"real actions), the interest of the termor was overthrown, because "he could not falsify the recovery of the freehold, for, by the "common law, none could falsify a recovery of a freehold, but "he that had a freehold. This act provideth a two-fold remedy: "1. for the city of London, by writ, in nature of a commission to "the mayor and bailiffs, grounded upon this statute, etc. 2, "generally by receipt before judgment. Another mischief was, "that after such a recovery had by collusion, and the lessee "austed thereupon, he should have his action of covenant (at "the least upon this word dimisit etc.), against the lessor, and so "the termor lost his possession, and was driven to his action, "which was a cause of multiplication of suits, et boni legislatoris "est lites dirimere." The statute of Glocester is a proof, that in the beginning of the reign of Edward I., tenants for years were of considerable consideration, and their interests of sufficient importance to entitle them to the protection of the legislature. But under this act, the termor for years could not be relieved unless he knew that the recovery was being suffered, and were received to defend the right of his term (z). The law continued the same, till the reign of Henry VIII. Secret recoveries, called common recoveries, had been long practised, and were fully established in the reign of Edward IV. (a); and by means of them, founded on technical principles, drawn from bona fide real actions, terms of years might be, and often were, defeated by the freeholder, notwithstanding the statute of Glocester (b); for that act protected a termor for years only in the progress of the suit, by allowing him to be received to defend his right, and did not empower him to set aside or falsify a recovery when once ended (c). The 21 Henry VIII., C. 15, recites and enacts as follows: "Where afore this time divers persons have made leases of "their manors, lands, tenements and other hereditaments, some"time by their indentures, and sometime without writings, to (z) Co. Litt. 46 a. (a) 2 Bl. C. 116. (b) See 2 Bl. C. 142. (c) Co. Litt. 46 a. "other persons for term of years, taking of them great fines for "the incomes of the same leases; and after, the same leasors, "their heirs or assigns, have caused and suffered recoveries to be "had against them, in the court of our sovereign lord the king, " and in other lords' courts, upon feigned and untrue titles, by "craft or covin, to put the same termers from their said terms; "and after such recoveries had, the same recoverers, by reason of "such recoveries and judgments, have entered into the same manors, lands, tenements, and other hereditaments, so to ferm "letten, and thereof have expulsed the said termers, contrary to "their said leases, covenants, and agreements; and, because, it was doubted to some persons, whether the said termers might falsify such recoveries, or not. 66 "Be it, therefore, enacted, That all such termers shall and may "falsify, for his term only, such recoveries, as well heretofore "had, as hereafter to be had, in such wise and form as a tenant "of a freehold shall and may do by the course of the common "law, where such tenant of freehold was neither privy, nor party "to the same recovery." By means of this statute, terms of years have become a permanent and certain interest, valuable in proportion to the time for which they are created, and free from the contingency of being arbitrarily destroyed at the pleasure of the freeholder. At the present day, terms of years are frequently the best part of a title, and by means of terms created in old marriage settlements, and mortgages, the greatest landed proprietors are, now, as often entitled to the possession of their estates, under terms of years, as under freehold interests. The question is next to be examined, if a remainder-man is a tenant. This inquiry appears to be not altogether unnecessary, from the circumstance, that a remainder-man seised of the freehold, is invariably, and, it is admitted, with strict propriety, called a tenant, viz―the tenant to the præcipe. It is correct to call the owner of the freehold a tenant, because he is a tenant in the freeholders' court. But our feudal system comprises other tenants, viz-tenants for years; and, it is conceived, a remainderman tenant to the præcipe, is not a tenant in the original and usual meaning of the word tenant. A remainder-man, seised of the freehold, appears to be a species of tenant. A tenant to one intent, and perhaps to others, but to one intent in particular, which is, to be the tenant to the præcipe. But that a remainderman, although he be the tenant to the prœcipe, is not a tenant, in ́ the original and usual meaning of the word, seems apparent from the following definitions of a feud and remainder (d). 66 "Feudum est jus in prædio alieno, in perpetuum utendi, fruendi; quod pro beneficio dominus dat ea lege, ut qui accipit ́ "sibi fidem et militiæ munus, aliudvè servitium exhibeat. 66 Beneficium (sic aliter feudum vocant) est illud, quod, ex "benevolentia, alicui ita datur, ut proprietate quidem rei im"mobilis beneficiatæ, penes dantem remanente, usufructus illius "rei ita ad accipientem transeat, ut ad eum hæredesq; suos "masculos et fæmineos, si de his nominatim dictum fuit, imperpetuum maneat ob hoc ut ille et sui hæredes fideliter domino serviant, sive id servitium nominatim quale esse debeat expressum sit, sive indeterminantè promissum sit. 66 66 66 66 "Remanentia-à Gal. remanent, Id quod remanet. Reliquum, "residuum, aliter forensibus le remaynder, sed nec verbo expri"mitur. Est autem prædiorum in futuro possessendorum jus; quod post alterius in üsdem statum, vel terminum finitum, "domino vel donatori non revertit, et alicui tertio remanet perfruendum. In eo igitur differunt remanentia et reversio: hæc post statutum terminum, ad donatorem, locatorem, vel haredes suos (uti in fontem) remeat: illa verò ad tertium quempiam (ceu extraneum) progreditur." 66 These definitions tend, it is thought, plainly to shew, that under a feudal grant, the beneficial enjoyment of the land precedes the services; that the feudatory is first put into the posses (d) Spelm. Gloss. feodum, remanentia. sion, or present beneficial enjoyment of the land, and that then the services follow. The last, indeed, appears conclusive, that a remainder-man is not a tenant now, but only entitled to be a tenant at a future day. The constitution of a feudal system is this. A proprietor of land, in consideration of services to be done, grants land to tenant. For the land, the tenant returns the services. The yearly produce of the land is meant to be the consideration for, and means of supplying, the concurrent yearly services. Feuds are founded on the mutual concurrent advantage of both lord and tenant. It seems contrary to the whole spirit of their constitution, to tenant land, without receiving the present benefit of it's produce. If the preceding observations are correct, suppose A., seised in fee, conveys, by livery, to B. for years, remainder to C. for life; B., first, is tenant, and during B.'s tenancy, C. is not. C. has a present estate, but, during B.'s term, it is independent of tenancy. C. is the defendant, and is called the tenant, to the præcipe (e), or terre-tenant (ƒ), or tenant of the land (g), or tenant of the freehold (h). But although C., and not B., must answer to the præcipe in a real action, B., and not C., is the present tenant of the land. So, if A., seised in fee, leases to B. for years, and afterwards, and during that term, bargains and sells to C. for the term of 500 years, by way of mortgage. In this case, A. conveys a part of his reversion, viz.-the first part of it, expectant on B.'s lease; and, himself, retains a reversion expectant on the term of 500 years. The mortgage makes C. the reversioner of B., and A. the reversioner of C (i). Again, if A., seised in fee, conveys to B. and his heirs, to the use of C. for life, remainder to the use of D. in tail, remainder to the use of E. in fee. Here, A. has assigned his tenancy; but C. (e) Booth, 3. (f) 6 Co. 58. b. (g) Co. Litt. 286. a. (i) 2 Prest. Conv. 145. F and D. will not at the same time be tenants in the place of A. During A.'s life-estate, he alone will be tenant; when that determines, D. becomes so, and on the determination of D.'s estate, E. will be tenant (k). SECTION IX. Ir the preceding inquiry, who is a tenant, be correctly resolved, it would seem to follow, that, generally speaking, a tenant, and no one but a tenant (with the exception of the crown), is entitled to present yearly profit from the land. It is evident, that conveyances, whether made to operate by the common law, or under the statute of uses, are all framed on this principle. Of whatever kind, or in whatever form, they may be, they all point to the end, to put the party, to whom the conveyance is made, into the tenancy, that by this means, he may be entitled to take the present yearly profit of the land conveyed. This point, it may be useful to illustrate, by giving, in outline, the plans of a few of the most common conveyances. Lease for years.-A., seised in fee, leases to B. for years, at a yearly rent. A. and B. are both tenants. A., it is to be supposed, of the crown; and B. of A. B. takes the produce of the land, and from the sale of it, pays his rent to A., who holds, in capite, by the service of the oath of fealty. A. leases to B. for years, who underlets to C. C. holds of B.; B. of A. C. pays his rent to B.; B. to A. Mortgage for years. A., seised in fee, leases to B. for years, at a rent, and afterwards, and during the lease, bargains and sells to C., for 500 years, by way of mortgage. This deed makes B. the tenant of C., and C. the tenant of A (1). If, then, it is the (k) 2 Inst. 505. (1) 2 Prest, Conv. 145. 3 Prest. Conv. 210. Coote.Mortg. 351. |