garded, during the balance of the life of the cestui que vie, as belonging to nobody, and as consequently becoming the property of the first person who took possession, called the "general occupant," unless the estate had been granted to the tenant and "his heirs" for the life of the cestui que vie, in which case the heir took as "special occupant," as it was called.121 This state of things was, however, altered by the Statute of Frauds, and by subsequent English statutes, providing that an estate pur autre vie might be devised, and that, in default of a devise, and in the absence of a special occupant, it should pass to the executor or administrator, and should be assets in his hands, general occupancy being thus abolished.122

121 Co. Litt. 41b; 2 Bl. Comm. 259.

The special occupant, though entitled by reason of the fact that he is heir, takes not by descent, but as the special occupant named in the limitation of the estate. 2 Bl. Comm. 260; Challis, Real Prop. 288. But nevertheless his rights may be entirely barred by an alienation by his ancestor. Challis, Real Prop. 290.

122 Co. Litt. 41b; 2 Bl. Comm. 258; Challis, Real Prop. 288 et seq. See Atkinson v. Baker, 4 Term R. 229, Finch's Cas. 579. In England, the matter is now regulated by the Wills Act (1 Vict. c. 26 [1837]) repealing, but substantially re-enacting, 29 Car. II. c. 3, § 12 (1677), and 14 Geo. II. c. 20, § 9 (1741). See Challis, Real Prop. ut supra; 1 Leake, 194.

In England, two or three questions have arisen in connection with the theory of special occupancy upon which the law has perhaps never been positively settled. The most difficult question apparently was whether the right to take as special occupants extended to executors and administrators when named, as well as to heirs, and on this subject the authorities are in conflict, the negative theory being based on the ground that freehold property could not be limited to the personal representatives. See Salter v. Boteler, Moore, 664, 4 Gray's Cas. 37; Co. Litt. 41b, Hargrave's note, 240; 1 Cruise's Dig. tit. 3, c. 1, §§ 49-51; 3 Cruise's Dig. tit. 28, c. 2, § 7; Ripley v. Waterworth, 7 Ves. 425, 4 Gray's Cas. 42. The question became of comparatively little importance after the passage of the Statute of Frauds, referred to in the text, since thereafter the executors or administrators took by force of the statute if they did not take as special occupants. See Challis,

In many states of this country, the matter is regu statute, it sometimes being provided that, if not devised, the residue of the life estate shall pass to the heirs as realty, and sometimes that it shall pass to the personal representatives as personalty.123 These statutes generally make no provision for special occupancy, and the fact that the estate is granted to one "and his heirs" will not give the right of special occupancy to the heirs when the statute expressly makes the estate personalty, since the character of property cannot be changed by the mode of its limitation. And even where the statute provides that the residue of the life estate shall pass to the heir when not devised, the heir will presumably take by descent, and not as special occupant, though there be a limitation to the grantee "and his heirs."124

In a state where there is no statute on the subject, special occupancy might possibly be recognized in case the property was limited to the heirs, though there seem to be no adjudi

Real Prop. 289, 290. Another question in regard to which the decisions were in conflict was whether, if a devisee of the original tenant for life died intestate, the property passed as realty to his heirs, or as personalty to his executors or administrators. See 4 Gray's Cas. 52, 56, and note on page 58.

There might, it seems, be a special occupant of a rent or other incorporeal property. Co. Litt. 41b, Hargrave's note, 388a; Bowles v. Poore, Cro. Jac. 282, 4 Gray's Cas. 38; Challis, Real Prop. 290; 1 Leake, 193, note; Northen v. Carnegie, 4 Drew, 587, quoted 4 Gray's Cas. 54. Contra, Sugden, Powers (8th Ed.) 193-195, quoted 4 Gray's Cas. 55.

128 1 Stimson's Am. St. Law, § 1335; 1 Washburn, Real Prop. 94, note.

124 Consequently, what is sometimes called a "quasi entail," arising when property was limited to a man and "the heirs of his body" for the life of another, in which case the heirs of the body took as special occupants (see 1 Leake, 194; 1 Washburn, Real Prop. 94; Low v. Burron, 3 P. Wms. 262, 4 Gray's Cas. 40) cannot now exist In any states in which the statute on the subject thus ignores the possibility of special occupancy.

In Maryland and South Carolina, the right of special occupancy is recognized by the statute. See 1 Stimson's Am. St. Law, § 1355.

cations on the subject in this country. In the absence of such a limitation, the residue of the estate would doubtless be regarded as within the statutes providing for the descent of real property, the fact that the estate is not technically one of inheritance being disregarded.

34. Tenancy in tail after possibility of issue extinct.

A tenancy of this character occurs when the estate is limited to a man and the heirs of his body by a certain wife named, and she dies without issue. The husband then becomes tenant in tail after possibility of issue extinct, since there is then no possibility of the estate being carried on by his issue. It also arises in case of a gift in tail to a man and his wife, or to two persons who may become man and wife, if one of them dies without any issue of their marriage. This estate can arise only in the case of a limitation in special tail, and no one can be the tenant thereof except the original donee or one of the original donees. The duration of such an estate is for the life of the tenant only, and, like other life estates, it is liable to be merged in a greater estate. It differs, however, from other life estates in the fact that the tenant is not liable for waste.125

II (A). ESTATE FOR YEARS.

An estate for years is an estate limited for a certain definite time, and is regarded as personal property.

The estate is usually created by an instrument known as a "lease," which must, under the Statute of Frauds, or similar state statutes, be in writing, if the estate is to endure beyond a minimum period named in the statute, usually one or three years.

The lease must be followed by entry on the premises by the lessee, and until such entry he has not an estate, but merely

125 Litt. §§ 32-34; 2 Bl. Comm. 125, and Chitty's note; Williams, Real Prop. 54; Challis, Real Prop. 232, 234.

8 35 an interesse termini. The effect of the lease and entry is to create the relation of landlord and tenant between the parties. Since the tenant is the one entitled to possession of the premises during the existence of the estate, he alone may sue for injury to the possession, though the landlord may sue for injury to the reversion.

The lease generally contains covenants by the respective parties regulating their rights and liabilities, including a covenant by the lessee for the payment of rent. Furthermore, a covenant by the lessor for quiet enjoyment is generally implied from the relation of landlord and tenant.

There is no implied warranty by the lessor as to the condition of the property or its suitability for the lessee's purpose, but he must not conceal known defects.

The lessee, while entitled to estovers, cannot commit waste, and must make ordinary repairs, without calling on the lessor therefor.

The estate may be aliened or assigned, in the absence of a stipulation to the contrary in the lease, and such assignment transfers all the rights and liabilities growing out of the relation of landlord and tenant, and also such as are imposed by covenants of such a character as will "run with the land." The reversion also may be assigned, with the same effect on the rights and liabilities of the parties.

The tenant may alien a part of his interest by a "sublease." The tenant is, by his acceptance of possession from the landlord, estopped to deny the validity of the latter's title at the time of the creation of the relation.

An eviction of the tenant may be either by the act of a third person in asserting a paramount title, or by the act of the landlord in intentionally depriving the tenant of the full enjoyment of the premises. An eviction gives to the tenant a right of recovery on the covenant for quiet enjoyment, and is generally ground for the nonpayment of rent.

An estate for years may be terminated by

(1) The expiration of the term named in the lease.

(2) The happening of some event upon which the term is limited.

(81)

(3) Its surrender to the owner of the reversion.

(4) Its merger in the reversion.

(5) Forfeiture for breach of a condition in the lease.

(6) Forfeiture for disclaimer of the landlord's title, and sometimes for an illegal use.

(7) Termination of the estate out of which it was created. (8) Occasionally by the destruction of the premises.

On the termination of the estate by expiration of the term, the tenant is not entitled to emblements.

35. Nature of estate.

An estate for years is not, as its name might imply, necessarily an estate limited for a certain number of years, but the term is applied to any estate limited for a certain time, as for a year, for half a year, a quarter, or any greater or less period of a fixed duration.126 An estate for years is frequently called a "term," from the Latin word "terminus," and this word is also used to describe the period of time dur ing which the estate is to continue.127 A term may exist not only in lands or objects legally constituting a part thereof, but also in incorporeal things real.128 There is, in the absence of statute, no limit to the number of years over which the term may be made to extend.12

129

120 Litt. §§ 58, 67; 2 Bl. Comm. 140; 1 Cruise's Dig. tit. 8, c. 1, §3.

127 Co. Litt. 45b; 1 Cruise's Dig. tit. 8, c. 1, § 6; Rector of Chedington's Case, 1 Coke, 153a.

128 Fawcett, Landl. & Ten. (2d Ed.) 2; 1 Taylor, Landl. & Ten. 17. See Somerset v. Fogwell, 5 Barn. & C. 875, 3 Gray's Cas. 230; Bird v. Higginson, 2 Adol. & E. 696, 3 Gray's Cas. 231; Smith v. Simons, 1 Root (Conn.) 318, 1 Am. Dec. 48; City of New York v. Mabie, 13 N. Y. 151; Com. v. Weatherhead, 110 Mass. 175; Huff v. McCauley, 53 Pa. St. 206, 91 Am. Dec. 203.

129 Co. Litt. 45b; 1 Taylor, Landl. & Ten. § 73.

In New York, agricultural leases are restricted to twelve years, and there are, in other states, restrictions as to the length of such leases. In Alabama, all leases are restricted to twenty years. See 2 Sharswood & B. Lead. Cas. Real Prop. 44.