Part I. Right of tenant in tail. SECTION III. Of the Rights of Tenants for Life or in Tail, during their THE two former sections have treated of the right of pro- And, first, with respect to a tenant in tail. There can be no doubt that a tenant in tail, by reason of the nature of his estate, and independently of the law of fixtures, may remove whatever he has affixed to the premises, without reference either to the mode of its annexation, or the purpose for which it was put up. For a tenant in tail may commit every kind of waste; and a court of equity will in no case whatsoever restrain him by injunction (a). It seems that the same observation holds in the case of the grantee of tenant in tail; and if there be subsequent grantees, it applies to them also (b). The tenant in tail, however, must exercise his powers during the continuance (a) Perkins' Profitable of Marlborough, 3 Madd. at Booke, § 58; Lord Glenorchy 532. And see 1 Cru. Dig. v. Bosville, Cas. temp. Talb. Tit. 2, ch. 1, § 32. at p. 16; Jervis v. Bruton, 2 Vern. 251; Att.-Gen. v. Duke P. (b) 3 Leon. 121; 8 Bac. Ab. tit. Waste (F.) p. 392. of his estate; for at the instant of his death they cease (c); Chap. III. s. 3. and the right which survives to his personal representative, under the law of fixtures, is of a very inferior nature. tenant for life. Secondly, with respect to a tenant for life:-although Right of in general he is not permitted to commit waste of any kind, but is impeachable for it, unless the contrary is provided by positive limitation (d), yet, by inference from the right which it has been seen is possessed by his executor after his death, it must be concluded that he is entitled during his life, to remove the same description of things that his executor might claim as part of the personal estate (e). And since the tenant for life is punishable for every act of commissive waste, it is apparent that his title to sever a thing from the freehold cannot arise from a power incident to his estate, but accrues to him by virtue of the law of fixtures only. By the same mode of reasoning it may be inferred, that Tenant pour if a person is tenant pour auter vie, he will have all the auter vie. rights after the death of the cestui que vie, that his own executor would have if he were tenant for his own life. (e) Cru. Dig. ubi sup. (d) 1 Cru. Dig. Tit. 3, ch. 2. But the Chancery Division will not, in general, interfere in the case of permissive waste by a tenant for life. See notes to Lewis Bowles's case, Tudor, L.C., p. 107 (3rd ed.). And see Appendix (G). And it has been recently decided that an action does not now lie in the Queen's Bench Division in respect of such waste at the suit of a person having merely an equitable estate, Barnes v. Dowling, 44 L. T. 809; secus, where an express duty to repair is cast upon him by the instrument (e) A tenant for life cannot Part I. Tenant for life without impeachment; Nature of right conferred. But if the tenant for life holds his estate without impeachment of waste, his situation is altogether different. For in this case his powers are much more extensive, and, like those of tenant in tail, arise merely out of his estate. So that, whenever he severs a thing from the freehold, he must be considered to do it by virtue of a right quite independent of the law of fixtures. Still, however, the interest of tenant for life without impeachment so far differs from that of tenant in tail, that if a case may be supposed where the removal of an erection put up by the tenant for life himself, would, from its circumstances, amount to an act of malicious waste or destruction, it is conceived that he would not be allowed to take it away (f). The distinction between the rights which belong to a tenant from his not being impeachable for waste, and those which he derives from the law of fixtures, is pointed out by Lord Holt. He observes, in Poole's case (g) (in reference to the taking of fixtures in execution), that the case of tenant for years without impeachment is not like that of a (f) There are many important decisions upon the restraints imposed in the Court of Chancery, on the clause "without impeachment of waste." See Vane v. Lord Barnard, 2 Vern. 738; S. C. Prec. Ch. 454, 1 Eq. Cas. Ab. 399, 1 Salk. 160; Rolt v. Somerville, 2 Eq. Cas. Ab. 759; Packington's case, 3 Atk. 215; Aston v. Aston, 1 Ves. 263; O'Brien v. O'Brien, Amb. 107; Strathmore v. Bowes, 2 Br. Ch. Cas. 88; Marq. Downshire v. Lady Sandys, 6 Ves. 107; Lord Tamworth v. Lord Ferrers, 6 Ves. 419; Day v. Merry, 16 Ves. 375 a; see also Chamberlyne v. Dummer, 1 Br. Ch. Cas. 166; Parteriche v. Powlett, 2 Atk. 383; Burges v. Lamb, 16 Ves. at p. 185; Pyne v. Dor, 1 T. R. at p. 56; Com. Dig. tit. Chancery (D. 11); Tudor, L. C. pp. 112, 115 (3rd ed.). An estate for life without impeachment of waste does not now confer any legal right to commit equitable waste, Jud. Act, 1873 (36 & 37 Vict. c. 66), s. 25, sub-s. 3. As to the measure of damages where a tenant for life without impeachment has cut ornamental timber, Bubb v. Yelverton, L. R., 10 Eq. 465. See the doctrine of equitable waste considered generally, per Jessel, M. R., in Baker v. Sebright, 13 Ch. D. 179. (g) 1 Salk. 368. common tenant. In the former case, he allowed that the Chap. III. s. 3. sheriff could not cut down and sell, though the tenant might; and the reason was, because in that case the tenant had only a bare power without an interest; but a common tenant has an interest as well as a power, as tenant for years has in standing corn, in which case the sheriff can cut down and sell. The rights of a tenant in tail after possibility of issue Tenant après possibility. extinct, in removing things affixed to the freehold, may be considered as being the same as those of a tenant for life without impeachment of waste (h). But the grantee of tenant in tail après possibility is in the situation of a bare tenant for life (i). A tenant by the courtesy is punishable for waste, like Tenant by the a common tenant for life. So likewise is a tenant in courtesy. dower (j). And hence the rights of these parties in fixtures will resemble those which belong to tenants for life. tenants for executors, From comparing the rights enjoyed by the owners of Rights of these several interests and by their personal representatives, life, &c., and it may be seen that the privilege of removing fixtures after of their the determination of the particular estate does not arise compared. out of the principle, that whatever a testator might have removed in his lifetime, his executor is entitled to remove after his death. For it has been shown, that the rights of tenants in tail, and tenants for life, differ both in nature and degree; whereas the rights of their executors are in all respects similar. The distinction seems to be, that in the (h) Herlakenden's case, 4 Co. at p. 63a; Abraham v. Bubb, Freem. Cas. Chy. 53; S. C. 2 Eq. Cas. Ab. 757; 2 Show. 69; Anon., Freem. Cas. Chy. 279; Williams v. Williams, 15 Ves. 419, and 12 East, 209. And see Com. Dig. tit. (i) George Ap Rice's case, Part I. case of a tenant in tail or tenant for life without impeachment of waste, the testator removes articles affixed to the freehold simply by reason of a power incident to an estate in land; whereas the right of the executor is communicated to him by the law with a view to public benefit and convenience. The analogy of the doctrine of emblements, which is frequently of use in explaining the law of fixtures, seems, in this instance, calculated to mislead. Many legal inferences of a curious nature appear to result from the comparison here suggested. Thus, in respect of the rights of the executor of a tenant in tail, it is apprehended, that if his testator leaves issue in tail, the executor will not be entitled to greater privileges as to fixtures against the heir in tail, than the executor of tenant in fee simple may be found to have against the heir in fee; although the heir in tail takes per formam doni. Consequently, the right of the executor of a tenant in tail may vary according as it is opposed to that of the heir in tail, or to that of the remainderman or reversioner. That is to say, the same difference will probably be found between the right of the executor of tenant in tail against the issue in tail, and that of the executor of tenant in tail against the remainderman or reversioner, as exists between the right of an executor of tenant in fee against the heir, and the right of an executor of tenant in tail against the remainderman or reversioner (). It would not, however, serve any useful purpose to enter further here into questions of this nature. The object of the present section has been principally to illustrate the principles laid down in the first chapter of the work; and it is obvious that this illustration could not have been offered at an earlier period, nor until the rights of the several parties whose claims have been examined had been fully developed. (k) See post, p. 237. |