method of barring dower is by jointures, as regulated by 27 Hen. 8, c. 10, called the statute of uses. of the nature A jointure is a competent livelihood of freehold for the wife of lands and tenements; to take effect in profit or possession presently after the death of the husband, for the life of the wife at least. Upon making such an estate in jointure to the wife before marriage, the statute of uses provides that she shall be precluded from her dower; but these requisites 4 Rep. 1, 2. must be observed; the jointure must take effect immediately on the death of the husband; it must be for her own life at least, and not pur autre vie, or for any term of years, or other smaller estate; it must be made to herself, and no other in trust for her; it must be made, and so in the deed expressed, to be in satisfaction of her whole dower, and not of any particular part of it. If the jointure be made to her after marriage, she may, after her husband's death, either accept or refuse it, and resort 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 (by the provisions of the same statute) have her dower pro tanto at the common law (g). 9) These settlements previous to marriage seem to have been in use among the ancient Germans, and their kindred nation the Gauls. Of the former Tacitus gives us this account." Dotem non uxor marito, sed uxori maritus affert; intersunt parentes et propinqui, et munera probant." (de Mor. Germ. c. 18.) And Cæsar (de bello Gallico. 1. 6, c. 18,) has given us the terms of a marriage settlement among the Gauls, as nicely calculated as any modern jointure. 'Viri, quantas pecunias ab uxoribus dotis nomine acceperunt, tantas ex suis bonis, estimatione facta, cum dotibus communicant. Hujus omnis pecuniæ conjunctim ratio habetur, fructusque servantur. Uter eorum vita superavit, ad eum pars utriusque cum fructibus superiorum temporum pervenit." The dauphin's commentator on Cæsar supposes that this Gaulish custom was the ground of the new regulations made by Justinian, (Nov. 97) with regard to the provision for widows among the Romans; but surely there is as much reason to suppose that it gave the hint for our statutable jointures. Orig. n. to Bl. Com. v. 2, p. 138. CHAPTER IX. OF ESTATES LESS THAN FREEHOLD. Of estates less OF estates less than freehold there are three sorts: estates for years, estates at will, and estates by sufferance. than freehold. An estate for years. Litt. s. 58. An estate for years is a contract for the possession of lands or tenements for some determinate period, as where a man lets lands to another for the term of a certain number of years, and the lessee enters thereon. If the lease be but for half a year, or a quarter, or any less time, this lessee is yet a tenant for years; a year being the shortest time which the law in this case takes notice of. A month in law is a lunar month, or twenty-eight days, unless otherwise expressed; therefore a lease for "twelve months" is only for forty-eight weeks; but for "a twelvemonth," is good for the whole year. In the space Co. Litt. 135. of a day all the twenty-four hours are reckoned, the law rejecting all fractions of a day. Ibid. 67. 6 Rep. 61. What consti 66 Every estate which must expire at a period certain and tutes an estate prefixed, by whatever words created, is an estate for for years. Co. Litt. 45. 6 Rep. 35. Co. Litt. 46. Ibid. 45. Ibid. 46. 5 Rep. 94. years; and therefore this estate is called a term, terminus, because its duration and continuance is limited and determined. Every such estate must have a certain beginning and certain end; but, id certum est quod certum reddi potest: therefore, if A. make a lease to B. for so many years as C. shall name, it is good; for it may be reduced to a certainty. If no commencement is named, the term begins from the making of the lease. A lease for so many years as I. S. shall live, or shall continue parson of Dale, is bad for uncertainty; but for twenty years, if I. S. shall so long live, or shall so long continue parson, is good: for there is a certain period fixed, beyond which it cannot last. An estate for life, even pur autre vie, is a freehold; but a lease for a thousand years is only a chattel, and reckoned part of the personal estate. Hence a lease for years may commence in futuro, but a lease for life cannot; for no estate of freehold can commence in futuro; because livery of seisin, which is indispensable thereto, cannot be given now, if the estate is to commence hereafter; and livery of seisin is not necessary to a lease for years, which does not vest any estate in the lessee; but only gives him a right of entry in the tenement, which right is called his interest in the term, or interesse termini; but when he has entered, the estate is then, and not before, vested in him, and he is possessed, not of the land, but of the term of years; the possession or seisin of the land re- Co. Litt. 46. maining still in him who has 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 the lease; and therefore the term may expire during the continuance of the time; as by surrender, forfeiture, and the like. 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. Tenant for years has, as incident to his estate, unless by special agreement, the same estovers that tenant for life is entitled to. But there is this difference between him and tenant for life as to emblements: that if tenant for years 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 it was his own folly to sow what he never could reap the profits of; but if the lease for years depends upon an uncertainty: as if the term be determinable on a life or lives, or a husband be seised in right of his wife, his executors become entitled to the emblements. Ibid. 45. Tenant for years entitled to estovers . Lit. 45. But with this difference. Co. Litt. 56. An estate at will is where lands and tenements are let by Estates at will. one man to another to hold at the will of the lessor; and the tenant by force of this lease obtains possession. Such tenant Litt. 68. has no certain indefeasible estate, nothing that can be assigned. by him to another; because either the landlord or tenant may determine his will, and quit his connexions with the other at Litt. s. 68. his own pleasure; yet if the tenant sows his land, and the land lord before the corn is ripe or reaped puts him out, the tenant Co. Litt. 55. is entitled to the emblements, and free ingress, egress, and regress to cut and carry away the profits, and this for the same Co. Litt. 56. What deter mines the will. 1 Roll. Abr. 860. 2 Lea. 88. 5 Rep. 116. Co.Litt.57,62. Salk. 414. 1 Sid. 339. Of copyhold estates. sumption of taking the profits, the law will not suffer him to be a loser by it (a). But where the tenant determines the will, the landlord becomes entitled to them. Besides the express determination of the lessor's will, by declaring that the lessee shall hold no longer; which must be either made upon the land, or notice must be given to the lessee, the exertion of any act of ownership by the lessor, as entering upon the premises, 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; and 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 the estate at will. If rent be payable quarterly or half-yearly, and the lessee determines the will, the rent must be paid to the end of the current quarter or half year. Upon this principle courts of law lean as much as possible against construing demises where no certain rent is mentioned to be tenancies at will; but rather tenancies from year to year; where an annual rent is reserved, neither party is suffered to determine the tenancy, even at the end of the year, without half a year's notice to the other. A copyhold estate is one species of estates at will, but in which the will is qualified, restrained, and limited by the custom of the manor. A copyholder may be tenant in fee simple, in fee tail, for life, by the curtesy, in dower, for years, at sufferance, or on condition: subject to be deprived of these estates, upon the concurrence of circumstances which the will of the lord promulged by immemorial custom has declared to be a forfeiture; as the want of issue and (a) If a man seised of lands in fee has issue a daughter, and dies, his wife being enciente with a son, the daughter sows the land, the son is born; yet the daughter is entitled to the crop because her estate was lawful, and defeated by the act of God; Co. Litt. 55 b. There is a distinction as to mesne profits between real estate and personalty. As the law will not permit the freehold of land, except in certain special cases, to be in abeyance, where an estate is to arise on a contingency, the freehold must vest in some person in the meantime, who takes, subject to the contingency, and has the right to the mesne profits for his own benefit, unless they are otherwise disposed of by express provision of the parties, as in the case of trustees to preserve contingent remainders, or by act of parlia ment, as by 10 & 11 Wm. 3, c. 16, which preserves contingent remainders for posthumous children, where there are no trustees for that purpose. But the case of personalty is different, for the right to that may be in suspense, and generally during the time it continues so, the profits accumulate till the vesting of the capital happens, and then are added to that, and belong to the same person. 3 P. Wms. 305; 2 Atk. 473, and F. C. R. 173; Co. Litt. 55 b. note 8. The freehold of the manor is still in the lord. Mirr. c. 2, s. 28. 5. 6. 9 Rep. 76. Co. Litt. 59. male, or the non-payment of a fine, yet none of these interests amount to a freehold; for the freehold of the whole manor abides in the lord. The reason for originally granting out this complicated kind of interest seems to have arisen from the nature of villenage tenure; in which a grant of any estate of freehold, even for years absolutely, was an enfranchisement of the villein; the lords, therefore, instead of granting any absolute freehold, chose to annex to these grants a power of resumption, whereby the tenants were still kept in a state of villenage; and even now that modern copyholders have acquired by custom an indefeasible estate in their lands on performing their usual services, yet they continue to be styled in their admissions tenants at the will of the lord; and the law continues to determine that the freehold of such lands abides in the lord. But as to certain other copyholders of free or privileged tenure, which are derived from the ancient tenants in villein socage, and are said to hold, not at the will of the lord, but according to the custom of the manor, these have the freehold of their lands in themselves, and are sometimes called customary freeholders, being allowed to have a freehold interest, though not a freehold tenure. We may now indeed 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. An estate at sufferance is where one comes into possession Estate by suf of land by lawful title, but keeps it afterwards without any title. As if A. takes a lease for a year, and after the year is expired, continues to hold the premises without any fresh leave from the owner, he is tenant at sufferance; but no man can be tenant at sufferance against the king. In the case of a Co. Litt. 57, subject, this estate may be destroyed by the owner's entering the lands and ousting the tenant; for before entry he cannot maintain an action of trespass against the tenant as he might against a stranger. Landlords are obliged in these cases to Ibid. recover possession by the legal process of ejectment; but by 4 Geo. 2, c. 28, after demand made and notice in writing given by the lessor, or he to whom the remainder or reversion shall belong, to the tenant for delivering possession; such person so holding over after the determination of the term, shall pay for the time he detains the lands double their yearly value; and by 11 Geo. 2, c. 19, in case any tenant having power to determine his lease, shall give notice of his intention 562. Co. Cop. s.32. 1225. Cro. Car. 229. ferance. |