be otherwise if rent were received, which would afford evidence of a tenancy from year to year. 13 East, 19. So, if a purchaser be let into possession before conveyance of the legal interest, he is a mere tenant at sufferance, and may be evicted after de. mand of the possession. 3 Camp. 8. 13 East, 210. 2 M. & S. 8. Lord Coke tells us (in 2 Instit. 134) this diversity is to be observed: that where a man cometh to a particular estate by the act of the party, there, if he hold over, he is a tenant at sufferance; but where he cometh to the particular estate by act of law, as a guardian, for instance, there, if he hold over, he is no tenant at sufferance, but an abator. The same doctrine is laid down in I Inst. 271. Formerly tenants at sufferance were not liable to pay any rent for the lands, because it was the folly of the owners to suffer them to continue in possession after the determination of their rightful estate. Finch's case, 2 Leon, 143.-CHITTY. Russell v. Fabyan, 34 N. H. 218, 223 (1836). Between the two parties to a mortgage there is a privity, and if the mortgagor remains in possession, it is a fair inference that he does so by sufferance of the mortgagee. But if the mortgagor lease his claim, there is no privity between the lessee and the mortgagee, and the very act by which he claims to possess the mortgaged estate, that is the lease of the mortgagor, terminates the estate and renders the pretended lessee a wrongdoer. "A mortgagor is no more than a tenant at sufferance, not entitled to notice to quit, and one tenant at sufferance cannot make another." Rockwell v. Bradly, 2 Conn. 16 (1816). (44) Jackson v. Cairnes, 20 N. Y. 306, Johnson (1822). Keay v. Goodwin, 16 Mass. 4 (1819). Williams v. Snidow, 4 Leigh, Va. 19 (1832.) Rowan v. Lytle, 11 Wend. N. Y. 619 (1834). Livingston v. Tannor, 2 Kernan (N. Y.) 69 (1856). Russell v. Fabyan, 34 N. H. 218, 224 (1856). In case of the death of the lessor, however, whether the tenant is tenant at will or by sufferance, the heirs have a right of entry. Camp v. Camp, 5 Conn. 302 (1824). 53. (45) 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. I Price Rep. I Bingh. 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 pleaded in bar. Therefore a person who wrongfully holds over cannot distrein the cattle of the landlord put on the premises (7 T. R. 471,) or sue him in trespass for his entry. I Bingh. Rep. 158.-CHITTY. c. 23, 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, 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. (46) 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 (46) A more summary proceeding still is given by statute 1 & 2 Vict. c. 74, where possession is unlawfully held over after the determination of the tenancy, where there is no rent, or where the rent does not exceed 20l. a year. In such cases the landlord may give the tenant or occupier notice of his intention to proceed to recover possession under the authority of the act; and if the tenant does not appear, or fails to show cause why he does not give possession, two justices of the peace, acting for the district, may issue a warrant under their hands and seals, directing the constables to give the landlord possession. And now, by statute 9 & 10 Vict. c. 94, s. 122, so soon as the term and interest of the tenant of any house or land where the value of the premises or the rent did not exceed 50l. per annum, and on which no fine had been paid, shall have ended, or be duly determined by a legal notice to quit, and the tenant shall refuse to quit, the landlord may enter a plaint in the county court and obtain possession through a bailiff of the county, who may be empowered to enter on the premises, with such assistants as he shall deem necessary, and give possession accordingly.-STEWART. (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, etc.) a grant of them may be restrained by a condition created after the execution of such grant. Co. Litt. 237, a. Littleton (in his 328th and three following sections) 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 "so that," 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, make a good condition. This distinction is also noticed in Shep. Touch. 122, where it is also laid down that although the words "proviso,' so that," and "on condition 99 are the most 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 by the following circumstances:Ist. When the clause wherein they are found in 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, 99 66 |