excluded from a treatise professing to deal with real property.1

The nature of the remedy provided for the ejected leaseholder, contra quoscunque dejectores, has already been stated. The writ then devised, however, left the lessee without remedy in two cases. First, not having the freehold, he was liable to be ousted by the successful plaintiff in a collusive action against the lessor, in which the lessor allowed judgment to go against him by default, or, as it was technically called, suffered a recovery. A partial remedy for this injustice was provided by the Statute of Gloucester,3 but the leaseholder was not wholly protected against a proceeding of this nature till the statute 21 Henry VIII., c. 15. Secondly, if the lessor ejected the lessee, and then enfeoffed a third person, the lessee could not bring his writ of quare cjecit infra terminum against the feoffee, because he was not the ejector; nor against the lessor, because he was not in possession. A further remedy was therefore necessary, and a writ was devised, being a development of the writ of trespass, and called the writ of ejectio firma, which was available in the case supposed against the feoffee. This proceeding was by a series of fictions (now abolished) extended, till, in the form of the action of ejectment, it became the appropriate means of asserting the right to the possession of land under whatever title, and took its place as the statutory substitute for all the forms of real actions. Thus the interest of the lessee for years was gradually protected at all points, and took its place as a distinct class of rights of property.

LEAKE, LAND LAW, 220. An estate for years may be made determinable by a conditional limitation, as the continuance of a life or lives or other uncertain event. Thus, a lease for 100 years, if A. shall so long live, creates a term of years determinable upon the death of A.; and upon the

1 See page 12, supra.-ED.

See page 13, supra.-ED. 36 Edward I., c. II. See Coke upon Littleton, 46, a.

death of A. there is no residue of the term, though there may be a residue of the years, so that a limitation over for the residue of the term is void, unless by term is meant the time and not the interest. A lease for so many years as A. shall live, not being limited by any certain period, is not an estate for years, but a freehold or an estate for life. An estate for 100 years, if A. and B. shall so long live, determines upon the death of either of them; but an estate for the lives of A. and B. continues until the death of the survivor.

2 BL. COM., 143. It is the duty of the tenant to maintain the title of his landlord. It results from the fealty which is incident to every tenure. It is one of the best settled principles of the law that neither the tenant, nor any one claiming under him nor by collusion with him, shall be permitted to controvert his landlord's title. In an action of covenant on the demise, the tenant cannot plead nil habuit in tenementis; in an action of ejectment, he cannot set up a title in himself or an outstanding title in another. If he has acquired a better title than the landlord, he is bound to surrender the possession at the termination of his lease, though he may afterwards prosecute his better title.-Sharswood's

note.

BIGELOW, ESTOPPEL, 390. Creation of the relation of landlord and tenant has the effect in law of estopping the tenant to deny the sufficiency, for the lease, of the title thus admitted to exist in the landlord. We have already alluded to the fact that this estoppel is of modern origin. In the time of Lord Coke the only way in which a tenant could be estopped to deny the title of his landlord was by the acceptance of a sealed lease. That this estoppel took its rise from the seal, and differed in origin from the modern estoppel, is evident from the fact that in the case of a lease by deedpoll the estoppel was confined to the party sealing; while it is quite certain that at the present time it is immaterial to the existence of the estoppel whether the lease be by deed

poll or by indenture, or even whether there be any written lease at all. And again the estoppel terminated with the expiration of the lease; while at the present day the estoppel continues until the surrender of possession.

ID., 393. The conclusion appears to be justified that the origin and character of the modern estoppel of the tenant is to be found in this ancient action of assumpsit for use and occupation. In this form of action what was sought to be recovered was, not technically rent, but compensation from day to day for actual enjoyment. But to the maintenance of the action the relation of landlord and tenant must be established; and when established the modern estoppel in pais arises. Enjoyment by permission is the foundation of the action, and is therefore the foundation of the rule that a tenant shall not be permitted to dispute the title of his landlord. Two conditions then are essential to the existence of the estoppel: first, possession; secondly, permission; when these conditions are present the estoppel arises.

CHAPTER II.

ESTATES AT WILL.

(a) Pure Tenancies at Will.

LIT., § 68. Tenant at will is, where lands or tenements are let by one man to another, to have and to hold to him at the will of the lessor, by force of which lease the lessee is in possession. In this case the lessee is called tenant at will, because he hath no certain or sure estate, for the lessor may put him out at what time it pleaseth him. Yet if the lessee soweth the land, and the lessor, after it is sowne and before the corne is ripe, put him out, yet the lessee shall have the coine, and shall have free entry, egresse and regresse to cut and carrie away the corne, because he knew not at what time the lessor would enter upon him. Otherwise it is if the tenant for yeares, which knoweth the end of his terme, doth sow the land, and his terme endeth before the corn is ripe. In this case the lessor, or he in the reversion shall have the corne, because the lessee knew the certainty of his terme and when it would end.

§ 69. Also, if a house be letten to one to hold at will, by force whereof the lessee entreth into the house, and brings his household stuff into the same, and after the lessor puts him out, yet he shall have free entrie, egresse and regresse into the said house by reasonable time to take away his goods and utensils. As if a man seised of a mese in feesimple, fee-taile, or for life, hath certaine goods within the sayd house, and makes his executors, and dieth; whosoever after his decease hath the house, his executors shall have free entry, egresse and regresse to carrie out of the same house the goods of their testator by reasonable time.

§ 70. Also if a man make a deed of feoffment to another of certaine lands, and delivereth to him the deed, but not liverie of seisin; in this case he, to whom the deed is made, may enter into the land, and hold and occupie it at the will of him, which made the deed, because it is proved by the words of the deed, that it is his will that the other should have the land; but he which made the deed may put him out when it pleaseth him.

Co. LIT., 55, a. It is regularly true that every lease at will must in law be at the will of both parties, and therefore when the lease is made, to have and to hold at the will of the lessor, the law implyeth it to be at the will of the lessee also; for it cannot be onely at the will of the lessor, but it must be at the will of the lessee also. And so it is when the lease is made to have and to hold at the will of the lessee, this must be also at the will of the lessor; and so are all the bookes that seeme prima facie to differ, cleerly reconciled.

"Uncore si le lessee emblea la terre, et le lessor apres le embleer, &c." The reason of this is, for that the estate of the lessee is uncertaine, and therefore lest the ground should be unmanured, which should be hurtful to the commonwealth, he shall reape the crop which he hath sowed in peace, albeit the lessor doth determine his will before it be ripe. And so it is if he set rootes, or sow hempe or flax, or any other annual profit, if after the same be planted, the lessor oust the lessee; or if the lessee dieth, yet he or his executors shall have the yeare's crop. But if he plant young fruit trees, or yong oaks, ashes, eimes, &c., or sow the ground with acornes, &c., there the lessor may put him out notwithstanding, because they will yeeld no present annuall profit. And this is not only proper to a lessee at will, that when the lessor determines his will that the lessee shall have the corne sowne, &c., but to every particular tenant that hath an estate incertaine, for that is the reason which Littleton expresseth in these words (pur ceo que il n'ad ascun