is an estate for years. And therefore this estate is frequently called a term, terminus, because its duration is bounded, limited, and determined for every such estate must have a certain beginning, and certain end. Having a certain end, this estate is inferior to any freehold; for an estate for life, even if it be pur auter vie, is a freehold; but an estate for a thousand years is only a chattel, and reckoned part of the personal estate. And, because no livery of seisin is necessary to a lease for years, such lessee is not said to be seised; nor, indeed, does the lease vest any estate in him. It gives him only a right of entry on the tenement, which right is called his interest in the term, or interesse termini: when he has actually entered, and thereby accepted the grant, the estate is then, and not before, vested in him, and he is possessed, not of the land, but of the term of years therein; the possession or seisin of the land remaining still in him who has the freehold.

Tenant for term of years has incident to his estate, unless by special agreement, the same estovers which tenant for life is entitled to. But with regard to emblements, there is this difference: that where the term depends upon a certainty, as if the tenant holds from midsummer for ten years, and in the last year he sows a crop of corn, and it is not ripe and cut before midsummer, the landlord shall have it; for the tenant knew the expiration of his term, and therefore it was his own folly to sow what he never could reap the profits of. But where the lease for years depends upon an uncertainty: as, if the term be determinable upon a life or lives, the tenant, or his executors, shall have the emblements in the same manner that a tenant for life or his executors is entitled thereto. It is different if the lease be determined by himself: as if the tenant does anything that amounts to a forfeiture: here the emblements shall go to the lessor and not to the lessee, who has determined his estate by his own default.

II. An estate at will is where lands and tenements are let by one man to another, to have and to hold at the will of the lessor; and the tenant by force of this lease obtains possession. Such estate is at the will of both parties; so that either of them may determine his will, and quit his connection with the other at his own pleasure. Yet if the tenant sows his land, and the landlord, before the corn is ripe or before it is reaped, puts him out, the tenant shall have the emblements. But it is otherwise where the tenant himself determines the will, for in this case the landlord shall have the profits of the land.

The courts of law have long leaned as much as possible against con❤ struing demises, where no certain term is mentioned, to be tenancies at will. They have rather held them to be tenancies from year to

year so long as both parties please, especially where an annual rent is reserved 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.

An estate held by copy of court-roll, or, as we usually call it, a copyhold, was, in its origin, nothing better than a mere estate at will. But this, as we have seen, has long been nothing but a name; and every copyhold tenant may have, so far as the custom of the manor warrants, any other of the estates which we have hitherto considered, or may hereafter consider, and hold them united with this customary estate at will. He may be tenant in fee-simple, in fee-tail, for life, by the courtesy, 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, as established by immemorial custom, has declared to be a forfeiture or 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.

In legal parlance, however, copyhold estates are still ranked among tenancies at will; though custom has established a permanent property in the copyholders, equal to that of the lord himself, in the tenements holden of the manor. And the law has provided for the determination of this mutual will, regulated by custom, in its own way; by providing that a copyhold tenure may be put an end to, by a grant from the lord of the freehold, which is called enfranchisement, the tenant by this means becoming seised in common socage of the lands; or by the copyhold and freehold titles becoming united in one person, whereupon extinguishment takes place, the copyhold interest merging in the superior estate. And as enfranchisement is now, on the application of either lord or tenant, compulsory, and obtainable on terms which, in case of dispute, are fixed by the Enclosure commissioners appointed for this purpose by statute, these tenancies at the will of the lord will in course of time cease to exist.

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 the year is expired, continues to hold the premises without any fresh lease from the owner of the estate. 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: and the reason is, because the tenant being once in by a lawful

title, the law 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 wrongful. By statute 2 Geo. II. c. 19, a tenant wilfully holding over after the determination of the term, and demand of possession made by the landlord, shall pay for the time he detains the lands, double their yearly value; and a tenant having given notice to quit not delivering up the possession at the proper time, shall pay double the former rent; so that tenancy by sufferance, unless with the tacit consent of the owner, is almost unknown.

CHAPTER VII.

OF ESTATES UPON CONDITION.

Offices forfeited by mis-user or non-user-Mortgages-Equity of redemption— Foreclosure-Power of sale.

BESIDES these several estates, there is another species, estates upon condition, which I have reserved till the last, because they are 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 be an estate upon condition. These estates are either:-I. Estates upon condition implied; or, II. Estates upon condition expressed; under which last may be included-1. Estates held in vadio, gage, or pledge; 2. Estates by statute merchant, or statute staple; 3. Estates held by elegit.

I. Estates upon condition implied in law, are where a grant of an estate has a condition annexed to it inseparably from its essence and constitution, although no condition be expressed in words. As, if a grant be made to a man of an office, generally, without adding other words, the law tacitly annexes hereto a secret condition, that the grantee shall duly execute his office. For an office, either public or private, may be forfeited by mis-user or non-user, both of which are breaches of this implied condition: 1. By mis-user, or abuse; as if a judge takes a bribe, or a park-keeper kills deer without authority. 2. By non-user, or neglect; which in public offices, that concern the administration of justice, or the commonwealth, is of itself a direct and immediate cause of forfeiture; unless some special damage is proved to be occasioned thereby. Franchises also, being regal privileges in the hands of a subject, are held to be granted on the

same condition of making a proper use of them; and therefore they may be lost and forfeited, like offices, either by abuse or by neglect.

II. An estate on condition expressed in the grant itself is where an estate is granted, with an express qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such condition. And these conditions are either precedent or subsequent. Thus, if an estate be limited to A, upon his marriage with B, the marriage is a precedent condition, and till that happens, no estate is vested in A. Or, if a man grant to his lessee for years, that upon payment of a hundred marks within the term he shall have the fee, this also is a condition precedent, and the fee-simple passeth not till the hundred marks be paid. So, if a man grant an estate, reserving to himself a certain rent; and that if such rent be not paid, it shall be lawful for him to re-enter, and avoid the estate: in this case the grantee and his heirs have an estate upon condition subsequent, which is defeasible if the condition be not strictly performed.

But in all these and in similar cases, so long as the condition remains unbroken, the grantee may hold the estate. Some estates defeasible upon condition subsequent, require however a more peculiar notice. Such are,—

1. Estates held in vadio, in gage, or pledge; as where a man borrows of another a specific sum, e.g., 2007., and grants him an estate in fee, on condition that if he, the mortgagor, shall repay the mortgagee the said sum of 2007. on a certain day, that then the mortgagee shall reconvey the estate to the mortgagor: in this case, the land which is so put in pledge, is by law, in case of nonpay- ▾ ment at the time limited, for ever dead and gone from the mortgagor; and the mortgagee's estate in the lands is then no longer conditional, but absolute.

As soon as the estate is created, the mortgagee may immediately enter on the lands; but is liable to be dispossessed upon performance of the condition by payment of the mortgage-money at the day limited. And therefore the usual way is to agree that the mortgagor shall hold the land till the day assigned for payment; when, in case of failure, whereby the estate becomes absolute, the mortgagee may enter upon it and take possession, without any possibility at law of being afterwards evicted by the mortgagor, to whom the land is now for ever dead. But here the courts of equity interpose; and though a mortgage be forfeited, and the estate thus absolutely vested in the mortgagee, yet they consider the real value of the tenements compared with the sum borrowed. And, if the estate be of greater value than the sum lent, they will allow the mortgagor, at any time within twenty years, to redeem his estate; paying to the mortgagee

his principal, interest, and expenses. This reasonable advantage is called the Equity of Redemption: and enables a mortgagor to call on the mortgagee, who has possession of his estate, to deliver it back and account for the rents and profits received, on payment of his whole debt and interest. On the other hand, the mortgagee may either compel the sale of the estate, in order to get the whole of his money immediately; or else call upon the mortgagor to redeem his estate presently, or, in default thereof, to be for ever foreclosed from redeeming the same; that is, to lose his equity of redemption, without possibility of recall. And in modern mortgages it is accordingly usual to give the mortgagee a power of sale, which indeed is now, unless expressly excluded, incident to every mortgage, whereby he may realize his security much more conveniently than by a foreclosure; for the courts of equity do not interfere with the exercise of such powers, the mortgagee being only bound to account for the residue of the proceeds of the sale, after paying himself principal, interest, and the expenses of the sale. Nor is it usual for mortgagees to take possession of the mortgaged estate, unless where the security is precarious or small; or where the mortgagor neglects even the payment of interest: when the mortgagee is frequently obliged to bring an ejectment, and take the land into his own hands. But after payment or tender by the mortgagor of principal, interest, and costs, the mortgagee cannot maintain an action of ejectment; but may be compelled to re-assign his securities.

2. Estates also defeasible on condition subsequent, are those held by statute merchant and statute staple, which were securities for money; the one entered into before the chief magistrate of some trading town, pursuant to the statute of 13 Edw. 1. de mercatoribus; the other pursuant to the statute 27 Edw. III., c. 9, before the mayor of the staple, that is to say, the grand mart for the principal commodities or manufactures of the kingdom, formerly held in certain trading towns, from whence this security derived its name. Both have fallen into entire disuse.

3. An estate by elegit is also an estate upon condition subsequent, created by operation of law, for satisfaction of a debt. For after a plaintiff has obtained judgment, the sheriff will, under a writ of execution, give him possession of the defendant's lands, to be by him enjoyed, until his debt and damages are fully paid: and during the time he so holds them, he is called tenant by elegit. From this it would seem that the feudal restraints of alienating lands, and charging them with the debts of the owner, were softened much earlier, and much more effectually for the benefit of trade and commerce, than for any other consideration.