CHAPTER THE NINTH. OF ESTATES LESS THAN FREEHOLD. OF F estates that are less than freehold, there are three sorts: 1. Estates for years: 2. Estates at will: 3. Estates by suffer ance. I. 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 leap-year, a We may here remark, once for all, that the termination of “or” and “-ee” obtain, in law, the one an active, 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 e Ibid. 67. 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 months; either as lunar, consisting of twenty-eight 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 com mon almanacs, commencing at the calends of each month, whereof in a year there are only twelve. A month in law is a lunar month, or twenty-eight days, unless otherwise expressed; 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 twelvemonth" in the singular number, it is good for the whole yeard. 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 (1). In the space of a day all the twenty-four d 6 Rep. 61. (1) In all statutes a month signifies a lunar month, unless it appears to be clearly intended to be a calendar month. 6 T. R. 224. But in bills of exchange and promissory notes a month is always a calendar month; as if a bill or note is dated on the 10th of January, and made payable one month after date, it is due (the three days of grace being included) on the 13th of February. See p. 469. n. 25. post. The six months in cases of lapse and quare impedit, are also calendar months. 6 Co. 61. It is somewhat remarkable that the difference between six calendar months and half a year does not seem to have been considered by legal writers. Lord Coke says, half a year consists of 182 days. 1 Inst. 135. But six calendar months will be one or two days less or more than half a year, accordingly as February is reckoned, or not, one of the six. Lord Coke, in his report of Catesby's case, clearly considers the tempus semestre to be six calendar months (6 Co. 61.); yet sir George Croke in his report of that case, states it as confidently to consist of 182 days; hours are usually reckoned, the law generally rejecting all fractions of a day, in order to avoid disputese. 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 (2). But to return to estates for years. THESE estates were originally granted to mere farmers or husbandmen, who every year rendered some equivalent 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 [142] esteemed of so little consequence, 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 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 f; which annihilated all leases and in neither report is the difference taken notice of. Cro. Fac. 167. From the cases in 3 Wils. 21. and 1 T. R. 159. it appears that a notice to a tenant from year to year to quit the premises, must be half a year, and not six calendar months, though the computation by the latter would be more simple and convenient; and that was understood to be the proper notice by the court of common pleas in 2 Bl. Rep. 1224. See p. 147. n. 3. (2) See 4 T. R. 170. where there was a difference of opinion in the court upon the question, whether a bill of exchange could be protested for non-payment on the same day that it was due, or the acceptor had the whole of the day to discharge it in? 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 Ik. 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 [143] they were little better than tenancies at the will of the landlord. EVERY estate which must expire at a period certain and 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 bounded, limited, and determined for every such estate must have a certain beginning, and certain end'. But id certum est, quod certum reddi g Mirror. c. 2. sec. 27. Co. Litt. 45, 46. h Madox Formulare Anglican. no 239. fol. 140. Demise for eighty years, 21 Ric. II........ Ibid. n° 245. fol. 146, for the like term. A. D. 1429.......Ibid. n° 248. fol. 148, for fifty years, 7 Edw. IV. i 32 Ass. pl. 6. Bro. abr. t. mordauncestor, 42. spoliation. 6. k Stat, of mortmain, 7 Edw. I. 1 Co. Litt. 45. 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 m; 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 can 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 goodP: 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. WE have before remarked, and endeavoured to assign the reason of, the inferiority in which the law places an estate for years, when compared with an estate for life, or an inheritance: observing, that an estate for life, even if it be pur auter vie, is a freehold; but that an estate for a thousand years is only a chattel, and reckoned part of the personal estate 9. 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 Titius to hold from Michaelmas next [144] for twenty years, this is good; but to hold from Michaelmas next for the term of his natural life, is void. For no estate of freehold can 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 said to be seised, or to have true legal seisin of the lands. Nor |