Blackstone’s Commentaries with Notes of Reference (1803)
St. George Tucker
Of Estates, Less than Freehold
Of estates, that are less than freehold, there are three sorts; 1. Estates for years: 2. Estates at will: 3. Estates by sufferance.
I. An estate for years is a contract for the possession of lands or tenements, for some determinate period: and it happens where a man lets them to another for the term of a certain number of years, agreed upon between the lessor and the lessee,1 and the lessee enters thereon.2 If the lease be but for half a year, or a quarter, or any less time, this lessee is respected as a tenant for years, and is styled so in some legal proceedings; a year being the shortest term which the law in this case takes notice of.3 And this may, not improperly, lead us into a short explanation of the division and calculation of time by the English law.
The space of a year is a determinate and well-known period, consisting commonly of 365 days: for, though in bissextile or leap-years it consists properly of 366, yet by the statute 21 Hen. III. the increasing day in the leap-year, together with the preceding day, shall be accounted for one day only. That of a month is more ambiguous: there being, in common use, two ways of calculating months; either as lunar, consisting of twenty eight days, the supposed revolution of the moon, thirteen of which make a year; or, as calendar months, of unequal lengths, according to the Julian division in our common almanacs, commencing at the calends of each month, whereof in a year there are only twelve. A month in law is a lunar month, or twenty eight days, unless otherwise expressed; not only because it is always one uniform period, but because it falls naturally into a quarterly division by weeks. Therefore a lease for “twelve month” in the singular number, it is good for the whole year.4 For herein the law recedes from its usual calculation, because the ambiguity between the two methods of computation ceases; it being generally understood that by the space of time called thus, in the singular number, a twelvemonth, is meant the whole year, consisting of one solar revolution. In the space of a day all the twenty four hours are usually reckoned; the law generally rejecting all fractions of a day, in order to avoid disputes.”5 Therefore, if I am bound to pay it before twelve o’clock at night; after which the following day commences. But to return to estates for years.
These estates were originally granted to mere farmers or husbandmen, who every year rendered some equivalent in money, provisions, or other rent, to the lessors or landlords; but, in order to encourage them to manure and cultivate the ground, they had a permanent interest granted them, not determinable at the will of the lord. And yet their possession was esteemed of to little consequence, that they were rather considered as the bailiffs or servants of the lord, who were to receive and account for the profits at a settled price, than as having any property of their own. And therefore they were not allowed to have a freehold estate: but their interest (such as it was) vested after their deaths in their executors, who were to make up the accounts of their testator with the lord, and his other creditors, and were entitled to the stock upon the farm. The lessee’s estate might also, by the ancient law, be at any time defeated, by a common recovery suffered by the tenant of the freehold;6 which annihilated all leases for years then subsisting, unless afterwards renewed by the recoveror, whose title was supposed superior to his by whom those leases were granted.
While estates for years were thus precarious, it is no wonder that they were usually very short, like our modern leases upon rack rent; and indeed we are told7 that by the ancient law no leases for more than forty years were allowable. because any longer possession (especially when given without any livery declaring the nature and duration of the estate) might tend to defeat the inheritance. Yet this law, if it ever existed, was soon antiquated: for we may observe, in Madox’s collection of ancient instruments, some leases for years of a pretty early date, which considerable exceed that period;8 and long terms, for three hundred years at least, were certainly in use in the time of Edward III.,9 and probably of Edward I.10 But certainly, when by the statute 21 Hen. VIII. c. 15. the tremor (that is, he who is entitled to the term of years) was protected against these fictitious recoveries, and his interest rendered secure and permanent, long terms began to be more frequent than before; and were afterwards extensively introduced, being found extremely convenient for family settlements and mortgages: continuing subject, however, to the same rules of succession, and with the same inferiority to freeholds, as when they were little better than tenancies at the will of the landlord.
Every estate which must expire at a period certain and prefixed, by whatever words created, is an estate for years. And therefore this estate is frequently called a term, terminus, because its duration or continuance is bounded, limited, and determined: for every such estate must have a certain beginning, and certain end.11 But id certum est, quod certum reddi potest: therefore if a man make a lease to another, for so many years as J. S. shall name, it is a good lease for years;12 for though it is at present uncertain, yet when J. S. has named the years, it is then reduced to a certainty. If no day of commencement is named in the creation of this estate, it begins from the making, or delivery, of the lease.13 A lease for so many years as J. S. shall live, is void from the beginning;14 for it is neither certain, nor can ever be reduced to a certainty, during the continuance of the lease. And the same doctrine holds, if a parson make a lease of his glebe for so many years as he shall continue parson of Dale; for this is still more uncertain. But a lease for twenty or more years, if J. S. shall so long live, or if he shall so long continue parson, is good:15 for there is a certain period fixed, beyond which it cannot last; though it may determine sooner, on the death of J. S. or his ceasing to be parson there.
We have before remarked, and endeavored to assign the reason of, the inferiority in which the law places an estate for years, when compared with an estate for life, or an inheritance: observing, that an estate for life, even it be pur auter vie, is a freehold; but that an estate for a thousand years is only a chattel, and reckoned part of the personal estate.16 Hence it follow, that a lease for years may be made to commence in futuro, though a lease for life cannot. As, if I grant lands to Titius to hold from Michaelmas next for twenty years, this is good; but to hold from Michaelmas next for the term of his natural life, is void. For no estate of freehold can commence in futuro; because it cannot be created at common law without livery of seizin, or corporal possession of the land: and corporal possession cannot be given of an estate now, which is not to commence now, but hereafter.17 And, because no livery of seizin is necessary to a lease for years, such lessee is not said to be seized, or to have true legal seizin, of the lands. Nor indeed does the bare lease vest any estate in the lessee; but only gives him a right of entry on the tenement, which right is called his interest in the term, or interesse termini: but when he has actually so entered, and thereby accepted the grant, the estate is then and not before vested in him, and he is possessed, not properly of the land, but of the term of years:18 the possession or seizin of the land remaining still in him who has the freehold. Thus the word, term, does not merely signify the time specified in the lease, but the estate also and interest that passes by that lease: and therefore the term may expire, during the continuance of the time; as by surrender, forfeiture, and the like. For which reason, if I grant a lease to A for the term of three years, and after the expiration of the said term to B for six years, and A surrenders or forfeits his lease at the end of one year, B’s interest shall immediately take effect: but if the remainder had been to B from and after the expiration of the said three years, or from and after the expiration of the said
three years, or from and after the expiration of the said time, in this case B’s interest will not commence till the time is fully elapsed, whatever may become of A’s term.19
Tenant for term of years has incident to, and inseparable from his estate, unless by special agreement, the same estovers, which we formerly observed20 that tenant for life was entitled to; that is to say, house-bote, fire-bote, plow-bote, and hay-bote:21 terms which have been already explained.22
With regard to emblements, or profits of land sowed by tenant for years, there is this difference between him, and tenant for life: that where the term of tenant for years depends upon a certainty, as if he holds from midsummer for ten years, and in the last year he sows a crop of corn, and it is not ripe and cut before midsummer, the end of his term, the landlord shall have it; for the tenant knew the expiration f his term, and therefore it was his own folly to sow what he never could reap the profits of.23 But where the lease for years depends upon an uncertainty; as, upon the death of the lessor, being himself only tenant for life, or being a husband seized in right of his wife; or if the term of years be determinable upon a life or lives; in all these cases, the estate for years not being certainly to expire at a time foreknown, but merely by the act of God, the tenant, or his executors, shall have the emblements in the same manner, that a tenant for life or his executors shall be entitled thereto.24 Not so, if it determine by the act of the party himself; as if tenant for years does any thing that amounts to a forfeiture: in which case the emblements shall go to the lessor, and not to the lessee, who has determined his estate by his own default.25
II. The second species of estates not freehold are estates at will. An estate at will is where lands and tenements are let by one man to another, to have and to hold at the will of the lessor; and the tenant by force of this lease obtains possession.26 Such tenant has no certain indefeasible estate, nothing that can be assigned by him to any other; for that the lessor may determine his will, and put him out whenever he pleases. But every estate at will is at the will of both parties, landlord and tenant, so that either of them may determine his will, and quit his connections with the other at his own pleasure.27 Yet this must be understood with some restriction. For, if the tenant at will sows his land, and the landlord before the corn is ripe, or before it is reaped, puts him out, yet the tenant shall have the emblements, and free ingress, egress, and regress, to cut and carry away the profits.28 And this for the same reason, upon which all the cases of emblements turn; viz. the point of uncertainty: since the tenant could not possibly know when his landlord would determine his will, and therefore could make no provision against it; and having sown the land, which is for the good of the public, upon a reasonable presumption, the law will not suffer him to be a loser by it. But it is otherwise, and upon reason equally good, where the tenant himself determines the will; for in this case the landlord shall have the profits of the land.29
What act does, or does not, amount to a determination of the will on either side, has formerly been mater of great debate in our courts. But it is now, I think settled, that (besides the express determination of the lessor’s will, by declaring that the lessee shall hold no longer; which must either be made upon the land,30 or notice must be give to the lessee31) the exertion of any act of ownership by the lessor, as entering upon the premises and cutting timber,32 taking a distress for rent and impounding them thereon,33 or making a feoffment, or lease for years of the land to commence immediately;34 any act of desertion by the lessee, as assigning his estate to another, or committing waste, which is an act inconsistent with such a tenure;35 or, which is instar omnium, the death or outlawry, of either lessor or lessee;36 puts an end to or determines the estate at will.
The law is however careful, that no sudden determination of the will by one party shall tend to the manifest and unforeseen prejudice of the other. This appears in the case of emblements before-mentioned; and, by a parity of reason, the lessee after the determination of the lessor’s will, shall have reasonable ingress and egress to fetch away his goods and utensils.37 And, if rent be payable quarterly or half-yearly, and the lessee determines the will, the rent shall be paid to the end of the current quarter or half-year.38 And, upon the same principle, courts of law have of late years leant as much as possible against construing demises, where no certain term is mentioned, to be tenancies at will; but have rather held them to be tenancies from year to year so long as both parties please, especially where an annual rent is reserved: in which case they will not suffer either party to determine the tenancy even at the end of the year, without reasonable notice to the other.
There is one species of estates at will, that deserves a more particular regard than any other; and that is, an estate held by copy of court roll; or, as we usually call it, a copyhold estate. This, as was before observed,39 was in its original and foundation nothing better than a mere estate at will. But, the kindness and indulgence of successive lords of manors having permitted these estates to be enjoyed by the tenants and their heirs, according to particular customs established in their respective districts; therefore, though they still are held at the will of the lord, and so are in general expressed in the court rolls to be, yet that will is qualified, restrained, and limited, to be exerted according to the custom of the manor. This custom, being suffered to grow up by the lord, is looked upon as the evidence and interpreter of his will: his will is no longer arbitrary and precarious; but fixed and ascertained by the custom to be the same, and no other, that has time out of mind been exercised and declared by his ancestors. A copyhold tenant is therefore now full as properly a tenant by the custom, as a tenant at will, the custom having arisen from a series of uniform wills. And therefore it is rightly observed by Calthorpe,40 that “copyholders and customary tenants differ not so much in nature as in name: for although some be called copyholders, some customary, some tenants by the virge, some base tenants, some bond tenants, and some by one name and some by another, yet do they all agree in substance and kind of tenure: all the said lands are held in one general kind, that is, by custom and continuance of time; and the diversity of their names does not alter the nature of their tenure.”
Almost every copyhold tenant being therefore thus tenant at the will of the lord according to the custom of the manor; which customs differ as much as the humor and temper of the respective ancient lords, (from whence we may account for their great variety) such tenant, I say, may have, so far as the custom warrants, any other of the estates or quantities of interest, which we have hitherto considered, or may hereafter consider, to hold united with this customary estate at will. A copyholder may, in many manors, be tenant in fee-simple, in fee-tail, for life, by the curtesy, in dower, for years, at sufferance, or on condition: subject however to be deprived of these estates upon the concurrence of those circumstances which the will of the lord, promulged by immemorial custom, has declared to be a forfeiture or absolute determination of those interests; as in some manors the want of issue male, in others the cutting down timber, the nonpayment of a fine, and the like. Yet none of these interests amount to freehold; for the freehold of the whole manor abides always in the lord only,41 who has granted out the use and occupation, but not the corporal seizin or true possession, of certain parts and parcels thereof, to these his customary tenants at will.
The reason of originally granting out this complicated kind of interest, so that the same man shall, with regard to the same land, be at one and the same time tenant in fee-simple and also tenant at the lord’s will, seems to have arisen from the nature of villenage tenure; in which a grant of any estate of freehold, or even for years absolutely, was an immediate enfranchisement of the villein.42 The lords therefore. Though they were willing to enlarge the interest of their villeins, by granting them estates which might endure for their lives, or sometimes by descendible to their issue, yet did not care to manumit them entirely; and for that reason it seems to have been contrived, that a power of resumption at the will of the lord, should be annexed to these grants, whereby the tenants were still kept in a state of villenage, and no freehold at all was conveyed to them in their respective lands: and of course, as the freehold of all lands must necessarily rest and abide somewhere, the law supposes it to continue and remain in the lord. Afterwards, when these villeins became modern copyholders, and had acquired by custom a sure and indefeasible estate in their lands, on performing the usual services, but yet continued to be styled in their admissions tenants at the will of the lord, the law still supposed it an absurdity to allow, that such as were thus nominally tenants at will could have any freehold interest: and therefore continued, and still continues, to determine, that the freehold of lands so held abides in the lord of the manor, and not in the tenant: for though he really holds to him and his heirs for ever, yet he is also said to hold at another’s will. But, with regard to certain other copyholders of free or privileged tenure, which are derived from the ancient tenants in villein-socage,43 and are not said to hold at the will of the lord, but only according to the custom of the manor, there is no such absurdity in allowing them to be capable of enjoying a freehold interest; and therefore the law does not suppose the freehold of such lands to rest in the lord of whom they are held, but in the tenants themselves;44 who are allowed to have freehold in the rest, though not a freehold tenure.
However, in common cases, copyhold estates are still ranked (for the reasons above mentioned) among tenancies at will; though custom, which is the life of the common law, has established a permanent property in the copyholders, who were formerly nothing better than bondmen, equal to that of the lord himself, in the tenements held of the manor: nay sometimes even superior; for we may now look upon a copyholder of inheritance, with a fine certain, to be little inferior to an absolute freeholder in point of interest, and in other respects, particularly in the clearness and security of his title, to be frequently in a better situation.
III. An estate at sufferance, is where one comes into possession of land by lawful title, but keeps it afterwards without any title at all. As if a man takes a lease for a year, and, after the year is expired, continues to hold the premises without any fresh leave from the owner of the estate. Or, if a man makes a lease at will, and dies, the estate at will is thereby determined; but if the tenant continues possession, he is tenant at sufferance.45 But no man can be tenant at sufferance against the king, to whom no laches, or neglect, in not entering and ousting the tenant, is ever imputed by law: but his tenant, so holding over, is considered as an absolute intruder.46 But, in the case of a subject, this estate may be destroyed whenever the true owner shall make an actual entry on the lands and oust the tenant; for, before entry, the cannot maintain an action of trespass against the tenant by sufferance, as he might against a stranger:47 and the reason is because the tenant being once in by a lawful title, the law (which perfumes no wrong in any man) will suppose him to continue upon a title equally lawful; unless the owner of the land by some public and avowed act, such as entry is, will declare his continuance to be tortuous, or, in common language, wrongful.
Thus stands the law, with regard to tenants by sufferance; and landlords are obliged in these cases to make formal entries upon their lands,48 and recover possession by the legal process of ejectment: and at the utmost, by the common law, the tenant was bound to account for the profits of the land so by him detained. But now, by statute 4 Geo. II. c.2. in case any tenant for life or years, or other person claiming under or by collusion with such tenant, shall willfully hold over after the determination of the term, and demand made in writing for recovering the possession of the premises, by him to whom the remainder or reversion thereof hall belong; such person, so holding over, shall pay, for the time he continues, at the rate of double the yearly value of the lands so detained. This has almost put an end to the practice of tenancy by sufferance, unless with the tacit consent of the owner of the tenement.
1. We may here mark, once for all, that the terminations of “-or” and “-ee” obtain. In law, the one an active, the other a passive signification; the former usually denoting the doer of any act, the latter him to whom it is done: the feoffor is he that takes a feoffment; the feoffee is he to whom it is made: the donor is one that gives lands in tail; the donee is he who receives it: he that grants a lease is denominated the lessor; and he to whom it is granted the lessee. (Litt. § 57.)
2. Ibid. 58.
3. Ibid. 67.
4. 6 Rep. 61.
5. Co. Litt. 135.
6. Co. Litt. 46.
7. Mirror. C.2. § 27. co. Litt. 45, 46.
8. Madox Formulare Anglican. no. 239. fol. 140. Demise for eighty years, 21 Ric. II . . . Ibid. no. 245. fol. 146: for the like term, A. D. 1429 . . . Ibid. no. 248. fol. 148. for fifty years, 7 Edw. IV.
9. 32 Aff. Pl. 6.
10. Stat. of mortmain, 7 Edw. I.
11. Co. Litt. 45.
12. 6 Rep. 35.
13. Co. Litt. 46.
14. Ibid. 45.
16. Ibid. 46.
17. 5 Rep. 94.
18. Co. Litt. 46.
19. Ibid. 45.
20. pag. 122.
21. Co. Litt. 45.
22. pag. 35.
23. Litt. § 68.
24. Co. Litt. 56.
25. Ibid. 55.
26. Litt § 68.
27. Co. Litt. 55.
28. Co. Litt. 56.
29. Ibid. 55.
31. 1 Ventr. 248.
32. Co. Litt. 55.
33. Ibid. 57.
34. 1 Roll. Abr. 860.2 Lev. 88.
35. Co. Litt. 57.
36. 5 Rep. 116. Co. Litt. 57. 62.
37. Litt. § 69.
38. Salk. 414.1 Sid. 339.
39. pag. 93.
40. on copyholds. 51. 54.
41. Litt. § 81. 2 Inst. 325.
42. Mirr. c. 2. § 28. Litt. § 204, 5, 6.
43. See page 98, etc.
44. Fitzh. Abr. tit. Corone. 310. custom. 12. Bro. Abr. tit. Custom. 2. 17. tenant per copie. 22. 9 Rep. 76. Co. Litt. 59. Co. Copyh. § 32. Cro. Car. 229. 1 Roll. Abr. 562. 2 Ventr. 143. Carth. 432. Lord Raym 1225.
45. Co. Litt. 57.
48. 5 Mod. 384.