interest, or of creating out of it any estate less than his own; unless he is restrained by condition.

32. If a tenant for life creates a greater estate than his own, it must necessarily be void, upon the principle that nemo dat quod non habet. And such conveyance will operate in many cases as a forfeiture of his estate, as will be shewn hereafter. But where

the person who is entitled to the inheritance is a party to the deed, there the tenant for life may join with him in conveying away the entire inheri

tance.

Title Deeds.

33. Although every person having a freehold When they interest has a right to the custody of the title deeds; may keep the yet Lord Hardwicke has said, it was the common practice for the Court of Chancery to direct the title deeds to be taken from the tenant for life, and deposited in court, for the security of the persons entitled to the inheritance.

1 Atk. 431.

2 P. Wms.

477.

Dick. 650.

Hicks,

34. It is however laid down in a modern case, that Hicks v. when the title deeds are in the hands of the tenant for life, the Court of Chancery will not take them from him; but when they are not in his hands, the court will not order them to be delivered to him. In a subsequent case it was said, that where the tenant for life was satisfied, and did not care about the deeds, Ford v. Puring, but the remainder man was not satisfied, the court 1 Ves. Jun.

would take care of them, and not leave them in the 72.

hands of third persons.

Duncomb v.
Mayer,

35. In a late case, Lord Eldon directed the title deeds of an estate to be delivered out of court, Ves. 320. upon the application of trustees and tenant for life, founded on the authority of Lord Henley, who had stated it as his opinion, that the tenant for life should have the possession of the deeds, when they were not brought into court under an order for safe custody.

What acts
create a
Forfeiture.
Gilb. Ten.

38. Wright's Ten. 203.

1 Inst. 251 a.

Tit. 32. c. 4.

1 Roll. Ab. 851.

Tit.32.c.10.

Tit.35, 36.

36. Estates for life are still considered in some respects as strict feuds, being forfeitable for many of the causes for which feuds were formerly forfeited. Thus where a tenant for life takes upon him to convey a greater estate or interest than that which he has, whereby the estate in remainder or reversion is divested, such conveyance will operate as a forfeiture of his estate for life; because it is a renunciation of the feudal connexion between him and his lord, and the person in remainder or reversion may enter for the forfeiture.

37. Alienations of this kind may be either by deed or by matter of record. By deed, as if a tenant for life makes a feoffment in fee to a stranger, it is a forfeiture; so if there be tenant for life, remainder to another for life, and both the tenants for life join in a feoffment in fee to a stranger, it is a forfeiture of both their estates.

38. If baron and feme tenants for life make a feoffment, this is a forfeiture during the coverture. So where the baron is seised in right of his wife, and the baron and feme make a feoffment; it is the same where the baron alone makes a feoffment. But in these cases it shall not be any forfeiture against the wife, after the death of her husband.

39. There are however several modern modes of assurance which do not divest the estate in remainder or reversion; and therefore have not the effect of creating a forfeiture of an estate for life.

40. By matter of record; as where a tenant for life levies a fine, or suffers a common recovery, such assurances will in general operate as a forfeiture of his estate; unless the person in remainder or reversion is a party to them.

c. 1. 84.

for Life. C.

41. Tenant for life may also forfeit his estate by disclaiming to hold of his lord; or by affirming or impliedly admitting the reversion to be in a stranger. This doctrine is founded on a rule of the feudal law, Dissert. that if the vassal denied the tenure, he forfeited his feud. Now this denial may be when the vassal claims the reversion himself, or accepts a gift of it from a stranger, or acknowledges it to be in a stranger for in all these cases he denies that he Bac. Ab. Est. holds the feud from the lord. But as by the feudal law the vassal was to be convicted of this denial; so, in the English law, those acts which plainly amount to a denial must be done in a court of record, to make them a forfeiture: because such act of denial appearing on record is equivalent to a conviction upon solemn trial. All other denials that might be used by great lords for trepanning their tenants, and for a pretence to seize their estates, were, by our law, rejected, for such convictions might be obtained without any just cause; but the denial of the tenure upon record could never be counterfeited, or abused to any injustice.

42. If therefore a tenant for life be disseised, and 1 Inst. 251 b. bring a writ of right, this is a forfeiture of his estate; because, by suing that writ, he admits the reversion in fee to be in himself, and by consequence denies that he holds over. So it is if, in a writ of right brought against him, he joins the mise on the mere right; for, by taking upon himself the privileges of tenant in fee, he admits the inheritance to be in himself, which is a denial of the tenure.

1 Roll. Ab.

853.

43. If a stranger brings an action of waste against 1 Inst. 252 a. a tenant for life, and he pleads nul waste fait, in bar to the action, this is a forfeiture: because by this plea he admits the stranger to be a proper person to punish the waste, if there had been any.

P. C. V. 1. 251.

3 Inst. 19.

Of General
Occupancy.

1 Inst. 41 b. 2 Comm. 259.

Idem.

Estates pour

auter vie vest

44. If the demandant in a real action recovers against the tenant for life, by default, or nient dedire, or by pleading covenously, to the disherison of the person in reversion, these are forfeitures of his estate. For the tenant for life is intrusted with the freehold, and is to answer to stranger's præcipes, and defend his own, as well as the reversioner's, interest. But when he gives way to the demandant's action, he admits the right of the reversion to be in him, and consequently denies any tenure of his reversioner ; which is a forfeiture.

45. Estates for life are forfeited by attainder of treason or felony; and Lord Hale says, if tenant for life be attainted of treason, the king hath the freehold during the life of the party attainted. In the case of felony, the profits of the land are forfeited during the life of the tenant for life.

-46. By the common law, where a person was tenant pour auter vie, and died during the life of cestui que vie, the person who first entered on the land after his death might lawfully retain the possession thereof, as long as cestui que vie lived, by right of occupancy; because it belonged to nobody.

47. Where the king had the reversion, no right of occupancy was allowed; for if the king's title and a subject's concur, the king's shall always be preferred: against the king therefore there could be no prior occupant.

48. There can be no occupant of incorporeal hereditaments, such as advowsons, rents, &c., of which notice will be taken hereafter.

49. The right of general occupancy is now taken in Executors. away by the statute 29 Cha. II. c. 3. § 12. which enacts-"That any estate pour auter vie shall be devisable by will, &c., and if no such devise thereof be made, the same shall be chargeable in the hands

of the heir, if it shall come to him by reason of a special occupancy, as assets by descent, as in case of lands in fee simple. And in case there be no special occupant thereof, it shall go to the executors or administrators of the party that had the estate thereof by virtue of the grant; and shall be assets in their hands."

50. By the statute 14 Geo. II. c. 20. § 9. reciting the statute 29 Cha. II., and that doubts had arisen, where no devise had been made of such estates, to whom the surplus, after debts paid, should belong; it is enacted-" That such estates pour auter vie, in case there be no special occupant thereof, of which no devise shall have been made, according to the said act, or so much thereof as shall not have been so devised, shall go, be applied and distributed, in the same manner as the personal estate of the testator or intestate."

7 Ves. 425.

Waterworth,

51. It was held by Lord Eldon, in a modern case, Ripley v. that the interest in an estate pour auter vie to a man, his executors, administrators, and assigns, beyond the debts, belongs to those who are entitled to the personal estate.

52. Where an estate was limited to a man and Of Special his heirs, or the heirs of his body, during the life Occupancy. of another person, no general right of occupancy could arise; for the heir, or heir of the body of such grantee, might and still may enter on the death of his ancestor, and hold the possession as special occupant; having an exclusive right, by the terms of the original contract, to occupy the lands during the residue of the estate granted.

53. It is stated in Roll's Abridgement, from a Tit. Occucase in Dyer, that if a man leases land to one and pant,'G. pl. 2. Dyer, 328. his executors for the life of J. S., and cestui que vie pl. 10.