Of Estates for Years, at Will, or at SufferanceOf estates for yearsOf estates at willOf estates at sufferance
NOTES
1. Co. Litt. 46. a. See also, vol. ii. 278 of the present work.
2. Litt. sec. 67.
3. Co. Litt. 46. a. Lord Parker, in Theobalds v. Duffoy, 9 Mod. Rep. 102.
4. F.N.B. 198. cites 19 Hen. VI.
5. See a list of the authorities pro and con, taken principally from the Year Books, cited in the margin to Co. Litt. 46. a.
6. F. N. B. 221. 2 Blacks. Cam. 142. Reeves' Hist. of the Eng. law, vol. iv. 252, 235.
7. 3 Ch. Cas. 24.
8.Denn v. Barnard, Cowp. Rep. 597.
9. 1 Vent. 53. 80. 1 Lep. 270. S.C.
10. 1 Term Rep. 763. 1 Coll, Jurid. 251. S.C.
11. See the strong and lucid opinion of Mr. Fearne on the subject of these attendant terms, in 2 Coll. Jurid. 279.
12. 10 Vesey, 246.
13.Capel v. Girdler, 9 Vesey, 509,
14.King v. Smith, Sugden's Treat. of Vendors and Purchasers, App. n. 13. The King v. St. John, 2 Price, 317.
15.Wilkes v. Bodington, 2 Vern. 599.
16.Wynn v. Williams, 5 Vesey, 130.
17. 2 Barnw. & Ald. 710, 783.
18. See Mr., now Sir Edward B. Sugden's Letter to Charles Butler, Esq. on the doctrine of presuming a surrender of terms assigned to attend the inheritance.
19. The cases of Townsend v. Bishop of Norwich, Hays v. Bailey, and Aspinal v. Kempson, are referred to in the appendix to the sixth edition of Sugden's Essay on Vendors and Purchasers, for Lord Eldon's continued marks of disapprobation of the recent doctrine.
20. 6 Madd. Rep. 54.
21. The leading cases on the question have been collected, and the doctrine of attendant terms clearly and neatly condensed, by Mr. Butler, in Co. Litt. 290, b. note 249. sec. 13.; but the whole subject is much more fully examined by Mr. Coventry, in his voluminous notes to 2 Powell on Mortgages, p. 477-512.
22. Levet v. Needham, 2 Vern. 138. Whitchurch v. Whitchurch, 2 P. Wms. 236. Villiers v. Villiers, 2 Atk. 71.
23.Gay's case, 5 Mass. Rep. 419. Brewster v. Hill, 1 N. H. Rep. 350.
24. N.Y. Revised Statutes, vol. i. 727, 728, 729, 730. sec. 45. 49. 55. 60, 61. 65. 67.
25. Gibbon's Hist. vol. viii. 86. note. Lord Kaimes' Gentleman Farmer, 407. cited in 1 Bro. Civil Law, 198. note. Dr. Browne, p. 191-198. has given an interesting detail of the condition of the Roman lessee. In Scotland, very long leases are considered as within the prohibition of alienation; and Mr. Bell says, that a lease for nineteen years is alone to be relied on under a general clause in a deed of entail prohibiting alienation. Bell's Com. vol. i. 69, 70.
26. Fleta, lib. 5. c. 5. sec. 18, 19, 20. Dalrymple on Feudal Property, ch. 2. sec. 1. p. 25. Preston on Estates, vol. i. 204,205,206.
27. N.Y. Revised Statutes, vol. ii. 135. sec. 8.
28. Hare v. Celey, Cro. Eliz. 143. Bradish v. Schenck, 8 Johns. Rep. 151.
29. Jackson v. Brownell, 1 Johns. Rep, 267,
30. Holford v. Hatch, Doug. 183. Bacon, tit. Leases, I. 3.
31. Bacon's Abr. tit. Leases, M.
32. Co. Litt. 270. a. S. Touch. by Preston. 267.
33. Co. Litt. 46. b. 270. a. b. 338. a. Preston on Conveyancing, vol. ii. 211-217. Doe v. Walker, 5 Barnw. & Cress. 111. Mr. Preston arraigns Sir William Blackstone, and even Littleton and Coke, for not speaking with sufficient precision in respect to the difference between an interesse termini, and a term for years in possession. But the Court of K. B., in the case last cited, collected and stated, with great clearness, upon the authority of Co. Litt., all the leading characteristics of an interesse termini. There are subtleties upon the subject that betray excessive refinement, and lead to useless abstruseness. Thus, the interest "may be released, but it cannot be enlarged by release; it may be assigned, but it cannot be surrendered, though it is no impediment to a surrender or merger of a prior interest, in a more remote interest." 2 Preston on Convey. 216. When the law is overrun with such brambles, it loses its sense and spirit, and becomes matadorphosed subita radice retenta est-stipite crura teneri.
34. Weale v. Lower, Pollexfen, 54
35. Co. Litt. 45. a. 47. b. Bacon's Abr. tit. Leases, 0. Preston on Convey. vol. ii. 136. 139.
36. 2 Blacks. Com. 177. Preston on Convey. vol. iii. P. 7. 15. 18. 23.
37. Ibid. p. 7.
38. Ibid. 182,183. 201.213. 219. 225. 261.
39. Doe v. Walker, 5 Barnw. & Cress. 111.
40. 3 Preston on Convey. 23.153.
41. ibid. 25.
42. Ibid. 88, 89.
43. Preston on Conveyancing, vol. iii. 50. 55. 87. 107. 166.
44. Preston on Conveyancing, vol. iii. 273. 285. 294. Donisthorpe v. Porter, 2 Eden's Rep. 162,
45. Ibid. 294. 5. 309
46. Ibid. 306. 7.
47. Co. Litt. 54. b. Preston, ibid. 43-49.
48. 1 P. Wms. 41. 1 Atk. 592. Preston on Convey. vol. iii. 314,315. 557. 558
49. Preston, ub. sup. 314-342. Donisthorpe v. Porter, 2 Eden's Rep. 162. Goodright v. Wells, Doug. 771. Wade v. Paget, 1 Bro. 363. Selby v. Asten, 3 Vesey, 339.
50. Forbes v. Moffatt, 18 Vesey, 384. Gardner v. Astor, 3 Johns. Ch. Rep. 53. Starr v. Ellis, 6 Johns. Ch. Rep. 393. Freeman v. Paul, 3 Greenleaf, 260. Gibson v. Crehore, 3 Pickering, 475.
51. Lord Rosslyn, in Compton v. Oxenden, 2 Vesey, jr. 261. James v. Johnson, 6 Johns. Ch. Rep. 417. James v. Morey, 2 Cowen, 246.
52. The 3d volume of Mr. Preston's extensive Treatise on Conveyencing, is devoted exclusively to the law of merger. It is the ablest and most interesting discussion in all his works. It is copious, clear, logical, and profound; and I am the more ready to render this tribute of justice to its merits, since there is great reason to complain of the manner in which his other works are compiled. He has been declared by one of his pupils, to have stupendous acquirements as a property lawyer." The evidence of his great industry, and extensive and critical law learning, is fully exhibited; but I must be permitted to say, after having attentively read all his voluminous works, that they are in general encumbered with much loose matter, and with unexampled and intolerable tautology-magnitudine laborant sua. I use language by no means too strong; nor do I perceive, with the exception of his treatise on merger, (and even that treatise is far too attenuated, and abounds in repetitions,) the evidence of any remarkable superiority of judgment in the management of his materials. His works have no claim to the merit of compactness, or of orderly and lucid arrangement.
53. Co. Litt. 337..b
54. Preston on Abstracts of Title, vol. 2. 7.
55. Livingston v. Potts, 16 John.. Rep. 28. Shep. Touch. by Preston, vol. 2. 300, 301. In that old and venerable work, under the title Surrender, the whole law is fully and clearly laid down; but Mr. Preston says, that in a fourth volume to his Treatise on Conveyancing, (and which I have not seen,) the theory and practice of the law of surrenders is to be examined.
56. Magennis v. Macullagh, Gilb. Q we in Eq. 236.
57. Doe v. Sybourn, 7 Term Rep. 2. Goodtitle v. Jones, ibid. 47.Doe v. Hilder, 2 Barnw. & Ald. 782.
58. N.Y. Revised Statutes, vol. i. 744. sec. 2.
59. Moor, 94.
60. 3 Term Rep. 401.
61. Shep. Touchstone, by Preston, vol. ii. 301.
62. Co. Litt, 274. a.
63. Sturgeon v. Painter, Noy, 128. Foster v. Foster, 1 Lev. 55. Baxter v. Browne, 2 Wm. Blacks. Rep. 973. Goodtitle v. Way, 1 Term Rep. 735. Doe v. Clare, 2 ibid. 739. Roe v. Ashburner, 5 ibid. 163 Doe v. Smith, 6 East's Rep. 530. Poole v. Bentley, 12 ibid. 168. Morgan v. Bissell, 3 Taunt. Rep. 65. Jackson v. Myers, 3 Johns. Rep. 388. Jackson v. Clark, ibid. 424. 5 Johns. Rep. 77. Jackson v. Kisselbrack, 10 ibid. 336. Jackson v. Delacroix, 2 Wendell, 433. Preston on Convey. vol. ii. 177.
64. Co. Litt. 251. b. Bacon, tit. Leases, sec. 2.
65. N.Y. Revised Statutes, vol. i. 739. sec. 143. 146.; and see, as to other parts of the United States, supra.
66. Litt. sec. 608, 609, 610. 618. Co. Litt. 330. b. 332. e
67. Hale v. Green, 2 Rol.Abr. 261. pl. 10. Ram on Tenure and Tenancy, p. 75.
68. Lord Mansfield, in 1 Burr. 120. Campbell v. Leach, Amb. 740. Ex parte Smyth, 1 Swanst. Rep. 337. 357. Hale, Ch. B., in Jenkins v. Kemishe, Hard. 395. Sugden on Powers, 2 Lond. edit. 545. Roe v. Prideaux, 10 East's Rep. 158.
69. Harper's Eq Rep. 205.
70. 2 Dow, 90. 285. 5 ibid. 293. 1 Bligh, 339. Bell's Com. vol. i. 69.
71. Campbell v. Leach, Amb. 740. Shannon v. Bradstreet, 1 Sch. & Lef. 52. Sugden on Powers, 364--368. 564, 565. In ch. 10. of Mr. Sugden's Treatise of Powers, he considers extensively the law of powers to lease, and to which I must refer the student for a detailed view of that doctrine. In the N.Y. Revised Statutes, vol. i. 731. art. 3. the subject of powers in general is ably digested, and the doctrine is discharged, in a very considerable degree, from the subtleties which have given it so forbidding a character, and it is placed on clear and rational grounds. The observations of the revisors, which were annexed to their proposed modification and digest of the law of powers, were particularly striking and valuable, and show that they had studied the doctrine as it existed in the English law thoroughly, and penetrated its labyrinth with searching sagacity and ultimate success. It is impossible to make such a technical subject intelligible to any but technical men, but the article of powers in the revised statutes, though incapable of being understood by the ley gents will relieve the profession and conveyancers wonderfully, and bar the introduction into this state of some of the most hidden mysteries of the science. The doctrine may be noticed hereafter in its application to different subjects, and I would now only observe that by the Revised Statutes, powers, as they before existed, are abolished, and precise rules substituted for the creation, construction, and execution of them. It provides, in relation to the immediate subject before us, that a special and beneficial power may be granted to a tenant for life, of the lands embraced in the power, to make leases for not more than twenty-one years, and to commence in possession during his life; that such a power is not assignable as a separate interest, but is annexed to the estate, and will pass (unless specially excepted) by any conveyance of such estate; and if specially excepted in the conveyance, it is extinguished. So it may be extinguished by a release of it by the tenant, to any person entitled to an expectant estate in the lands. The power is not extinguished or suspended by a mortgage executed by the, tenant for life having a power to make leases, but it is bound by the mortgage in the same manner as the lands are bound, and the mortgagee is entitled in equity to the execution of the power, so far as the satisfaction of the debt may require. N.Y. Revised Statutes, vol. i. 732, 733. sec. 73. 87, 88, 89, 90, 91. Every special and beneficial
power, general or special, not embraced in the article, is declared not to be valid, and no power can be executed, except by an instrument in writing, which would be sufficient to pass the interest in it, if the person executing the power was the owner. No disposition, by virtue of a power, shall be void in law or equity, on the ground that it was more extensive than was authorized by the power, and the estate or interest. shall be valid, so far as it is embraced by the terms of the power. Ibid. sec. 92. 113. 123.
72. Lee v. Vernon, Bro. P. C. vol. vii. 432. ed. 1784. Robertson v. St. Johns, 2 Bro. 140.
73. Furnival v. Crew, 3 Atk. 83. Lord Eldon, in Willan v. Willan, 16 Ves. 84. Rutgers v. Hunter, 6 Johns. Ch. Rep. 215,
74. Moore, 159. Pl. 300.
75. Litt. sec. 68.
76. Co. Litt. 56. a.
77. Bro. Abr tit. Emblements, pl. 7. tit. Tenant pour Copie de Court roll, pl. 3. Stewart v. Doughty, 9 Johns. Rep. 108.
78. Dig. 19. 2. 9.
79. Dig. 19. 2. 15. 1. and 2.
80. Pindar v. Ainsley, cited by Buller, J. in 1 Term Rep. 312. See also, supra.
81. Litt. sec. 68.
82. 21 Hen. VI. 37. 35 Hen. VI. 24. pl. 30. 3 Hen. VIII. Keilw. 162. pl. 4. 13 Hen. VIII. 16. pl. 1. Litt. sec. 68. Co. Litt. 55. a. Viner's Abr. vol. 10. tit. Estate, 406. B. c. pl. 5. Kighly v. Bulkly, 1 Sid. 339
83. Kighly v. Bulkly, 1 Sid. 348. Leighton v. Theed, 2 Salk. 413.
84. Litt. sec. 69. Co. Litt. 56. b. 56. a. Ellis v. Paige, 1 Pickering, 43.
85. 3 Burr. 1607.
86. Preston on "Abstracts of Title, vol. ii. 25. Wilmot, J. 3 Burr. 1609.
87. Bro. Abr. tit. Lease, p1. 53. Layton v. Field, 3 Salk. 222.
88. Kingsbury v. Collins, 4 Bingham, 202
89. Leighton v. Theed, 1 Ld. Raym. 707. Doe v. Snowden, 2 W. Blacks. Rep. 1224. Doe v. Porter, 3 Term Rep. 13. Porter v. Constable, 3 Wils. 25. Right v. Darby, 1 Term Rep. 159. Roe v. Wilkinson, cited from M.S. in Butler's note, 228. to lib. 3. Co. Litt. Jackson v. Bryan, 1 Johns. Rep. 322.
90. 17,Mass. Rep. 287.
91. 2 Pick. 70.
92. 2 Pick. 71. note.
93. The opinion of Judge Putnam, in the case referred to, contains a full and broad view of the whole ancient and modern law on the question; and he established, by authority and illustration, the necessity of reasonable notice to quit, in all cases of uncertain tenancy, whether under the name of tenancies from year to year, or tenancies at will. He showed that the doctrine was grounded on the immutable principles of justice and the common law, and was introduced for the advancement of agriculture, and the maintenance of justice; and to prevent the mischievous effects of a capricious and unreasonable determination of the estate.
94. Right v. Darby, 1 Term Rep. 159. Doe v. Hazell, 1 Esp. N. P. Rep. 94.
95. Gibson, J. in Logan v. Herron, 8 Serg. & Rawle 458.
96. De Grey, Ch. J. in 2 W. Black. 1173.
97. Jackson v. Bradt, 2 Caines, 169.
98. Litt. sec. 460. Co. Litt. 270. b.
99. Preston on Abstracts, vol. ii. 25.
100. Messenger v. Armstrong, 1 Term Rep. 54. Bright v. Darby, ibid. 162. Jackson v. Bradt, 2 Johns. Rep. 169. Jackson v. Parkhurst, 5 ibid. 128. Bedford, v. McElhetton, 2 Serg. & Rawle, 49. Ellis v. Paige, 1 Pick. 43.
101. 7 Johns. Rep. 4. Nichols v. Williams, 8 Cowen, 75.
102. 8 Cowen, 13.
103. The N.Y. Revised Statutes, vol. i. 745. sec. 7. & vol. ii. 512, 513. sec. 28.
104. Stat. of Pennsylvania of March, 1772, and of, Maryland, Dec. 1793.
105. 29 Charles II chap. 3.
106. Putnam, J. in Ellis v. Paige, 2 Pick. 71. note. N.Y. Revised Statutes, vol. ii. 135. sec. 8.
107. Dig. 19. 2. 13. 11. Ibid. 1. 14. Pothier's Pandectae, tom. 2. 225. Brown's Civil Law, vol. i. 198. I have assumed the existence of the rule in the Roman law, requiring notice to quit, upon the credit of Dr. Brown; but he cites no authority for it, and I have not perceived it in the text of the Digest.
108. Lib. 19. tit. 2. Locati conducti
109. Co. Litt. 57. b.
110. Co. Litt. 270. b. Jackson v. Parkhurst, 5 Johns. Rep. 128. Jackson v. McLeod, 12 ibid. 182.
111. Cruise's Dig. tit. 9. ch. 2. sec. 6.
112. 2 Blacks. Cam. 150.
113. Co. Litt. 57. b. 2 Inst. 134.
114. N.Y. Revised Statutes, vol. i. 745. sec. 10, 11.
115. N.Y. Revised Statutes, vol. i. 749. sec. 7.
116. Co. Litt. 57. b. 2 Inst. 134.
117. See ante, vol. iii. 384. and N.Y. Revised Statutes, vol. i. 745. sec, 7,8,9,
118. Taylor v. Cole, 3 Term Rep. 292. 1 H. Blacks. 555. S. C. Taunton v. Costar, 7 Term Rep. 431. Argent v. Durrant, 8 ibid. 403. Turner v. Meymott, 1 Bingham. 158
