the land; and corporal possession cannot be given of an estate now, which is not to commence now, but hereafter. (r) And, because no livery of seisin is necessary to a lease for years, such lessee is not said to be seised, or to have true legal seisin of the lands. Nor indeed does the bare lease vest any estate in the lessee; but only gives him a right of entry on the tenement, which right 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, and not before, vested in him, and he is possessed, not properly of the land, but of the term of years; (s) the possession or seisin of the land remaining still in him who hath the freehold. Thus the word, term, does not merely signify the time specified in the lease, but the estate also and interest that passes by that lease; and therefore the term may expire, during the continuance of the time; as by surrender, forfeiture, and the like. For which reason if I grant a lease to A for the term of three years, and after the expiration of the 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, or from and after the expiration of the said time, in this case B's interest will not commence till the time is fully elapsed, whatever may become of A's term. (t)

Tenant for term of years hath incident to and inseparable from his estate, unless by special agreement, the same estovers, which we formerly observed (u) that tenant for life was entitled to; that is to say, house-bote, firebote, plough-bote, and hay-bote; (w) terms which have been already explained. (r)

With regard to emblements, or the profits of lands sowed by tenant for years, there is this difference between him, and tenant for life: that where the term of tenant for years depends upon a certainty, as if he 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 end of his term, the landlord shall have it; for the tenant knew the expiration of his [145] term, and therefore it was his own folly to sow what he could never reap the profits of. (y) But where the lease for years depends upon an uncertainty: as, upon the death of a lessor, being himself only tenant for life, or being a husband seised in right of his wife; or if the term of years be determinable upon a life or lives; in all these cases the estate for years not being certainly to expire at a time foreknown, but merely by the act of God, the tenant, or his executors, shall have the emblements in the same manner that a tenant for life or his executors shall be entitled thereto. (z) Not so, if it determine by the act of the party himself: as if tenant for years does any thing that amounts to a forfeiture in which case the emblements shall go to the lessor and not to the lessee, who hath determined his estate by his own default. (a)

9

:

II. The second species of estates not freehold, are estates at will. 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

(7) That is, no estate of freehold in futuro can pass by a common law conveyance, as by feoff ment; but, by a conveyance under the statute of uses, there may be a grant of a freehold to commence in futuro, and in the mean time the rent undisposed of will be a resulting trust. Sand, on U. & T. 1 vol. 128. 2 vol. 7.

of this lease obtains possession. (b) Such tenant hath no certain indefeasible estate, nothing that can be assigned by him to any other; because the lessor may determine his will, and put him out whenever he pleases. But every estate at will, is at the will of both parties, landlord and

tenant; so that either of them may determine his will, and quit his [146] connexion with the other at his own pleasure. (c) Yet this must be understood with some restriction. For if the tenant at will sows his land, and the landlord, before the corn is ripe, or before it is reaped, puts him out, yet the tenant shall have the emblements, and free ingress, egress, and regress, to cut and carry away the profits. (d) And this for the same reason, upon which all the cases of emblements turn; viz. the point of uncertainty since the tenant could not possibly know when his landlord would determine his will, and therefore could make no provision against it; and having sown the land, which is for the good of the public, upon a reasonable presumption, the law will not suffer him to be a loser by it. But it is otherwise, and upon reason equally good, where the tenant himself determines the will; for in this case the landlord shall have the profits of the land. (e) 1o

10

What act does, or does not, amount to a determination of the will on either side, has formerly been matter of great debate in our courts. But it is now, I think, settled, that (besides the express determination of the lessor's will, by declaring that the lessee shall hold no longer which must either be made upon the land, (ƒ) or notice must be given to the lessee) (g) the exertion of any act of ownership by the lessor, as entering upon the premises and cutting timber, (h) taking a distress for rent and impounding it thereon, (i) or making a feoffment, or lease for years of the land to commence immediately; (k) 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; (1) or, which is instar omnium, the death or outlawry of either lessor or lessee; (m) puts an end to or determines the estate at will.

The law is however careful, that no sudden determination of the will by one party shall tend to the manifest and unforeseen prejudice of the

other. This appears in the case of emblements before mentioned; [147] and, by a parity of reason, the lessee, after the determination of the

lessor's will, shall have reasonable ingress and egress to fetch away his goods and utensils. (n) And if rent be payable quarterly, or half-yearly, and the lessee determines the will, the rent shall be paid to the end of the current quarter or half year. (6) And, upon the same principle, courts of law have of late years leaned as much as possible against construing demises, where no certain term is mentioned, to be tenancies at will; but have rather held them to be tenancies from year to year so long as both parties ploase, especially where an annual rent is reserved:" in which case they

(11) A tenancy from year to year is where tenements are expressly or impliedly demsed by the landlord to the tenant to hold from year to year, so long as the parties shall respectively please; and there cannot be such a tenancy determinable only at the will of the tenant, for then it would operate as a tenancy for his life, which is not creatable by parol, but only by feoffment or other deed. 8 East. 167. What was formerly considered as a tenancy at will, has, in mc

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. (p)

12

There is one species of estates at will that deserves a more particular re gard than any other; and that is, an estate held by copy of court-roll: or, as we usually call it, a copyhold estate. This, as was before observed, (q) was in its original and foundation nothing better than a mere estate at will.13 But, the kindness and indulgence of successive lords of manors having permitted these estates to be enjoyed by the tenants and their heirs, according to particular customs established in their respective districts; therefore, though they still are held at the will of the lord, and so are in general expressed in the court rolls to be, yet that will is qualified, restrained, and limited, to be exerted according to the custom of the manor. This custom being suffered to grow up by the lord, is looked upon as the evidence and interpreter of his will: his will is no longer arbitrary and precarious; but fixed and ascertained by the custom to be the same, and no other, that has time out of mind been exercised and declared by his ancestors. A copy

p This kind of lease was in use as long ago as the reign of Henry VIII. when half a year's notice seems to have been required to determine it. (T. 13. Hen. VIII. 15, 16.)

q pag. 93.

dern times, been construed to be a tenancy from year to year, and from a general occupation such a tenancy will be inferred, unless a contrary intent appear. 3 Burr. 1609. 1 T. R. 163. 3 T. R. 16 8 T. R. 3. And so in the cases in which the statute against frauds, 29 Car. II. c. 3. declares that the letting shall only have the effect of an estate at will, it operates as a tenancy from year to year. 8 T. R. 3. 5 T. R. 471. So where rent is received by a landlord, that raises an implied tenancy from year to year, though the tenant was originally let in under an invalid lease. 3 East. 451 So if a tenant hold over by consent after the expiration of a lease, he becomes tenant from year to year, 5 Esp. R. 173 even where the lease was determined by the death of the lessor tenant for life in the middle of a year. 1 H. B. 97.

But if the circumstances of the case clearly preclude the construction in favour of such a tenancy, it will not exist, as where a party let a shed to another for so long as both parties should like, on an agreement that the tenant should convert it to a stable, and the defendant should. have all the dung for a compensation, there being no reservation referable to any aliquot part of a year, this was construed to be an estate at will. 4 Tauit 1.8 And it must by no means be understood that a strict tenancy at will cannot exist at the present day, for it may clearly be created by the express agreement of the parties. Id. ibid. 5 B & A. 604. 1 Dowl. & R. 272. So under an agreement that the tenant shall always be subject to quit at three month's notice, he is not tenant from year to year, but from quarter to quarter. 3 Campb. 510. And in the case of lodgings, taken generally at so much per annum, payable half yearly, a tenancy only for a year will arise, and not a tenancy from year to year, so that he may quit at the expiration of the first year, without any notice to quit. 3 B & Č. 90. Chitty.

(12) When a lease or demise is determinable on a certain event, or at a particular period, no notice to quit is necessary, because both parties are equally apprized of the determination of the term, 1 T. R. 162.; but in general when the tenancy would otherwise continue, there must be given half a year's (demy an. Tr. 13 Hen. VIII. 15, 16.) notice to quit, expiring at that time of the year when the tenancy commenced, whether the tenancy was of and or buildings, 1 T. R. 159.; and where the tenant enters on different parts of the premises at different times, the notice should be given with reference to the substantial and principal part of them, and will be good for all, and what is the substantial part is a question for the jury. See instances 2 Bla. R. 1224. 6 East, 120 7 East, 551. 11 East, 498. As to the case of lodgings, that depends on a particular contract, and is an exception to the general rule. The agreement between the parties may be for a month or less time, and there a much shorter notice may suffice, 1 T. R. 162.; and usually the same space of time for the notice is required as the period for which the lodgings were originally taken, as a week's notice when taken by the week, and a month's when taken by the month, and so on 1 Esp. Rep. 94. Adams, 124 If lodgings are taken generally at so much per annum, it is construed to be only a taking for one year, and no notice to quit is necessary. 3 B. & C. 30.

When it is doubtful at what time of the year the tenancy commenced, it is advisable to serve a notice" to quit at the expiration of the current year of your tenancy, which shall expire next after one half year from the time of your being served with this notice." 2 Esp. R. 589. See further as to notices to quit, the service and waiver thereof, Adams on Ejectment, 96 to 140. 1 Saunders by Patteson and Williams, 276. note a. Chitty.

(18) As to copyhold tenure, &c, see ante 89, 90. and the treatises on copyhold there referred to.

hold tenant is therefore now full as properly a tenant by the custom [148] as a tenant at will; the custom having arisen from a series of uniform wills. And therefore it is rightly observed by Calthorpe, (r) that "copyholders and customary tenants differ not so much in nature as in "name; for although some be called copyholders, some customary, some "tenants by the virge, some base tenants, some bond tenants, and some by one name and some by another, yet do they all agree in substance and kind of "tenure; all the said lands are holden in one general kind, that is, by cus"tom and continuance of time; and the diversity of their names doth not "alter the nature of their tenure."

66

Almost every copyhold tenant being therefore thus tenant at the will of the lord according to the custom of the manor; which customs differ as much as the humour and temper of the respective ancient lords (from whence we may account for their great variety), such tenant, I say, may have, so far as the custom warrants, any other of the estates or quantities of interest, which we have hitherto considered, or may hereafter consider, and hold them united with this customary estate at will. A copyholder may, in many manors, be tenant in fee-simple, in fee-tail, for life, by the curtesy, 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, promulgated by immemorial custom, has declared to be a forfeiture or absolute 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. Yet none of these interests amount to a freehold; for the freehold of the whole manor abides always in the lord only, (s) who hath granted out the use and occupation, but not the corporeal seisin or true legal possession, of certain parcels thereof, to these his customary tenants at will.

The reason of originally granting out this complicated kind of interest, so that the same man shall, with regard to the same land, be at one and the

same time tenant in fee-simple and also tenant at the lord's will, [149] seems to have arisen from the nature of villenage tenure; in which

a grant of any estate of freehold, or even for years absolutely, was an immediate enfranchisement of the villein. (t) The lords therefore, though they were willing to enlarge the interest of their villeins, by granting them estates which might endure for their lives, or sometimes be descendible to their issue, yet not caring to manumit them entirely, might probably scruple to grant them any absolute freehold; and for that reason it seems to have been contrived, that a power of resumption at the will of the lord should be annexed to these grants, whereby the tenants were still kept in a state of viltenage, and no freehold at all was conveyed to them in their respective lands and of course, as the freehold of all lands must necessarily rest and abide somewhere, the law supposed it still to continue and remain in the lord. Afterwards, when these villeins became modern copyholders, and had acquired by custom a sure and indefeasible estate in their lands, on performing their usual services, but yet continued to be styled in their admissions tenants at the will of the lord,-the law still supposed it an absurdity to allow, that such as were thus nominally tenants at will could have any freehold interest; and therefore continued and now continues to determine, that the freehold of lands so holden abides in the lord of the manor, and not in the tenant; for though he really holds to him and his heirs for

Litt. 81. 2 Inst. 323.

On Copyholds, 51. 54.

1 Mirr. c. 2. § 28. Litt. § 204, & &

ever, yet he is also said to hold at another's will. But with regard to certain other copyholders of free or privileged tenure, which are derived from the ancient tenants in villein-socage, (u) and are not said to hold at the will of the lord, but only according to the custom of the manor, there is no such absurdity in allowing them to be capable of enjoying a freehold interest : and therefore the law doth not suppose the freehold of such lands to rest in the lord of whom they are holden, but in the tenants themselves; (v) who are sometimes called customary freeholders, being allowed to have a freehold interest, though not a freehold tenure.

However, in common cases, copyhold estates are still ranked [150] (for the reasons above-mentioned) among tenancies at will, though custom, which is the life of the common law, has established a permanent property in the copyholders, who were formerly nothing better than bondmen, equal to that of the lord himself, in the tenements holden of the manor; nay sometimes even superior; for we may now look upon a copyholder of inheritance, with a fine certain, to be little inferior to an absolute freeholder in point of interest, and in other respects, particularly in the clearness and security of his title, to be frequently in a better situation.

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 a year is expired continues to hold the premises without any fresh leave from the owner of the estate. Or, if a man maketh a lease at will and dies, the estate at will is thereby determined but if the tenant continueth possession he is tenant at sufferance. (w) 14 But, no man can be tenant at sufferance against the king, to whom no laches, or neglect in not entering and ousting the tenant, is ever imputed by law; but his tenant, so holding over, is considered as an absolute intruder. (x) But, in the case of a subject, 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: (y) and the reason is, because the tenant being once in by a lawful title, the law (which presumes no wrong in any man) 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 tortious, or, in common language, wrongful.

Thus stands the law, with regard to tenants by sufferance, and landlords are obliged in these cases to make formal entries upon their lands, (z) and recover possession by the legal process of ejectment; 15 and at [151]

u See page 98, &c.

Fitz. Abr. tit. corone. 310. custom. 12 Bro. Abr. tit. custom. 2. 17. tenant per copie. 22. 9 Rep. 76. Co. Litt. 69. Co. Copyh. § 32. Cro. Car. 229. 1 Roll. Abr. 562. 2 Ventr. 143. Carth. 432. Lord Raym. 1225. w Co. Litt. 57. x Ibid. z 5 Mod. 384.

y Ibid.

(14) A mortgagor who is suffered to continue in possession by the mortgagee, is a tenant at sufferance. 5 B. & A. 604. So a person who has been let into possession under an agreement for a lease, and from whom the landlord has not received rent, for he having no legal interest, may, after demand, be evicted by the landlord, 2 Taunt. 148. though it would be otherwise if rent were received, which would afford evidence of a tenancy from year to year. 13 East, 19. So if a purchaser be let into possession before conveyance of the legal interest, he is a mere tenant at sufferance, and may be evicted after demand of the possession. 3 Campb. 8. 13 East, 210. 2 M. & S. 8: Chitty.

(15) It has been a generally received notion, that if a tenant for a term, from year to year, at will, or at sufferance, hold over, and do not quit on request, the landlord is put to his action of ejectment, and cannot take possession: but see 7 T. R. 431. Price Rep. 53. 1 Bing. Rep. 158. 6 Taunt. 202-7. from which it appears, that if the landlord can get possession, without commit.