rule, of considering every trust term to be a term in gross. The two latest cases at law, on the subject, are those of Doe v. Wright, and Doe v. Hilder. In the first of those cases, a term for one thousand years was created by deed, and, eighteen years thereafter, it was assigned, for the purpose of securing an annuity, and then to attend the inheritance. The estate remained undisturbed in the hands of the owner of the inheritance, and his devisee, for seventy-eight years, without any material notice having been taken of the term; and it was held, that a surrender of the term was to be presumed, in favour of the owner of the inheritance. In the other case, a term for years, created, in 1762, by the owner of the fee, was assigned to a trustee, in 1779, to attend the inheritance; and, in 1814, the owner of the inheritance executed a marriage settlement. In 1816, he conveyed his life interest, and his reversion in the estate, under the settlement, to a purchaser, as a security for a debt; but no assignment of the term, on delivery of the deeds relating to it, took place; and, in 1819, an actual assignment of the term was made by the administrator of the trustee, to a new trustee, for the purchaser in 1816. It was decided, that a surrender was here to be presumed prior to 1819, and that the term could not be set up, to protect the purchaser against a prior encumbrancer. The presumption of a surrender was deemed necessary, to prevent the more unfavourable inference, either of want of integrity in the purchaser in suffering the attendant term to pass neglected, or of want of care and caution on the part of the professional men engaged in the trans #92 actions. This last decision threw the English conveyancers into consternation; and it was very much condemned, as shaking the landmarks of real property, and rendering • 2 Barnw. & Ald. 710. 783. insecure the title of every purchaser, by destroying all reliance attendant terms." upon Lord Eldon was strongly opposed to the modern facility, in courts of law, of sustaining the presumption of the surrender of a term. But the Vice-Chancellor, Sir John Leach, in Emery v. Grocock, supports the doctrine of the K. B. in clear and decided language; and this would seem to be the most authoritative conclusion from the review of the cases on the subject.d *93 *As the owner of the fee is entitled to all the benefits which he can make of a term attendant upon the inheritance during its continuance in trust, the equitable interest in the term will devolve in the same channel, and be governed by the same rules, as the inheritance. The tenant in whose name the term for years stands, is but a trustee for the owner of the inheritance, and he cannot obstruct him in his acts of ownership. The term becomes consolidated with the inheritance, and follows it in its descent or alienation. On the death of the ancestor, it vests, technically, in his personal representatives; but in equity, it goes to the * See Sir Edward B. Sugden's Letters to Charles Butler, Esq., on the doctrine of presuming a surrender of terms assigned to attend the inheritance. 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 Essays on Vendors and Purchasers, for Lord Eldon's continued marks of disapprobation of the recent doctrine. 6 Madd. Rep. 54. 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, 477-512. The English real property commissioners, in their second common law report, in 1830, proposed, as an improvement of the doctrine of outstanding terms, that the plaintiff be not defeated in his recovery by proof of the existence of a term, unless it be shown to be held adversely to him, or unless the defendant, with his plea, give notice of the existence of the term, and of his intention to set it up. heir, and is considered as part of the inheritance, notwithstanding it formally goes in a course of administration, and not in a course of descent. Being part of the inheritance, it cannot be severed from it, or made to pass by a will, not executed with the solemnities requisite to pass real estate." In this country, we have instances of long terms of near one thousand years; but they are treated altogether as personal estate, and go, in a course of administration, as chattel interests, without any suggestion of their being of the character of attendant terms. Our registry acts, applicable to mortgages and conveyances, determine the rights and title of bona fide purchasers and mortgagees, by the date and priority of the record; and outstanding terms can have no operation when coming in collision with a registered deed. We appear to be fortunately relieved from the necessity of introducing Levet v. Needham, 2 Vern. 138. Whitchurch v. Whitchurch, 2 P.Wms. 236. Villiers v. Villiers, 2 Atk. 71. Since the last edition of these Commentaries, the English statute of 8 and 9 Vict., ch. 112, relating to satisfied terms, of the 1st January, 1846, put an end to satisfied terms by not allowing them to be any longer kept on foot, as an attendant term by assignment. The Revised Constitution of New-York of 1846, has demolished all long leases, by declaring, that no lease or grant of agricultural land, thereafter to be made, for a longer period than twelve years, in which shall be reserved any rent or service of any kind, shall be valid. b Gay's case, 5 Mass. Rep. 419. Brewster v. Hill, 1 N. H. Rep. 350. Dillingham v. Jenkins, 7 Smedes & M. 487. In Massachusetts, by the Revised Statutes of 1835, it was declared, that the lessees and assignees of lessees of real estate, for the term of one hundred years or more, in cases where there is an unexpired residue of fifty years or more of the term, should be regarded as freeholders, and the estate subject, like freehold estates, to descent, devise, dower, and execution. And, in Ohio, by statute in 1821, lands held by the tenure of permanent leases, were to be considered real estate in respect to judgments and executions. Chase's Statutes of Ohio, vol. ii. 1185. A judgment in Ohio, is a lien on permanent leaseholds, or for instance on a lease for the term of ninety-nine years, renewable forever, equally as upon other real estate. And in the purview of the Ohio statutes, leasehold estates for the most essential purposes, as judgments, executions, descent and distribution, are regarded as freeholds or real estate The Northern Bank of Kentucky v. Roosa, 13 Ohio Rep. 334. *94 the intricate machinery of attendant terms, which have been devised in England with so much labor and skill, to throw protection over estates of inheritance. Titles are more wisely guarded, by clear and certain rules, which may be cheaply discovered, and easily understood; and it would be deeply to be regretted, if we *were obliged to adopt so complex and artificial a system as a branch of the institutes of real property law. In New-York, under the recently revised statutes relative to uses and trusts, these trust terms cannot exist for the purposes contemplated in the English equity system. All trusts except those authorized and modified by the statute, are abolished; and express trusts may be created, to "sell lands for the benefit of creditors, and to sell, mortgage, or lease lands, for the benefit of legatees, or for the purpose of satisfying any charge thereon, and to receive the rents and profits of land, to be applied to the use of any person; and the trustees cannot sell, convey, or do any other act in contravention of the trust; and when the purposes for which the express trust shall have been created have ceased, the state of the trustees ceases also." This strict limitation of the power of creating and continuing trusts, would in its operation, have totally destroyed these attendant terms, had they otherwise existed in New-York. Leases, among the ancient Romans, were usually of very short duration, as the quinquennium, or term for five years; and this has been the policy and practice of several modern nations; as France, Switzerland, and China. But the policy has been condemned by distinguished writers, as discouraging agricultural enterprise, and costly improvements. New-York Revised Statutes, vol. i. 727, 728, 729, 730, sec. 45. 49. 55. 60, 61. 65. 67. See infra, p. 310. • Gibbon's Hist. vol. viii. 86, note. Lord Kames' Gentleman Farmer, 407, 8 VOL. IV. (2.) Leases for years may be made to commence in futuro; for, being chattel interests, they never were re quired to be created by feoffment and livery of *95 seisin. The tenant was never technically seised, and derived no political importance from his tenancy. He could not defend himself in a real action. He held in the name of his lord, and was rather his servant than owner in his own right. This was the condition of the tenant for years, in early times, as described by Bracton and Fleta, and other ancient authorities; and this distinctive character of terms, for years, has left strong and indelible lines of distinction in the law between leases for years and freehold estates. But the statute of frauds of 29 Car. II., c. 3, sec. 1, 2, 3, (and which has been generally adopted in this country,) rendered it necessary that these secondary interests should be created in writing. The statute declared, that "all leases, estates, or terms of years, or any uncertain interests in lands, created by livery only, or by parol, and not put in writing, and signed by the party, should have the force and effect of leases, or estates at will only, except leases not exceeding the term of three years, whereupon the rent reserved during the term cited in 1 Bro. Civil Law, 198, note. Jefferson's remarks on short leases in France. Jefferson's Works, vol. ii. 105. Dr. Browne, 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 Comm. vol. i. 69, 70. It is stated in the Edinburgh Review, for July, 1834, p. 392, that it is believed that not more than a third part of England is occupied by tenants holding under leases. They must then be tenants from year to year, and this must be very unfavorable to agricultural improvement. The fact would seem to be almost incredible; and yet see what Lord Mansfield says on the subject, infra, p. 111. See also, Edinburgh Review, for April, 1836, p. 111, where it is said, that a great part of the best cultivated region of England, is in the occupation of farmers, who hold from year to year. • Fleta, lib. 5, c. 5, sec. 18, 19, 20. Dalrymple on Feudal Property, c. 2, sec. 1, p. 25. Preston on Estates, vol. i. 204, 205, 206. |