172 576 344 668 380, 382 White v. Cutler Whitney v. Gordon 112 Whiton v. Harmon 380 Wade v. Mason 731 Wharton v. Stevens 577 Wheatland v. Dodge v. Gorman v. Worcester Waffle v. New York Cent. R. Co.. 424 Whelden v. Chappel Wakeman v. Wilbur . 161 Whistler v. Webster 50, 553 9 639 Washbon v. Cope Washington Ice Co. v. Webster Waterman v. Shipman Waters v. Tazewell Watkins v. Quarles Watson v. Watson Watuppa Reservoir Co. v. Fall W. B. Conkey Co. v. Busherer WHERE a person having an estate upon condition, continues to hold after the condition is broken, he is, until the remainderman enters, a tenant at sufferance; if he is in possession by agreement with the owner so long as both he and the owner please, he is a tenant at will, strictly so called but if he is a tenant at a yearly rent, with no express stipulation as to terms of tenancy, he is a tenant from year to year. If a house be devised to A. for life, "proviso, if she departs therefrom she shall have a rent," the life estate is determined by her departure, and till the entry of him in remainder she continues tenant at sufferance only. Ejectione firma, for a house in Cornhill, London. Upon a special verdict the case was, Fr. Benson being seised of the house in fee, 4 Eliz., devised it to Agnes his wife for life; and after to the heirs of his body, the remainder to Th. Benson his brother in fee: "Proviso, that if the said Agnes clearly departs out of London, and dwell in the country, that then she shall have a rent out of the said house, &c." And found further, that Francis died withVOL. XXV.-1 " out issue, and that Th. Benson died, and that R. is his heir; and that afterwards, 15 Eliz., Agnes totaliter departed from London, and went to Milton in Suffolk. And after the said R. before entry made by him and the executor of Francis released to Agnes; and afterwards entered, and let to the plaintiff; and that Agnes married one Huggins; and the defendant entered by his commandment. The substance of the matter was, If this proviso doth determine the estate before entry? for if so, she was tenant at sufferance, and the release could not enure to her estate; for it was agreed, it was a good proviso to make her estate to determine; although there be no words " to cease," or " that it shall be void; but being in a will, it is implied in the words, "that then she shall have a rent;" which cannot be, if her estate be not determined. The Justices said, she is but tenant at sufferance; for if the devise had been express, that if she doth such an act her estate shall cease; after such an act done, though she continue in possession, and dieth, this is no freehold in her; and here is as much in substance. And Wray said, it was held at an assembly of all the Justices, that if tenant pur auter vie continue in possession after the death of cestuy que vie, he is but tenant at sufferance, and his dissent shall not take away an entry; which Gawdy agreed, and that 18 Edw. IV. pl. 25, is not law. But there was a default in the verdict; for it was found that she totaliter departed from London, and went to Milton in Suffolk; but it was not found that she dwelt out of London; and this is part of the condition: and this not being found, it is not found that the condition is broken: and then, notwithstanding any matter found, the entry of the defendant is lawful. And it was moved, that as to it a venire facias de novo should issue to examine this point better, if she dwelt in the country; for it was said in this point, the verdict was not well examined. But the Court held, that the verdict is full, upon which a judgment might be given, and then no venire facias de novo is to be awarded; for it is found for the defendant, when it is not found that the [* 239] condition is broken: * and for this cause only it was adjudged for the defendant. But then it was objected, that the life of Agnes was not found, and then the defendant cannot enter. Fenner said, it shall be intended she is living; for the jury did not doubt of it; for they find, that if his entry upon the matter found is lawful, that he |