[owner of the estate. Or, if a man maketh a lease at will, and dieth, and the lessee continueth in the possession, he is tenant at sufferance (k). But no man can be tenant at sufferance against the king, to whom no laches, or neglect in entering and ousting the tenant, is ever imputed by the law; but the king's tenant, so holding over, is considered as an absolute intruder (1). The estate (or tenancy) at sufferance will be destroyed. whenever the true owner shall make an actual entry on the lands, and oust the tenant; but, before entry, he cannot maintain an action of trespass against him, as he might against a stranger, because the original entry was lawful (m). 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, unless the owner of the land, by some public and avowed act, such as entry, will declare the continuance to be tortious, or, in common language, wrongful. But a tenant for life or years, who wilfully holds over after the determination of his term, and after written demand of possession, is liable to an action for double the value of the premises during the time that he retains possession (n).] And any tenant who gives notice of his intention to quit premises, and fails to quit in accordance with his notice, becomes thenceforward liable to pay double rent (o). CHAPTER VI. OF ESTATES UPON CONDITION. [ESTATES upon condition have been reserved till now, because they are indeed more properly qualifications of estates, than a distinct species of themselves, seeing that any quantity of interest-a fee, a freehold, or a term of years may depend upon condition. A condition may be defined as some uncertain event, on the happening or not happening of which an estate may be either originally created, or enlarged, or, finally, defeated. And estates upon condition are either (1) estates upon condition implied, or (2) estates upon condition expressed (p). 1. Estates upon condition implied are where a grant of an estate has a condition annexed to it inseparably, from its essence and constitution, although no condition be expressed in words. As if a grant be made to a man of an office generally, without adding other words; the law tacitly annexes thereto a secret condition, that the grantee shall duly execute his office. And, on breach of that implied condition, it is lawful for the grantor, or his heirs, to oust the grantee, and to grant the office to another person (q). Upon the same principle proceeded all those forfeitures of estates which resulted from acts done by the tenant incompatible with his estate,-e.g., if a tenant for life or for years enfeoffed a stranger in fee simple, that by the common law was a forfeiture of his estate, being a breach of the condition which the law annexed thereto, viz. that he should not attempt to create a greater estate (p) Co. Litt. 201 a. (2) Litt. s. 378. [than he himself was entitled to.] And a similar rule prevailed, by virtue of express statute (r), in the case of the commission of waste. But those forfeitures have been abolished by recent statute (s). [2. Estates upon condition expressed are where an estate is granted, either in fee simple. or otherwise, with an express qualification annexed, whereby the estate granted shall either commence, be enlarged, or be defeated, upon performance or breach of such qualification or condition. And these conditions (commonly called conditions in deed) are either "precedent," that is, such as must happen or be performed before the estate can vest or be enlarged, or "subsequent," that is, such as by the failure or nonperformance of which an estate already vested may be defeated. Thus, if a man grant to his lessee for years, that upon payment of a hundred marks within the term he shall have the fee, this is a condition precedent, and the fee simple passeth not till the hundred marks be paid (t). But if a man grant an estate in fee simple, reserving to himself and his heirs a certain rent, and it is provided, that, if rent be not paid at the times appointed in the reservation, it shall be lawful for the grantor and his heirs to re-enter and avoid the estate; in this case the grantee and his heirs have an estate upon condition subsequent, which is defeasible if the condition be not performed (u). A distinction is, however, made between a condition in deed and a limitation (x), which Littleton denominates also a condition in law. For when an estate is so expressly confined and limited by the words of its creation that it cannot endure for any longer time than till the contingency happens upon which the estate is to fail, this is called (r) Statute of Gloucester, (1278) c. 5. (s) Real Property Limitation Act, 1833, s. 36; Real Property Act, 1845, s. 4. (t) Co. Litt. 214 b. [a conditional limitation. Thus, when land is granted to a man, so long as he is parson of Dale, or while he continues unmarried, or until out of the rents and profits he shall have made 500l. and the like, the estate determines as soon as the contingency happens, and the estate in remainder, which depends upon such determination, becomes immediately vested, without any act to be done by him who is next in expectancy. But when an estate is, strictly speaking, an estate upon condition in deed (as if granted expressly upon condition to be void upon the payment of 401. by the grantor, or so that the grantee continues unmarried, or provided he goes to York, &c.,) the law permits the estate to endure beyond the time when such contingency happens, unless the grantor or his heirs take advantage of the breach of the condition, and make an entry in order to avoid the estate (y)]. As to the necessity of entry, however, in such a case, there is a diversity (says Lord Coke) between a condition annexed to a freehold estate and a condition annexed to a lease for years. For, if a lease for years be made on condition. that if the lessee goes not to Rome before such a day the lease shall be void, the lease is ipso facto void upon the breach of the condition, without any entry by the lessor; but if the lease is for life, an entry is necessary to defeat it (z). The right of entry on breach of a condition subsequent cannot, probably, be reserved in favour of a stranger, but only in favour of the grantor and his heirs; and the effect of an entry by him or them, after breach," is to defeat altogether the estate which had before passed to the grantee, so that the grantor or his heirs are in again as of their former seisin (a). It was also a rule of the common law, that the right of entry on breach could not be assigned in any case to a stranger: so that, if a man had made a lease for life, reserving a rent, (a) Ibid. (1) Co. Litt. 214 b. with a proviso for re-entry in case of non-payment, and the lessor granted over his reversionary estate to another, the grantee could take no benefit from the condition (b). But, by a statute of the year 1540 (c), the law in this respect was altered, and the grantee of a reversion upon a lease for life or years now has, in respect of any breach subsequent to the grant to him, the same benefit from the condition of re-entry as the grantor himself would have had, in the event of the breach of any condition reserved for the benefit of the reversion. Moreover, by The Law of Property Amendment Act, 1859, where the reversion on a lease is severed (i.e.,.split up between two or more individual purchasers, grantees of the reversion), and the rent is legally apportioned, each grantee of the reversion is, quoad such portion of the demised lands as is included in his purchase, entitled to the full benefit of the condition or right of re-entry created by the original lease, for non-payment of the rent apportioned to the lands included in his purchase. The Conveyancing Act, 1881, has, in respect of leases created after the 31st of December, 1881, extended this right to the enforcement of all covenants and conditions reserved for the benefit of the reversion. [These express conditions are void, if they be impossible at the time of their creation, or afterwards by the act of God or the act or default of the grantor, become impossible; and also if they be contrary to law, or repugnant to the nature of the estate granted. In any of which cases, if they be conditions subsequent, the estate shall be absolute at once, and the condition subsequent discharged. Thus, if a feoffment be made to a man in fee simple, on condition to be void, unless he goes to Rome in an hour, or marries with Jane S. by such a day (within which time the feoffor marries her himself), or unless he kills another, or in case he alienes in fee; in all these cases, (b) Co. Litt. 215 a. (c) 32 Hen. VIII. c. 34. 7 fee 6-12. |