ment to the estate; and in the case of the mansion-house such a tenant may be ordered to repair the damage he has committed. (u) The executors of every tenant for life, whose estate determines by his own death or that of others, and not by his own fault or act, are entitled to emblements, or crops produced by cultivation, and in progress towards maturity, before the determination of the estate. (r) This protection to persons, the duration of whose interests was uncertain, was extended to an incumbent, who, by 28 H. 8, c. 11, was enabled to bequeath by will the corn and grain growing upon the glebe land, manured and sown at his own cost, but for the above reason a parson who determines his own estate by resigning his living is not entitled to emblements. (y) The incidents of a tenancy for years, in the absence of any stipulation, are, that he (the tenant) is entitled to the same estovers as a tenant for life, namely, to house-bote, fire-bote, plough and cart-bote, and hay-bote, and wood to repair or burn in the house, to make and repair all implements of husbandry, and for repairing hedges and fences ; (z) and when a tenant for years is legally bound to repair, even at his own charge, or at liberty to repair, he may cut timber trees for repairs, even without the assignment of his landlord, unless they be excepted in the demise, or he be otherwise expressly restrained; (a) and unless trees be excepted, or there be an express power reserved, the lessor would be a trespasser in entering to cut trees. (b) But when trees are excepted in the lease, the lessor may sue the lessee in trespass, if he either fell or damage them, (c) and the lessor may then enter the demised lands in order to fell and take away the trees. (d) If not excepted, the trees, instantly they have been blown down or severed, become the property of the lessor, and if taken by the tenant or a stranger, the lessor may sue in trespass or trover. (e) With respect to emblements, as the tenancy is to determine at a fixed time, if the lease be silent, and there be no custom of the country, the lessee cannot, after the expiration of his (u) 2 Vern. 733; 1 Bro. 196; 3 Bro. 549; 6 Ves. J. 107; and see in general 3 Woodes. 399, and post, chap. viii. (1) Com. Dig. Biens, G. 1, 2; Vin. Ab. Emblements, H. 3; Bac. Ab. Executors, H. 3; Co. Lit. 55, a; 2 Bla. C. 122, note 4; as to emblements in general, ante, 91, 94, and 161. (y) 2 Bar. & Ald. 470. (:) 2 Bla. C. 144; 1 Tho. Co. Lit. 624. (a) 1 Tho. Co. Lit. 624; S Id. 237 to 239; Mo. 23. (b) 1 Tho. Co. Lit. 238, note I.; 1 (c) Id. ibid. ; 1 Lord Raym. 552. (e) 7 T. R. 13; 3 Tho. Co. Lit. 246, CHAP. IV. 1. RIGHTS TO REAL PROPERTY. CHAP. IV. tenancy, enter to sever or carry away crops improvidently sown so late as not to be cleared during the tenancy. (ƒ) I. RIGHTS Right of voting for members of parliament, in respect of the beforemention ed different in terests. Freeholds of inheritance. A tenant from year to year is not liable to general repairs, or to keep them in what is termed tenantable condition or repair; he is only bound to use the premises in tenant-like manner, but no further; he is not bound to rebuild, in case of damage by fire. (g) But, on the other hand, no tenant has, even in a Court of Equity, any right to require a landlord to expend money he has received from an insurance-office, or to restrain him from suing for rent of the premises when destroyed by fire. (h) The incidents of all tenancies, even of the lowest, and whether of freehold or copyhold land, are, that without an express exception, although the property in mines and trees remains in the owner of the fee, yet the possession of the whole of the subsoil and every thing upwards is vested in the tenant, so that, although he cannot legally dig mines, or cut trees, except for repairs, yet he has an interest in their continuance, and may therefore sue even his lessor for digging mines, or cutting trees. (1) A tenant strictly at will or sufferance is equally entitled to some descriptions of estovers or botes as a tenant for a term of years, but as he is not bound to make substantial repairs, he could not, perhaps, legally cut timber for the purpose of repairs. It is said, that if the landlord enter and cut timber, that is of itself a determination of the will, for otherwise he would be a trespasser. (k) Each of these descriptions of tenants is entitled to emblements, when the landlord determines the tenancy, but not so if it be determined by his own act. (1) The old franchise or right of voting, which freeholders of inheritance, of the annual value of forty shillings, formerly possessed, (m) is still reserved to them by the recent reform act. (n) But, in order that a party may be entitled to vote, he must be registered according to the provisions of that act, and, in order to this, he must have been in the actual possession, or in the receipt of the rents and profits for his own use, (0) (f) 1 Tho. Co. Lit. 633; 2 Bla. C. 144, 145; as to emblements, ante, 91, 94, 161. (g) Per Gibbs, Holt, C. N. P. 9; 1 Marshall's R. 567. (h) 1 Simon's R. 146; when otherwise, under the building act, within the bills of mortality, 5 B. & Ald. 1. (i) Lewis v. Branthwaite, 2 B. & Adolp. 437. (k) Co. Lit. 55; and 2 B. & Adolp. 438. (1) 10 Bar. & Cres. 720; ante, 94; 2 Bla. C. 146, 147. (m) 8 Hen. 6, c. 7; 10 Hen. 6, c. 2; 7 & 8 W. 3, c. 7, s. 3; Id. 24; 10 Anne, c. 23, s. 5; 18 Geo. 2, c. 18, s. 1; 3 Geo. S, c. 24; 14 Geo. 3, c. 58; 20 Geo. 3, c. 17; 53 Geo. 3, c. 49; and see 1 Bla. Com. 172 to 175. (n) 2 Wm. 4, c. 45, s. 75. (e) Therefore bare trustees and mortgagees not in possession cannot vote, s. 23. But the interest of a mortgagee, which reduced the beneficial value under 40s., took away the mortgagor's right to vote, 2 Lud.467. But see 2W.4, c.45, s.23. I. RIGHTS TO REAL PROPERTY. for six months previous to the 31st day of July next preceding CHAP IV. each annual registration, unless where the party became entitled by descent, marriage, marriage-settlement, or devise, at any time within such period of six months. (p) Such annual value must, however, be over and above all charges and incumbrances, but not including any public or parliamentary tax, nor any church rate, county rate, or parochial rate. (q) But no freehold house or building which is situated in a borough will give a right to vote for a county, if in the occupation of the owner, if it be of sufficient annual value (that is, 107. per annum) to give a vote for the borough; (r) but it is otherwise, if it be in the occupation of a tenant. inheritance. Copyholds of inheritance (though formerly not giving any Copyholds of vote(s)), if of the clear annual value of 10%., also confer a right of voting for county members, under the same restrictions as freeholds. (t) But a copyhold house or building, situate in a borough, will not, if of sufficient value to give a borough vote, confer a county vote, whether in the occupation of the owner or tenant. (u) Right of voting in boroughs. As to the right of voting in boroughs, it may be here stated generally, that, independent of the old rights of voting in scot and lot boroughs and corporation boroughs, the reform act confers a right of voting upon all occupiers, either as owner or tenant of any house or building of the clear annual value, either alone or with land, of 10., provided the party has been in occupation for twelve months before the 31st day of July preceding the registration, has resided for six months previous within the borough, or seven miles from the same, has been rated to the poor during all the time of occupation, and has paid, before the 20th day of July preceding, all rates and assessed taxes up to the 6th day of April preceding. (x) The receipt of parochial relief forms a disqualification in a borough, but that provision does not extend to a county voter. (y) The old right of voting is reserved to freeholders for life Freeholds for of forty shillings clear annual value, who were seised at the time of the passing of the reform act. (~) But this act requires, as to freeholders for life who become entitled after the passing of that act, that their estate should be of the clear annual value of 10l., (a) and in the actual occupation of the life. CHAP. IV. I. RIGHTS TO REAL PROPERTY. Leaseholds. at 50l. per an num rent. owner, unless his title accrued by marriage, &c. The same restrictions as to registration are required as in the case of freeholds of inheritance. The owners of leases (not being underleases) originally granted for sixty years, of the clear yearly value of not less than 10.; for twenty years of not less than 501. are entitled to be registered as voters for county members, whether in the actual occupation themselves, or having let to others; and so also are under-lessees for similar terms and like value, if they be themselves in the Mere occupiers actual occupation. (b) So also persons actually occupying as tenants from year to year only, or otherwise, any premises for which they are bonâ fide liable to a yearly rent of not less than 50. are entitled to vote, having been previously registered. But in order that such lessees or occupiers may be entitled to be registered, they must have been in actual possession, or in receipt of the rents as above for their own use, for twelve months before the 31st day of July preceding the term of registration, unless they became entitled by succession, marriage, marriagesettlement, or devise. In county votes there is no necessity that the party should have been rated, or have paid rates or taxes; nor in any case is it now requisite that the property should be assessed to the land tax. (c) IV. TIME OF whether in possession, remainder or reversion. The times of enjoyment of real property (the fourth subdiviENJOYMENT, as sion (d) of the subject of real property) are estates or interests in possession or in expectancy, as a remainder or reversion; the first, when the owner has an immediate estate in possession or right of possession, and entitled to the actual pernancy of the profits; the second, some estate or interest immediately to remain and to follow the former particular estate when it has ceased, and which must be created by act of a donor, grantor or testator, together with such particular estate at the same time; and the last being a reversion (from reverto), is the residue of an estate left in the grantor, to return to him in possession after the determination of some particular estate granted out by him or by some former owner of the property. (e) In other words, an estate in possession gives a present right of (b) 2 Wm. 4, c. 45, s. 20. (c) Id. s. 22. (d) See general division of subject, ante, 145, 147. And see in general 2 Bla. Com. 163 to 179. (e) 2 Bla. Com. 175, 176. I. RIGHTS immediate enjoyment. An estate in remainder gives a right of CHAP. IV. future enjoyment, whether certainly or contingently, depends on the form of the gift; and when the interest is contingent in PROPERTY. the limitations, then on the events which shall take place. An estate in reversion gives a present fixed right of future enjoyment. (ƒ) The subjects of remainders, and reversions, and executory devises, are parts of the most abstruse branches of the law to be studied by conveyancers, and we can here only notice a few points of practical utility. Almost every kind of real property, whether corporeal or incorporeal, and even personalty, may in general be so granted, leased or devised, as to create an interest in possession, remainder or reversion. But a judicial office is in general an exception. (g) An estate in remainder, or reversion, or any estate of freehold, could not at common law commence in futuro ; and there must be an intervening estate to support the remainder or reversion. (h) But by a conveyance under the statute of uses there may be a grant of a freehold to commence in futuro, and in the mean time the interest undisposed of will be a resulting use. (i) Some of the distinguishing incidents of these rights are, that only the party in possession is entitled to the enjoyment of the privileges incident to the right to the property; and that he alone, and not a remainder-man or reversioner, can vote at an election; nor were the latter under the now repealed law qualified to kill game; (k) nor is a remainder-man or reversioner entitled to interfere with the property until his right comes into possession, excepting that he in general may apply to a Court of Equity for an injunction to stay waste. (1) Each however is entitled to immediate possession upon discovery that the tenant for life has forfeited his interest by illegal alienation for more than his interest, or for breach of other conditions expressed in a lease &c., or implied, as in the case of general waste. In cases also of an intervening tenancy for life, the remainder-man (f) 1 Prest. on Estates, 89, &c. And see in general as to estates in possession, 2 Cruise, Dig. 258, id. 6 vol. index tit. Possession. As to estates in remainder, 2 Cruise, Dig. 258, id. 6 vol. index Remainder. 2 Saunder's Rep. index Remainder and Contingent Remainder. And as to reversions, 2 Cruise, Dig. 454, id. 6 vol. index Reversion; 2 Saunder's Rep. index Reversion; 1 Prest. on Estate, 89, &c. And as to executory devises, see 3 Saunder's, index, that title. (g) 11 Coke, 2, 4, a; 1 Tho. Co. Lit. 236, note 12, &c. where see some exceptions enumerated. " (h) 2 Bla. Com. 143, 144, 164, 165. (4) 3 Tho. Co. Lit. 242 to 245, note 27. |