I. RIGHTS TO REAL defendant by a deed, the validity of which was questionable, CHAP. IV. and the defendant took possession, and gave the key to a gardener, who, with his permission, lent it to the plaintiff, merely PROPERTY. to enable him to enter and preach in the chapel upon a Sunday, and the plaintiff thereupon locked up the chapel, and refused to re-deliver the key, it was held that he had not sufficient possession to maintain an action of trespass against the defendant for breaking open the chapel. (g) between a mere interest. 3. A person who has merely a license to use land has not 3. Distinction such an interest therein as to enable him to maintain an action of license and postrespass; (h) though, if he were, in fact, in exclusive possession, session, or an without any right or title whatever, or under a void title, he might sustain that action against a stranger. (i) But here we must distinguish between a mere license to use land in common with others, and a license or agreement to have the whole use of the same; for if the latter be valid at all, it would be equivalent to a demise, and operate as a lease. (k) We shall hereafter consider the validity and effect of a license, when we consider the different modes of acquiring a right to real property. () It may be here observed, that a beneficial license to be exercised upon land, but not conferring any interest in the land, may be granted without deed or writing. (m) a 4. With regard to strangers, who cannot themselves esta- 4. Twenty years' posses blish any title to the property, which is the subject in contest, sion prima facie it is seldom necessary to prove the nature or extent of the sufficient title. interest of the claimant, or to produce any title-deeds whatever; and the mere proof of twenty years' undisturbed possession of real property corporeal, or of the enjoyment of real property incorporeal, (the effect of which we shall have occasion to consider more fully among the modes of acquiring property,) is sufficient, and affords a presumption in favour of the highest or largest estate that a person could possibly have in the subjectmatter. (n) Such presumption may, however, be rebutted; and under these and other circumstances, recourse must occasionally be had to the proof of the precise nature of the estate, or degree of interest of the owner, and how he acquired the same, and which, therefore, we will now examine practically. 5. The different estates or degrees of interests are divided into such as are freehold, and such as are less than freehold. (g) 5 Bing. 7; 2 Moore & P. 12, S. C. (h) 2 East, 190; 11 East, 345. (i) 1 East, 41. (k) 1 Vin. Ab., License, 92. VOL. I. (1) And see, as to license, Sugden's V. & P., 8 ed. 73, 75; and Sayer's Rep. 3. R 5. Extents or quantities of inated, and in what property they may be terest enumer created. CHAP. IV. Those of freehold are either of inheritance, descending from J. RIGHTS TO REAL PROPERTY. Power of alienation how far incident to estate. ancestor to heir, whether in fee simple or limited, as in fee tail; or are freehold not of inheritance, as for the life of the owner, or for the life of another person or persons, and ceasing upon death; or are by the curtesy and in dower. Estates less than freehold are for years, from year to year, at will, or at sufferance, and to these are added estates upon conditions of various descriptions, as to cease upon a certain specified event; and the estates of mortgagees, and tenants under statutes staple or statute merchant, or by elegit, are classed as of this nature, their interests determining when the debt has been satisfied. (0) It will be observed that Blackstone, in enumerating these several estates, considers them only as applicable to freehold tenure, and notices estates in copyhold merely as a subdivision of estates at will. But it must be kept in view that, though it cannot be properly said that a person has a freehold, (p) either of inheritance or for life, in a copyhold, yet he may have an estate of inheritance, or an estate for life, or dower, (and then called freebench,) or for years in a copyhold, and descending and continuing, or ceasing, precisely the same as in freehold tenure, and in general copyhold tenure (subject to the custom of each manor) is as capable of subdivision in degrees of estate or interest, &c. as lands of freehold tenure, and, in many respects, the rules applying to freehold estates will equally apply to copyhold, as regards the estate or degree of interest therein, though subject to certain peculiar incidents affecting all or most copyholds which do not extend to freehold, on account of the peculiarity of the tenure. There is one incident to every description of tenure and estate, (excepting leases by copyholders,) namely, that unless every degree of expressly taken away by the terms of the conveyance, the owner has a right to alienate either the whole or a part of his estate, whether he is entitled to an estate of inheritance in fee-simple, or for a year, or a time certain, less even than a year, in lands of freehold tenure, (q) (or his interest as a leaseholder in lands of copyhold tenure, who holds an estate by the rules of the common law, and not a customary estate, (r) and he may either convey or assign his entire interest, or may carve out less interests therein, unless such power be expressly prohibited, as it may be, and as occurs in estates upon condition, and more frequently in leases for years, where a landlord having the jus disponendi (0) See 2 Bla. C., chap. 7 to 10, and pages 103 to 162. (p) Ante, 232. (q) 1 Tho. Co. Lit. 636, note (k); Doct. & Stu. 27; 15 Ves. 264. (r) Com. Dig. Cop. K. S. CHAP. IV. I. RIGHTS TO REAL may annex any lawful terms to his grant or demise ;(s) and a parol interest, as tenant from year to year, may even be seized and sold under a fieri facias. (t) But it may be here noticed that PROPERTY. no restraint of the power of alienation (except to a particular person) can be imposed upon the grantee of an estate in fee, such a condition being void, as repugnant to the nature of the estate given. (u) Even a tenancy from year to year, unless the landlord determine it, might endure for ever, and on this account such a tenant may grant a lease for twenty-one years, and he has, in contemplation of law, a reversion, so as to enable him to distrain. (x) The utmost time allowed by law, in order to guard against perpetuities, during which freehold estates of inheritance and fee-tails therein, and also leaseholds and personal property, may be limited, so as to be rendered unalienable, is during the existence of a life, or of any number of lives in being at the time the limitation is created, and twenty-one years after, and no longer, or in case of a posthumous child, perhaps a further period of nine months, to allow for the birth, but that is the utmost extent of prohibition will be given effect to; (y) and, in case of an entailed estate, immediately the first tenant in tail comes into possession, he may bar it by a common recovery, the power of suffering which for such purpose cannot be restrained by any condition, limitation, or covenant; (2) therefore there is no danger of perpetuity, for any tenant in tail might, if he should so think fit, bar the entail. (a) Copyhold tenure is an exception to these rules, for the owner cannot, as we have seen, demise for more than a year, or from year to year, without an express license from the lord of the manor. (b) alienation of It is another general rule, that if a person have an interest Forfeiture by less than an absolute estate of inheritance, and he attempt to convey a larger estate than he himself has, he forfeits his own interest by such assumption of greater interest than he really has; as if a tenant for life or for years convey an estate in fee, the person in remainder may immediately take advantage of such forfeiture, and instantly take possession, as if the particular estate had determined by efflux of time. (c) But a conveyance (s) 2 T. R. 133. (t) 1 Marsh. 10. (u) Litt. s. 360, 361; & T. R. 61. (x) 2 Chitty's R. 461. (y) 1 Sim. R. 173; and see a useful note, 1 Tho. Co. Lit. 516, in note 7; 2 Id. 578, note A.; 3 Id. 296, note D. ; and Chit. Eq. Dig., tit. Perpetuity. (s) 1 Inst. 223, b; 1 Burr. 84; 1 Rep. I. RIGHTS TO REAL PROPERTY. CHAP. IV. by lease and release, bargain and sale, or covenant to stand seised by a tenant for life, will not create a forfeiture, (though a feoffment would,) (d) these being what are technically termed innocent conveyances, inasmuch as they can transfer no more than the party conveying has. Of this nature also is a disclaimer, by any person who has less than a freehold estate of inheritance, to hold of the lord or landlord, who may therefore treat such disclaimer as a forfeiture, and proceed to eject the occupier. (e) Distinction between freehold and leasehold interests. There are several other leading distinctions between freehold estates or interests, and those which are less than freehold. The former are termed real estates, the latter personal estates. (f) One is, that a freehold interest (that is, an interest to endure for life or longer,) must be created either by feoffment, which applies only to corporeal property, or by deed under seal operating under the statute of uses; and that no freehold interest, even in an incorporeal hereditament, as a right of common or way, can be created by parol or by unsealed written instrument; (g) whereas an estate or interest less than freehold, as a lease or demise even for 1000 years, may be created without deed, except in an incorporeal hereditament; (h) and before the statute against frauds, which requires a signed instrument when for a term exceeding three years, might have been even by mere words. It is for this reason, that if a rector grant or demise his tithe by a mere written instrument, not under seal, he is still, in point of law, the owner and occupier of the tithe, and to be rated in respect thereof, because the legal interest in tithe passes only by grant under seal; whereas if the same instrument had been under seal, the lessee, acquiring the legal interest in the tithe, would be the proper person to be rated. (i) Another rule is, that an estate of freehold cannot be derived from an estate for years; and therefore, where a rent was granted for life out of a long term of years, though it was resolved to be a good charge as long as the term lasted, yet the court held it to be only a chattel, and not a freehold. (k) Another great distinction is, that a freehold estate cannot commence in futuro by a common law conveyance, as by feoffment and livery, which must be at the time of the feoffment; (1) (d) Willes, 268. (e) 2 Bla. C. 276; Bul. N. P. 96; Peak. R. 196; 2 Sch. & Lef. 625. post. (f) Waldron v. Howell, 3 Russ. R. 376, and where it was holden that a leasehold for years, though perpetually renewable, cannot be deemed real estate. (g) 8 East's R. 167; 5 B. & Cres. 875. (h) 5 B. & C. 875. (i) 1 Eagle on Tithes, 19; 1 Stra. 525; 16 Vin. Ab. 427; 4 Man. & R. 334; 9 B. & Cres. 479; Burn's J., Poor, 68, 69. (k) Butt's case, 7 Co. 23, a; 1 Tho. Co. Lit. 655, note H. () 2 Bla. Com. 143, 144. but by a conveyance under the statute of uses there may be a creation of a freehold to commence in futuro with only an estate for years intervening; (m) and a lease for lives to begin from the day of the date thereof with seisin delivered afterwards is good, and shall not be said to convey a freehold to commence in futuro. (n) So the lessee under a lease for lives in futuro and who has covenanted to pay rent will be estopped, whilst he continues in possession, from insisting that being a lease for lives it could not commence in futuro, or be granted without livery of seisin, or lease and release, or bargain and sale. (0) But with respect to chattels real, as a lease even for 1000 years, it may, unless expressly prohibited, (as in leases by tenants in tail, (p)) be created to commence in futuro. (q) Another rule is, that no freehold interest in remainder can, by any common law conveyance, be supported by an intervening estate less than freehold. (r) So a freehold interest cannot merge in a chattel interest, though the latter may merge in the former (if both be equitable or both legal estates, but not otherwise); consequently if an estate of freehold for the term of his life vest in a person who is owner for a term of 1000 years, the freehold interest, though substantially of shorter duration, will not merge, but the term will merge in the freehold, (s) unless in case of a mere interesse termini. (t) CHAP. IV. I. RIGHTS TO REAL PROPERTY. In pleading also a freehold interest in possession, the owner is stated to be "seised in his demesne as of freehold for the term of his natural life," (or if the interest be in incorporeal property, the words "in his demesne" are to be omitted); whereas the owner of a term of years is alleged to be " possessed of the tenements for the residue of a certain term of years, commencing from, &c. and then unexpired;" (u) or if the term is to commence in futuro, he is then "possessed of the interest in a certain term, to commence on, &c. of and in certain land, &c. (x) Interests of The same different estates or degrees or quantities of interest inheritance in what things. may in general exist equally in freehold or copyhold, or in any other tenure; and in each a person may have an estate of In fee. inheritance descending to him and his general heirs, according |