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Commentaries on American Law (1826-30)
Chancellor James Kent
Of Estates for Years, at Will, or at Sufferance
I. Of estates for years.
A lease for years is a contract for the possession and, profits of land for a determinate period, with the recompense of rent; and it is deemed an estate for years, though the number of years should exceed the ordinary limit of human life. An estate for life is a higher and greater estate than a lease for years, notwithstanding the lease, according to Sir Edward Coke,1 should be for a thousand years or more; and if the lease be made for a less time than a single year, the lessee is still ranked among tenants for years.2
In the earlier periods of English history, leases for years were held by a very precarious tenure. The possession of the lessee was held to be the possession of the owner of the freehold, and the term was liable to be defeated at the pleasure of the tenant of the freehold, by his suffering a common recovery.3 In the reign of Henry VI it would seem, that the law gave to the lessee, who was unduly evicted, the right to recover, not only damages for the loss of the possession, but the possession itself.4 But the interest of the lessee was still insecure, until the statute of 21 Hen. VIII. c. 15, removed the doubts arising from the conflicting authorities, and enabled the lessee for years to falsify a recovery suffered to his prejudice.5 A term was now a certain and permanent interest, and long terms became common, when they could be purchased and held in safety. They were converted to the purpose of raising portions for children in family settlements, and by way of mortgage.6
It was said, in the Duke of Norfolk’s case,7 that there was nothing in the books before the reign of Elizabeth, respecting terms attendant upon the inheritance, but that in the latter part of her reign, mortgages for long terms of years came into use, and then it was deemed, in chancery, advisable to keep the term outstanding, to wait upon, and protect the inheritance. A long lease, in modern times, has been considered a muniment of title, and equivalent, in some respects, to an estate in fee. No man, said Lord Mansfield, had a lease for 2000 years as a lease, but as a term to attend the inheritance, and half the titles in the kingdom were so.8 Long terms, as for one hundred, or five hundred, or a thousand years, created by way of trust, to secure jointures, and raise portions, or money on mortgage, for family purposes, and made attendant upon the inheritance, first came into extensive discussion in the case of Freeman v. Barnes.9 They now occupy a large space in the English law; and the practice of keeping outstanding terms on foot to attend and protect the inheritance, after the performance of the trusts for which they were raised, renders the learning on this subject extremely interesting to conveyancers, and to the profession at large, in the country where that practice prevails. This learning is fortunately not of much use or application in these United States, but a cursory view of its general principles seems to be due to the cause of legal science, and it will at least excite and gratify the curiosity of the American student.
The advantage derived from attendant terms is the security which they afford to purchasers and mortgagees. If the bona fide purchaser or mortgagee should happen to take a defective conveyance or mortgage, by which he acquires a mere equitable title, he may, by taking an assignment of an outstanding term to a trustee for himself, cure the defect, so far as to entitle himself to the legal estate during the term, in preference to any creditor, of whose encumbrance he had not notice at or before the time of completing his contract for the purchase or mortgage. He may use the term to protect his possession, or to recover it when lost. This protection extends generally as against all estates and encumbrances created intermediately between the raising of the term and the time of the purchase or mortgage; and the outstanding term so assigned to a trustee for the purchaser or mortgagee, will prevail over the intermediate legal title to the inheritance.
In the case of Willoughby v. Willoughby,10 Lord Hardwicke took a full view of the doctrine, and he may be considered as having established the principle of applying old outstanding terms to the protection of purchasers and encumbrancers. Mr. Butler considered that case as the magna carts of this branch of the law. It was observed that a term for years attendant upon the inheritance was the creature of a court of equity, and invented to protect real property, and keep it in the right channel; and a distinction was made between these attendant terms and terms in gross, though in the consideration of the common law they are the same. At law, every term is a term in gross. It is a term in active operation, without having the purpose of its creation fulfilled. Such terms are considered as separate from the inheritance, and a distinct and different species of property. The reversioner or remainder-man has no interest in them, other than a right to redeem, or fulfilling the purpose of their creation.
Where the legal ownership of the inheritance and the term meet in the same person, a legal coalition occurs, and at law the term, which before was personal property, falls into the inheritance, and ceases to exist. But in equity another kind of ownership takes place, being an equitable or beneficial ownership, as distinguished from the mere legal title. Where that ownership of the term and the inheritance meet in the same person, undivided by any intervening beneficial interest in another, an equitable union exists, and the term, which before was personal property, becomes annexed to the inheritance, and attendant upon it as part of the same estate, unless the owner of the property had expressed a contrary intention, and which would prevent the union of the term and the inheritance. The relation between the ownership of such a term and the inheritance forms their union in equity, and gives the term the capacity of being considered as attendant upon the inheritance, where no trust is declared for that purpose.
But though equity considers the trust of the term as annexed to the inheritance, yet the legal estate of the term is always separate from it, and existing in a trustee, otherwise it would be merged. It is this existence of the legal estate that enables a court of equity to protect an equitable owner of the inheritance against mesne conveyances which would carry the fee at common law, and also to protect the person who is both legal and equitable owner of the inheritance against such mesne encumbrances, with which he ought not in conscience to be affected. It was accordingly decided by Lord Hardwicke, that if a subsequent purchaser or mortgagee had notice of a former purchase or encumbrance, he could not avail himself of an assignment of an old outstanding term prior to both, in order to gain a preference, but that without such notice he could protect himself under the old term.11
The same doctrine received the sanction of Lord Eldon, in Maundrell v. Maundrell,12 and he observed, that if a term be created for a particular purpose, and that purpose has been satisfied, if the instrument does not provide on the happening of that event for the cesser of the term, the beneficial interest in it becomes a creature of equity, to be disposed of and molded according to the equitable interests of all persons having claims upon the inheritance. When the purposes of the trust are satisfied, the ownership of the term belongs, in equity, to the owner of the inheritance, and will attend the inheritance, whether declared by the original conveyance to attend it or not. The trustee will hold the term for equitable encumbrancers according to priority; and it is a general rule, that in all cases where the term and the freehold would, if legal estates, merge by being vested in the same person, the term will in equity be construed to be attendant on the inheritance, unless there be evidence of an intention to sever them.13
These attendant terms will not be permitted to deprive creditors of any benefit they would have of the term for payment of their debts, nor will they protect the inheritance in fee from debts due from the vendor by specialty to the crown.14 They protect the purchaser against an act of bankruptcy in the vendor, if the purchaser had not notice of it; and equity denies permission to the assignees of the bankrupt to call, to the prejudice of the purchaser, for an assignment of a term standing out in trustees.15 They likewise protect against a claim of dower, if the purchase or mortgage was made previous to the right of dower attaching, and the assignment of the term be actually made before the husband’s death.16
The purchaser or mortgagee may call for the assignment of all terms conferring a title to the legal estate, and of which he can avail himself in an action of ejectment; and that includes every term which is not barred, or merged, or extinguished by a proviso of cesser, or presumed to be surrendered. The question whether the term be validly subsisting as an outstanding estate, has led in the English Courts to the most protracted and vexatious discussions; and it may become interesting to the American lawyer, standing on his “vantage ground,” and happily exempted from the control of those subtle and perplexing modifications of property, to trace the progress of the discussions, and witness the ability and searching inquiry which they have displayed. He will find new occasion to cherish and admire the convenience and simplicity of our own system, which on this subject afford better security to title, and greater certainty to law.
A proviso of cesser is usually annexed to Long terms raised by mortgage, marriage settlement, or annuity, whereby the term is declared to be determinable on the happening of a certain event, and until the event provided for in the declaration of cesser has occurred, the term continues. And if there be no such proviso, it will continue until expressly merged, or surrendered, even though the special purpose for which it was created, be answered. But the doctrine of a presumed surrender of a term is that which has occupied the most intense share of professional attention, and given rise to a series of judicial decisions, distinguished for a strong sense of equity, as well as for the spirit and talent with which they handle this abstruse head of the law.
According to the old rule of practice, if the term had been once assigned to attend the inheritance, there could be no presumption of a surrender, and it would be treated as a subsisting term; for a direct trust being annexed to the term, it followed the inheritance through all its channels and descents from ancestor to heir. But if the term was once satisfied, and had not been assigned, it was subject to he barred by the operation of the statute of limitations. So, if it had been assigned, and had lain dormant for forty, fifty, or sixty years, without any notice being taken of it in the changes which the title had undergone, a surrender might be presumed.
The current of the decisions at law has for some time been setting strongly in favor of a presumed surrender of the term, when set up us a defense in ejectment, provided there be circumstances to induce the presumption. Such circumstances exist, if the term had been passed over in. silence, on a change of property, and the parties had not taken an actual: assignment of the term, or a declaration from the trustee, when they had the means of knowing that the term existed. A declaration, however, by the trustee, or an actual assignment, or the fact that the term has not been satisfied, will rebut the presumption of a surrender. Courts of law do now take notice of trusts of attendant terms, and have departed from the ancient rigid rule of considering every trust toxin to be a term in gross.
The two latest cases at law on the subject are those of Doe v. Wrighte, and Doe v Hilder.17 In the first of those cases, a term for 1000 years was created by deed, and eighteen years thereafter it was assigned for the purpose of securing an annuity, and then to attend the inheritance. The estate remained undisturbed in the hands of the owner of the inheritance and, his devisee for seventy-eight years, without any material notice having been taken of the term, and it was held that a surrender of the term was to be presumed in favor of the owner of the inheritance. In the other case, a term for years, created in 1762, by the owner of the fee, was assigned to a trustee in 1779, to attend the inheritance and in 1814 the owner of the inheritance executed a marriage settlement. In 1816 he conveyed his life interest, and his reversion in the estate under the. settlement, to a purchaser, as a security for a debt, but no assignment of the term on delivery of the deeds relating to it took place; and in 1819 an actual assignment of the term was made by the administrator of the trustee to a new trustee for the purchaser in 1816. It was decided, that a surrender was here to be presumed prior to 1819, and that the term could not be set up to protect the purchaser against a prior encumbrancer. The presumption of a surrender was deemed necessary to prevent the more unfavorable inference, either of want of integrity in the purchaser in suffering the attendant term to pass neglected, or of want of care and caution on the part of the professional men engaged in the transactions.
This last decision threw the English conveyancers into consternation, and it was very much condemned, as shaking the landmarks of real property, and rendering insecure the title of every purchaser, by destroying all reliance upon attendant terms.18 Lord Eldon was strongly opposed to the modern facility in courts of law, of sustaining the presumption of the surrender of a term.19 But the Vice Chancellor, Sir John Leach, in Emery v. Grocock,20 supports the doctrine of the K. B. in the most clear and decided language; and this would seem to be the most authoritative conclusion from the review of the cases on the subject.21
As the owner of the fee is entitled to all the benefits which he can make of a term attendant upon the inheritance, during its continuance in trust, the equitable interest in the term will devolve in the same channel, and be governed by the same rules, as the inheritance. The tenant in whose name the term for years stands, is but a trustee for the owner of the inheritance, and he cannot obstruct him in his acts of ownership. The term becomes consolidated with the inheritance, and follows it in its descent or alienation. On the death of the ancestor, it vests technically in his personal representatives; but in equity it goes to the heir, and is considered as part of the inheritance, notwithstanding it formally goes in a course of administration, and not in a course of descent. Being part of the inheritance, it cannot be severed from it, or made to pass by a will not executed with the solemnities requisite to pass real estate.22
In this country, we have instances of long terms of near 1000 years, but they are treated altogether as personal estate, and go, in a course of administration, as chattel interests, without any suggestion of their being of the character of attendant terms.23 Our registry acts applicable to mortgages and conveyances, determine the rights and title of bona fide purchasers and mortgages, by the date and priority of the record, and outstanding terms can have no operation when coming in collision with a registered deed. We appear to be fortunately relieved from the necessity of introducing the intricate machinery of attendant terms, which have been devised in England with so much labor and skill, to throw protection over estates of inheritance. Titles are more wisely guarded by clear and certain rules, which may be cheaply discovered, and easily understood; and it would be deeply to be regretted, if we were obliged to adopt so complex and artificial a system as a branch of the institutes of property law.
In New York, under the recently revised statutes relative to uses and trusts,24 these trust terms cannot exist for the purposes contemplated in the English equity system. All trusts, except those authorized and modified in the statute, are abolished, and express trusts may be created to sell lands for the benefit of creditors, and to sell, mortgage or lease lands for the benefit of legatees, or for the purpose of satisfying any charge thereon, and to receive the rents and profits of lands to be applied to the education or support of any person, during his life; and the trustees cannot sell, convey, or do any other act in contravention of the trust; and when the purposes for which the express trust shall have been created, have ceased, the estate of the trustees ceases also. This strict limitation of the power of creating and continuing trusts, would, in its operation, have totally destroyed these attendant terms, had they otherwise existed in this state.
Leases, among the ancient Romans, were usually of very short duration, as the quinquennium, or term for five years; and this has been the policy and practice of several modern nations; as France, Switzerland, and China. But the policy has been condemned by distinguished writers, as discouraging agricultural enterprise, and costly improvements.25
Leases for years may be made to commence in futuro; for, being chattel interests, they never were required to be created by feoffment, and livery of seizin. The tenant was never technically seized, and derived no political importance from his tenancy. He could not defend himself in a real action. He held in the name of his lord, and was rather his servant, than owner in his own right. This was the condition of the tenant for years in early times, as described by Bracton, and Fleta, and other ancient authorities;26 and this distinctive character of terms for years, has left strong and indelible lines of distinction in the law between leases for years and freehold estates.
But the statute of frauds of 29 Car. II. ch.3. (and which has been generally adopted in this country,) rendered it necessary that these secondary interests should be created in writing. The statute declared, that “all leases, estates, or terms of years, or any uncertain interests in lands created by livery only, or by parol, and not put in writing and signed by the party, should have the force and effect of leases, or estates at will only, except leases not exceeding the term of three years, whereupon the rent reserved during the term shall amount to two third parts of the full improved value of the thing demised.” “And that no lease or estate, either of freehold or term of years, should be assigned, granted or surrendered, unless in writing.” The general provisions of the statute of frauds have been adopted by statute in New York, and with this amendment, that no agreement, not in writing, and subscribed by the party, for letting or hiring of lands, is valid for any longer period than one year from the making thereof.27
If land be let upon shares for a single crop only, that does not amount to a lease, and the possession remains in the owner.28 But if the contract be, that the lessee possess the land with the usual privileges of exclusive enjoyment, it is the creation of a tenancy for a year, though the land be taken to be cultivated upon shares.29
A lessee for years may not only assign, or grant over his whole interest, but he may underlet for any fewer or less number of years than he himself holds, and he may encumber the land with rent, and other charges. If the deed passes all the estate, or time of the termor, it is an assignment, but if it be for a less portion of time than the whole term, it is an underlease, and leaves a reversion in the termor. The tenant’s right to create an under tenancy, by the grant of a less estate than his own, is a native principle of the feudal system, and a part of the common law. The lessee so underleasing may distrain for the rent due him on the underlease, though, if he assign over the whole term, he cannot, because he has no reversion. The under, or derivative lessee, is not liable for the rent reserved in the original lease, except so far as his goods and chattels, while on the premises, are liable to a distress for the rent in arrear to the original landlord. There is no privity between him and the original lessor, and he is not liable to an action of covenant for such rent.30
At common law, actual entry was requisite to give the lessee the rights and privileges of a tenant in possession, for until then he was not capable of receiving a release of the reversion by way of enlargement of the estate. But when the words, and the consideration inserted in the lease, were deemed sufficient to raise a use, the statute of uses operated upon the lease, and annexed the possession to the use without actual entry.31 Before entry under the lease, as a demise at common law, the lessee had only an executory interest, or interesse termini, and no possession.32
An interesse termini is a right to the possession of a term at a future time; and upon an ordinary lease to commence instanter, the lessee at common law, and independent of the statute of uses, has an interesse termini only until entry. Its essential qualities as a mere interest, in contradistinction to a term in possession, seem to arise from the want of possession. It is a right or interest only, and not an estate, and it has the properties of a right. It may be extinguished by a release to the lessor, and it may be assigned or granted away, but it cannot, technically considered, be surrendered, for there is no reversion before entry in which the interest may drown. Nor will a release from the lessor operate by way of enlargement, for the lessee has no estate before entry.33 Leases may operate by estoppel, when they are not supplied from the ownership of the lessor, but are made by persons who have no vested interest at the time. If an heir apparent, or a person having a contingent remainder, or an interest under an executory devise, or who has no title whatever at the time, makes a lease by indenture, or by a fine sur concessit, for years, and afterwards an estate vests in him, the indenture or fine will operate by way of estoppel, to entitle the lessee to hold the lands for the term specified.34 But if the lease takes effect, by passing an interest, it cannot operate by way of estoppel, even though it cannot operate by way of interest to the full extent of the intention of the parties.35
There are several ways in which a term for years may be extinguished.
(1.) By merger.
A term for years may be defeated by way of merger, when it meets another term immediately expectant thereon. The elder term merges in the term in reversion or remainder. A merger also takes place when there is a union of the freehold or fee, and the term, in one person, in the same right, and at the same time. In this case, the greater estate merges and drowns the less, and the term becomes extinct, because they are inconsistent, and it would be absurd to allow a person to have two distinct estates, immediately expectant on each other, while one of them includes the time of both; nemo potest esse dominus et tenens. There would be an absolute incompatibility in a person filling, at the same time, the characters of tenant and reversioner in one and the same estate, and hence the reasonableness, and even necessity, of the doctrine of merger.36
The estate in which the merger takes place, is not enlarged by the accession of the preceding estate; and the greater, or only subsisting estate, continues, after the merger, precisely of the same quantity and extent of ownership, as it was before the accession of the estate which is merged, and the lesser estate is extinguished.37 As a general rule, equal estates will not drown in each other. The merger is produced, either from the meeting of an estate of higher degree, with an estate of inferior degree; or from the meeting of the particular estate, and the immediate reversion, in the same person. An estate for years may merge in an estate in fee, or for life; and an estate pour autre vie, may merge in an estate for one’s own life, and an estate for years may merge in another estate or term for years, in remainder or reversion.38 There is no incompatibility, and, therefore, there is no merger, where the two estates are successive, and not concurrent. Thus, a lease may be granted to a tenant pour autre vie, to commence when his life estate ceases, and he will never, in that case, stand in the character, which the law of merger is calculated to prevent, of reversioner to himself.39
Merger bears a very near resemblance, in circumstances and effect, to a surrender; but the analogy does not hold in all cases, though there is not any case in which merger will take place, unless the right of making and accepting a surrender resided in the parties between whom the merger takes place.40 To a surrender, it is requisite that the tenant of the particular estate should relinquish his estate in favor of the tenant of the next vested estate, in remainder or reversion. But merger is confined to the cases in which the tenant of the estate in reversion or remainder grants that estate to the tenant of the particular estate, or in which the particular tenant grants his estate to him in reversion or remainder.41 Surrender is the act of the party, and merger is the act of law. The latter consolidates two estates, and sinks the lesser in the greater estate. But the merger is co-extensive with the interest merged, as in the case of joint tenants, and tenants in common. The merger is only to the extent of the part in which the owner has two several estates. An estate may merge for one part of the land, and continue in the remaining part of it.42
To effect the operation of merger, the more remote estate must be the next vested estate in remainder or reversion, without any intervening estate either vested or contingent; and the estate in reversion or remainder must be at least as large as the preceding estate.43 The several estates must generally be held in the same legal right; but this rule is subject to qualification, and merger may take place even when the two estates are held by the same person in different rights, as when he holds the freehold in his own right, and the term en autre droit. If they are held in different legal rights, there will be no merger, provided one of the estates be an accession to the other merely by the act of law, as by marriage, by descent, by executorship, or intestacy.
This exception is allowed on the just principle that as merger is the annihilation of one estate in another by the conclusion of law, the law will not allow it to take place to the prejudice of creditors, infants, legatees, husbands, or wives.44 But the accession of one estate to another, is when the person in whom the two estates meet is the owner of one of them, and the other afterwards devolves upon him by act of the party, or by act of law, or by descent, or in right of his wife, or by will. If the other estate held in another’s right, as in right of the wife, had been united to the estate in immediate reversion or remainder by act of the party, as by purchase, the merger would take place.45 The power of alienation must extend to the one estate as well as to the other, in order to allow the merger, as where the husband has a term for years in right of his wife, and a reversion in his own right by purchase.46
Merger is not favored in equity, and is never allowed, unless for special reasons, and to promote the intention of the party. The intention is considered in merger at law, but it is not the governing principle of the rule as it is in equity, and the rule sometimes take place without regard to the intention, as in the instance mentioned by Lord Coke.47 At law, the doctrine of merger will operate, even though one of the estates be held in trust, and the other beneficially, by the same person, or both the estates be held by the same person, on the same or different trusts. But a court of equity will interpose, and support the interest of the cestui que trust, and not suffer the trust to merge in the legal estate, if the justice of the case requires it.48 Unless, however, there exists some beneficial interest that requires to be protected, or some just intention to the contrary, and the equitable or legal estates unite in the same person, the equitable trust will merge in the legal title; for, as a general rule, a person cannot be a trustee for himself.
Where the legal and the equitable interests descended through different channels, and united in the same person, and were equal and co-extensive, it has been held that the equitable estate merges in the legal, in equity as well as at law.49 The rule at law is inflexible; but in equity it depends upon circumstances, and is governed by the intention, either expressed or implied, (if it be a just and fair intention,) of the person in whom the estates unite, and the purposes of justice, whether the equitable estate shall merge or be kept in existence.50 If the person in whom the estates unite be not competent, as by reason of infancy or lunacy, to make an election, or if it be for his interest to keep the equitable estate on foot, the law will not imply such an intention.51
It would be inconsistent with the object of these Lectures, to pursue the learning of merger into its more refined and complicated distinctions; and especially when it is considered, according to the language of a great master in the doctrine of merger, that the learning under this head is involved in much intricacy and confusion, and there is difficulty in drawing solid conclusions from cases that are at variance, or totally irreconcilable with each other.52
(2.) By Surrender.
Surrender is the yielding up of an estate for life or years, to him that has the next immediate estate in reversion or remainder, whereby the lesser estate is drowned by mutual agreement.53 The under-lessee cannot surrender to the original lessor, but he must surrender to his immediate lessor or his assignee.54 The surrender may be made expressly, or it may be implied in law. The latter is when an estate, incompatible with the existing estate, is accepted; or the lessee takes a new lease of the same lands.55 As there is a privity of estate between the parties, no livery of seizin is necessary to a perfect surrender, though (as we have already seen) the surrender is required by the statute of frauds to be in writing. It has accordingly been held by Lord Chief Baron Gilbert,56 that a lease for years cannot be surrendered by merely cancelling of the indenture, without writing. The surrender must not be taken from the cestui que trust, but from the legal tenant; and if an old satisfied term has lain dormant for a long time, though still outstanding in the trustee, the surrender of it to the cestui que use is sometimes presumed to support the legal title in him.57
To guard against the mischievous consequences which sometimes result from a surrender, in discharging the un der lessee from the payment of rent, and the conditions and dependent covenants annexed to his lease, the statute of 4 Geo. 11. c. 28. sec. 6. provided, that if a lease be surrendered to be renewed, and a new lease given, the privity and relation of landlord and tenant, between the original lessee and his under-lessees, should be reserved, and it placed the chief landlord, and his lessees and the underlessees, in reference to rents, rights, and remedies, exactly in the same situation as if no surrender had been made. This provision has been incorporated in the New York Revised Statutes;58 but in those states in which it has not been adopted, the question may arise how far the under-tenant, (whose derivative estate still continues,) is discharged front all the rents and covenants annexed to his tenancy, according to the authority of Barton’s case;59 and of Webb v. Russell,60 in which that inequitable result is indicated. The same rule is declared in the text books of the old law.61
(3.) A term for years may be defeated by a condition, or by a proviso of cesser on the happening of a specified event, or by a, release to the disseizor of the reversioner.62
It is sometimes a question, whether the instrument amounts to a lease, or is merely a contract for a lease. It is purely a question of intention, and the cases sufficiently establish the rule of construction to be, that though an agreement may, in one part of it, purport to be a lease, yet if, from the whole instrument, taken and compared together, it clearly appears to have been intended to be a mere executory agreement for a future lease, the intention shall prevail. Where agreements have been adjudged not to operate by passing an interest, but to rest in contract, there have been, usually, either an express agreement for a further lease, or, construing the agreement to be a lease in praesenti, would work a forfeiture, or the terms have not been fully settled, and something further was to be done.63
Leases for years may be forfeited by any act of the lessee which disaffirms the title, and determines the relation of landlord and tenant. If he acknowledges or affirms, by matter of record, the fee to be in a stranger, or claims a greater estate than he is entitled to, or aliens the estate in fee by feoffment, with livery, which operates upon the possession, and effects a disseizin, or if he breaks any of the conditions annexed to the lease, he forfeits the same.64 But these forfeitures are very much reduced in this country by the disuse or abolition of fines and feoffments, and by the statute provision, that no conveyance by a tenant for life or years, of a greater estate than he could lawfully convey, should work a forfeiture, or be construed to pass any greater interest.65 As conveyances with us are in the nature of grants, and as grants pass nothing but what. the grantor may lawfully grant;66 it would follow, of course, upon sound legal principles, even without any statute provision, that conveyances to uses would not work a forfeiture of the particular estate.
It was a clear principle of the common law, that no man could grant a lease to continue beyond the period at which his own estate was to determine, and, therefore, a tenant for life could not, by virtue of his ownership, make an estate to continue after his death. But a lease made under a power may continue, notwithstanding the determination of the estate by the death of the person by whom the power is exercised.67 The limitation and modifying of estates, by virtue of powers, came from equity into the common law, with the statute of uses, and the intent of the party who gave the power, governs the construction of it. Powers to make leases are treated liberally for the encouragement of agricultural improvement and enterprise, which require some permanent interest. If a man has, a power to lease for ten years, and he leases for twenty years, the lease is bad at law, but good in equity for the ten years, because it is a complete execution of the power, and it appears how much it has been exceeded.68 If the power to lease be uncircumscribed, it is liable to abuse, and to be carried, even with upright intentions, to an extent prejudicial to the interests of the cestui que trusts, or parties in remainder.
Thus, the implied power in trustees to lease, was carried to a great extent, and received a very large and liberal construction in the Court of Appeals in South Carolina, in the case of Black v. Ligon.69 The trustees of a charity raised by will, were under an express prohibition against selling or alienating the land; but it was adjudged, that a power to lease was implied. A lease for ninety-nine years, without any annual reservation of rent, and for a very moderate gross sum, payable in eight years, was confirmed upon appeal; inasmuch as great improvements had been made by the purchaser, and the power had been exercised in good faith, and lessees, and sub-lessees, had a strong interest in the confirmation of the lease. This was pushing an implied power to lease very far, and, I apprehend, it went beyond the established precedents.
The final decision in the Court of Appeals (and which was contrary to the opinion of the Chancellor in the court below,) was directly contrary to the decisions in the House of Lords, in the Queensbury cases from Scotland; where it was finally settled, that leases for ninety-nine years, though at an adequate rent, were a breach of the prohibition against alienation. Even a lease for fifty-seven years was held to fall within the prohibition.70 It has been made a question, how far equity could relieve against a defective execution of a power of leasing, as against the party entitled in remainder. But if the lessee be in the nature of a purchaser, and has been at expense in improvements, and there is no fraud on the remainder-man, or there is merely a defect in the execution of the power, equity will interfere and help the power.71
Covenants for renewal are frequently inserted in leases for terms of years, and they add much to the stability of the lessee’s interest, and afford inducement to permanent improvements. But the landlord is not bound to renew without a covenant for the purpose;72 and covenants by the landlord for continual renewals are not favored, for they tend to create a perpetuity. When they are explicit, the more established weight of authority is in favor of their validity.73 These beneficial covenants to renew the lease at the end of the term, run with the land, and bind the grantee of the reversion.74
The tenant for years is not entitled to emblements provided the lease be for a certain period, and does not depend upon any contingency, for it is his own folly to sow when he knows for a certainty that his lease must expire before harvest time.75 If, however, the lease for years depends upon an uncertain event, as if a tenant for life, or a husband seized in right of his wife, should lease the estate for five years, and die before the expiration of the term, by reason whereof the lease is determined, the lessee would be entitled to his emblements, on the same principle that the representatives of a tenant for life takes them, if there would have been time to have reaped what had been sowed, provided the lessor had lived.76 The common law made a distinction between the right to emblements, and the expense of plowing and manuring the ground; and the determination by the landlord of an estate at will, would give to the lessee his emblements, but not any compensation for plowing and manuring the land, provided the lease was determined before the crop was actually in the ground.77
The doctrine of emblements is founded on principles so very reasonable, that it could not have escaped the wisdom of the Roman law. They must have existed, as at common law, in tenancies depending on uncertainty; and we find it proposed as a question by Marcellus,78 whether a tenant for the term of five years could reap the fruits of his labor arising after the extinguishment of the lease; and he was correctly of opinion that the tenant was not entitled, because he must have foreseen the termination of the lease. The Roman law made some compensation to the lessee for the shortness of his five year lease, for it gave him a claim upon the lessor for reimbursement for his reasonable improvements. The landlord was bound to repair, and the tenant was discharged from the rent, if he was prevented from reaping and enjoying the crops, by any extraordinary and unavoidable calamity, as tempests, fire, or enemies.79 In these respects the Roman lessee had the advantage of the English tenant, for if there be no agreement or statute applicable to the case, the English landlord is not bound to repair, or to allow the tenant for repairs made without his authority; and the tenant is bound to pay the rent, and to repair at his own expense, to avoid the charge of permissive waste.80
II. Of estates at will.
An estate at will is where one man lets land to another to hold at the will of the lessor.81 It was determined very anciently by the common law, and upon principles of justice and policy, that estates at will were equally at the will of both parties, and neither of them was permitted to exercise his pleasure in a wanton manner, and contrary to equity or good faith. The lessor could not determine the estate after the tenant had sowed, and before he had reaped, so as to prevent the necessary egress and regress to take away the emblements.82 Nor could the tenant, before the period of payment of the rent arrived, determine the estate, so as to cut off the landlord from his rents.83 The tenant at will is also entitled to his reasonable estovers, as well as to the profits of his crop, and he is entitled to a reasonable time to remove his family and property.84
Estates at will, in the strict sense, have become almost extinguished under the operation of judicial decisions. Lord Mansfield observed,85 that an infinite quantity of land was held in England without lease. They were all, therefore, in a technical sense, estates at will; but such estates are said to exist only notionally, and where no certain term is agreed on, they are construed to be tenancies from year to year, and each party is bound to give reasonable notice of an intention to terminate the estate. The language of the books now is, that a tenancy at will cannot arise without express grant or contract, and that all general tenancies are constructively tenancies from year to year.86 If the tenant holds over by consent given, either expressly or constructively, after the determination of a lease for years, it is held to be evidence of a new contract, without any definite period, and is construed to be a tenancy from year to term. The moment the tenant is suffered by the landlord to enter on the possession of a new year, there is a tacit renovation of the contract for another year, and half a year’s notice to quit must be given, prior to the end of the term.87 The tenant does not know in what year the lessor may determine the tenancy, and in that respect he has an uncertain interest, on which the doctrine of notice and of emblements is grounded.88
The ancient rule of the common law required, in the case of all tenancies from year to year, six months’ notice on either side, and ending at the expiration of the year, to determine the tenancy; and there must be a special agreement, or some particular custom, to prevent the application of the rule. This tenancy from year to year succeeded to the old tenancy at will, and it was created under a contract for a year implied by the courts. The tenancy cannot be determined except at the end of the years.89 The English rule of six months’ notice prevails in New York, but there is a variation in the rule, or perhaps no fixed established rule on the subject, in other parts of the United States. In Massachusetts, it was said in Rising v. Stannard,90 that the English rule of six months’ notice had not been adopted, but. that reasonable notice must be given to a tenant at will.
Afterwards, in Coffin v. Lunt,91 it was left as a point unsettled, whether notice to quit was requisite; but the better opinion is, that notice is necessary in that state; and it was the opinion of Mr. Justice Putney, upon an elaborate and thorough view of the subject, in Ellis v. Paige,92 that in a tenancy at will the parties must give to each other reasonable notice of a determination of the will.93 Justice and good sense require that the time of notice should vary with the nature of the contract, and the character of the estate. Though the tenant of a house is equally under the protection of notice as the tenant of a farm; yet, if lodgings be hired, for instance, by the month, the time of notice must be proportionably reduced.94 In Pennsylvania, the common law notice of six months is understood to be shortened to three months, as well in cases without, as within the statute of that state, in the year 1772.95
The reservation of an annual rent is the leading circumstance that turns leases for uncertain terms into leases from year to year.96 If the tenant be placed on the land, without any terms prescribed, or rent reserved, and as a mere occupier, he is strictly a tenant at will;97 and an actual tenant at will has not any assignable interest, though it is sufficient to admit of an enlargement by release.98 On the other hand, estates which are constructively tenancies for the term of a year, or from year to year, may be assigned.99 A strict tenant at will, in the primary sense of that tenancy, is not entitled to notice to quit; nor is a tenant, whose term is to end at a certain time, for in that case both parties are apprized of their rights and duties. The lessor may enter on the lessee when the term expires, without further notice.100 Except for the purpose of notice to quit, tenancies at will seem even still to retain their original character;101 and the distinction between tenants from year to year, and tenants at will, was strongly marked in the case of Nichols v. Williams.102
The New York Revised Statutes103 authorize a summary proceeding to regain the possession, where the tenant for one or more years, or for part of a year, or at will, or sufferance, holds wrongfully against his landlord; but it requires one month notice to be given to a tenant at will, or sufferance, created by holding over or otherwise, to remove, before application be made for process under the act. It was held in the case above cited, that a tenant from year to year was not entitled to any notice, in proceedings under a similar statute provision, though in the action of ejectment he would still be entitled to his six months’ notice to quit. There is a summary mode of proceeding, provided also by statute in Pennsylvania and Maryland for such cases, and the statute requires in the one state three, and in the other one month’s notice only, and they make no discrimination between different kinds of tenants.104
The resolutions of the courts turning the old estates at will into estates from year to year, with the right on each side of notice to quit, are founded in equity and sound policy, as they put an end to precarious estates, which are very injurious to the cultivation of the soil, and subject to the abuses of discretion. But they are a species of judicial legislation, tempering the strict letter of the law by the spirit of equity. Estates at will, under the salutary regulation of the reasonable notice to quit, have still a strong foundation in the language of the statute of frauds,105 which declared, that “all leases, estates, or uncertain interests in land, made by parol, and not in writing, should have the force and effect of estates at will only, and should not in law or equity be deemed or taken to have any other or greater force or effect.” The statute of frauds made an exception in favor of leases not exceeding the term of three years, and on which the rent reserved amounted to two third parts of the full improved value of the land demised. But it appears that the English decisions have never alluded to that exception. They have moved on broader ground, and on general principles, so as to have rendered the exception practically useless. The exception is now dropped in the Massachusetts and New York statutes of frauds.106
The Roman law, like the English, was disposed as much as possible, and upon the same principles of equity, to construe tenancy at will to be a holding from year to year; and, therefore, if the tenant held over, after the term had expired, and the lessor seemed in any way to acquiesce, his silence was construed into a tacit renewal of the lease, at least for the following year, with its former conditions and consequences; and the lessee became tenant from year to year, and could not be dispossessed without regular notice?107 The whole of the title in the Pandects upon this subject,108 contains the impression of a very cultivated jurisprudence, under the guidance of such names as Papinian, Ulpian, Julian, and Gaius. And when the sages at Westminster were called to the examination of the same doctrines, and with a strong, if not equally enlightened and liberal sense of justice, they were led to form similar conclusions, even though they had to contend, in the earlier periods of the English law, when the doctrine was first introduced, with the overbearing claims of the feudal aristocracy, and the scrupulous technical rules of the common law.
III. Of estates at sufferance.
A tenant at sufferance is one that comes into the possession of land by lawful title, but holds over by wrong after the determination of his interest.109 He has only a naked possession, and no estate which he can transfer or transmit, or which is capable of enlargement by release, for he stands in no privity to his landlord, nor is he entitled to notice to quit;110 and, independent of statute, he is not liable to pay any rent.111 He holds by the laches of the landlord, who ‘may enter, and put an end to the tenancy when he pleases, but before entry he cannot maintain an action of trespass against the tenant by sufferance.112 There is a material distinction between the cases of a person coming to an estate by act of the party, and afterwards holding over, and by act of the law, and then holding over. In the first case, he is regarded as a tenant at sufferance; and in the other, as an intruder, abator, or trespasser.113
This species of estate is too hazardous to be frequent, and it is not very likely to occur, since the statutes of 4 Geo. II. c. 28. and 11 Geo. II. c. 19., declaring, that if a tenant held over after demand made, and notice in writing to deliver up the possession, or if he held over after having himself given notice of his intention to quit, he should be liable to pay double rent so long as he continued to hold over. The provisions of these statutes have been re-enacted in New York, though they are not generally adopted in this country.114 There is, likewise, in this state, a further provision by statute against holding over without express consent, after the determination of their particular estates, by guardians and trustees to infants, and husbands seized in right of their wives, or by any other persons having estates determinable upon any life or lives. They are declared to be trespassers, and liable for the full value of the profits received during the wrongful possessions.115 This last provision was taken from the statute of 6 Anne, c. 18., and the common law itself held the guardian, in such a case, to be an abator, and it gave an assize of mort d’ancestor; and so it equally gave an action of trespass, after entry, against the tenant pour autre vie, and against the tenant for years holding over.116
In the case of the tenant holding over after the expiration of his term, the landlord may recover the possession of the premises by an action of ejectment; and in New York, as we have. already seen, a summary remedy is given to the landlord by statute, under the process of a single judge.117 Independent of any statute provision, the landlord may re-enter upon the tenant holding over, and remove him and his goods with such gentle force as may be requisite for the purpose, and the tenant would not be entitled to resist or sue him. The plea of liberum tenementum would be a good justification in an action of trespass by the party for the entry and expulsion.118 But the landlord would, in the case of an entry by force, and with strong hand, be liable to an indictment for a forcible entry, either under the statutes of forcible entry, or at common law; and in the cases which justify the entry as against the tenant, it is admitted that the landlord would be indictable for the force.
1. Co. Litt. 46. a. See also, vol. ii. 278 of the present work.
2. Litt. sec. 67.
3. Co. Litt. 46. a. Lord Parker, in Theobalds v. Duffoy, 9 Mod. Rep. 102.
4. F.N.B. 198. cites 19 Hen. VI.
5. See a list of the authorities pro and con, taken principally from the Year Books, cited in the margin to Co. Litt. 46. a.
6. F. N. B. 221. 2 Blacks. Cam. 142. Reeves’ Hist. of the Eng. law, vol. iv. 252, 235.
7. 3 Ch. Cas. 24.
8. Denn v. Barnard, Cowp. Rep. 597.
9. 1 Vent. 53. 80. 1 Lep. 270. S.C.
10. 1 Term Rep. 763. 1 Coll, Jurid. 251. S.C.
11. See the strong and lucid opinion of Mr. Fearne on the subject of these attendant terms, in 2 Coll. Jurid. 279.
12. 10 Vesey, 246.
13. Capel v. Girdler, 9 Vesey, 509,
14. King v. Smith, Sugden’s Treat. of Vendors and Purchasers, App. n. 13. The King v. St. John, 2 Price, 317.
15. Wilkes v. Bodington, 2 Vern. 599.
16. Wynn v. Williams, 5 Vesey, 130.
17. 2 Barnw. & Ald. 710, 783.
18. See Mr., now Sir Edward B. Sugden’s Letter to Charles Butler, Esq. on the doctrine of presuming a surrender of terms assigned to attend the inheritance.
19. The cases of Townsend v. Bishop of Norwich, Hays v. Bailey, and Aspinal v. Kempson, are referred to in the appendix to the sixth edition of Sugden’s Essay on Vendors and Purchasers, for Lord Eldon’s continued marks of disapprobation of the recent doctrine.
20. 6 Madd. Rep. 54.
21. The leading cases on the question have been collected, and the doctrine of attendant terms clearly and neatly condensed, by Mr. Butler, in Co. Litt. 290, b. note 249. sec. 13.; but the whole subject is much more fully examined by Mr. Coventry, in his voluminous notes to 2 Powell on Mortgages, p. 477-512.
22. Levet v. Needham, 2 Vern. 138. Whitchurch v. Whitchurch, 2 P. Wms. 236. Villiers v. Villiers, 2 Atk. 71.
23. Gay’s case, 5 Mass. Rep. 419. Brewster v. Hill, 1 N. H. Rep. 350.
24. N.Y. Revised Statutes, vol. i. 727, 728, 729, 730. sec. 45. 49. 55. 60, 61. 65. 67.
25. Gibbon’s Hist. vol. viii. 86. note. Lord Kaimes’ Gentleman Farmer, 407. cited in 1 Bro. Civil Law, 198. note. Dr. Browne, p. 191-198. has given an interesting detail of the condition of the Roman lessee. In Scotland, very long leases are considered as within the prohibition of alienation; and Mr. Bell says, that a lease for nineteen years is alone to be relied on under a general clause in a deed of entail prohibiting alienation. Bell’s Com. vol. i. 69, 70.
26. Fleta, lib. 5. c. 5. sec. 18, 19, 20. Dalrymple on Feudal Property, ch. 2. sec. 1. p. 25. Preston on Estates, vol. i. 204,205,206.
27. N.Y. Revised Statutes, vol. ii. 135. sec. 8.
28. Hare v. Celey, Cro. Eliz. 143. Bradish v. Schenck, 8 Johns. Rep. 151.
29. Jackson v. Brownell, 1 Johns. Rep, 267,
30. Holford v. Hatch, Doug. 183. Bacon, tit. Leases, I. 3.
31. Bacon’s Abr. tit. Leases, M.
32. Co. Litt. 270. a. S. Touch. by Preston. 267.
33. Co. Litt. 46. b. 270. a. b. 338. a. Preston on Conveyancing, vol. ii. 211-217. Doe v. Walker, 5 Barnw. & Cress. 111. Mr. Preston arraigns Sir William Blackstone, and even Littleton and Coke, for not speaking with sufficient precision in respect to the difference between an interesse termini, and a term for years in possession. But the Court of K. B., in the case last cited, collected and stated, with great clearness, upon the authority of Co. Litt., all the leading characteristics of an interesse termini. There are subtleties upon the subject that betray excessive refinement, and lead to useless abstruseness. Thus, the interest “may be released, but it cannot be enlarged by release; it may be assigned, but it cannot be surrendered, though it is no impediment to a surrender or merger of a prior interest, in a more remote interest.” 2 Preston on Convey. 216. When the law is overrun with such brambles, it loses its sense and spirit, and becomes matadorphosed subita radice retenta est-stipite crura teneri.
34. Weale v. Lower, Pollexfen, 54
35. Co. Litt. 45. a. 47. b. Bacon’s Abr. tit. Leases, 0. Preston on Convey. vol. ii. 136. 139.
36. 2 Blacks. Com. 177. Preston on Convey. vol. iii. P. 7. 15. 18. 23.
37. Ibid. p. 7.
38. Ibid. 182,183. 201.213. 219. 225. 261.
39. Doe v. Walker, 5 Barnw. & Cress. 111.
40. 3 Preston on Convey. 23.153.
41. ibid. 25.
42. Ibid. 88, 89.
43. Preston on Conveyancing, vol. iii. 50. 55. 87. 107. 166.
44. Preston on Conveyancing, vol. iii. 273. 285. 294. Donisthorpe v. Porter, 2 Eden’s Rep. 162,
45. Ibid. 294. 5. 309
46. Ibid. 306. 7.
47. Co. Litt. 54. b. Preston, ibid. 43-49.
48. 1 P. Wms. 41. 1 Atk. 592. Preston on Convey. vol. iii. 314,315. 557. 558
49. Preston, ub. sup. 314-342. Donisthorpe v. Porter, 2 Eden’s Rep. 162. Goodright v. Wells, Doug. 771. Wade v. Paget, 1 Bro. 363. Selby v. Asten, 3 Vesey, 339.
50. Forbes v. Moffatt, 18 Vesey, 384. Gardner v. Astor, 3 Johns. Ch. Rep. 53. Starr v. Ellis, 6 Johns. Ch. Rep. 393. Freeman v. Paul, 3 Greenleaf, 260. Gibson v. Crehore, 3 Pickering, 475.
51. Lord Rosslyn, in Compton v. Oxenden, 2 Vesey, jr. 261. James v. Johnson, 6 Johns. Ch. Rep. 417. James v. Morey, 2 Cowen, 246.
52. The 3d volume of Mr. Preston’s extensive Treatise on Conveyencing, is devoted exclusively to the law of merger. It is the ablest and most interesting discussion in all his works. It is copious, clear, logical, and profound; and I am the more ready to render this tribute of justice to its merits, since there is great reason to complain of the manner in which his other works are compiled. He has been declared by one of his pupils, to have stupendous acquirements as a property lawyer.” The evidence of his great industry, and extensive and critical law learning, is fully exhibited; but I must be permitted to say, after having attentively read all his voluminous works, that they are in general encumbered with much loose matter, and with unexampled and intolerable tautology-magnitudine laborant sua. I use language by no means too strong; nor do I perceive, with the exception of his treatise on merger, (and even that treatise is far too attenuated, and abounds in repetitions,) the evidence of any remarkable superiority of judgment in the management of his materials. His works have no claim to the merit of compactness, or of orderly and lucid arrangement.
53. Co. Litt. 337..b
54. Preston on Abstracts of Title, vol. 2. 7.
55. Livingston v. Potts, 16 John.. Rep. 28. Shep. Touch. by Preston, vol. 2. 300, 301. In that old and venerable work, under the title Surrender, the whole law is fully and clearly laid down; but Mr. Preston says, that in a fourth volume to his Treatise on Conveyancing, (and which I have not seen,) the theory and practice of the law of surrenders is to be examined.
56. Magennis v. Macullagh, Gilb. Q we in Eq. 236.
57. Doe v. Sybourn, 7 Term Rep. 2. Goodtitle v. Jones, ibid. 47.Doe v. Hilder, 2 Barnw. & Ald. 782.
58. N.Y. Revised Statutes, vol. i. 744. sec. 2.
59. Moor, 94.
60. 3 Term Rep. 401.
61. Shep. Touchstone, by Preston, vol. ii. 301.
62. Co. Litt, 274. a.
63. Sturgeon v. Painter, Noy, 128. Foster v. Foster, 1 Lev. 55. Baxter v. Browne, 2 Wm. Blacks. Rep. 973. Goodtitle v. Way, 1 Term Rep. 735. Doe v. Clare, 2 ibid. 739. Roe v. Ashburner, 5 ibid. 163 Doe v. Smith, 6 East’s Rep. 530. Poole v. Bentley, 12 ibid. 168. Morgan v. Bissell, 3 Taunt. Rep. 65. Jackson v. Myers, 3 Johns. Rep. 388. Jackson v. Clark, ibid. 424. 5 Johns. Rep. 77. Jackson v. Kisselbrack, 10 ibid. 336. Jackson v. Delacroix, 2 Wendell, 433. Preston on Convey. vol. ii. 177.
64. Co. Litt. 251. b. Bacon, tit. Leases, sec. 2.
65. N.Y. Revised Statutes, vol. i. 739. sec. 143. 146.; and see, as to other parts of the United States, supra.
66. Litt. sec. 608, 609, 610. 618. Co. Litt. 330. b. 332. e
67. Hale v. Green, 2 Rol.Abr. 261. pl. 10. Ram on Tenure and Tenancy, p. 75.
68. Lord Mansfield, in 1 Burr. 120. Campbell v. Leach, Amb. 740. Ex parte Smyth, 1 Swanst. Rep. 337. 357. Hale, Ch. B., in Jenkins v. Kemishe, Hard. 395. Sugden on Powers, 2 Lond. edit. 545. Roe v. Prideaux, 10 East’s Rep. 158.
69. Harper’s Eq Rep. 205.
70. 2 Dow, 90. 285. 5 ibid. 293. 1 Bligh, 339. Bell’s Com. vol. i. 69.
71. Campbell v. Leach, Amb. 740. Shannon v. Bradstreet, 1 Sch. & Lef. 52. Sugden on Powers, 364–368. 564, 565. In ch. 10. of Mr. Sugden’s Treatise of Powers, he considers extensively the law of powers to lease, and to which I must refer the student for a detailed view of that doctrine. In the N.Y. Revised Statutes, vol. i. 731. art. 3. the subject of powers in general is ably digested, and the doctrine is discharged, in a very considerable degree, from the subtleties which have given it so forbidding a character, and it is placed on clear and rational grounds. The observations of the revisors, which were annexed to their proposed modification and digest of the law of powers, were particularly striking and valuable, and show that they had studied the doctrine as it existed in the English law thoroughly, and penetrated its labyrinth with searching sagacity and ultimate success. It is impossible to make such a technical subject intelligible to any but technical men, but the article of powers in the revised statutes, though incapable of being understood by the ley gents will relieve the profession and conveyancers wonderfully, and bar the introduction into this state of some of the most hidden mysteries of the science. The doctrine may be noticed hereafter in its application to different subjects, and I would now only observe that by the Revised Statutes, powers, as they before existed, are abolished, and precise rules substituted for the creation, construction, and execution of them. It provides, in relation to the immediate subject before us, that a special and beneficial power may be granted to a tenant for life, of the lands embraced in the power, to make leases for not more than twenty-one years, and to commence in possession during his life; that such a power is not assignable as a separate interest, but is annexed to the estate, and will pass (unless specially excepted) by any conveyance of such estate; and if specially excepted in the conveyance, it is extinguished. So it may be extinguished by a release of it by the tenant, to any person entitled to an expectant estate in the lands. The power is not extinguished or suspended by a mortgage executed by the, tenant for life having a power to make leases, but it is bound by the mortgage in the same manner as the lands are bound, and the mortgagee is entitled in equity to the execution of the power, so far as the satisfaction of the debt may require. N.Y. Revised Statutes, vol. i. 732, 733. sec. 73. 87, 88, 89, 90, 91. Every special and beneficial power, general or special, not embraced in the article, is declared not to be valid, and no power can be executed, except by an instrument in writing, which would be sufficient to pass the interest in it, if the person executing the power was the owner. No disposition, by virtue of a power, shall be void in law or equity, on the ground that it was more extensive than was authorized by the power, and the estate or interest. shall be valid, so far as it is embraced by the terms of the power. Ibid. sec. 92. 113. 123.
72. Lee v. Vernon, Bro. P. C. vol. vii. 432. ed. 1784. Robertson v. St. Johns, 2 Bro. 140.
73. Furnival v. Crew, 3 Atk. 83. Lord Eldon, in Willan v. Willan, 16 Ves. 84. Rutgers v. Hunter, 6 Johns. Ch. Rep. 215,
74. Moore, 159. Pl. 300.
75. Litt. sec. 68.
76. Co. Litt. 56. a.
77. Bro. Abr tit. Emblements, pl. 7. tit. Tenant pour Copie de Court roll, pl. 3. Stewart v. Doughty, 9 Johns. Rep. 108.
78. Dig. 19. 2. 9.
79. Dig. 19. 2. 15. 1. and 2.
80. Pindar v. Ainsley, cited by Buller, J. in 1 Term Rep. 312. See also, supra.
81. Litt. sec. 68.
82. 21 Hen. VI. 37. 35 Hen. VI. 24. pl. 30. 3 Hen. VIII. Keilw. 162. pl. 4. 13 Hen. VIII. 16. pl. 1. Litt. sec. 68. Co. Litt. 55. a. Viner’s Abr. vol. 10. tit. Estate, 406. B. c. pl. 5. Kighly v. Bulkly, 1 Sid. 339
83. Kighly v. Bulkly, 1 Sid. 348. Leighton v. Theed, 2 Salk. 413.
84. Litt. sec. 69. Co. Litt. 56. b. 56. a. Ellis v. Paige, 1 Pickering, 43.
85. 3 Burr. 1607.
86. Preston on “Abstracts of Title, vol. ii. 25. Wilmot, J. 3 Burr. 1609.
87. Bro. Abr. tit. Lease, p1. 53. Layton v. Field, 3 Salk. 222.
88. Kingsbury v. Collins, 4 Bingham, 202
89. Leighton v. Theed, 1 Ld. Raym. 707. Doe v. Snowden, 2 W. Blacks. Rep. 1224. Doe v. Porter, 3 Term Rep. 13. Porter v. Constable, 3 Wils. 25. Right v. Darby, 1 Term Rep. 159. Roe v. Wilkinson, cited from M.S. in Butler’s note, 228. to lib. 3. Co. Litt. Jackson v. Bryan, 1 Johns. Rep. 322.
90. 17,Mass. Rep. 287.
91. 2 Pick. 70.
92. 2 Pick. 71. note.
93. The opinion of Judge Putnam, in the case referred to, contains a full and broad view of the whole ancient and modern law on the question; and he established, by authority and illustration, the necessity of reasonable notice to quit, in all cases of uncertain tenancy, whether under the name of tenancies from year to year, or tenancies at will. He showed that the doctrine was grounded on the immutable principles of justice and the common law, and was introduced for the advancement of agriculture, and the maintenance of justice; and to prevent the mischievous effects of a capricious and unreasonable determination of the estate.
94. Right v. Darby, 1 Term Rep. 159. Doe v. Hazell, 1 Esp. N. P. Rep. 94.
95. Gibson, J. in Logan v. Herron, 8 Serg. & Rawle 458.
96. De Grey, Ch. J. in 2 W. Black. 1173.
97. Jackson v. Bradt, 2 Caines, 169.
98. Litt. sec. 460. Co. Litt. 270. b.
99. Preston on Abstracts, vol. ii. 25.
100. Messenger v. Armstrong, 1 Term Rep. 54. Bright v. Darby, ibid. 162. Jackson v. Bradt, 2 Johns. Rep. 169. Jackson v. Parkhurst, 5 ibid. 128. Bedford, v. McElhetton, 2 Serg. & Rawle, 49. Ellis v. Paige, 1 Pick. 43.
101. 7 Johns. Rep. 4. Nichols v. Williams, 8 Cowen, 75.
102. 8 Cowen, 13.
103. The N.Y. Revised Statutes, vol. i. 745. sec. 7. & vol. ii. 512, 513. sec. 28.
104. Stat. of Pennsylvania of March, 1772, and of, Maryland, Dec. 1793.
105. 29 Charles II chap. 3.
106. Putnam, J. in Ellis v. Paige, 2 Pick. 71. note. N.Y. Revised Statutes, vol. ii. 135. sec. 8.
107. Dig. 19. 2. 13. 11. Ibid. 1. 14. Pothier’s Pandectae, tom. 2. 225. Brown’s Civil Law, vol. i. 198. I have assumed the existence of the rule in the Roman law, requiring notice to quit, upon the credit of Dr. Brown; but he cites no authority for it, and I have not perceived it in the text of the Digest.
108. Lib. 19. tit. 2. Locati conducti
109. Co. Litt. 57. b.
110. Co. Litt. 270. b. Jackson v. Parkhurst, 5 Johns. Rep. 128. Jackson v. McLeod, 12 ibid. 182.
111. Cruise’s Dig. tit. 9. ch. 2. sec. 6.
112. 2 Blacks. Cam. 150.
113. Co. Litt. 57. b. 2 Inst. 134.
114. N.Y. Revised Statutes, vol. i. 745. sec. 10, 11.
115. N.Y. Revised Statutes, vol. i. 749. sec. 7.
116. Co. Litt. 57. b. 2 Inst. 134.
117. See ante, vol. iii. 384. and N.Y. Revised Statutes, vol. i. 745. sec, 7,8,9,
118. Taylor v. Cole, 3 Term Rep. 292. 1 H. Blacks. 555. S. C. Taunton v. Costar, 7 Term Rep. 431. Argent v. Durrant, 8 ibid. 403. Turner v. Meymott, 1 Bingham. 158