SECTION X.

SPEAKING generally, a tenant is entitled to present possession of land. If A. is seised in fee, it may be supposed he is a tenant in capite and entitled to present possession of the land. So, if A., seised in fee, conveys to the use of B. for life; remainder, to the use of C. in fee; prima facie, B. is tenant in capite, and it is to be supposed, has the right to present possession.

:

But it is not every tenant, that is entitled to present possession. If A., seised in fee, leases to B. for years, who underlets to C.; A. B. and C. are each a tenant; A. of the crown, B. of A., and C. of B.: but neither A. nor B. is entitled to present possession, but C. only; neither A., nor B., has a right of entry. B. not during C.'s estate, nor A. during B.'s estate. If C. is dispossessed, neither A., nor B., it is presumed, can bring an ejectment, but C. only; at least, this appears to be a legitimate deduction from the principle, that a right of entry is essential to maintain an ejectment, which right of entry, during C.'s lease, seems to be in C., and not in either B. or A.

If A., seised in fee, bargains and sells to B. for 500 years by way of mortgage. This conveyance makes B. tenant of A.; but B., and not A., is now entitled to present possession. So if A., seised in fee, leases to B. for years; and afterwards, and during the lease conveys to the use of C. for life, remainder to the use of D. in fee; this conveyance makes C. a tenant, but he is not the tenant entitled to present possession; this` tenant is B.

In what consists the value of a term, that attends the inheritance? Is it not in the circumstance, that the termor is a tenant, and the tenant entitled to present possession of the land? Hence, it would seem, arises the anxiety, on a mortgage or purchase, to procure an assignment of such a term, to a trustee, in trust for the mortgagee or purchaser.

A fee-simple may be separated into several estates. As, for years, for life, in tail. Suppose, in 1700 A., seised in fee. In 1701, A. bargains and sells to B. for 500 years by way of mortgage. In 1702, to C. for 999 years, by way of mortgage. In 1710, A. sells the estate to D.; both mortgages are paid off, and A. conveys to D. in fee. The 500 years' term is assigned to E., and the 999 years' term to F.; each in trust for D., and his heirs, and to attend the inheritance.

The fee-simple, in this case, consists in 1701, of 500 years' term, reversion in fee. In 1702, of 500 years' term, 999 years' term, reversion in fee. In 1701, B. is tenant of A.; A. in capite. In 1702, B. of C; C. of A.; A. in capite. Present possession belongs, in 1701, first to B., then to A.; in 1702, first to B., then to C., then to A.

After D.'s purchase in 1710, present possession, belongs, first to E. for 500 years' term; on it's determination, to F., for 999 years' term; and on the determination of this estate, to D. in fee.

The fee-simple descends from D. to G., in whom it vests in 1750; G., in this year, bargains and sells to H. for 1000 years, by way of mortgage; from G., the reversion in fee, descends to K., in whom it vests in 1790; in 1800, K. sells the estate to L.; the mortgage for 1000 years is paid off; the 500 years' term, and 1000 years' term are assigned to M.; the 999 years' term to N.; in trust for L., and his heirs, and to attend the inherit

ance.

After this purchase, M. is tenant of N., for 500 years' term; N. of M. for 999 years' term, and M. of L., for 1000 years'

term.

Present possession belongs, first to M. for 500 years' term; on it's determination to N., for 999 years' term; on it's determination to M., for 1000 years' term; and on the determination of this estate, to L. in fee.

Three great advantages often result from having possession of the 500 years' term; that is, any eldest term, or an only ancient term, which attends the inheritance in a title.

1. Such a term invests the possessor of it, with the right to bring an ejectment. 2. It may give a second mortgagee precedence before a first mortgagee. 3. It may protect a purchaser against the dower of the wife of his vendor.

The first, of these positions, is illustrated by the cases of Doe v. Staple, 2 T. R. 684; Goodtitle v. Jones, 7 T. R. 43; and Doe v. Wharton, 8 T. R. 2.

The second, by Willoughby v. Willoughby, 1 T. R. 763; and Goodtitle v. Morgan, 1 T. R. 755.

The third, by Radnor v. Vandebendy, Shower Parl. C. 69 (reported, also, under the name of Hill v. Adams, 2 Atk. 208), and Maundrell v. Maundrell, 7 Ves. jun. 567.

SECTION XI.

A TENANT'S right to create an under-tenancy, by the grant of a less estate than his own, is a native principle of our feudal system. It is a part of the common law, As long as tenure has been known in England, at all times, as well as at this day, every tenant, whether in capite, or of a mesne lord, has had the undoubted right to create a tenancy under himself, by granting a part of, or even all his land, for a less estate in it, than that of his own tenancy (a).

(a) 2 Bl. C. 317.

By the common law, an under-tenancy cannot be created, to continue beyond the estate of the tenant who creates it. Tenant for 20 years may lease for any period within that time, but no longer. Tenant for life, for the joint lives of himself and another person, or for years determinable at his own death. Tenant in tail, for the joint lives of himself and another person, or for years determinable at his own death (1). But, under the statute of uses, a power may be given to a tenant, to create an under-tenancy, beyond the extent of his own estate; as, to a tenant for life, to lease for a term of years certain and undeterminable by his death (b).

The statute 32 Hen. VIII. c. 28, authorizes, under certain restrictions, a tenant in tail, to grant leases for 21 years, or three lives, so as to bind himself and his issue; not, however, to bind the remainder-men, or the reversioner (c).

It recites, "Where great number of the king's subjects have " heretofore taken leases of lands, tenements, and other heredita66 ments, for term of years; and divers of them for term of lives; "and have given and paid great fines and great sums for the 66 same; and also have been at great costs and charges, as well "in and about great reparations and buildings upon their said "ferms, as otherwise concerning their said ferms; yet, notwith"standing, the said fermors, after the deaths of their lessors "have been, and be daily, with great cruelty, expulsed and put "out of their said ferms and takings, by the heirs of their said "lessors, or by such persons as have interest therein after the "deaths of their said lessors, by reason of privy gifts of intail, "to the great impoverishment, and in manner utter undoing of "the said fermors."

(1) Mr. Justice Buller has said, "There cannot be a tenant, to a tenant at "will. If a tenant at will lease, it determines the will." (1 T. R. 382.) It is certain, a tenant at will cannot lease for years, but the principle is not apparent, why he may not lease at will.

And enacts, "That all leases, hereafter to be made, of any manors, lands, tenements, or other hereditaments; by "writing, indented, underseal ; ——— for term of years, or person or persons being

"for term of life;

by any

having any estate of shall be good and effectual,

"of full age of twenty-one years; "inheritance in fee-tail; "in the law, against the lessors, and their heirs, and every of "them, according to such estate as is comprised and specified in 66 every such indenture of lease, in like manner and form as the same should have been, if the lessors thereof, and every of them, "at the time of the making of such leases, had been lawfully "seised of the same lands, tenements, and hereditaments, comprised in such indenture, of a good, perfect, and pure "estate of fee-simple thereof, to their own only uses.

"Provided always, that this act, or any thing contained, shall "not extend to any leases to be made of any manors, lands, "tenements, or hereditaments, being in the hands of any fermor, "or fermors, by virtue of any old lease, unless the same old lease "be expired, surrendered, or ended within one year next after "the making of the said new lease; nor, shall extend "to any grant, to be made of any reversion, of any manors, "lands, tenements, or hereditaments;

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nor, to any lease of any manors, lands, tenements, or hereditaments, which have "not most commonly been letten to ferm, or occupied by the "fermors thereof, by the space of twenty years next before "such lease thereof made; nor, to any lease, to be "made without impeachment of waste; nor, to any lease, to "be made above the number of twenty-one years, or three lives, at the most, from the day of making thereof;

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and, that

upon every such lease there be reserved, yearly, during the same lease, due and payable to the lessors, and their heirs, to "whom the same lands should have come, after the deaths of the

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lessors, if no such lease had been thereof made, and to whom "the reversion thereof shall appertain, according to their estates "and interests, so much yearly ferm, or rent, or more, as hath "been most accustomably yielden, or paid, for the manors, lands, "tenements or hereditaments, so to be letten, within twenty