[ 140 ] Estates less than freehold CHAPTER THE TENTH. OF ESTATES LESS THAN FREEHOLD. OF estates that are less than freehold, there are three of three sorts. sorts: 1. Estates for years: 2. Estates at will: 3. Estates by sufferance. 1. Estates for years. Legal computation of time. An estate for years is a contract for the possession of lands or tenements, for some determinate period: and it takes place where a man letteth them to another for the term of a certain number of years, agreed upon between the lessor and the lessee, and the lessee enters thereon.b 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. And this may, not improperly, lead us into a short digression, concerning 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 leapyear, 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 a We may here remark, once for all, that the terminations of "-or" and "ee" obtain, in law, the one an active, and 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 maketh a feoffment; the feoffee is he to whom it is made: the donor is one that giveth lands in tail; the donee is he who receiveth it: he that granteth a lease is denominated the lessor; and he to whom it is granted the lessee. Litt. s. 57. b Ibid. 58. months; either as a lunar, consisting of twenty-eight [141] 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, as a general rule, a lunar month, or twenty-eight days, unless otherwise expressed, or clearly to be intended; 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 months" is only for forty-eight weeks; but if it be for "a twelve month" in the singular number, it is good for the whole year." 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 twentyfour hours are usually reckoned; the law generally rejecting all fractions of a day, in order to avoid disputes. Therefore, if I am bound to pay money on any certain day, I discharge the obligation if I pay it before twelve o'clock at night; after which the following day commences. But to return to estates for years. History of years. These estates were originally granted to mere farmers or husbandmen, who every year rendered some equivalent estates for 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 so little conse. quence, 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 d 6 Rep. 61; Lacon v. Cooper, 2 T. R. 224; Cockell v. Gray, 3 Brod. & Bing. 186; S. C. 6 Moo. 483. e Co. Litt. 135. [142] 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 : 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 told 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 ever it 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 considerably exceed that period; and long terms, for three hundred years or a thousand, were certainly in use in the time of Edward III. and probably of Edward I.* But certainly, when by the statute 21 Hen. VIII. c. 15, the termor (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. [143] Every estate which must expire at a period certain and How terms of 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 years may be limited. f Co. Litt. 46 a. 8 Mirror, c. 2, s. 27; Co. Litt 45, 46. h Madox Formulare Anglican, No. 239, fol. 140, Demise for Eighty Years, 21 Ric. 2; Ibid. No. 245, fol. 146, for the like term, A. D. 1429; Ibid. No. 248, fol. 148, for Fifty Years, 7 Edw. 4. i32 Ass. pl. 6; Bro. Abr. t. Mortdauncestor, 42 Spoliation, 6. k Stat. of Mortmain, 7 Edw. 1. hounded, limited, and determined: for every such estate must have a certain beginning, and certain end.' 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," for though it is at present uncertain, yet when J. S. hath 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." A lease for so many years as J. S. shall live, is void from the beginning; for it is neither certain, nor ean 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 should so long continue parson, is good :P 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. years inferior freehold. We have before remarked and endeavoured to assign Terms for the reason of the inferiority in which the law places an to estates of estate for years when compared with an estate for life or an inheritance: observing that an estate for life, even if it be pur autre vie, is a freehold; but that an estate for a thousand years is only a chattel, and reckoned part of the personal estate. Hence it follows, that a lease for years may be made to commence in futuro, though a lease for life cannot. As, if I grant lands to [144] Titius to hold from Michaelmas next for twenty years, this is good; but to hold from Michaelmas next for the No estate of term of his natural life, is void. For no estate of freehold at common can, at common law, commence in futuro; because it cannot be created at common law without livery of seisin, or corporal possession of the land: and corporal possession cannot be given of an estate now, which is not to commence now, but hereafter. And, because no livery of seisin is necessary to a lease for years, such lessee is not freehold can law com mence in future. between terms for years and this and other re spects. said to be seised, or to have true legal seisin 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 Distinction interesse termini: but when he has actually so entered, and thereby accepted the grant, the estate is then, and not freeholds, in before, vested in him, and he is possessed, not properly of the land but of the term of years; the possession or seisin of the land remaining still in him who hath 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 time, in this case B.'s interest will not commence till the time is fully elapsed, whatever may become of A.'s term.' Incidents to tenancy for years. [ 145 ] Emblements. Tenant for term of years hath, incident to, and inseparable from, his estate, unless by special agreement, the same estovers, which we formerly observed" that tenant for life was entitled to; that is to say, house-bote, firebote, plough-bote, and hay-bote : terms which have been already explained.* With regard to emblements, or the profits of lands 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, except there be a custom to the contrary; for the tenant knew the expiration of his term, and therefore it was his own folly to sow |