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§ 375. Apportionment of rent. During the existence of the tenancy the landlord or reversioner may sell part of the leased premises. In such cases the rent is apportioned and paid to the new owners in proportion to the value of the land.

§ 376. Estates at will.-An estate at will was formerly when a tenant occupied at the mere pleasure of him who had the next estate. The landlord could terminate it any moment without notice. This harsh rule was modified at first, so that an estate at will was equally at the will of both parties, and later it became settled that unless there was an express agreement to hold at will, such tenancies should be construed as estates from year to year. These changes have virtually abolished the old tenancy at will, and now such estates are determinable by notices to quit, and the form and length of time for giving notice is regulated by statute. Tenants holding such estates are entitled to emblements, owing to the uncertainty of their tenure.

§ 377. Estates at sufferance.-An estate at sufferance is where one who comes lawfully into possession of land holds over after his interest is determined. And while he is not liable strictly for rent as such, he is liable for such sum as may be reasonable in an action for use and occupation. In some states, a penalty in addition to this is awarded against one who unlawfully deprives the owner of the use of his land.

§ 378. Base fee.-A base or qualified estate in fee is an interest which may continue forever, but may be determined without the aid of a conveyance by some act or event circumscribing its duration. A limitation to a man and his heirs, so long as he shall have heirs of his body, or so long as St. Paul's church shall stand, are

examples of this sort of an estate. The owner of such an estate has all the rights of an owner of a fee simple, until his estate is determined. Such estates are called base because their duration depends upon the occurrence of collateral circumstances which qualify and debase the purity of the fee.

§ 379. Conditional fee.-A conditional fee is one which restrains the fee to some particular heirs exclusive of others, as to the heirs of a man's body, or to the heirs male of his body. At common law this was construed to be a fee simple on condition the grantee had the heirs prescribed. If he died without such heirs the estate reverted to the grantor. If he had such heirs the fee became absolute in him, and he could sell his estate and bar his own issue and prevent a reverter. This right of the grantee was cut off by the statute of Edward I, which prohibited a sale by the grantee, to the detriment of his issue and the grantee's reversioner.

§ 380. Estates tail and statute de donis.-This statute converted what before had been a fee simple estate into an estate in fee tail. This restraint upon the power of alienation fettered inheritances and created perpetuities, which were condemned by Bacon and Coke and other writers. The landed aristocracy opposed all attempts to facilitate sales of land, but the growing spirit of commerce and industry, foiled by the legislature, found expression in a species of judicial legislation, by which the fiction of a common recovery was allowed to cut off the entail. Common recoveries were fictitious suits, in the nature of pious frauds, allowed by the courts, the object of which was to get rid of the mischievous consequences of the statute of Edward I. If the tenant wished to have his estate tail converted into an absolute

fee, he procured himself to be sued by a fictitious person, who claimed that the tenant had no right to the land. The parties to the suit, as the made-up record would show, then compromised the case and a judgment was entered, the result of which was that what was formerly a fee tail estate was converted into an absolute fee with all its incidents. To such awkward shifts, such subtle refinements, says Blackstone, were our ancestors obliged to have recourse in order to get the better of that stubborn statute of Edward I. The design for which these contrivances were set on foot was certainly laudable, the unriveting the fetters of estates tail, which were attended with a legion of mischiefs to the commonwealth, but while we applaud the end we can not admire the means.

Estates in fee tail with all their inconveniences existed in this country before the Revolution. They have now become obsolete from disuse or have been abolished or modified by the legislatures of the different states. The general tendency of judicial decision as well as legislation in this country has been in the direction of removing all limitations upon the power of sale of real estate, and preventing perpetuities.

§ 381. Tenant by the curtesy.-Where a man marries a woman who is seized during marriage of an estate of inheritance, and has by her issue born alive capable of inheriting the estate, and the wife dies before the husband, he takes an estate for life. This is sometimes called tenancy by the curtesy of England, though the same estate existed in ancient times in other countries. In this country the rule prevails in all the states where that kind of estate has not been abolished by statute. Though it is held that the wife's dower is lost by her adultery, no such conduct on the part of the husband will work a forfeiture of the curtesy.

§ 382. Dower.-Dower exists where a man seized of an estate of inheritance dies in the lifetime of his wife. By the common law she was entitled in that case to be endowed of a third of the estate for life. At first it was limited to lands held by the husband at the time of the marriage, but by Magna Charta it was extended to all lands, of which the husband was seized during coverture. This right or estate of dower exists in all of the states where it has not been modified or changed by statute. Dower can not be claimed as against a mortgage given by the husband for unpaid purchase-money. Nor is it necessary for a wife to join with her husband in a mortgage securing the purchase-money.

If the wife unites with her husband in conveying his land, releasing her dower therein, her right is extinguished. If a wife joins in a mortgage with her husband, who dies, and upon foreclosure a surplus above the mortgage debt is realized, she may have dower in such surplus, though the husband may have released the equity of redemption. Dower may be barred in various ways, though the husband by his act alone, without the wife's assent, can not bar it. It may be barred by deed, by the adultery of the wife, by divorce, by jointure, which is a joint estate settled upon husband and wife by which the whole estate goes to her on his death, by an antenuptial contract in which in lieu of dower a sum of money or something else is agreed to be taken in lieu of dower, by a bequest in lieu of dower, if the widow elects to take under the will.

§383. Assignment of dower.-The widow's dower may be set off or assigned by agreement with the heirs, or by an amicable partition, or by an adversary proceeding in which the court will see that she gets her equitable one-third of the real estate, to which her right of dower has attached.

§ 384. Estates upon condition.-Estates upon condition are such as have a qualification annexed to them by which they may upon the happening of a particular event be created, enlarged or destroyed. They are divided into estates upon conditions implied in law, and estates upon conditions 'express or in deed.

§ 385. Estates upon condition implied.—A tenant for life or for years is under an implied obligation to refrain from waste or any fraudulent or wrongful act which would injure the freehold. For wilful misconduct of this sort, the estate may be forfeited. So a grant to a man of an office has the implied condition annexed to it that he will perform its duties. A corporation holds a franchise under the implied condition that it will fulfill its duties to the public, and a violation of its duties by nonuser or misuse will work a forfeiture of the estate. It is to be here remarked, however, that it is for the state alone, and not for a private citizen, to institute and carry on proceedings for forfeiture of corporate franchises. The state may waive a condition broken as an individual may.

§ 386. Estates upon condition expressed. Where an estate is granted in fee simple or otherwise, with an express qualification annexed whereby the estate shall commence, be enlarged or defeated upon performance or breach of such qualification or condition, it is an estate upon condition expressed. Conditions are either precedent or subsequent. Precedent conditions must happen or be performed before the estate vests. Subsequent conditions are such which by reason of nonperformance defeat the estate already created.

§ 387. Conditions precedent and subsequent.—The

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