So, a lease to A. for three lives, if the lessor demises to B. for life, which term shall commence after the death, surrender, or forfeiture of the three lives, it shall be good, and the words, which term, &c. rejected. R. Cro. El. 269. (u)

(G 14.) What interest the lessee has before entry.

If a lease be made to commence immediately, the lessee has in him interesse termini before his entry, and may grant it to another. Co. L. 46. b. 270. b. R. Jon. 8.

So, if it be made to commence at a future day.

And if the lessee dies before entry, his executor or administrator

may enter.

Co. L. 46. b.

So the lessee or his executor may enter, though the lessor dies before. Co. L. 46. b.

So, if a lease be to be several persons, and one of them dies, his interest survives. Co. L. 46. b.

So a release by the lessor to the lessee, before his entry, or before his term commenced, extinguishes the rent reserved. Co. L. 270. a. So, if the lessor grants the reversion, and the lessee, before entry, attorns: the grant of the reversion will be good. R. Jon. 8.

What interest a lessee for years has by a limitation in perpetuity, or upon trust. Vide in Chancery, (4 G 2. 5.-4 W 21.)

What estate of a lessee determines by forfeiture. Vide in Forfeiture, (A 1.)

When he shall be punished for waste. Vide in Waste, (A 2. 5.- F 2.)

-

- C. 4.

(G15.) What interest the lessee has after entry. (x) As to reservation of rent upon a lease. Vide Rent, (B 1, &c.)

How

(a) An agreement, not under seal, that the lessor shall not turn out the tenant so long as he paid the rent, is invalid, since the tenancy created by it would not be determinable so long as the tenant complied with the term of the agreement, and would therefore operate as an estate for life, which can only pass by deed. 8 East, 165.

(r) 1. Leases for a determinate period of time and at will stood formerly upon a very different footing to what they stand at present; and an agreement between the proprietor of land, and another, that the latter should enjoy it for years, or at will, together with his entry thereon, did not then, as now it does, pass to him any interest whatever in the land, but the agreement was considered as a mere executory contract, for the breach whereof the party might, if it was under seal, recover a compensation in damages. If any other proof than the assertions of authority, as they are met with in the books, was necessary to establish this position, the following circumstances might be adduced in aid. — 2. First, the ceremony of delivering seisin, which, till the modern forms of conveyancing were invented, was performed by the owner upon the grant of a freehold estate, did not obtain in creating these interests. Now as there exists precisely the same reason that solemnity should accompany the gift of exclusive possession, whether it be for a certain or an uncertain period, the question occurs, whence then arose this difference? And it seems plainly from this; possession, or an estate in the land, was not conferred by a lease for years or at will.-3. Secondly, the term 'freehold' signifies the possession of a freeman, in contradistinction to that occupancy of land, which was permitted to a villain by his lord. Now the grant of exclusive possession to a villain for any duration of time, enfranchised him, so that if leases for years and at will in former times, conferred upon the lessee exclusive possession, such interests would have been as deserving the characteristic the possession or property of a freeman' as any others which may be mentioned. But the well-known fact is, VOL. IV. Й that

How rent shall be recovered by action. Vide Dett, (A 5. 7.-BC-D-E-F)— Rent, (D 1. &c.)

How, by distress, or re-entry. Vide Distress, per totum. tion, (O 3, &c.) - Rent, (D 3. &c.)

Condi

that no estates, but those for life or of inheritance, have ever been characterised by that appellation. The regular consequence therefore is, that grants of land for these last-mentioned kinds of interest, alone gave the grantee the privilege of exclusive occupation.-4. Thirdly, the rule formerly was, that a freeholder who had leased the land for years could not in contemplation of law enter forcibly upon the lessee, and for this reason, because the freeholder was regarded as in possession of the land notwithstanding the lease. 48 Edw. 3. Hil. 12. p. 6. 5. And in pleading a reversion upon a lease for years, the form is to allege that the reversioner (having a fee-simple) was seised in his demesne as of fee, that is, that he is actually possessed. 9 H. 6. M. 21. p. 43.-6. Fourthly, in former times, if a lessee for years had been disseised, or, to speak with greater accuracy, dispossessed, (Long Quinto, 35.) the lord might immediately have had an assize, or other possessory action, to recover the land. 9 Rep. 105.- 7. Fifthly, if one seised of an estate in fee-simple leased it for years, and died, the rent being arrear and the term continuing, the personal representative of the deceased landlord was at common law entitled to recover the arrears by action; whereas had the lease been for a freehold estate, he could not have claimed the rent due so long as the tenure lasted, because during that time the arrears were accounted things real, and therefore, constituted no part of the personal estate.-8. Sixthly, leases for years and at will are termed chattels, and falling under that description are forfeited upon outlawry in a personal action. (9 H. 6. Trin. 15. p. 2. Vide Hetl. 164.) But even arrears of rent due upon a freehold tenure are not. (Winch 58. Hutt. 54.) And again, a term of years may be sold under a writ of fi. fa. 9. Seventhly, it is in one case made a question, whether rent reserved upon a lease for years be rent service, (9 Edw. 4. Easter, 1. p. 1.) though the question has been long ago settled in the affirmative. (13 Rep. 57.) In another, whether tenant for years shall do fealty. (9 H. 6. M. 21. p. 43. Vide 20 H. 6. East, 27. p. 30., et vide 10 H. 6. M. 44. p. 13. that neither lessee for years, nor lessee at will shall do fealty; but see 40 Edw. 3 Trin. 17. p. 34. the reporter's note; vide 5 H. 5. Hil. 30. p. 12.; and in Keilw. 128. ca. 94. they speak of bailing land for years.) In a third whether tenant for years can accept a release. (Vide etiam 21 H. 6, Easter, 4. p. 57. 7 Edw. 4. Hel. 7. p. 27. In 48 Edw. 3. M. 8. p. 25, it is said, tenant at will has no interest in the land, nor can any rent be reserved upon such a tenancy.) In a fourth whether rent upon a lease for years can be apportioned.— 10. And lastly, recourse might always have been had to an action of debt to recover arrears of a duty reserved upon a lease for years, but not for rent due upon a freehold tenure whilst such tenure lasted; and again the remedies for recovering arrears of the latter description could not be resorted to in order to compel payment of those of the former kind. An action of debt is instituted to recover a personal chattel, namely, goods or a sum of money; now rent is a thing real, and cannot be obtained in a personal suit; therefore to permit the arrears of a duty reserved upon a lease for years, to be recovered in action of debt, is to decide that they are personal chattels, and consequently that by such a lease, exclusive possession was not in former times conferred; for if it had been, then the remuneration to be yielded must have ensued the nature of the thing granted, and like that have been real. It may be observed further, that at the expiration of a freehold tenure the arrears of rent lose their property qua rent, become personalty, and might at common law be recovered by action of debt; and if the party entitled to them died, they went to his personal representative, but had the tenure continued, the case would have been otherwise. 19 H. 6. M. 49. p. 29. Keilw. 112.-11. Which considerations may, perhaps, serve to remove the difficulty suggested by the learned Annotator on Co. Litt., who observes, that the common law did not allow debt for rent on freehold leases whilst they continued, is certain, though the reason is not quite so clear.' (Co. Litt. 47. n. 287.) If it is assumed, that arrears of rent reserved upon freehold and chattel interests are of the same nature, so that as well in the former as in the latter instance they are things real, the difficulty, it should seem, would be to discover, how the law ever came to allow debt for arrears of the latter description.

(H) Tenant

(H) Tenant at will.

(H 1.) Who shall be.

Tenant at will is, when a man lets (y) lands to another, without limiting any certain or determinate estate. Litt. S. 68. (≈)

And it may be by express words; as, if A. lets land to another, quamdiu ambabus partibus placuerit.

Or, quamdiu the lessor pleases: for by implication of law it shall be at the will of both; for it cannot be at the will of the lessor only. Co. L. 55. a. R. Mo. 775.

So, if it be, quamdiu the lessee pleases: for it shall be at the will of both. Co. L. 55. a.

If it be, de anno in annum quamdiu ambabus partibus placuerit; after two years it shall be at will. 6 Co. 35. b.

So, if lessee for years of a house grants all his house to B. without more; B, shall have it at will. R. 2 Leo. 78.

If a man grants the rents and profits of land to B. the grantee shall be tenant at will. Cart. 60.

So, if a man enters and enjoys land by consent of the owner; he shall be tenant at will to him, (a) though, there be not any express lease at will: as, if A. makes a charter of feoffment to B., and delivers the deed to him, but does not make livery, B. shall be tenant at will: for he entered, and had the land by consent of A. Lit. S. 70.

1 Rol. 859. 1. 21. Ray. 147.

So, if A. leases for life to B. and does not make livery; B. shall be tenant at will. 1 Rol. 859. l. 17.

So, if tenant in tail covenants upon the marriage of his son, to suffer a common recovery, to the use of the son in tail, and the son enters, though the common recovery was not suffered; he shall be tenant at will. R. Cro. Car. 305,

So, if a mortgagee covenants that the mortgagor shall take the profits till default of payment; he shall be tenant at will to the mortgagee. 2 Cro. 660.

Or, that the mortgagor and his heirs shall take the profits; the heir, after the death of his ancestor, shall be tenant at will.

(y) In tenancies at will the rent becomes due in consideration of the occupation; which, it is said, must therefore be averred. Ld. Raym. 171. Salk. 209.

(z) 1. Tenant at will, says Littleton, is, where lands or tenements are let by one man to another, to have and to hold to him at the will of the lessor.—2. Lord Coke commenting upon this, says, it is regularly true, that every lease at will, must in law be at the will of both parties, and therefore when the lease is made, to have and to hold at the will of the lessor, the law implieth it to be at the will of the lessee also.-3. The Annotator subjoins from Hal, MSS. 21 H. 6. 37. Lease for years with proviso that lessor may enter at his will, is a lease at will. Per Past. - 4. 21 H. 6. 37. A. grants to B. that he may sow A.'s land, which is done accordingly; yet A. shall have the emblements, because B. hath not an interest. Per Past. - 5. He adds, see accord. as to the former case, 14 H. 8. 12. And by Yelverton J. in Litt. Rep. 255. & Hetl. 128.-6.In Burr. Rep. 1609. it is said, that in the country, leases at will, in the strict legal notion, being found extremely inconvenient, exist only notionally.-7. But, says the Annotator, this observation I presume, means, not that estates at will may not arise now as well as formerly, but only that it is no longer usual to create such estates by express words, and that the judges incline strongly against implying them.-8. He adds, see 2 Blk. Com. 147. (a) Bac. Abr. Leases, L. 3.

(6) 1.3 Salk. 223.

2. So if one demises a tenement to another, excepting the new house for his habitation, when he pleases to stay there, and at other times for the use of the lessee, the lessee has the new house as tenant at will. 4 Mod. 9.

H 2

So,

So, if the mortgagor demises to A., his executors and assigns, he shall be tenant at will to the assignee. Skin. 424.

So, if he demises to A. without more, who assigns to B. he shall be tenant at sufferance to B. Skin. 424.

So, if tenant in fee makes a lease to attend the inheritance, and afterwards enters and takes the profits; he shall be tenant at will to his lessee. R. 1 Sid. 349. 458. 1 Vent. 80.

So, if he makes a feoffment to the intent of performing his will, and afterwards takes the profits; he shall be tenant at will to his feoffee. Lit. S. 462.

If he makes a feoffment upon trust for A., who enters; A. shall be tenant at will to the trustee. Cart. 60.

Though A. be not a party to the deed. Cart. 60.

So, if a mortgagor or other who enters by consent, makes a lease for years, and the lessee enters, claiming nothing but his lease; he is not a disseisor: but, if his rent is paid and accepted, he shall be a tenant at will. 2 Cro. 660. R. Cro. Car. 306.

And if the mortgagor enters after the lease determined, he shall be tenant at will again to the mortgagee. R. 2 Cro. 660. Bridg. 13.

So, if tenant for years continues after his term, and his rent is paid and accepted as before, he shall be tenant at will. Per Roll, Al. 4.

So, if A. demises a tenement to another for years, excepting the. new house for his habitation when he pleases to stay there, and at other times for the use of the lessee; the lessee has the new house as tenant at will. R. 4 Mod. 9. 12.

So, if A. gives licence to B. to take the profits of his land: it shall be a lease at will. Sal. 588.

Or, to trade upon his dock; it shall be a lease of the dock: for it is all the profit there. Sal. 588.

If A. enters into lands of B. claiming to hold them at his will, though he enters of his own head, and afterwards B. demands rent of him; he shall be tenant at will. R. 4 Leo. 35.

(H 2.) Who not.

But if a man enters by colour of a grant or conveyance, which was void, and did not stand with the rule of law; he shall be a disseisor, and not a tenant at will. R. 2 Co. 55. b. Cro. El. 451. 585.

As, if a feoffment be to A. to the use of B. and no livery, and A. enters; he shall not be tenant at will: for it was not intended to his

So, if B. enters, he is not tenant at will. 1 Rol. 859. 1. 30.

So, if a feoffment be upon condition to re-enfeoff A., and he enters without assent, he is not a tenant at will. R. 2 Co. 59.

So, if before the st. 27 H. 10. A. had made a feoffment to the use of himself, and had entered; he was not tenant will. 1 Rol. 859. l. 35. So, if a man makes a lease for life, and makes livery, which is void by reason of a commencement in futuro; though the lessee enters and pays his rent, he shall not be tenant at will: for he claims a freehold. R. 1 Rol. 662. l. 10. Cro. Car. 388.

So, if a conveyance be of land in the parish of D. where it lies in the parish of B. and the vendee enters; he is not tenant at will. R. 3. Co. 10. a.

So,

So, if there be a covenant only to make a lease, and before the lease made he enters without assent; he shall not be tenant at will.

So, if a mortgagee covenants, that he will not take the profits till default of payment, and the mortgagor enters immediately; he shall not be tenant at will, but only at sufferance: for it was not agreed that he should take, but that the mortgagee should not take. 1 Rol. 859. 1. 40. 2 Cro. 660. 2 Rol. 242. Bridg. 12.

R.

So, if the mortgagee makes an assignment (which amounts to a determination of the will,) and afterwards the mortgagor continues in possession; he shall be only tenant by sufferance. 3 Lev. 388. 1 Sal.

246.

So if the mortgagee enters upon the mortgagor, who afterwards reenters; the mortgagor is not a tenant at will, but a disseisor: for the entry of the mortgagee was a determination of his will, and the reentry was wrongful. 1 Sal. 246.

So, if the heir of the mortgagor enters, (where the agreement does not extend to the heir) his entry is wrongful. 1 Sal. 246.

So the king cannot be tenant at will of another. Mod. Ca. 248.

(H 3.) What things a lessee at will may do.

A lessee at will may take a release of the inheritance, and thereliy his estate is enlarged.

Or, a confirmation for his life, upon which a remainder may be dependant. R. 3 Leo. 15.

(H 4.) What he ought to do.

A lessee at will ought to pay the rent reserved. Lit. S. 72.

And if he does not, the lessor may distrain, or have debt, (b) for it. . Lit. S. 72.

(H 5.) What he need not do.

But a lessee at will need not sustain, or repair the houses demised to him. Lit. S. 71.

And therefore, if his house decays he shall not be punished for waste. Vide Waste, (C 5.)

So, if the house be burnt by negligent keeping of his fire, an action upon the case does not lie against him (c). R. 5 Co. 13. b. Cro. El. 777.784. 4 Mod. 12. 1 Sal. 19. Vide Action upon the Case, (B 3.) Action upon the case for negligence, (A 6.)

But if a lessee at will voluntarily burns his house, trespass lies against him. Cro. El. 784.

So, if he cuts down trees. Co. L. 57. a.

Vide Trespass, (B 2.)

(b) The Annotator subjoins from Hal. MSS. But in his count in debt against lessee at will, he ought to shew that he entered; but otherwise it is as to lessee for years. 18 H. 8. 1 Dy. 14.

(c) The 6 Ann. c. 31, which was at first temporary, but is now made perpetual, enacts, that no action shall be prosecuted against any person, in whose house any fire shall accidentally begin; with a proviso that the act shall not defeat any agreement between landlord and tenant.