stitute copyholds, of which we have already spoken at some length. They are, as will sufficiently appear from what we have said, when considered as estates in law, merely tenancies at will, but being regulated and made permanent by custom, it is rather in theory than in substance that they are so to be regarded (d).

Estates at sufferance.

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. (271). Or, if a man makes 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 (e). 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 (f): 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; [* 289] 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.

A distinction is sometimes taken between those cases where the tenant comes to the particular estate by act of the parties, and where by act of law. In the latter case there can be no presumption of the owner's assent which may exist in the former case (g); the distinction, whatever force it can have, is rarely called into consideration.

The principal distinction between tenant at will and tenant at sufferance is, that the landlord in the former case must give notice before his title to recover possession is complete, whereas in the latter he may, without any notice, bring ejectment, there being in the former case a privity of contract, express or implied, between the parties, but none in the latter case. A tenant at sufferance in fact only has this privilege, that he is excused from liability as a trespasser in respect of his past occupation.

If the tenant (after due notice) do not quit the land when requested to do so by the landlord, the latter may enter forcibly into the premises and, if neces

(d) See ante, p. 187. (e) Co. Litt. 57.

(f) Ib.
(g) Co. Litt. 271 a.

(271) Among those who have been considered tenants at sufferance, are tenants at will whose estates were determined by alienation or by the death of the lessor. Kinsley v. Ames, 2 Metc. 29; Benedict v. Morse, 10 id. 223.

Or by the happening of some contingent event upon which the determination of an estate at will depended. Elliott v. Stone, 1 Gray, 571; Creech v. Crockett, 5 Cush. 133.

A tenant at sufferance is not entitled to emblements. Doe v. Turner, 7 M. & W. 226. And in Massachusetts it has been held that he is not liable at common law for use and occupation. Flood v. Flood, 1 Allen, 217; Delano v. Montague, 4 Cush. 42. Though it is otherwise by some of the English cases. Harding v. Crethorne, 1 Esp. 51; Bayley v. Bradley, 5 C. B. 396; Christy v. Tancred, 7 M. & W. 127; Ibbs v. Richardson, 9 Ad. & E. 849.

over.

sary, use violence (but only so much as is absolutely requisite) to expel the tenant, without being liable for trespass or assault (h), (272) though if the entry have been forcible he may render himself liable to an indictment (i). The other remedy is an action of ejectment, by which, under process * of law, he recovers possession (k). By the common law a tenant [* 290] contumaciously holding over after his tenancy had expired was at the utmost liable to account for the profits of the land so detained by him. But Tenants holding by the statute 4 Geo. 2, c. 28, in case any tenant for life or years, or other person claiming under or by collusion with such tenant, shall willfully (1) 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. And, by stat. 11 Geo. 2, 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. 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 (m).

(h) Jones v. Chapman, 2 Ex. 803, 821; Harvey v. Bridges, 14 M. & W. 437, 442; Davis v. Burrell, 10 C. B. 821; Pollen v. Brewer, 7 C. B. N. S. 371. The cases have gradually established the doctrine in the text, the ancient opinion being that not even by a peaceable entry could the landlord recover lawful possession. See Taunton v. Costar, 7 T. R. 431; Newton v. Harland, 1 Scott, N. R. 474; s. c. 1 M. & R. 220; Turner v. Meymott, 1 Bing. 158; s. c. 7 Moo. 574; Butcher v. Butcher, 7 B. & C. 399; also stat. 5 Rich. 2; stat. 2, c. 8; 8 Hen. 6, c. 9; 1 Hawk. P. C. c. 64; Cole, Ejec. 70, 71.

(i) Davison v. Wilson, 11 Q. B. 890.

(k) See, as to the modern proceedings in ejectment, 15 & 16 Vict. c. 76.

(That is, contumaciously, knowing that he has no title. For if he be under a mistaken belief as to his right of possession, he will not be liable under the statute for double value. Swinfen v. Bacon, 6 H. & N. 184, 846. It is only the lessor, or the person who stands in the position of landlord, who can sue. See Blatchford v. Cole, 5 C. B. N. S. 514.

(m) The proceedings of landlords to recover possession are facilitated in cases where the term does not exceed seven years, and the rent is not above twenty pounds a year, by the Small Tenements Act, 1 & 2 Vict. c. 74. See Delany v. Fox, 1 C. B. N. S. 166.

(272) The American cases hold that if the owner of land is wrongfully held out of possession by another, he may enter and expel the occupant, if he does not use more force than is reasonably necessary to accomplish this purpose, and he will not be liable to a civil action brought by such occupant, whether he sue for a trespass quare clausum, for an assault and battery, or for an injury to his goods. Hyatt v. Wood, 4 Johns. 150; loes v. Ives, 13 id. 235; Beecher v. Parmele, 9 Vt. 352; Johnson v. Hannahan, 1 Strobh. 313; Overdeer v. Lewis, 1 Watts & Serg. 90; Sampson v. Henry, 13 Pick. 36; 4 id. 379; Meader v. Stone, 7 Metc. 147; Miner v. Stevens, 1 Cush. 482; Moore v. Mason, 1 Allen, 406; Todd v. Jackson, 2 Dutch. (N. J.) 525; Tribble v. Frame, 7 J. J. Marsh. 601; Hoots v. Graham, 23 Ill. 81, 84.

The contrary has also been held. Dustin v. Cowdry, 23 Vt. 631, 647; Reeder v. Purdy, 41 Ill. 279; 48 id. 261.

*CHAPTER X.

ESTATES UPON CONDITION.

[* 291]

WE have hitherto considered estates as classified in respect of their duration according to their intrinsic qualities, but the law recognizes divers modes by which any of these estates may themselves be held their possession being qualified by some restriction depending usually upon the happening or not happening of some uncertain event, whereby the estate may be either originally created or enlarged or finally defeated (a). Hence arises a distinct system of classification; estates being in this view commonly called estates upon condition, and their difference of species depending upon the various conditions which regulate their possession. Any of the former classes of estates, a fee, or other freehold, or a term of years, may depend upon these provisional restrictions.

Viewed, then, according to this basis of classification, estates are of two sorts: first, estates upon condition implied: secondly, estates upon condition expressed; under which last may be included estates held in vadio, gage, or pledge; estates by statute merchant, or statute staple; and estates held by elegit.

dition.

Estates upon condition implied in law, are where a grant of an estate has a condition annexed to it inseparably from its essence and constitution, although Implied con- no condition be expressed in words. (273) 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 [* 292] grantee shall duly execute his office (b), on breach of which condition it is lawful for the grantor, or his heirs, to oust him, and grant it to another person (c). For an office, either public or private, may be forfeited by misuser or non-user, both of which are breaches of this implied condition. 1. By mis-user, or abuse; as if a judge takes a bribe, or a park-keeper kills deer without authority. 2. By non-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 non-user 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

(a) Co. Litt. 201.

(b) Litt. s. 378. See Bartlett v. Downes, 3 B. & Cr. 616.

(c) Ib. ss. 378, 379.
(d) Co. Litt. 233.

(273) A condition is a qualification or restriction annexed to a conveyance. The words must not only be such as of themselves import a condition, but must be so connected with the grant in the deed as to qualify or restrain it. Laberee v. Carleton, 53 Me. 211, 213.

Whether words in a devise constitute common-law conditions annexed to an estate, a breach of which, or of any one of which, will work a forfeiture, defeat the estate, and let in the heirs, or whether they are regulations for the management of the estate, and explana tory of the terms under which it was intended to have it managed, is a matter to be gathered, not from a particular expression in the devise, but from the whole instrument. Stanley v. Colt, 5 Wall. 119.

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 (e). (274.)

Upon the same principle proceeded all the forfeitures which have been given by law of life estates and others, for any acts done by the tenant himself, that are incompatible with the estate which he holds. As if tenants for life or years enfeoffed a stranger in fee simple: this was, 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 [* 293] they themselves are entitled to (ƒ). So, if any tenant for life, or in fee, commit treason, the *king is entitled to have their tenements, because their estate is determined by the breach of the condition that they shall be loyal, which the law tacitly annexes to every feudal donation (g).

(e) 9 Rep. 50.

(f) Co. Litt. 215; see post, c. 18. (g) A.-G. v. Sir George Sands, Hard. 488; Burgess v. Wheate, 1 Ed. 200. See 17 Ed. 2, st. 1, c. 11; 2 Inst. 37, 3 lb. 47; R. v. Bridger, 1 M. & W. 145. Leaseholds accrue to the

crown by forfeiture on the felony of the lessee. Where the tenant commits treason, the lands are in all cases forfeited to the crown. Ib. The subject of forfeiture and the allied doctrine of escheat will be discussed in a subsequent chapter- c. 18.

(274) It is a tacit condition of a grant of incorporation, that the grantees shall act up to the end or design for which they were incorporated; and, therefore, by a neglect or an abuse of its franchises, a corporation may forfeit its charter as for a condition broken, or for a breach of trust. People v. Bank of Niagara, 6 Cow. 196; Lehigh Bridge Co. v. Lehigh Coal and Nav. Co., 4 Rawle, 9; State Bank of Indiana v. State, 1 Black f. 267, 279; Commonwealth v. Commercial Bank of Penn., 28 Penn. St. 383; People v. River Raisin and Lake Erie R. R. Co., 12 Mich. 389; Hamtramck v. Bank of Edwardsville, 2 Mo. 169.

A corporate franchise may be lost by non-user or neglect. Matter of Jackson Marine Ins. Co., 4 Sandf. Ch. 559, 564; People v. Bank of Pontiac, 12 Mich. 527, 537; State v. Commercial Bank, etc., 10 Ohio, 535. The New York Code of Proc., § 430, provides for cases of failure to exercise corporate powers. See People v. Williamsburgh Turnp. and Bridge Co, 47 N. Y. (2 Sick.) 586; Gilman v. Greenpoint Sugar Co., 4 Lans. 482; 61 Barb. 9.

In some cases it has been held that a mere omission by a corporation to exercise its corporate powers, when not connected with any acts, may not work a forfeiture. AttorneyGeneral v. Bank of Niagara, 1 Hopk. 361; State v. Pawtuxet Turnp. Co., 8 R. I. 182; Regents of University of Maryland v. Williams, 9 Gill. & Johns. 365; Commercial Bank of Natchez v. State of Mississippi, 6 Sm. & Marsh. 615, 616; State v. Urbana Ins. Co., 14 Ohio, 6.

But a suspension of specie payments by a bank may be carried so far as to extinguish its chartered privileges; and by willfully refusing for a single day to make such payments, it may expose its charter to forfeiture. Commonwealth v. Commercial Bank of Penn., 28 Penn. St. 383, 391; Commercial Bank of Natchez v. State of Mississippi, 6 Sm. & Marsh. 617, 624; Attorney-General v. Bank of Michigan, Harr. Ch. (Mich.), 315; State v. Bank of South Carolina, 1 Speers, 441.

No one but the State can enforce the forfeiture against a corporation for a breach of the condition upon which it was created; and this must be done by a direct, not by a collateral proceeding. Vermont and Canada R. R. Co. v. Vermont Central R. R. Co., 34 Vt. 57; Cooper v. Shaver, 41 Barb. 151, 158; Commonwealth v. Union Ins. Co., 5 Mass. 230; Enfield Toll Bridge Co. v. Connecticut R. R. Co., 7 Conn. 46; Myers v. Manhattan Bank, 20 Ohio, 283; Cahill v. Kalamazoo Mutual Ins. Co., 2 Doug. (Mich.) 124, 141; Brookville Turnp. Co. v. McCarty, 8 Ind. 392; Crump v. U. S. Mining Co., 7 Gratt. 352; Planters' Bank v. Bank of Alexandria, 10 Gill. & Johns. 346; Smith v. Mississippi R. R. Co., 6 Sm. & Marsh. 179; Bank of Gallipolis v. Trimble, 6 B. Monr. 599; Hudgins v. State, 46 Ala. 208.

The State may waive the forfeiture. People v. Manhattan Co., 9 Wend. 351; State v. Bank of Charleston. 2 McMullan, 439.

.

An estate on express condition is where an estate is granted either in fee simple or otherwise, with an express qualification or condition contained either Condition in the grant itself, or even, in some cases, in a separate deed (h), expressed. whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition. (275) Though there is a difference between inheritances executed and inheritances executory, in respect of the condition being contained in the same or a separate deed, for where the land is conveyed by livery of seisin, or in similar executed fashion, there can be no defeasance or effective condition in a separate deed. And in other cases, such as a release, the indenture of defeasance if separate must be simultaneous, so as, in the eye of the law, to be the same deed, quæ incontinenti fiunt in esse videntur. Other inheritances, such as rents, annuities, conditions, or warranties that are executory in their nature, may be defeated by separate deeds made simultaneously with the deed creating the inheritance, or at any time after (h). Usually, however, in practice, the deed creating the estate contains the defeasance.

Conditions are either precedent, or subsequent. (276) Precedent are such as must happen or be performed before the estate can vest or be enlarged: subsequent are such, by * the failure or non-performance [* 294] subsequent. 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

Precedent or

(h) Co. Litt. 236 b; 5 Rep. 90 b; Shep. Touchst. 125.

(275) Various forms of expression are employed to imply a condition in a grant, as on condition,"-" if it shall so happen,"-" provided always," or, "so that he the grantee pay, etc., within a specified time;" and every such grant made upon any of these terms vests a conditional estate in the grantee. So there are other words which may create a condition, as where there is added a conclusion containing a clause of re-entry; or even without such a clause, if it is declared that if the grantee does or does not do a specified act, his estate shall cease or be void. 4 Kent, 124. A conveyance on condition that the grantee shall keep a saw-mill and a grist-mill doing business on the premises, is a valid one, and if the grantee fails to perform the condition he forfeits the estate. Sperry v. Pond, 5 Ohio, 388; and see Hadley v. Hadley Manuf. Co., 4 Gray, 140; Randall v. Latham, 36 Conn. 48.

A condition in a deed that the grantee, his heirs and assigns shall not, at any time, manufacture or sell, to be used as a beverage, any intoxicating liquor, or permit the same to be done on the premises conveyed, unless the grantor, his heirs or assigns, shall sell other lands in the same village without such restriction, or shall themselves manufacture or sell, or permit on their lands in the same village to be manufactured or sold, such liquor to be used as a beverage, is a valid condition, not repugnant to the grant; and upon a breach of the condition, which gave a right of the entry for a breach, the grantor may recover in ejectment for the land. Plumb v. Tubbs, 41 N. Y. (2 Hand) 442; Catt v. Tourle, L. R., 4 Ch. App. 654.

Reasonable restraints upon the mode in which the premises shall be used may be made conditions which are valid. Gellis v. Bailey, 21 N. H. (1 Fost.) 149.

(276) Whether the words of a devise or a conveyance create a condition precedent or one subsequent is not always easily determined. No technical words are necessary to the determination of the question, and the construction must depend upon the intention of the parties as gathered from the instrument and the existing facts.

If the act or condition required does not necessarily precede the vesting of the estate, but may accompany or follow it, and if the act may be as well done after as before the vesting of the estate, or if from the nature of the act to be performed and the time required for its performance, it is evidently the intention of the parties that the estate shall vest, and the grantee perform the act after taking possession, then the condition is subsequent. UnderVOL. I.-76