Estates for life were, by the common law, liable to forfeiture, not only for waste, but by alienation in fee. Such an alienation, according to the law of feuds, amounted to a renunciation of the feudal relation, and worked a forfeiture of the vassal's estate to the person entitled to the inheritance in reversion or remainder.a Alienation by feoffment, with livery of seisin, or by matter of record, as by fine or recovery, of a greater *83 estate than the tenant for *life was entitled to, by divesting the seisin, and turning the estate of the rightful owner into a right of entry, operated as a forfeiture of the life estate, unless the person in remainder or reversion was a party to the assurance. But an

gagee; by joint-tenants and tenants in common; and in which dilapidations of party-walls, fences, highways, bridges, and sewers are treated at large with learning and accuracy.

Nihil de jure facere potest quis quod vertat ad exhæredationem Domini sui; si super hoc convictus fuerit fœdum de jure amittet. Glanville, lib. 9, c. 1. Litt. sec. 415. 2 Blacks. Com. 274. b Co. Litt. 251, b. 252, a. 356, a. 2 Inst. 309. Statute of Gloucester, 6 Edw. I., c. 7. Preston on Abstracts of Title, vol. i. 352-356. In Sir William Pelham's case, 1 Co. 14, b, it was adjudged, that if a tenant for life conveyed in fee, by bargain and sale, and then suffered a common recovery, he forfeited his life estate. But in Smith v. Clyfford, 1 Term Rep. 738, it was held, that the estate of a tenant for life was not forfeited by suffering a recovery. Mr. Preston thinks the elder case the better decision and authority, (1 Preston on Convey. 202); but Mr. Ram, in his Outline of the Law of Tenure and Tenancy, 125-140, has discussed this point, and examined those authorities, with much ability; and he holds the latter decisions to be sound, on the ground that the recovery, being absolutely void, was harmless. We, in this country, have very little concern with such questions; but this instance strikingly illustrates the matchless character of the English jurisprudence for stability, and the spirit which sustains it. Here were two cases, at the distance of two centuries apart, on an abstruse and technical point of hard law; and the attention of two learned lawyers is immediately attracted by the apparent contrariety between them. The one justifies the latter case, by showing that it went on new ground, furnished by the statute of 14 Eliz., subsequent to the first case; whereas, the other, not being able to reconcile the cases on principle, condemns the latter decision with unceremonious and blunt severity.

alienation for the life of the tenant himself, did not work any wrong; and, therefore, says Lord Coke, it was not within the statute of Gloucester. So, a mere grant or release by the tenant for life, passed, at common law, only what he might lawfully grant. In Massachusetts, Connecticut, New-York, Pennsylvania, and Kentucky, this feudal notion of forfeiture is expressly renounced, and the doctrine placed upon just and reasonable grounds. Any conveyance by a tenant for life, or years, of a greater estate than he possessed, or could lawfully convey, passes *only the title and estate which the tenant could lawfully grant. It is, therefore, an innocent conveyance, whatever the form of the conveyance may be, and produces no forfeiture of the particular estate. It does not, like a feoffment with livery at common law, ransack the whole estate, and extinguish every right and power connected with it.

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The same conclusion must follow from the general provision in the statute of Virginia, of December, 1783, and from the forms of conveyance in use in other states. A conveyance in fee by a tenant for life, by bargain and sale, or by lease and release, does not work a discontinuance. Conveyances under the Statute of Uses, are innocent conveyances, since they operate only to the extent of the grantor's right, and occasion no forfeiture; though, if a general warranty be annexed to these conveyances, it would, at common law, work a discontinuance, when the warranty descends upon him who has the right to the lands. We have never adopted, in this country, the common law conveyance by feoffment and livery, and we rarely use that by fine, or common re

2 Inst. 309.

New-York Revised Statutes, vol. i. 739, sec. 143. 145. Massachusetts Revised Statutes, 1835, part 2, c. 59, sec. 6. M'Kee v. Prout, 3 Dallas, 486. 11 Conn. Rep. 557. 1 B. Monroe's Ken. Rep. 94. • Co. Litt. 329, a. Gilbert on Tenures, tit. Discontinuance, 112.

covery, or any other than the conveyance by lease and release, or, more commonly, by deed of bargain and sale. In New-Jersey, by an act, in 1798, alienations by the husband of the wife's lands or of his curtesy, or by a dowress having an estate in dower, or other estate for life, and whether made with or without warranty, do not produce any prejudice to the persons entitled to the inheritance, but the dowress forfeits her particular estate. If, however, there be, in any state, a forfeiture of the life estate by the act of the tenant for life, the party entitled to enter by reason of the forfeiture, is not bound to enter, and may wait until the natural termination of the life estate.

Elmer's Dig. 77. Doe v. Danvers, 7 East's Rep. 321. Wells v. Prince, 9 Mass. Rep. 508. Jackson v. Mancius, 2 Wendell, 357. By statutes in Kentucky, in 1798, no conveyance by the husband of the wife's estate works a discontinuance thereof; nor does any alienation pass a greater estate than might lawfully be conveyed, or bar the residue of the estate, except that, if the alienation be with warranty, the heirs will be barred to the value of the heritage descended. 3 Dana's Ken. Rep. 291, 292.

LECTURE LVI.

OF ESTATES FOR YEARS, AT WILL, AND AT SUfferance.

(1.) Of estates for years.

A lease for years is a contract for the possession and profits of land, for a determinate period, with the recompense of rent; and it is deemed an estate for years, though the number of years should exceed the ordinary limit of human life. An estate for life is a higher and greater estate than a lease for years, notwithstanding the lease, according to Sir Edward Coke, should be for a thousand years or more; and if the lease be made for a less time than a single year, the lessee is still ranked among tenants for years."

In the earlier periods of English history, leases for years were held by a very precarious tenure. The possession of the lessee was held to be the possession of the owner of the freehold, and the term was liable to be defeated at the pleasure of the tenant of the freehold, by his suffering a common recovery. In the reign of Henry VI., it would seem, that the law gave to the lessee, who was unduly evicted, the right to recover, not only damages for the loss of the possession, but the possession

. Co. Litt. 46, a. See supra, vol. ii. p. 342.

Litt. sec. 67.

• Co. Litt. 46, a. Lord Parker, in Theobalds v. Duffoy, 9 Mod. Rep. 102.

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itself. But the interest of the lessee was still insecure, until the statute of 21 *Hen. VIII., c. 15, removed the doubts arising from the conflicting authorities, and enabled the lessee for years to falsify a recovery suffered to his prejudice. A term was now a certain and permanent interest, and long terms became common, when they could be purchased and held in safety. They were converted to the purpose of raising portions for children, in family settlements, and by way of mortgage.c

It was said, in the Duke of Norfolk's case, that there was nothing in the books, before the reign of Elizabeth, respecting terms attendant upon the inheritance; but that in the latter part of her reign, mortgages for long terms of years came into use; and then it was deemed, in chancery, advisable to keep the term outstanding, to wait upon, and protect the inheritance. A long lease, in modern times, has been considered a muniment of title, and equivalent, in some respects, to an estate in fee. No man, said Lord Mansfield, held a lease for 2000 years as a lease, but as a term to attend the inheritance; and half the titles in the kingdom were so. Long terms, as for one hundred, or five hundred, or a thousand years, created by way of trust, to secure jointures, and raise portions, or money on mortgage for family purposes, and made attendant upon the inheritance, first came into extensive discussion, in the case of Freeman v. Barnes. They now occupy a large space in the English law; and the practice of keeping outstanding terms on foot, to

F. N. B. 198, cites 19 Hen. VI.

b See a list of the authorities, pro and con, taken principally from the Year Books, cited in the margin to Co. Litt. 46, a.

• F. N. B. 221. 2 Blacks. Com. 142. Reeves' History of the English Law, vol. iv. 232, 233.

d3 Ch. Cas. 24.

• Denn v. Barnard, Cowp. Rep. 597

1 Vent. 53. 80. 1 Lev. 270, S. C