c

actions. The New-York Revised Statutes have retained the provision; and the privilege applies to any person having any privity of estate or interest with the tenant or the landlord in the premises in question. There has been some difficulty in this country, as to the right of the landlord to bring trespass for an injury to the land, while there was a tenant lawfully in possession. In Campbell v. Arnold, and, again, in Tobey v. Webster, it was held, that he could not, in such case, bring an action of trespass for waste committed upon the estate by a third person, though he might be entitled to a special action on the case, in the nature of waste. In Starr v. Jackson, this rule was held not to apply, if the tenant in possession was one at will merely; whereas, in Catlin v. Hayden,d it was adjudged to apply, provided the tenant was one holding from year to year. The question as to the competency of the landlord to bring trespass for an injury to the freehold, while a tenant at will was in possession, was ably discussed in Little v. Palister. There was no decision, however, on the various views afforded by the cases; inasmuch as the trespass complained of in that instance, affected exclusively the right of tenant at will, and not any permanent rights of the landlord. The decisions in New-York arose in cases in which the tenancy was not one strictly at will; and perhaps the cases which have been mentioned may be reconciled, on the distinction between tenancies at will and tenancies for years, or from year to year. The suit is in case for trespass to the injury of the reversion, unless the lessee in possession be at will only, and then trespass will lie by the reversioner. A disseisee, without re-entry, may have trespass for the disseisin itself; and, after re-entry, he may have trespass for any immediate injury to the freehold, because he is restored to his possession ab initio. In the English court of K. B., *in the time of Lord

Mansfield, it was *120

■ Vol. ii. 341. sec. 17.

1 Johns. Rep. 511. 3 lbid. 468.

11 Mass, Rep. 519.

d 1 Vermont Rep. 375.

3 Greenleaf, 6.

Lienow v. Ritchie, 8 Pick. 225.

* Co. Litt. 257. a. Tobey v. Webster, 3 Johns. Rep. 468.

decided, that the landlord of a tenant from year to year, though there was no reservation of the timber on the premises, might bring trespass against a third person for carrying it away, after it had been cut down. The general rule is, that, to maintain trespass quare clausum, there must have been an actual possession in the plaintiff when the trespass was committed, or a constructive possession in respect of the right being actually vested in him. The ground of the action of trespass is the injury to the possession.b

Ward v. Andrews, 2 Chitty's K. B. Rep. 636.

b 3 Blacks. Com. 210. Ashhurst, J., in 1 Term Rep. 480. Cooke v. Thornton, 5 Randolph, 8. 3 Wooddeson, 193. Campbell v. Arnold, 1 Johnson's Rep. 511. S. P. 3 Greenleaf's Rep. 6. The reversioner cannot sue a stranger for acts of trespass on the land, unless they be attended with some tangible injury to the reversion. Baxter v. Taylor, 1 Neville & Manning, 11. 4 Barnw. & Adolph. 72. S. C. Be the property real or personal, the plaintiff, to maintain trespass, must show possession, or a right of taking pessession, at the time. Lunt v. Brown, 13 Maine Rep. 236. Rowland v. Rowland, 8 Ohio Rep. 40. Anderson v. Nesmith, 7 N. H. Rep. 167. A party into whose lands agisted cattle escape and do damage, may, at common law, have an action of trespass at his election, either against the general owner of the cattle or the agister. Sheridan v. Bean, 8 Metcalf, 284.

LECTURE LVII.

OF 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, or enlarged, or destroyed.a They are divided by Littletonb into estates upon condition implied or in law, and estates upon condition express or in deed.

(I.) Of conditions in law.

Estates upon condition in law are such as have a condition impliedly annexed to them, without any condition being specified in the deed or will. If a tenant for life or years aliened his land by feoffment, this act was, at common law, as we have already seen, an implied forfeiture of the estate, being a fraudulent attempt to create a greater estate than the tenant was entitled to; and the reversioner might have entered, as for a breach of the condition in law.d Those states were likewise subject to forfeiture, not only for waste, but for any other act which, in the eye of the law, tended to defeat or divest the estate in reversion, or pluck the seignory out of the hands of the lord.e It was a tacit *condition an- *122 nexed to every tenancy, that the tenant should not do any act to the prejudice of the reversion.

The doctrine of estates upon condition in law, is of feudal extraction, and resulted from the obligations arising out of the feudal relation. The rents and services of the feudatory

a Co. Litt. 201. a.

b Litt. sec. 325.

e Litt. sec. 378. 380. Co. Litt. 215. b. 233. b. 234. b.

4 Co. Litt. 215. a. 251. b.

e Glanv. lib. 9. c. 1. Fleta, lib. 3. c. 16. Wright on Tenures, 203.

were considered as conditions annexed to his fief, and strictly construed. If the vassal was in default, by the non-payment of rent or non-performance of any feudal duty or service, the lord might resume the fief, and the rents and services were implied conditions inseparable from the estate. The remedy for breach of the condition was confined to the resumption of the estate by the donor and his heirs; and that resumption. was required, by the just interposition of the law, to be by judicial process. (1) The obligation to fidelity, resulting from the feudal solemnity of homage, was mutual; and if the lord neglected to protect his feudatory according to his estate, he was liable to be condemned to lose his seignory, as well as the tenant, for default on his part, to forfeit his freehold. At common law, a condition annexed to real estate could not be reserved to any one except the grantor and his heirs; (and the heir might enter for a condition broken, though not expressly named ;) and no other person could take advantage of a condition that required a re-entry to revest the estate. The grantor had no devisable interest by means of the condition, until he had restored his estate by entry, or by action; though he might extinguish his right by feoffment or fine to a stranger, or by release to the person who had the estate subject to the condition. The assignee of the reversion could not enter for a condition broken, for at common law a covenant did not pass by the assignment of the reversion, and for this purpose he was considered a mere stranger. The statute

of 32 Hen. VIII. c. 34, altered the common law in *123*this respect, (2) so far as to enable assignees of reversions of particular estates, to which conditions and cove

Wright on Tenures, 196-199. Butler's note, 84. to Co. Litt. lib. 3.

b Fleta, lib. 3. c. 16. sec. 9. 16. 25.

This ancient rule is noticed in the modern case of Jackson v. Topping, 1 Wendell, 388.

d Litt. sec. 347, 348. Co. Litt. 215. a.

(1) There may be three remedies on a non-performance of a condition: the grantor may reenter; or bring an action for damages; or file a bill in equity for specific performance of the conditions of the covenants. Stuyvesant v. The Mayor, &c., of New-York, 11 Paige R. 415. (2) It is held, that where the lease is not by deed, the statute 32 Henry VIII. ch. 34, transferring a right to sue to the assignee of a reversion, does not operate.

Where the lessor of a lease, not under seal, transferred his right to an assignee, it was held that the privity of contract still remained between the lessor and the lessee, and an action lay in his name for a breach of the promise to repair. Bickford v. Parson, 5 M. G. & S. 920.

nants were annexed, to take advantage of the same; and it gave to the tenant the like remedies against the assignee, that he would have had against the assignor. The statute has been formally re-enacted in some of the United States; and though the statute was made for the special purpose of relieving the king and his grantees, under the numerous forfeitures and grant of estates that had belonged to monasteries and other religious houses, yet the provision is so reasonable and just, that it has doubtless been generally assumed and adopted as part of our American law. In the exposition of the statute it has been held, that the grantee of part of the reversion could not take advantage of the condition, and it is destroyed by such a grant. The provision is confined to such conditions as are incident to the reversion, or for the benefit of the estate. It only created a priority of contract between those who had priority of estate, as between the grantees of the reversion and the lessees and their assigns, and did not extend to covenants between grantors and grantees in fee.c

(II.) Of conditions in deed.

These conditions are expressly mentioned in the contract between the parties, and the object of them is either to avoid or defeat an estate; as if a man (to use the case put by Littleton) enfeoff's another in fee, reserving to himself and his heirs a yearly rent, with an express condition annexed, that if the rent be unpaid, the feoffer and his heirs may enter, and hold the lands free of the feoffment. So, if a grant be to A. in fee, with a proviso, that if he did not pay twenty pounds by such a day, the estate should be void. It is usual, in the grant, to reserve in express terms, to the grantor and his heirs, a right of entry for the breach of the condition; but the grantor or his heirs may enter, and take advantage of the breach, by ejectment, though there be no clause of entry. *A *124

Laws of New-York, sess. 11. c. 7, and New-York Revised Statutes, vol. i. 747. sec. 23, 24, and Act of Virginia, Nov. 29, 1792. Territorial Act of Michigan, March 12, 1827. 1 N. Carolina Revised Statutes, 259.

b Co. Litt. 215. a. b.

Lewis v. Ridge, Cro. E. 863.

d Litt. sec. 325.

• Lord Hardwicke, in Wigg v. Wigg, 1 Atk. 383. Doe v. Watt, 1 Mann. & Ryl. 694.