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1. The jointure must take effect immediately on the death of the husband.
2. It must be for her own life at least, and not pur auter vie, or for any term of years, or other smaller estate.
3. It must be made to herself, and to no other in trust for her.
4. It must be expressly made in satisfaction of her whole dower, and not of any particular part of it.
Election of Dower. If the jointure be made to her after marriage, she has her election after her husband's death, as in dower ad ostium ecclesiae, and may either accept or refuse it, and betake herself to her dower, at common law, for she was not capable of consenting to it during coverture. And if by any fraud or accident, a jointure made before marriage proves to be on a bad title, and the jointress is evicted, or turned out of possession, she shall then have dower pro tanto at the common law.
Jointure and Dower Compared. There are some advantages attending tenants in dower, that do not extend to jointresses, and so vice versa, jointresses are in some respects more privileged than tenants in dower. By the old common law, tenants in dower pay no tolls or taxes, nor can the king distrain for his debt, if contracted during the coverture. But on the other hand, a widow may at once enter, without formal process on her jointure land, as she might have done on dower ad ostium ecclesiae, which a jointure resembles; whereas no small trouble and a very tedious mode of proceeding, is necessary to compel a legal assignment of dower. Also though dower be forfeited by the treason of the husband, yet lands settled in jointure remain unimpeached to the widow. Sir Edward Coke justly gives jointure the preference, as being more sure and safe to the widow.
CHAPTER IX.-ESTATES LESS THAN FREEHOLD
1. Estates for years.
I. ESTATE FOR YEARS.
Defined. An estate for years is a contract for the possession of lands or tenements for some determinate period. It occurs, where a man lets them to another for a term of years, agreed upon between the lessor and lessee; and the lessee enters thereon. If the lease be but for a half or quarter of a year or any less time, the lessee is also termed a tenant for years, a year being the shortest term which the law in this case notices.
Years, Months and Days. The space of a year is a determinate period, consisting of three hundred and sixty-five days, the additional day in leap year, together with the preceding day, accounting for one day only. That of a month is more ambiguous; there being two ways of calculating months, either as lunar, consisting of twenty-eight days, the supposed revolution of the moon, thirteen of which make a year, or as calendar months of unequal lengths, according to the Julian division in our almanacs, commencing at the calends of each month, whereof in a year there are only twelve. A month in law is a lunar month or twenty-eight days, unless otherwise expressed. Hence a lease for twelve months is only for forty-eight weeks, but if it be for a twelve-month, it is for a year. In the space
of a day, the entire twenty four hours are usually reckoned, the law generally rejecting all fractions of a day, in order to avoid disputes. Hence if I bind myself to pay money on a certain day, I inay do so before twelve o'clock at night of such day.
Granted to Farmers. Estates for years were originally granted to farmers, who annually rendered some equivalent in money, provisions or other rent to the lessors or landlords, but to encourage them to cultivate and manure the soil, they had a permanent interest granted them, not determinable at the will of the lord. Yet they were deemed almost the bailiffs or servants of the lord, who were to receive and account for the profits at a settled price, and not as having property of their own. They were not allowed to have a freehold estate, but their interest at their death vested in their executors, who were to settle the decedent's debts with the lord and other creditors, and were entitled to the stock upon the farm. The lessee's estate might also, by the ancient law, be at any time defeated by a common recovery, suffered by the tenant of the freehold, which abrogated all leases for years then subsisting, unless afterwards renewed by the recoveror.
Originally Precarious and Brief. Estates for years hence were precarious and likewise usually very short, like modern leases upon rack rent. By the ancient law, no leases were allowed for more than forty years, as longer possession, especially without livery, might defeat the inheritance. This abridged term soon became antiquated, and when the statute of Henry VIII protected against these fictitious recoveries, and the tenant's interest rendered secure and permanent, long terms became frequent, continuing subject however to the same rules of succession, and with the same inferiority to freeholds, as when they were little better than tenancies at the will of the landlord.
Certainty as to Time Requisite. Every estate which must expire at a period certain and fixed, by whatever words created, is an estate for years. Hence this estate is frequently called a term, terminus, because its duration is bounded, limited and determined; for it must have a certain beginning and a certain end. But id certum est, quod certum reddi potest, therefore, if a man makes a lease to another for so many years, as the other man may name, it is a good lease for years, though at present uncertain, yet when the other one names the years, it is reduced to a certainty.
Indefinite Duration, Void. If no day of commencement is named in the creation of this estate, it begins from the making or delivery of the lease. A lease for so many years as X shall live, is void from the beginning, for it can never be reduced to a certainty during its continuance. So also, if a parson makes a lease of his glebe for so many years as he shall continue parson. But a lease for ten years, if A shall so long live, or if he should so long continue parson, is good, for there is a certain period fixed, beyond which it cannot last, though it may determine sooner.
Distinguished from a Life Estate. An estate for years is inferior to one for life, or pur autre vie, or an inheritance. These are freeholds, while an estate for years is only a chattel. A lease for years may be made to commence in futuro, but a lease for life cannot. No estate or freehold can commence in futuro, because it cannot be created at common law without livery of seisin, or corporal possession of the land, and corporal possession cannot be given of an estate now, which is to commence hereafter, and because no livery of seisin is necessary to a lease for years, such lessee is not said to be seised.
Right of Entry. Nor indeed does the bare lease vest any estate in the lessee, but only gives him the right of entry in the tenement, which is called his interest in the term, or interesse termini, but when he has actually so entered, and thereby accepted the grant, the estate is then vested in him, and he is possessed, not properly of the land, but of the term of years, the possession or seisin of the land remaining still in him who has the freehold.
Words “Term" and "Time.” Thus the “term” does not merely signify the time specified in the lease, but the estate and interest that passed by the lease, and therefore the term may expire, during the continuance of the time, as by surrender, forfeiture and the like. Hence if I grant a lease to A for three years, and at the expiration of said term to B for six years, and A surrenders or forfeits his lease at the end of one year, B's interest shall immediately take effect; but if the remainder had been to B, from and after the expiration of the said three years, and after the expiration of the said time, in such case B's interest will not commence till the time is fully elapsed, whatever may become of A's term.
Estovers. The tenant for a term of years has incident to the estate, unless specially excepted, the same estovers as the tenant for life was entitled to; that is to say, house-bote, firebote, plough-bote and hay-bote.
Emblements. As to the profits of lands sowed by the tenant for years, there is this difference between him and a tenant for life; that where the term of the former is certain, as where he holds up to a fixed date and sows grain, which does not mature before the end of that term, the landlord shall have it, for it was the tenant's folly to sow that which he knew he could not reap the profits. But where the lease for years depends upon an uncertainty, as upon the death of a lessor, who himself is but a tenant for life, or a husband seised in his wife's right, or if the term of years be determinable upon a life or lives, the tenant, or his executors, shall have the emblements in the same manner as a tenant for life, or his executors. Not so, if it determine by the act of the party himself, as if the tenant for years does anything, that amounts to a forfeiture, in which case the emblements go to the lessor. II. ESTATES AT WILL.
Definition. Rights of Tenants. This 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 the lease obtains possession. Such tenant has no certain, indefeasible estate, capable of being assigned by him to another, because the lessor may eject him, whenever he pleases. Such estate, however, may be determined also at the will of the tenant.
Emblements. That it is at the will of both parties must be understood with some restriction. If the tenant at will sows the land, and before the grain is ripe is ejected by his landlord, he yet may have the emblements, and free ingress and egress, to cut and carry away the profits. All the cases of emblements turn upon the point of uncertainty. If the tenant cannot possibly know when the landlord would determine his will, and hence could make no provision against it, and thereupon sows the land; in such case the law will not permit him to be a loser by it. If the tenant himself determines the tenancy, he loses the emblements.
Ending of this Estate. What will determine the will on either side was formerly a matter of dispute. It is now settled, that besides the express assertion of the lessor, that the lessee shall hold no longer, which must be made either upon the land or by notice given to the lessee, the exercise of any act of ownership by the lessor will suffice, as entering upon the land and cutting timber, taking a distress for rent, and impounding it thereon, or making a feoffment, or lease for years of the land, to commence immediately. Also any act of desertion by the lessee, as assigning his estate to another, or committing waste, which is an act inconsistent with such a tenure, or which is instar omnium, the death or outlawry of either lessor or lessee, puts an end to or determines the estate at will.
Equities between Parties. The law is careful, that no sudden determination of the will by one party shall tend to the manifest and unforseen prejudice of the other. This appears in the case of emblements, and the right of ingress and egress to the lessee to remove his goods, after the determination of the lessor's will. And, if rent be paid quarterly or semi-annually, and the lessee determines the will, he must pay to the end of the current quarter or half-year.
Often construed from Year to Year. Of late years, courts have usually opposed construing demises, where no certain term is mentioned, to be tenancies at will, but have rather