these recoveries, however clandestinely introduced, are now become by long use and acquiescence a most common assurance of lands; and are looked upon as the legal mode of conveyance, by which tenant in tail may dispose of his lands and tenements: so that no court will suffer them to be shaken or reflected on, and even acts of parliament (o) have by a sidewind countenanced and established them.

This expedient having greatly abridged estates-tail with regard to their duration, others were soon invented to strip them of other privileges. The next that was attacked was their freedom from forfeitures for treason. For, notwithstanding the large advances made by recoveries, in the compass of about threescore years, towards unfettering these inheritances, and thereby subjecting the lands to forfeiture, the rapacious prince then [118] reigning, finding them frequently resettled, in a similar manner to

suit the convenience of families, had address enough to procure a statute, (p) whereby all estates of inheritance (under which general words estates-tail were covertly included) are declared to be forfeited to the king upon any conviction of high treason.

The next attack which they suffered in order of time, was by the statute 32 Hen. VIII. c. 28. whereby certain leases made by tenants in tail, which do not tend to the prejudice of the issue, were allowed to be good in law, and to bind the issue in tail. 23 But they received a more violent blow, in the same session of parliament, by the construction put upon the statute of fines, (q) by the statute 32 Hen. VIII. c. 36. which declares a fine duly levied by tenant in tail to be a complete bar to him and his heirs, and all other persons claiming under such entail. This was evidently agreeable to the intention of Henry VII. whose policy it was (before common recoveries had obtained their full strength and authority) to lay the road as open as possible to the alienation of landed property, in order to weaken the overgrown power of his nobles. But as they, from the opposite reasons, were not easily brought to consent to such a provision, it was therefore couched, in his act, under covert and obscure expressions. And the judges, though willing to construe that statute as favourably as possible for the defeating of entailed estates, yet hesitated at giving fines so extensive a power by mere implication, when the statute de donis had expressly declared, that they would not be a bar to estates-tail. But the statute of Henry VIII., when the doctrine of alienation was better received, and the will of the prince more implicitly obeyed than before, avowed and established that intention. Yet, in order to preserve the property of the crown from any danger of infringement, all estates-tail created by the crown, and of which the crown has the reversion, are excepted out of this statute. And the same was done with regard to common recoveries, by the statute 34 & 35 Hen. VIII. c. 20. which enacts, that no feigned recovery had against tenants in tail, where the estate was created by the crown, (r) and the remainder or reversion continues still in the crown, shall be of any force and effect. Which is [119] allowing, indirectly and collaterally, their full force and effect with respect to ordinary estates-tail, where the royal prerogative is not concerned. Lastly, by a statute of the succeeding year, (s) all estates-tail are rendered liable to be charged for payment of debts due to the king by record or special contract; as since, by the bankrupt laws, (t) they are also subjected

o 11 Hen. VII. c. 20. 7 Hen. VIII. c. 4. 54 & 35 Hen. VIII. c. 20. 14 Eliz, c. 8. 4 & 5 Ann. c. 16. 41 Geo. II. c. 20. r Co. Litt. $72.

p 26 Hen. VIII. c. 13.

$ 33 Hen. VIII. c. 39. § 75.

(23) See page 319. post.

q 4 Hen. VII. c. 24.

t Stat. 21 Jac. I. c. 19.

24

to be sold for the debts contracted by a bankrupt. And, by the construction put on the statute 43 Eliz. c. 4. an appointment (v) by tenant in tail of the lands entailed, to a charitable use, is good without fine or recovery.

Estates-tail, being thus by degrees unfettered, are now reduced again to almost the same state, even before issue born, as conditional fees were in at common law, after the condition was performed, by the birth of issue. For, first, the tenant in tail is now enabled to aliene his lands and tenements, by fine, by recovery, or by certain other means; and thereby to defeat the interest as well of his own issue, though unborn, as also of the reversioner, except in the case of the crown: secondly, he is now liable to forfeit them for high treason: and lastly, he may charge them with reasonable leases, and also with such of his debts as are due to the crown on specialties, or have been contracted with his fellow-subjects in a course of extensive com

merce.

CHAP. VIII.

OF FREEHOLDS, NOT OF

* INHERITANCE.'

We are next to discourse of such estates of freehold, as are not of inheritance, but for life only. And of these estates for life, some are conventional, or expressly created by the act of the parties; others merely legal, or created by construction and operation of law. (a) We will consider

them both in their order.

I. Estates for life, expressly created by deed or grant (which alone are properly conventional), are where a lease is made of lands or tenements to a man, to hold for the term of his own life, or for that of any other person, or for more lives than one in any of which cases he is styled tenant for life; only when he holds the estate by the life of another, he is usually called tenant per auter vie. (b) These estates for life are, like inheritances, of feodal nature; and were, for some time, the highest estate that any man could have in a feud, which (as we have before seen) (c) was not in its original hereditary. They are given or conferred by the same feodal rights and solemnities, the same investiture or livery of seisin, as fees themselves are;2 and they are held by fealty, if demanded, and such conventional rents and services as the lord or lessor, and his tenant or lessee, have agreed on.

Estates for life may be created, not only by the express words be[121] fore mentioned, but also by a general grant, without defining or limiting any specific estate. As, if one grants to A. B. the manor of Dale, this makes him tenant for life. (d) For though, as there are no words of

(24) 6 Geo. IV. c. 16. s. 65.

c pag. 55.

d Co. Litt. 42.

(1) See in general, Bac. Ab. Estate for Life and Occupancy; Com. Dig. Estates, E. & F.; 1 Cru. Dig. 59. and index, tit. Estate for Life; 1 Prest. on Conv. 43. 84. ;Fearne Con. Rem. index, tit. Life Estate.

(2) Or by deeds acting under the statute of uses, as bargain and sale covenant to stand seised, &c. without livery. Archbold,

inheritance or heirs, mentioned in the grant, it cannot be construed to be a fee, it shall however be construed to be as large an estate as the words of the donation will bear, and therefore an estate for life. Also such a grant at large, or a grant for a term of life generally, shall be construed to be an estate for the life of the grantee; (e) in case the grantor hath authority to make such grant: for an estate for a man's own life is more beneficial and of a higher nature than for any other life; and the rule of law is, that all grants are to be taken most strongly against the grantor, (ƒ) unless in the case of the king.

Such estates for life will, generally speaking, endure, so long as the life for which they are granted: but there are some estates for life, which may determine upon future contingencies, before the life, for which they are created, expires. As, if an estate be granted to a woman during her widowhood, or to a man until he be promoted to a benefice; in these, and similar cases, whenever the contingency happens, when the widow marries, or the grantee obtains a benefice, the respective estates are absolutely determined and gone. (g) Yet while they subsist, they are reckoned estates for life; because, the time for which they will endure being uncertain, they may by possibility last for life, if the contingencies upon which they are to determine do not sooner happen. And moreover, in case an estate be granted to a man for his life, generally, it may also determine by his civil death as if he enters into a monastery, whereby he is dead in law: (h) for which reason in conveyances the grant is usually made "for the term of a man's natural life;" which can only determine by his natural death, (i)

The incidents to an estate for life are principally the following ; · which are applicable not only to that species of tenants for life, which [122] are expressly created by deed; but also to those which are created by act and operation of law.

1. Every tenant for life, unless restrained by covenant or agreement, may of common right take upon the land demised to him reasonable estovers (k) or botes. (1) For he hath a right to the full enjoyment and use of the land, and all its profits, during his estate therein. But he is not permitted to cut down timber or to do other waste upon the premises: (m) for the destruction of such things as are not the temporary profits of the tenement, is not necessary for the tenant's complete enjoyment of his estate; but tends to the permanent and lasting loss of the person entitled to the inheritance. 3

2. Tenant for life, or his representatives, shall not be prejudiced by any sudden determination of his estate, because such a determination is contingent and uncertain. (n) Therefore if a tenant for his own life sows the lands, and dies before harvest, his executors shall have the emblements, or profits of the crop for the estate was determined by the act of God,fand

e Co. Litt. 42.
i See Book i. p. 132.

f Ibid. 36.

g Co. Litt. 42. 3 Rep. 20.
k See p. 35.
1 Co. Litt. 41.
n Co. Litt. 55.

h 2 Rep. 43.
m Ibid. 53.

(3) See p. 283. post, in what cases the tenant for life may cut down timber, as for necessary repairs, &c. and commit what in law is called waste.

(4) As to emblements in general, what they are, and who shall have them, see Com. Dig. Biens, G. 1, 2.; Vin. Ab. Emblements and Executors, U.; Bac. Ab. Executors, H. 3.; Co. Litt. 55. a. b.; Toller's Law of Executors, book 2. ch. 4, &c. . 3 Atk. 16. Emblements are corn, peas, beans, tares, hemp, flax, and annual roots, as parsnips, carrots, and turnips, id. ibid.; aud if a lessee for life of a hop ground dies in August before severance of the hops, the executor shall have them, though on ancient roots, for all these are produced by great manurance and industry. Cro. Car. 515. Co. Litt. 55. b. note 1. Toller, b. 2. ch. 4. But all other roots and trees not annuals, and fruits on the trees, though ripe, and grass growing, though ready to be cut into

it is a maxim in the law, that actus Dei nemini facit injuriam. The representatives, therefore, of the tenant for life shall have the emblements to compensate for the labour and expense of tilling, manuring, and sowing the lands; and also for the encouragement of husbandry, which being a public benefit, tending to the increase and plenty of provisions, ought to have the utmost security and privilege that the law can give it. Wherefore by the feodal law, if a tenant for life died between the beginning of September and the end of February, the lord, who was entitled to the reversion, was also entitled to the profits of the whole year; but if he died be[123] tween the beginning of March and the end of August, the heirs of

the tenant received the whole. (0) From hence our law of emblements seems to have been derived, but with very considerable improvements. So it is also, if a man be tenant for the life of another, and cestuy que vie, or he on whose life the land is held, dies after the corn is sown, the tenant per auter vie shall have the emblements. The same is also the rule, if a life-estate be determined by the act of law. Therefore if a lease be made to husband and wife during coverture (which gives them a determinable estate for life), and the husband sows the land, and afterwards they are divorced a vinculo matrimonii, the husband shall have the emblements in this case; for the sentence of divorce is the act of law. (p) But if an estate for life be determined by the tenant's own act (as, by forfeiture for

hay, and though improved by manure, and the labour and industry of the occupier, by trenching, or sowing hay seed, are not emblements, but belong to the remainder-man or heir. Com. Dig. Biens, G. 1. Toller, b. 2. ch. 4.

With respect to who is entitled to emblements, lord Ellenborough observed, in 8 East, 345. that the distinction between the heir and devisee in this respect. is capricious enough. In the testator himself, the standing corn, though part of the realty, subsists for some purposes, as a chattel interest, which goes on his death to his executors, as against the heir; though, as against the executors, it goes to the devisee of the land, who is in the place of the heir, unless otherwise directed. This is founded upon a presumed intention of the devisor in favour of the devisee. But this again may be rebutted by words which shew an intent that the executor shall have it. A devise to the executor of all the testator's stock on the farm, entitles him to the crops, in opposition to the devisee of the estate. 6 East. 604. note d. 8 East, 339. Com. Dig. Biens, G. 2. Every one who has an uncertain estate or interest, if his estate determines by the act of God, before severance of the corn, shall have the emblements, or they go to his executor or administrator. As, if a tenant for life sow the land, and die before severance, or tenant pur auter vie and cestry que vie, dies, or tenant for years if he so long live, or the lessee of tenant for life, or if a lessee strictly at will, die, or if tenant by statute merchant, &c. sow, and be satisfied by the casual profit before severance. Co. Litt. 55. 6. Com. Dig. Biens, G. 2. However, a lessee of tenant for life is bound to take notice of the time of the death, and if, in ignorance of it, he afterwards sow corn, he is not entitled to it. Bro. Ab. Notice, pl. 15. Vin. Ab. Notice, A. 2. pl. 5.

It has been held, that if a devise be to A. for life, remainder to B., and before severance A. dies, B. shall have them. Cro. Eliz. 61. Win. 51. Godb. 159; and that if a devise be to A. for life, who dies before severance, he in reversion shall have them, Cro. Eliz. 61.; but the contrary is established, and that the executor of the tenant for life shall have them, it being for the benefit of the kingdom, which is interested in the continual produce of corn, and will not suffer them to go to the remainderman. 3 Atk. 16.

If the particular estate determine by the act of another, as if lessee at will sow the land, and before the severance the lessor determines his will, the lessee shall have the emblement. Co. Litt. 55.

But if a person have a certain interest, and knows the determination of it, he shall not have the cinblements at the end of his term, unless he can establish a right to an away going crop, as sometimes exists by custom or local usage, as if lessee for years sow his land, and before the corn be severed his term ends, the lessor, or he in reversion, shall have the corn, Co. Litt. 55.; and if an outgoing tenant sow corn even under a bona fide supposition that he is entitled to an away going crop, when he is not so, and after the expiration of his tenancy cut and carry away the corn, the landlord may support trover for the same. 1 Price Rep. 53.

So if a person determines his estate by his own act, he shall not have emblements, as if lessee at will sow and afterwards determines the will before severance. C. Litt. 55. b. 5 Co. 116. Cro. Eliz. 461. So if an estate determine by forfeiture for condition broken. Co. Litt. 55. b. 1 Roll. 726. 1. 33. 36. Com. Dig. Biens, G. 2. Chitty

waste committed; or, if a tenant during widowhood thinks proper to marry), in these, and similar cases, the tenants, having thus determined the estate by their own acts, shall not be entitled to take the emblements. (9) The doctrine of emblements extends not only to corn sown, but to roots planted, or other annual artificial profit, but it is otherwise of fruit-trees, grass, and the like; which are not planted annually at the expense and labour of the tenant, but are either a permanent or natural profit of the earth. (r) For when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit; but merely with a prospect of its being useful to himself in future, and to future successions of tenants. The advantages also of emblements are particularly extended to the parochial clergy by the statute 28 Hen. VIII. c. 11. For all persons, who are presented to any ecclesiastical benefice, or to any civil office, are considered as tenants for their own lives, unless the contrary be expressed in the form of donation.

5

3. A third incident to estates for life relates to the under-tenants, or lessees. For they have the same, nay greater indulgences than the lessors, the original tenants for life. The same; for the law of estovers and emblements with regard to the tenant for life, is also law with [124] regard to his under tenant, who represents him and stands in his place(s) and greater; for in those cases where tenant for life shall not have the emblements, because the estate determines by his own act, the exception shall not reach his lessee, who is a third person. As in the case of a woman who holds durante viduitate; her taking husband is her own act, and therefore deprives her of the emblements; but if she leases her estate to an under-tenant, who sows the land, and she then marries, this her act shall not deprive the tenant of his emblements, who is a stranger, and could not prevent her. (1) The lessees of tenants for life had also at the common law another most unreasonable advantage; for at the death of their lessors, the tenants for life, these under-tenants might if they pleased quit the premises, and pay no rent to any body for the occupation of the land since the last quarter-day, or other day assigned for payment of rent. (u) To remedy which it is now enacted, (v) that the executors or administra tors of tenant for life, on whose death any lease determined, shall recover of the lessee a rateable proportion of rent from the last day of payment to the death of such lessor. "

(5) That statute enables an incumbent to bequeath by will, the corn and grain growing upon the glebe-land, manured and sown at his own cost, s. 6. But a parson who resigns his living is not entitled to emblements. Bulwer v. Bulwer, 2 B & A. 470.

(6) At common law, if tenant in fee die after sunset and before midnight of the last day when the rent becomes due, it shall go to the heir, and not to the executor, for the rent is not due till the last instant of the day. 1 Saund 287. id. note 17. 2 Madd. 268. With respect to tenants for life dying before the rent was completely due, the 11 Geo. II. c. 19. sect. 15. after reciting that where any lessor or landlord, having only an estate for life in the lands, tenements, or hereditaments demised, happens to die before or on the day on which any rent is reserved or made payable, such rent, or any part thereof, is not by law recoverable by the executors or administrators of such lessor or landlord; nor is the person in reversion entitled thereto, any other than for the use and occupation of such lands, tenements, or hereditaments, from the death of the tenant for life; of which advantage hath been often taken by the under-tenants, who thereby avoid paying any thing for the same. "For remedy whereof be it enacted, that where any tenant for life shall happen to die before, or on the day on which any rent was reserved or made payable upon any demise or lease of any lands, tenements, or hereditaments, which determined on the death of such tenant for life, that the executors or administrators of such tenant for life, shall and may in an action on the case, recover of and from such under-tenant or under-tenants VOL. I.

61