[150] 8. Estates at sufferance. [151] times classed, but although they were so originally, they seem now more properly tenants by the custom.j However, in common cases, copyhold estates are still ranked (according to their origin) among tenancies at will; though custom, which is the life of the common law, has established a permanent property in the copy holders, who were formerly nothing better than bondmen, equal to that of the lord himself, in the tenements holden 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. m 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 maketh a lease at will, and dies, the estate at will is thereby determined; but if the tenant continueth possession, he is tenant at sufferance. 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." 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, he cannot maintain an action of trespass against the tenant by sufferance, as he might against a stranger: and the reason is, because the tenant being once in by a lawful title, the law (which presumes 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 tortious, or, in common language, wrongful. Thus stands the law with regard to tenants by suffer landlords for of possession. ance; and landlords are strictly obliged in these cases to Remedies of make formal entries upon their lands, and recover pos- the recovery session 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 the landlord may enter and take peaceable possession, and the tenant will be liable to an action for any disturbance of that possession; and even if he enter forcibly, the tenant cannot complain, except by a criminal proceeding for a breach of the peace. And now, by statute 4 Geo. II. c. 28, in case any tenant for life or years, or other person claiming under or by collusion with such tenant, shall wilfully hold over, after the determination of the term, and demand made and notice in writing given, by him to whom the remainder or reversion of the premises shall belong, for delivering the possession thereof; such person, so holding over or keeping the other out of possession, shall pay for the time he detains the lands, at the rate of double their yearly value. By statute 11 Geo. II. c. 19, in case any tenant, having power to determine his lease, shall give notice of his intention to quit the premises, and shall not deliver up the possession at the time contained in such notice, he shall thenceforth pay double the former rent, for such time as he continues. in possession. And by statute ] Geo. IV, c. 87, landlords on bringing ejectments, may give notice to tenants holding over, to appear in term, and on production of the lease or agreement, may move for a rule nisi on the tenant to enter into a recognizance for costs; and on the rule being made absolute, if the tenant shall not conform, judgment shall be given for the landlord. And it has been decided that this last statute extends to a tenancy by virtue of an agreement in writing for three months certain,' but not to a tenancy from year to year, without any written agreement or lease, nor to a tenancy for years determinable on lives, though under a written lease.t These statutes have almost put an end to the practice of tenancy by sufferance, unless with the tacit consent of the owner of the tenement. P 5 Mod. 384. a Taunton v. Costar, 7 T. R. 431; Turner v. Meymott, 1 Bing. 158. Doe d. Phillips v. Roe, 5 B. and A. 766. s Doe d. Bradford v. Roe, 5 B. and A. 771. t Doe d. Pemberton v. Roe, 7 B. and C. 2. [152] condition CHAPTER THE FOURTH. OF ESTATES UPON CONDITION. Estates upon BESIDES the several divisions of estates, in point of interest, which we have considered in the three preceding chapters, there is also another species still remaining, which is called an estate upon condition: being such whose existence depends upon the happening or not happening of some uncertain event, whereby the estate may be either originally created, or enlarged, or finally defeated. And these conditional estates I have chosen to reserve till last, because they are indeed more properly qualifications of other estates, than a distinct species of themselves; seeing that any quantity of interest, a fee, a freehold, or a term of years may depend upon these provisional restrictions. Estates then upon condition, thus understood, of two sorts. are of two sorts: I. Estates upon condition implied: II. Estates upon condition expressed: under which last may be included, 1, Estates held in vadio, gage, or pledge: 2. Estates by statute merchant or statute staple: 3. Estates held by elegit. Estates upon condition. I. Estates upon condition implied in law, are where a grant of an estate has a condition annexed to it insepably, from its essence and constitution, although no condition be expressed in words. As if a grant be made to a man of an office, generally, without adding other words; the law tacitly annexes hereto a secret condition, that the grantee shall duly execute his office," on breach of which [153] condition it is lawful for the grantor, or his heirs, to oust him, and grant it to another person. For an office, either public or private, may be forfeited by mis-user or nonuser, both of which are breaches of this implied condition. non-user. 1. By mis-user, or abuse; as if a judge takes a bribe, or [ 153 ] a park-keeper kills deer without authority. 2. By non- Mis-user, and user, or neglect; which in public offices, that concern the administration of justice, or the commonwealth, is of itself a direct and immediate cause of forfeiture: but nonuser of a private office is no cause of forfeiture, unless some special damage is proved to be occasioned thereby.d For in the one case delay must necessarily be occasioned in the affairs of the public, which require a constant attention but, private offices not requiring so regular and unremitted a service, the temporary neglect of them is not necessarily productive of mischief: upon which account some special loss must be proved, in order to vacate these. Franchises also, being regal privileges in the hands of a subject, are held to be granted on the same condition of making a proper use of them; and therefore they may be lost and forfeited, like offices, either by abuse or by neglect. of forfeiture felony now the offender Upon the same principle proceed all the forfeitures The doctrine which are given by law of life estates and others; for any of estates. acts done by the tenant himself, that are incompatible with the estate which he holds. As if tenants for life or years enfeoff a stranger in fee-simple; this is, by the common law, a forfeiture of their several estates; being a breach of the condition which the law annexes thereto, viz. that they shall not attempt to create a greater estate than they themselves are entitled to. So if any tenant Attainder on for years, for life, or in fee, committed felony, the king only extends in the first instance, and the king or other lord of the fee in the others, is entitled to have their lands, because their estate was determined by the breach of the condition "that they should not commit felony," which the law tacitly annexed to every feudal donation; but this will now only be to the prejudice of the offender himself; for, first, it was enacted by the 54 Geo. 3, c. 145, that after the passing of that act, no attainder for felony, except in cases of high treason, petit treason or murder, should extend to the disinheriting of any heir, or to the prejudice of any other person than the offender during his natural himself. 82 [154] condition expressed, which may be either precedent or subsequent. ESTATES UPON CONDITION. [BOOK III. life; and still more recently, by the 3 and 4 W. 4, c. 106, s. 10, it was enacted that after the death of any person attainted, his descendants may inherit. II. An estate on condition expressed in the grant itself, 11. Estate on is where an estate is granted, either in fee-simple or otherwise, with an express qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition.h These conditions are therefore either precedent, or subsequent. Precedent are such as must happen or be performed before the estate can vest or be enlarged: subsequent are such, by the failure or nonperformance of which an estate already vested may be defeated. Thus, if an estate for life be limited to A. upon his marriage with B., the marriage is a precedent condition, and till that happens no estate is vested in A. Or, if a man grant to his lessee for years, that upon payment of a hundred marks within the term, he shall have the fee, this also is a condition precedent, and the feesimple passeth not till the hundred marks be paid. But if a man grant an estate in fee-simple, reserving to himself and his heirs a certain rent; and that, if such rent be not paid at the times limited, it shall be lawful for him and his heirs to re-enter, and avoid the estate: in this case the grantee and his heirs have an estate upon condition subsequent, which is defeasible if the condition be not strictly performed. To this class may also be referred all base fees, and fee simples conditional at the common law.1 Thus an estate to a man and his heirs, tenants of the manor of Dale, is an estate on condition that he and his heirs continue tenants of that manor. And so, if a personal annuity be granted at this day to a man and the heirs of his body; as this is no tenement within the statute of Westminster the Second, it remains, as at common law, a fee-simple on condition that the grantee has heirs of his body. Upon the same principle depend all the determinable estates of freehold, which we mentioned in the second chapter: as durante viduitate, &c.: these g And sec post, Book IV. Chap. 3. i Show. Parl. Cas. 83, &c. j Co. Litt. 217. k Litt. s. 325. 1 See ante, p. 49, 50, |