Page images

· And such demise or grant to another, generally, by tenant in fee, shall be an estate to the lessee for his own life. Co. L. 42. a. (n)

By tenant in tail, it shall be for the life of the lessor : for that is all which he can lawfully grant. Co. L. 42. a.

So a demise to another for a time indeterminate, passes for life, if livery be made; or of things which lie in grant, without livery: (0) As, a lease to a man quamdiu se bene gesserit. Co. L. 42. a.

To a woman durante viduitate ; or, dum sola. Co. L. 42. a.
To husband and wife, during coverture. Co. L. 42, a.
To A. as long as he inhabits. Co. L. 42. a.
Or, pays such rent. Co. L. 42. a.
Or, till he be preferred to such a benefice. Co. L. 42. a.

Or, till out of the profits he has paid 100l. or other sum. Co. L. 42. a. (p)

Or, during his exile, if he be absent from his country; though not by edict, but voluntarily. R. 1 Vent. 326.

So, if the king grants office at will, and a rent for it for his life; he has an estate for life in the rent, though it determines with the office. Co. L. 42. a.

(E 2.) What interest he has. Tenant for life has a (9) freehold, as well as tenant in fee, or tail. Co. L. 43. b.


(n) The Annotator from Hal. MSS. subjoins. Vid. 8 E. 3.3. A lessee for life makes lease to B. & C. on condition that if they die leaving A. then the land shall revert to A. without determining auy estate certain in the grant. All the estate passes under the condition, for in præcipe A. was not received in default of B. & C. . (0) 1. And, says Lord Coke, in count or pleading he shall allege the lease, and con

clude that by force thereof he was seised generally for term of his life. — 2. To which the Annotator subjoins from Hal. MSS. X. leases to B. till A. makes J. S. baily of his manor; adjudged a freehold. H. 37 El. Butler and Ridgely. vid. i Rep. Bredon's case. Rent granted to A. for life if B. or C. shall so long live. But if there be an estate with such conditional limitation it ought to be pleaded with the limitations, and con-tinuance shall be averred; for otherwise it fails. Vid. Dy. 192.

(p) 1. To which the Annotator subjoins from Hal MSS. But feoffment to the use of A. for life, remainder to the use of B. his executors and assigns, till ten pounds shall be levied out of the profits, ruled to be a chattel. - 2. But, continues "Lord Coke if a man grant a rent of 201. per annum until 1001. be paid, there he hath an estate for five years, for there it is certain, and depends upon no uncertainty. And yet in some cases a man shall have an incertain interest in lands or tenements, and yet neither an estate for life, for years, or at will. (Lord Hale subjoins, Plowd. Comm. 27.3.) As if a man, by his will in writing, devise his lands to his executors for payment of debts, and until his debts be paid ; in this case the executors have but a chattel, and an incertain interest in the land until his debts be paid; for if they should have it for their lives, then by their death their estate should cease, and the debts unpaid; but being a chattel, it shall go to the executors of executors for the payment of his debts; and so, he concludes, note a diversity between a devise and a conveyance at the common law in his life-time.

(9) 1. And, albeit, says Lord Coke, an estate for term of a man's own life be but one freehold, yet may several freeholds, in certain cases be derived out of the same. As if tenant for life maketh a lease by deed or without deed to him in the remainder, or reversion in tail or in fee, for the term of the life of him in the remainder or reversion, and after he in the remainder taketh wife and dieth, his wife shall not be endowed, for tenant for life shall enjoy the land again ; for for. feiture it cannot be, for he in the remainder was party; and surrender it cannot be, for that his whole estate was not given. Co. Litt. 42. a. -2. And the Annotator subjoins from Hal. MSS. i E. 3. 15. Vid. 41 Ass. 2. A. tenant for life, remainder to

So his life is greater than another's life: and therefore, if he leases (r) to him in remainder or reversion for his life; he shall have it after the death of the lessee: for it was not a surrender. Co. L. 42. a.

So, if tenant for life takes husband, and they lease to him in reversion or remainder for the life of the husband. Co. L. 42. a.

And upon such lease a rent may be reserved. Co. L. 42. a.
So, if tenant for life and he in reversion join (s) in a lease for life,


B in tail, remainder to C. in fee: A. enfeoffs B. and his wife, and their heirs; B. dies without issue; now there is a forfeiture and C. may enter.

(r) 1. Tenant for life can make no leases to continue longer than his own life; for his leases are absolutely void at his death. Bac, Abr. Leases, I. — 2. Thus where tenant for life leases premises for twenty-one years, and before the expiration of that term died, and the trustees of the remainder-man, then an infant, continued to receive the rent reserved, and he, on coming of age, sold the premises by auction, and in the conditions of sale the premises were declared to be subject to the lease, and in the conveyance to the purchaser, the lease was referred to as in the possession of the lessec, and, in the covenant against incumbrances, that lease was excepted, and the purchaser mortgaged, and, in the mortgage deeds, the like notice was taken of the lease, and the mortgagee for some time received the rent reserved; it was held, that the lease expired with the interest of the tenant for life, and that the notice since taken of it did not operate as a new lease. i B. & P. 531.-3. Hence, too, a lease so rendered void against him in remainder, cannot be set up in a court of law by such remainder man's acceptance of rent, and suffering the tenant to make improvements after his interest vests in possession. Dougl. 50. Cowp. 482. B. N. P. 96. 7 T. R. 83. 478. 3 Atk. 393. – 4. Where, however, a remainder man lies by, and suffers the lessee or assignee to rebuild, and does not by his answer deny that he had notice of it; all these circumstances taken together will bind him in a court of equity froin controverting the lease afterwards. Woodf. L. & T. 39.

(8) 1. A lease executed by a tenant for life, in which the reversioner, who was then under age, is named, but which he does not execute, is void on the death of the tenant for life, and an execution by the reversioner afterwards is no confirmation of it. I T. R. 86.- 2. But if tenant for life makes a lease for twenty years generally, and afterwards he in reversion confirms that lease, and then the tenant for life dies; though this at first would have determined by the death of the lessor, yet the confirmation hath made it good for the whole terın. Bac. Abr. Leases, L. 2. - 3. But if the lease had been for twenty years, if the lessor tenant for life should so long live; there if the reversioner bad confirmed the lease, yet would it not prevent its voidance upon the death of the tenant for life. — 4. The diversity between which cases is this; that in the first case, the lease being made generally for twenty years, nothing appears to the contrary, but that it was a good lease for that time absolutely; for the death of the lessor, which would determine it sooner, does not appear in the lease itself; then when the reversioner who alone could take advantage of that implied condition, thinks fit to name it, and confirms the lease as it was made at first for twenty years absolutely, this makes it his own lease, for so much of the time as would have fallen into his reversion by the death of the tenant for life being made the express limitation and circumscription of the twenty years in the lease itself, no confirmation of that lease so limited can enlarge it to extend beyond the life of the lessor, that being the express determination affixed to it. For although we find one case, where it is held, that if a man makes a lease for twenty-one years, if the lessee so long live, and afterwards the lessor and lessee join in a grant by deed of the term to another, after which the first lessee dies within the twenty-one years, yet the grantce shall enjoy it during the residue of the term absolutely: To reconcile this case with the other, it must be intended, that in the assignment no notice is taken of the express limitation affixed to the lease, but that they joined in an assignment of the lease for the residue of the twenty-one years, and then it may be well construed to amount to a confirmation by the lessor for that time, as the lessor may confirm the land to the lessee for any longer time, and thereby enlarge his estate or interest. Bac. Abr. Leases, L. 2. - 5. B. tenant for the life of C. and he in remainder or reversion in fee, join in a lease for years by indenture; this during the life of C. is the lease of B. who then only had the present interest in the lands, and the confirmation of him in remainder or reversion. But after the death of C., then this becomes the lease of him in the reversion or remainder, and the confirmation of B


pant :

cross ant

tenemet the

If lessee at will cuts down trees, which is a determination of the will, yet he shall be occupant. Per Twisden, 1 Sid. 347.

So, if tenant pur auter vie was disseised, and dies, the disseisor shall be occupant. Per Croke, 2 Bul. 12. D. Cont. 2 Leo. 121.

If tenant for life levies a fine to the use of himself and A., and if A.' dies in the life of tenant for life to B.; A. dies in the life-time of tenant for life; by equity it goes to B. 2 Cro. 201.

But he, who claims to be occupant, if he does not take actual possession, shall not be occupant, Vau. 188. 1 Sid. 347. 3 Leo. 36.

So, if a man goes cross the land, without other intent, he shall not be occupant. D. Cart. 61. (a)

If at the death of tenant pur auter vie, his wife and son be upon the tenements, they shall not be occupants without more, for the incertainty. D. Cart. 61.

So, if a man makes a lease in trust for himself for life, and afterwards for his wife, and enters, and dies; the lessee shall not be occupant. Vide 1 Sid. 347.

So, if tenant pur auter vie makes a lease upon the same trust; the lessee shall not be occupant, but the wife, if she enters. R. per 3 J. Bridgman cont. and affirmed in error. Cart. 57. 1 Sid. 347. i Lev. 202. · So, if a lease be to A. and his heirs pur auter vie, and A. dies ; his heir shall be special occupant. Co. L. 41. b. 2 Rol. 150. I. 15. 151. 1. 40, 50. D. 10 Co. 98. a.

So, if tenant pur auter vie grants a lease to commence after his death ; the lessee may enter and have it during his term, though a stranger first entered. Per 2 J. Cro. El. 182. Agreed i Lev. 202.

But if a lease be to A., his executors or assigns, pur auter vie ; his executor shall not have it as special occupant: for an occupant has the freehold, which an executor cannot take. Dy. 328. b. R. 2 Rol. 152. 1. 5. Yel. 9.

Nor his administrator; for he is not an assignee to such intent. R. Cro. El. 901. Mo. 664. R. Yel. 9.

Nor shall he be subject to payment of debts. i Ver. 234.

Yet by the st. 29 Car. 2. 3. If tenant pur auter vie does not devise his estate, and there be not a special occupant, it shall go to the executors or administrators of the grantee, and be assets in their hands. (6)


(a) Vide supra.

(6) 1. The title by general occupancy is now universally prevented by the 29 Car. 2. c. 3. s. 12. and 14 G. 2. c. 20. s. 9. The first statute enacts that estales pur auter vie shall be devisable, and if not devised, chargeable in the hands of the heir as assets by descent, where the estate falls on him as special occupant; and if he is not entitled as such, shall go to the grantee's executors or administrators, and be assets. On this státute a doubt arose, whether it operated farther, than by making such estates devisable and assets for debts; and in one case it was adjudged, that the administrator took the surplus of such estates after payment of debts if not devised, for his own benefit, as in the place of a general occupant. See 12 Mod. 103. This gave occasion to the second statute, which expressly makes the surplus in case of intestacy distributable as personal estate. Co. Litt. 41. b. n.(5).-2, Sir William Blackstone is of opinion, that notwithstanding these statutes, the grant of an incorporeal hereditameni pur auter vie will, as at common law, be entirely determined by the death of the grantee. But Lord Keeper Harcourt has declared, that these statutes are sufficiently comprehensive to include it. The reason given for Sir William Blackstone's opinion is “ for these statutes must not be construed so as to create any new estate, or to keep that

And this ought to be understood, for want of assets : for the executor shall not have it if he does not prove such want. R. 1 Ver. 234. for in its nature it is an inheritable estate and goes to the heir. Semb. 2 Ver. 320.

And he who enters shall be occupant; but quoad creditors he is executor de son tort. Carth. 166.

(F 2.) Of what things. Occupancy ought to be of things of which there may be an actual possession : as, of land, or sea. Van. 188.

But there cannot be an occupant of a rent. Co. L. 41. b. (c) Cro. El. 721. 901. R. Mo. 664. 2 Rol. 150. I. 48.

Nor, of a thing, existing solely by creation of law: as, of an advowson, common, fair, title, dignity, &c. Vau. 190. 194.

Nor, of tithes, &c. Vau. 201.
Nor, of an use before the st. 27 H. 8. 10. 2 Cro: 201.

And things, of which there cannot be an occupant, determine by the death of tenant for life. Vau. 201.

And if there be a remainder limited upon his estate, it commences immediately. Per Poph. Mo. 664.

So there cannot be an occupant against the king. Co. L. 41. b. Sav. 62.

Yet an occupant may take a common, advowson, &c. as appendant to land which he occupies. Vau. 190. 196.

So, if a lease be of land and tithes rendering rent, the occupant of the land shall have the tithes : for the rent is increased in respect of it, though it wholly issues out of the land. Per Vaughan; but judgment was against him. Vau. 202.

An occupant in the nature of the thing has but a bare possession, which he may take, or leave, at his pleasure. Vau. 189.

alive which by the common law was determined, and thereby to defer the grantee's perersion." Now as the contracting parties intended that the estate should continue during the life of cestui que vie, the lord keeper's construction of the statutes will not bear hard upon the grantor; which is a consequence seemingly pointed at by the expression closing the sentence just quoted, and to avoid which consequence setns the reason of the commentator's opinion. On the contrary, the hardship by the extinction of the right at common law was all upon the side of the purchaser. Those who assert the contrary must assume, that the contracting parties included in their calculation the chance of the grantee's dying before cestui que vie ; but if so, then the right would not be transferable property, which it is; for the proprietor may assign it to another, in whom it will be continued notwithstanding his death. (Moor, 664. pl. 807.) So that its determination at common law, with his life, in a case where it had not been assigned, was purely the result of accident. The statutes having placed estates pur auter vie upon the footing of mere personalty, it should seem that they must necessarily rest in the representative of that estate.

(c) 1. Lord Coke's doctrine is general, there can be no occupant of any thing that tieth in grant, and that cannot pass without deed, because every occupant must claim by a que estate, and aver the life of the cestui que vie.- 2. To which the Annotator subpoirs, vide M. 44, 45 Eliz. B. R. Salter's case. Rent granted to one his executors and administrators pur auter vie, and the grantee dies; it shall not go to the adminisIntor as special occupant, but determines by the death unless there has been an assignneut. And he adds, see S. C. in Cro. Eliz. 901. Noy, 46. Yelv. 9. and Mo. 664. See also S.P. accord. 2 Ro. Abr. 151. G. pl.3. - 3. However some have thought that executors and administrators if named in the grant, might take an estate pur auter vie, though a freehold, even before the statutes of occupancy, by which they are now entitled. See 3 Atk, 466, The authority relied on is Dy. 328. b. Vol. IV.


And therefore, he cannot be subject to a tenure, condition, &c. Vau. 189.

But civil constitutions may subject him: and therefore, by the common law, the freehold is cast upon the occupant. Vau. 191. 195.

So an occupant shall be subject to a rent reserved upon the lease pur auter vie. Vau. 190. Co. L. 41. b.

So, if tenant pur auter vie leases for years to one, who leases at will ; though the lessee at will be occupant, yet the lease for years is not extinct. R. 2 Bul. 12. 2 Rol. 151. 1. 30. 2 Cro. 554,

Or, if a reinainder was upon a lease for years, or the lease was of covin, &c. it shall not be extinct.

So an occupant shall be subject to waste. Co. L. 41.b. Vau. 190. So, to a forfeiture, condition, &c. Vau. 190.

(G) Tenant for years.

(G. 1.) By what words a lease shall be. Tenant for term (d) of years shall be, where a man lets (e) lands to another for a term of certain years. Lit. S. 58.

The usual words to make a lease are, demise, grant, to farm let, &c. Co. L. 45. b.

So any words, which amount to a grant, (f) are sufficient for a lease. Co. L. 45. b.

As, if a man covenants, grants, and agrees, that B. shall have such land for so many years, and B. covenants to pay the rent; it is a good lease for years. R. Mo. 861. Hob. 35. Win. Ent. 119. R. 2 Cro. 92, R. 1 Rol. 847. I. 40. R. Cro. Car. 207. Jon. 231.

So, if he covenants, (g) that the covenantee shall enjoy such land for such a time, rendering rent. (h) R. 1 Leo. 136.

So, articles, which say, it is agreed that A. shall lease to B. for seven years, provided that B. shall render rent amounting to the present

(d) 1. Terminus ; because the duration of the lease is bounded, limited, and determined. 2 Blk. Com. 143. — 2. It is properly called a term of years, and the lease is made for ten, a hundred, a thousand years, and the like, as the lessor and lessee agree; for the word term doth not only signify the limits and limitation of time, but also the estate and interest that doth pass for that time. Shep. Touch, c. 14. 267.

(e) It is essential to a lease, that some reversionary interest be left in the lessor. 3 Burr. 1556. 1 Blk. 482.

(f) 1. Hence the word dedi is a sufficient word to create a lease for years. Co. Litt. 301. B. - 2. So a licence to inhabit amounts to a lease. 4 Burr. 2209. 1 Mod. 14. 11 Mod. 42. 1 Ld. Rd. 404. 2 Salk. 223. — 3. And therefore if one man license another to enjoy such a house or land from such a time to such a time, it is a lease. Bac. Abr. Leases.

(g) 1. Omitting' grants and agrees.' 2 Mod. 80.- 2. So a covenant to stand seised. 3 Burr. 1446.

(b) 1. A reservation of rent is not essential to the validity of a lease, unless specifically enjoined by statute, or a power under which it is created. 3 H. 7. M. 7. p. 12. 5 H. 7. H. 2. p. 11. 20 H. 7. M. 22. p. 13. 21 H. 7. M. 45. p. 56. 5 Rep. 55.9 Rep. 124. 132. 4 Leon. pl. 82. p. 29. Keilw. 174. ca. 5. Latch, 100. Bendl. 22. pl. 86. though 7 Edw. 4. Trin. 2. p. 11. is contra, and holds that a reservation is essential even on a feoffinent; and see farther Serjeant Hill's note to 3 Burr. 1563.-2. Hence a tenancy may be created though the quantum of rent is not ascertained at the time. 4 East 29.


« PreviousContinue »