be confidered merely as a prohibition to commit wafte, and leaves the tenant all the power given to tenants in dower. CHAPTER TENTH. OF ESTATES AT WILL, AND BY SUFFERANCE. 1. ESTATES STATES at will, are where the tenant has the ufe and improvement of the lands during the will of the leffor. When the tenant has obtained the poffeffion of the lands, he acquires an un. certain and defeafible eftate, and is liable to be turned out of poffellion whenever the proprietor pleafes. The tenant has the fame power to determine the eftate, as the proprietor, the estate being dependent on the will of leffor and leflee. The tenant fhall not be prejudiced by any fudden determination of the estate by the leffor. For if the tenant fows, and the leffor before the corr. is ripe, or before it is reaped, determines the eftate and puts him out, yet the leffee fhall have the emblements, and liberty to enter upon the land, to cut and carry them away. This is allowed on account of the uncertainty of the cftate, for the tenant could not poffibly foreknow when the landlord would determine the estate. As he could not guard against such an event, he fhall not be prejudiced by it, but shall have the profits of the crop. Upon the fame principles, the tenant after the determination of the eftate, by the will of the leffor, fhall have liberty of ingrefs and egrefs to fetch away his goods. But where the tenant by his own will determines the cftate, he forfeits the emblements. An eftate at will may be determined by the exprefs declaration. of the leffor, of which he must give notice to the leffee, or by entering upon and taking poffeffion of the land, or by giving a deed or leafe for years, to commence immediately, or by the desertion of the tenant, his making an affignment of the eftate to another, or by his committing walle. And laft of all the death of either par ty, is a determination of the estate. II. Eftates at fufferance are, where the tenant gains poffeffion of lands, by a legal title, and then continues his poficion after his legal g2 Black. Com. 145. Co. Lit. 55. & 2 Black. Com. 150. Co. Lit. 57. legal title has expired without any title. Thus where a man has a leafe for years, or is tenant at will, and holds poffeffion of the lands after the determination of the estate, without any licence from the owner, or any contract made with him, he is called a tenant at fufferance. By the common law of England, fuch an eftate may be destroyed by the entry of the owner, and without fuch entry he cannot maintain trefpafs against the tenant at fufferance, as he might against a ftranger; for his title having once been lawful, he fhall never be called a trefpaffer till the owner by fome public act thall declare his poffeffioa to be wrongful. But in this ftate, who ever holds lands after the determination of his eftate, is confidered as a trefpafler, and as fuch may be fued and removed out of poffeffion without any previous entry by the owner. ESTATES CHAPTER ELEVENTH. OF ESTATES UPON CONDITION. STATES upon condition, are more properly qualifications of other eftates, than a distinct species, as they may be had in several kinds of eftate already defcribed. ¡ An estate upon condition may be defined to be where in the grant of the eftate of whatever kind, there is exprefled, or annexed fome condition or qualification, by which the estate shall commence, be enlarged or defeated, upon the performance, or breach of fuch condition or qualification. Thefe conditions may be either precedent or fubfequent. Conditions precedent, are fuch as must be fulfilled and complied with before the estate can vest or be enlarged. For instance, if an eftate be given to a perfon upon condition that he marry a certain woman, the condition is precedent and must be performed, before the estate can veft. Conditions fubfequent, are fuch by the failure, or non-performance of which an eftate already vefted may be defeated. Thus if one grant an eftate to another upon condition, that he pay an hundred pounds in one year, the eftate is dependent upon the fubfequent condition of paying fuch fum of money, and on failure of performing the condition, the estate will be defeated. So if an eftate be granted to i 2 Black Com. 152. Co. Lit. 201. a widow during her widowhood, if the marries, the eftate is defeated. But a material diftinction is made between a condition in deed, and a limitation. When an eftate by the words that create it, is fo limited, that it cannot endure beyond the time when the contingency happens, on which it is to fail, this is called a limitation. Thus where lands are granted to a perfon fo long as he holds a certain office, or while he remains unmarried, or until the rents amount to a specific fum, these are all limitations, and as soon as the contingencies happen, the several conditional eftates ceafe, and the fubfequent eftate which depended on fuch determination, become immediately vested without any, act to be done by him who is next in expectancy. But when an estate is, strictly speaking upon a condition in deed, as where it is granted upon condition to be void upon payment of a certain fum of money, or on failure of paying a certain rent, or fo, that the grantee continues unmarried, or provided he goes to York, the law permits it to endure beyond the time when fuch contingency happen, unless the grantor, or his heirs, or his affigns take advantage of the breach of the condition, and make either an entry or claim in order to avoid the eftate. Thus, if a lease be made on conditon to be void, if rent be in arrear for a certain time, and that the leflor may re-enter: yet if the rent be in arrear, if the leffor do not re-enter, and the leffce afterwards pays up the rent, and the leffor accepts it, the leafe remains valid. Conditions can only be referved to the feoffor, donor, or lefior, and thei: heirs, and not to a ftranger. Therefore when the words creating an eftate, strictly import a condition, yet if on a breach of the condition, the estate be limited over to a third perfon, the law conftrues it into a limitation, and not a condition: because it is not in the power of the perfon, to whom it is limited, to avoid the conditional estate by entry, and it would be in the pow er of the perfons who have no intereft in the eftate, to preferve or deftroy it. So if a man devifes eftate to his heir at law, on condition that he pays a fum of money, and on failure, devifes it over to another; if the heir refufes to pay the money, it fhall be confidered as a limitation, and the eftate fhall veft in the other perfon to whom whom it was devised without entry, because no perfon but the heir, can by law make the entry. In all inftances of limitations, or conditions fubfequent, so long as the conditions remain unbroken, the grantee has an estate of freehold, or for years, according to the nature of the estate that was granted for while the grantee preferves the conditions on. which he holds the eftate inviolate, the law contemplates him as holding an abfolute eftate. Thefe conditions, if they be impoffible at the time when they are made, or become fo afterwards by the act of God, or by the act of the grantor himself, or if they are againft law, or inconfiftent with, or contradictory to the nature of the estate, they are void. If fuch conditions are precedent, and neceffàry to be performed before the eftate can veft, the grant is void but if the conditions be fubfequent the eflate inftantly vests in the grantee, as tho no condition had been annexed: For the cftate having once vested by the grant, it can never afterwards be defeated by a condition, either impoffible, illegal or repugnant. : There are but few inftances of conditional eftates, excepting where lands are conveyed as pledges, to fecure fome debt or duty: thefe are living pledges, and dead pledges, or mortgages. 1. A living pledge, is where a man borrows money of another, and grants him an eftate to hold, till the rents and profits repay the fum borrowed. The estate is conditioned to be void, as foon as the fum borrowed fhall be raifed. The land or pledge is faid to be living, because it fubfifts and furvives the debt, and on difcharge of it, immediately refults back to the borrower. This mode of pledging eftates, is rarely ufed, while mortgages are very common. 2. A dead pledge, or mortgage, is where a person to secure a debt which he owes, or money which he has borrowed, makes to his creditor an abfolute conveyance of lands, and annexes a con. dition, that on paying the fum due, within a limited time, the deed fhall be void, but on failure to be abfolute. The perfon executing fuch conditional deed, is called mortgagor, and the perfon receivVOL. I. M m ing 1 2 Black. Com. 158. * 2 Black. Com. 157. Co. Lit. 205. ing it, mortgagee. The mortgagee immediately becomes vefted with the legal title to the eftate, defeafible upon performing the condition, by the payment of the money due. He may go into poffeffion of the lands, unless reftrained by fome fpecial agreement; but is liable to be difpoffeffed upon the payment of the mortgaged money at the day limited, but the ufual practice is to fuffer the mortgagor to continue in poffeffion till the time of payment be elapfed. If the money be not paid by the limited time the mortgagee becomes vefted with an estate abfolute and indefeafible at law. But here equity interpofes, and fecures to the mortgagor a right to redeem the lands pledged upon payment of what is juftly due. This fubject however, more properly belongs to that branch of our enquiries, where we treat of the powers of courts of equity. It is fufficient for us in this place to confider mortgages as far as they are regulated by law. In treating upon equity, we shall refume this fubject, and handle it with a minuteness correfpondent to its importance. CHAPTER TWELFTH. OF ESTATES IN POSSESSION, REMAINDER, AND RE VERSION. ESTATES are faid to be either in poffeffion, or expectaney.— Nothing therefore This chapter will in future which The former are those about which our enquiries have been principally concerned for when we were contemplating estates, it was neceflary to direct our attention to thofe which in fact exifted, and not to thofe which are to exift in future. can be particularly obferved upon fuch eftates. comprehend eftates in expectancy, that will exift are of two kinds, the one called a remainder, and the other a reverfion. This brings us to that part of our difquifitions that relate to the time of the enjoyment of eftates. : The laws refpecting eftates in expectancy, being very abftrufe and intricate, and fuch kind of eftates not being very common in is ftate, it will be unneceflary to enter into a minute difcuffion of the |