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in lands for the life of the wife, at least competent for her liveli hood, to take effect in profit or poffeffion, presently after the death of her husband. The title to the lands conveyed as a jointure muft be valid, or it will not bar dower. If a jointure be made after marriage, the woman at the death of the husband may accept it, or refufing it, may have recourfe to her dower at law. The word jointure originally fignified, a joint eftate to the hafband, and wife, but extends alfo to an estate limited to the wife only. A jointure therefore may be created by any form of conveyance, that fecures to the wife, the ufe or improvement of lands, for her life at least, and which ought to be expreffed, to be in lieu of all her dower, and not of any particular part of it.

Jointures originated in England from the introduction of uses, by which one perfon had the ufe and another the property and poffeffion of lands. As a woman could not be endowed of a use, jointures were invented, by which lands were conveyed to the joint ufe of hufband and wife, during their lives. As vies have never been generally introduced into this ftate, the making of jointures has not become a common practice.

As to the incidents of this fpecies of eftate, they are the fame as in tenancy by the curtefy. But in addition to the liability of the tenant, to an action at common law, for the commiffion of wafte, the statute has provided-that every widow endowed of lands and houses, fhall maintain all fuch houfes, buildings, fences, and enclofures, as fhall be affigned, and fet out to her in dower, and fhall leave the fame in good and fufficient repair, and on failure thereof, the county court in the county where the eftate is, on application made, may deliver fo much of the faid houfes, and lands to the next heir of the fame, as they fhall judge to be fufficient, out of the rents and profits of the fame, to repair fuch defects, unless fuch widows will give fufficient fecurity for leaving the fame in good repair.

VOL. I.

LI

CHAP.

e Statutes, 43.

ESTATE

CHAPTER NINTH.

OF ESTATES FOR YEARS.

STATE for years, or tenant for years, is where a man has the ufe and poffeffion of lands, by a contract with the proprietor for a certain and determinate period. The method of creating fuch eftates, is by leafe, and the parties are denominated leffor and leffee. They are a middle kind of estate, between an estate for life and a tenancy at will. Let the period be ever fo fhort, or long, yet in contemplation of law, it is deemed an estate for years, a year being the fhorteft period the law regards. Thus where a perfon has a lease of lands for three months, the law respects him as tenant for years, tho he can improve the lands no longer than the period limited in the leafe. So a leafe for a thousand years, is confidered only as an eftate for years, and the leffee has only a chattel intereft, which by the common law, goes into the hands of the exccutor or adminiftrator after his decease. The eftate of fuch leffee, is not a freehold, while a person who has an eståte for life, is confidered as a freeholder, tho in the ordinary courfe of things it is not poffible that fuch eftate fhould fubiift for fo long a period, as the former. The reafon of this diftinction will be eafily comprehended from a concife view of the origin of leases.

In the early periods of the English government, a leafe for years was of fmall account, and was not permitted to extend beyond the term of forty years. They were made ufe of by the lords of manors, for the purpose of improving and cultivating the large tracts of territory, which they owned. To answer this purpose, fhort leafes were as effectual as long, because the parties might renew them as often as they pleased. These leafes for years, were at first under the power and controul of the proprietors of the lands, and might be defeated by a feigned recovery or conveyance, which rendered them for a period ever fo long, a precarious and uncertain interest. In the reign of Henry VII. it was determined that leafes for years should not be defeated by feigned recoveries, and untrue conveyances, but that the leffee fhould hold and recover poffeffion of the land. This introduced leafes for long terms, and they were ufed for the purpofe of borrowing money upon

f 2 Black. Com. 140. Go. Lit. 44.

them

them, as well as for many other purposes, different from the original design of leafes. When the term for which fuch leafes could be made, was enlarged, these eftates were confidered of the fame nature and fubjected to the fame regulations as leafes for short periods. It would have been extremely inconvenient to have adopted different rules for long and fhort terms. They were all eftates' for years, and of course of the fame nature, and it would have been difficult to fix upon a particular period, or number of years that should divide between estates for years, and freeholds. It was therefore neceflary to apply the fame rules to all eftates for a certain determinate number of years, however different their period of continuance might be. Such eftates therefore are deemed inferior to freeholds, and are contemplated as chattels real.

In confequence of the inferiority of eftates for years, to freeholds, they may be created to commence in future, that is, a lease to commence in three months, or by a certain day, is good. But the conveyance of a freehold eftate, must take inftant effect, and if the estate be to commence in future, it will be void. This doctrine depends upon the old common law principle, that livery of feifin, or delivery of poffeffion is neceflary to pafs a freehold, which muft be done to take inflant effect, and not to operate in future. But eftates for years, being less than a freehold, no delivery of poffeffion was neceffary to pass them, and of courfe they might be created to commence in a future time: but where a freehold estate in remainder, was dependent on an eftate for years, livery of feifin must be made to the tenant for years, to pass the freehold to the remainder man. The tenant for years, on this principle is not faid to be feized of land, he has no property in the foil, he has nothing but a right to ufe and improve for a certain term, which is called his interest in the term. This gives him a right of entry upon the land. And then he becomes poffeffed of the term for years. The legal feifin remaining in the proprietor in fee. Hence the word term not only fignifies the time of the leafe, but

the intereft of the leffee.

By the common law, the actual entry of the leffee was deemed neceffary to render the leafe compleat: but this is unneceflary by our laws; and as foon as the leffee has obtained a leafe, he there

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by

by acquires the right of entry, in cafe the leffor be in poffeffion, or has the right of entry.

Every ftate for years, by whatever words created, must have a certain, a determinate period to commence and terminate. There must therefore at the time of making the leafe, be fome time afcertained by the exprefs agreement of the parties, or a reference to fome collateral act reducible to a certainty, which will fix the commencement and termination of the estate, or it will be void. Thus a leafe to one perfon for fo many years as another shall live, is void, for the term is uncertain, and can never be reduced to a certainty during the time of the leafe: but a leafe for fo many years, as a particular perfon fhall name, is good, because when he has named the number of years, the period is certain, and he is referred to by the parties, as the collateral thing to ascertain the period. A leafe for twenty years, if a particular perfon named fhall live fo long, is good, becaufe here is a certain period determined, beyond which the leafe cannot poffibly extend, tho it may ceafe at an earlier period, upon the death of the perfon named. If a leafe have a falfe or impoffible date, or no date, it takes effect from the delivery; but where the time limited for its commencement is uncertain, it is void.

In respect to the incidents of this fpecies of eftate, it is clear, that all leflees for years, as well as proprietors in fee, and freeholders, may make leafes for years. A lefice for years may affign or grant over the whole of his intereft in a term, or he may grant it for a lefs number of years than he holds it, and fuch leafes are called derivative leafes and fuch derivative leffee, is compellable to pay rent, and perform covenants according to the terms agreed in fuch grant, or affignment.

As to emblements, or the profits of lands fowed, or planted by the tenant for years, the general rule is, that where the expiration of the term depends upon a certainty, the leffee can take no benefit after the expiration of the leafe, of any labour done before that time. If a man has a leafe for a year, commencing and expiring on the first day of April, if he fow winter grain within the year, he fhall have no right to reap it after the end of his term. For it

is the folly of the leffee to fow or plant when his term must certainly ceafe before he can reap. So if the term cease by any act of the leffee, he is not entitled to the emblements. But if the continuance of the leafe be dependent on any contingence, and this happens after the crop is fown, and before it is ripe, the leffee, or his reprefentatives fhall have the emblements.

A queftion has been agitated, whether the common law refpecting emblements, where the termination of the leafe depends upon a certainty, is obligatory in this state. It has been contended that in leafes for years, which have generally been for fhort terms in this ftate, that it is the common understanding of the parties, that the leffce fhall have liberty to fow winter grain, and reap it the feafon after the expiration of the leafe, and that this is a reasonable conftruction in order to enable the leffce to take the full annual benefit of a farm. In making a leafe, it is eafy for the parties to make provision in this refpect, by which the leffee may remove all doubts, and be fecured in every right intended to be conveyed to him. But to admit fuch a conftruction refpecting leafes for years as has been infifted on, would be productive of the most dangerous confequences. It fubverts an ancient and long established maxim of the common law, it deftroys the exprefs agreement of the parties, and admits of a conftruction of a lease, repugnant to the words of it. It render all contracts of this nature perfectly uncertain, because by this conftruction, it cannot be determined how much the leffee for years, may fow the last year of his leafe, it may therefore be in his power to take the use of the land for the year after the expiration of the leafe. To admit a construction of law fubverfive of the principles of contracts, is beyond the power of any court. As the common law refpecting emblements, is founded in reafon, and correfpondent to the fundamental rules of contracts, it must be deemed obligatory in this state.

Tenant for years, is not not by the common law impeachable for waste. He has therefore all the power to do waste upon land, as a proprietor in fee, unlefs fpecially reftricted by fome claufe in the leafe. It is ufual to reftrict the tenant, to use and improve the premises according to the rules of good husbandry. This may

be

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