Page images
PDF
EPUB

they may join in waste, and he for life shall have locum vastatum, and he in reversion, damages. Co. L. 42. a. (t)

So, joint-tenants the one for life, the other in fee. (u) Co. L. 42. a. So, if A. recovers dower against tenant for life, he shall have the land after the death of A. Co. L. 42. a.

(E 3.) What privileges he shall have.

Tenant for life, or for years, shall have house-bote, plough-bote, haybote; viz. estoveria ædificandi, ardendi, arandi, et claudendi. Co. L. 41. b.

And these reasonable estovers he shall have upon the land demised, without assignment; if he be not restrained. Co. L. 41. b. So, if the lessor covenants that he shall take estovers in a wood not demised; he shall take in both. R. Dal. 4 Mo. 7.

If he demises a manor, (except Frith-Close,) and covenants that he shall take them super præmissa; he shall not take them in Frith-Close. R. 1 Leo. 117.

Otherwise, if the demise was (except the trees) (x) and a covenant so; he shall take the trees excepted for estovers. R. 1 Leo. 117.

Or, if it be averred, that there are no estovers but in the land excepted. R. Cro. El. 125.

If a grant be to a lessee to take estovers from time to time in a close not demised, without saying, for what time; he shall take them during the term. R. Mo. 7.

But the lessee cannot take fire-bote except of underwood. 3 Leo. 16. Or, if fire-bote be expressly granted, and there be not sufficient underwood; he may take it of the great trees. 3 Leo. 16. Estovers may be claimed in alieno solo by grant, or by prescription. If a grant be to a lessee to take estovers, he shall have them during his term, and his executor after him. R. Dal. 4.

For the lessor having several estates in them in several degrees, the lease shall be construed to move out of each one's respective estate or interest, as they become capable of supporting it, which is the most natural and useful construction of the lease, especially as there can be no estoppel in this case, by reason of the several interests which passed from each. Therefore during the life of tenant for life, if the lessee being evicted, should declare of a lease from both; this, as has been adjudged, would be against him, because for that time it was only the lease of the tenant for life. Ibid. 6. If tenant for life and he in remainder in tail join a lease to A. for life, remainder to B. for life, and the issue in tail accepts the rent of A. and levies a fine, the lease in remainder is good notwithstanding the feoffiment. Cro. Eliz. 252.-7. A conveyance by a tenant for life of all his estate, right, title, interest, &c. habendum for 99 years, passes a leasehold interest only, not the freehold. 1 East, 502.

(t) To which the Annotator subjoins from Hal. MSS. 3 H. 7. 9. P. 43 Eliz. C. B. D. D. n. 4. But if the lease be without deed, it is a surrender. 10 H. 7.3. 1 Rep. Bredon's case.

(u) Join, says lord Coke in a lease for life, the joint tenant for life hath a reversion, and shall join in an action of waste. And the Annotator subjoins from Hal. MSS. 13 E. 4. 4 Dy. 27. So of a gift in tail. 38 E. 3. 7. and the writ ought to be ad exhæredationem, B. 13. E. 2. Brief. 835.

(x) 1. Where lessee for life makes a lease for years, excepting the wood, underwood, and trees growing upon the land, it is a good exception, although he has no interest in them but as lessee; because he remains always tenant, and is chargeable in waste, and therefore to prevent it he may make the exception. Cro. Jac. 296.-2. But if lessee for years assign over his term, with such an exception, it is a void exception. Ibid.

If there be no timber for repairs, it shall be found by the lessor, if there be no default in the lessee. Per 2 J. Dal. 4.

But a grant of estovers to A. gives him a right only for his life. Though the grant be to A. pro easiamento ipsius et hæredum, and pursuant to a covenant to convey to him and his heirs. R. 1 Leo. 2. (F) Dccupant.

(F1.) Who shall be.

If tenant pur auter vie (y) of lands or tenements dies before the cestry que vie, he who first enters and takes possession of the land, shall have it during the life of the cestuy que vie, as occupant. Co. L. 41. b. (z)

And therefore, if any enters to the use of another; he who enters shall be occupant. R. 2 Rol. 151.1. 35.

If tenant pur auter vie leases for years, and dies before the cestuy que vie; the lessee shall be occupant, and his lease shall be extinct. Q. Dy. 328. b. R. 2 Rol. 151. 1. 22. 2 Bul. 11.

If such lessee leases to B. at will, B. being in possession shall be occupant. R. 2 Cro. 554. R. 2 Rol. 151.1.30. 2 Bul. 11.

Though B. claims nothing but as tenant at will. R. 2 Bul. 11. 2 Rol. 151.1. 30. 2 Cro. 554.

If.tenant pur auter vie leases to a feme covert at will, her husband shall be occupant. Per Twisden, 1 Sid. 347.

() 1. And so if tenant for his own life grant over his estate to another, if the grantee dieth there shall be an occupant. Co. Litt. 41. b.— 2. In like manner it is of an estate created by law; for if tenant by the curtesy or tenant in dower grant over his or her estate, and the grantee dieth, there shall be an occupant. Ibid. - 3. To which the Annotator subjoins, that in some books it is asserted, that there cannot be an occupant of estates created by law, without distinguishing between a general and a special occupant. Cro. Eliz. 58. 1 Bulst. 155. 2 Ro. Rep. 123. Probably the assertion was meant to be confined to the former; for as to the latter the authorities seem decisive in favour of the heirs taking, as special occupants, if named in granting over curtesy or any other estate created by law, See 27 Ass. pl. 31. Plowd. 28. & 556. But even the doctrinc against general occupancy of estates created by law, comes merely from persons arguing as counsel, who neither explain why it should not be, nor cite any authorities except 15 E. 3. Fitzh. Abr. Scire Facias, pl. 17. which appears foreign to the purpose.

(2) The annotator from Hal. MSS. subjoins, Who shall be occupant? A. makes lease to B. for one hundred years, and afterwards ousts him and makes lease to C. for the life of D; B. re-enters; C. dies; B. shall not be occupant against his will, for so his term would be drowned. H. 6. Jac. C. B. Rawlin's case. Lessee for another's life, makes lessee at will, who continues in possession after the death of his lessor; he is an occupant. If A. lessee for another's life makes lessee for years, who is possessed, and A. dies, it seems that lessee for years shall be occupant against his own will, though he doth not enter; but if the lessee for years makes lease at will, and then A. dies, lessee at will shall be occupant, though he claims to the use of the lessee for years, or though lessee for years enters on lessee at will and claims to be occupant. But riding over the ground to hunt or hawk, doth not make an occupant. Vid. Dy. 328. H. 15 Jac. B. R. Rot. 356. Stellicorn and Hayes, and M. 10. Jac. Bulst. n. 6. Chamberlain and Ewer. A. lessee for life of B. makes lease to C. for 20 years, rendering 51. C. makes lease to D. for 10 years, rendering 31. A. dies; D. is occupant, yet he shall pay the rent of 31. to C., and C. shall pay the rent of 51. to D., for D's term is prevented from merging by the intervenient reversion in C., but D. has the freehold in reversion expectant on C's term, and the rent incident to it. And he adds, see Stellicorn and Hayes, in 2 Ro. Rep. 125. and Cro. Jac. 554. and Chamberlain and Éwer in 2 Bulst. 11. 2 Ro. Abr. 151. È. pl. 3. 4. and Palm. 12,

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. 1 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. l. 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 1 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. 1 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. (b) And

(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 estates 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 statute 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 hereditament 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.

El. 721. 901. R. Mo. 664. 2 Rol. 150. l. 48.

Co. L. 41. b. (c) Cro.

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 reversion." 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 seems 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 vest in the representative of that estate.

(c) 1. Lord Coke's doctrine is general, there can be no occupant of any thing that lieth 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 subjoins, 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 administrator as special occupant, but determines by the death unless there has been an assignment. 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.

[ocr errors]

F

And

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. l. 30. 2 Cro. 554.

Or, if a remainder was upon a lease for covin, &c. it shall not be extinct.

years, or the lease was of

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

Vau. 190.

(G) Tenant for years.

(G. 1.) By what words a lease shall be.

Vau. 190.

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, (ƒ) 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. 1. 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. 145.-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.

2. So a covenant to stand seised.

(g) 1. Omitting' grants and agrees.' 2 Mod. 80.3 Burr. 1446. (h) 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. 36. 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 feoffment; and see farther Serjeant Hill's note to 5 Burr. 1563.-2. Hence a tenancy may be created though the quantum of rent is not ascertained at the time. 4 East 29.

lease;

« PreviousContinue »