and also for the encouragement of husbandry, which being a public benefit, tending to the increase and plenty of provisions, ought to have the utmost security and privilege that the law can give. (18) Wherefore by the feodal law, if a tenant for life died between the beginning of September and the end of February, the lord, who was entitled to the reversion, was also entitled to the profits of the whole year; but if he died between the beginning *123] of March and the end of August, the heirs of the tenant received the whole.(0)(19) From hence our law of emblements seems to have been derived, but with very considerable improvements. (20) So it is also, if a man be tenant for the life of another, and cestuy que vie, or he on whose life the land is held, dies after the corn sown, the tenant pur auter vie (21) shall have the emblements. The same is also the rule, if a lifeestate be determined by the act of law. Therefore if a lease be made to husband and wife during coverture, (which gives them a determinable estate for life,) and the husband sows the land, and afterwards they are divorced a vinculo matrimonii, the husband shall have the emblements in this case; for the sentence of divorce is the act of law. (p) But if an estate for life be determined by the tenant's own act, (as, by forfeiture for waste committed; or, if a tenant during widowhood thinks proper to marry,) in these, and similar cases, the tenants, having thus determined the estate by their own acts, shall not be entitled to take the emblements. (q) (22) The doctrine of emblements extends not only to corn sown, but to roots planted, or other annual artificial profit, but it is otherwise of fruit-trees, grass, and the like; which are not planted annually at the expense and labor of the tenant, but are either a permanent or natural profit of the earth. (r) (23) (24) For when (0) Feud. l. 2, t. 28. (p) 5 Rep. 116. (g) Co. Litt. 55. (18) Washburn on Real Prop. vol. I, 5 ed. par. 138. 91 N. C. 119, King v. Foscue, (1884.) Sornberger v. Bergren, 20 Neb. 404 (1886.) Schouler's Real Prop. 2 ed. vol. I, p. 113. (19) Washburn on Real Prop. vol. 1, 5 ed. p. 139. (20) In some parts of Virginia, it is the understanding in all leases, that the tenant for a year, whose lease commences in the month of April, shall have liberty to sow in the fall and reap in the following harvest. Lomax Digest, p. 152. (21) [During the life of another.] (22) Howell v. Schenck, 4 Zabriskie, 93, N. J. (1853). 5 ed. par. 141. Tiedeman on Real Prop. 2 ed. par. 71. (1828). Washburn on Real Prop. vol. I, (23) Tiedeman on Real Prop. 2 ed. par. 70. 2 Story on The commentator has lord Coke's authority for ranking annual roots among emblements, and this appears to be the better opinion; but both Godolphin (pt. 2, c. 14, s. 1) and Wentworth (p. 152) assert that carrots, turnips, and other annual roots belong to the heir, because the executor is not at liberty to break the soil to reach them. Roberts, (5 B. & C. 832,) Bayley, J., founded his judgment on the assumption that potatoes were emblements. Artichokes, it is clear, not being a strictly annual produce, are not emblements. Went. Off. Ex. 63. In Evans v. (24) Emblements are such crops as in the ordinary course of things return the labor and expense bestowed upon them strictly within the year. Thus, if the tenant plant hops, he will not be entitled to the first crop unless produced within the year; but, as hops will not bear without labor annually bestowed in manuring, making of hills, and setting of poles, the tenant is entitled to the year's crop, although it proceed from ancient roots. Washburn on Real Prop. vol. 1, 5 ed. p. 139. Cro. Car. 515. 2 Freem. 210. Co. Litt. 55, 56. On the other hand, as fruit-trees will bear although no labor is bestowed upon them within the year, the tenant is not entitled to the fruits as emblements. And where the tenant had sown clover with barley in the spring, according to a practice by which the benefit of the clover would not be realized within the year, it was held that he could not claim any advantage that accrued after the expiration of a year from the time of sowing. I Schouler on Personal Prop. 2 ed. p. 114. 2 Nev. & M. 725. 5 B. & Ad. 129. Corn, peas, beans, tares, hemp, flax, saffron, melons, and, according to the better opinion, annual roots, such as potatoes, etc., are emblements. Grass is not, even when a man plants a tree, he cannot be presumed to plant it in contemplation of any present profit;(25) but merely with a prospect of its being useful to himself in future, and to future successions of tenants. (26) The advantages also of emblements are particularly extended to the parochial clergy by the statute 28 Hen. VIII. c. II. For all persons, who are presented to any ecclesiastical benefice, or to any civil office, are considered as tenants for their own lives, unless the contrary be expressed in the form of donation. [*124 3. A third incident to estates for life relates to the under-tenants, or lessees. For they have the same, nay, greater indulgences than the lessors, the original tenants for life. The same; for the law of estovers and emblements *with regard to the tenant for life, is also law with regard to his under-tenant, who represents him and stands in his place:(s) and greater; for in those cases where tenant for life shall not have the emblements, because the estate determines by his own act, the exception shall not reach his lessee, who is a third person. (27) As in the case of a woman who holds durante viduitate;(28) her taking husband is her own act, and therefore deprives her of the emblements; but if she leases her estate to an under-tenant, who sows the land, and she then marries, this her act shall not deprive the tenant of his emblements, who is a stranger, and could not prevent her.(t)(29) The lessees of tenants for life had also at the common law another most unreasonable advantage; for at the death of their lessors, the tenants for life, these under-tenants might if they pleased quit the premises, and pay no rent to anybody for the occupation of the land since the last quarter-day, or other day assigned for payment of rent. (u)(30) To remedy which, it is now enacted(v) that the executors or administrators of tenant for life, on whose death any lease determined, shall recover of the (8) Co. Litt. 55. (u) 10 Rep. 127. (v) Stat. 11 Geo. II. c. 19, ? 15. (t) Cro. Eliz. 461. 1 Roll. Abr. 727. it arises from seed, (Com. Dig. Biens, G. 1;) but the artificial grasses, such as sainfoin, clover, etc., which are annually renewed like any other crop, seem to fall within the description of emblements. Schouler on Personal Prop. 2 ed. vol. I, p. 114. 2 Nev. & M. 725. Burn, Ecc. L. 297. (25) Lord Coke, in his commentary on the statute of Merton, says, "Blada signifieth corn or grain while it groweth, or grain while it is in herba, dum seges in herba, but it is taken for all manner of corn or grain, or things annual, coming by the industry of man, as hemp, flax, etc." 2 Inst. 81. The word "emblement" comes from embler or emblaver, to sow with corn; whence the old law-phrase to emble land, or sow it for an annual crop. Emblements are considered for most purposes as goods and chattels: they go, as has been seen, to the executor. They may be taken in execution under a fieri facias, and contracts relating to them have been held not to be contracts relating to any interest in land within the statute of frauds, (29 Car. II. c. 3, s. 4,) in contradistinction to contracts relating to growing grass, crops of fruit, etc. 2 Brod. & B. 368. 5 B. & Cr. 829. 8 Dowl. & Ry. 611. 4 Nev. & W. 343. A dictum in Fitzh. Abr. pl. 59, that at common law emblements cannot be granted without deed, if not overruled by these cases, must be rested on the ground that a grant, as distinguished from a contract for sale, includes the right of ingress, egress, and regress, which is an easement. The landlord could not distrein emblements until that power was given him by the statute II Geo. II. c. 19. 1 Roll. Abr. 666. 8 Taunt. 431, 742.-SWEET. (26) I Schouler on Personal Prop. II5, 2ed. Tiedeman on Real Prop. 2 ed. par. 7o, p. 54. (29) The law relating to emblements has been very recently much modified in England; for it has been enacted by 14 & 15 Vict. c. 25, s. 1, that on the determination of leases or tenancies under landlords holding as tenants for life or for any uncertain interests, instead of claims to emblements, the tenants shall hold until the expiration of the current year, paying to the succeeding landlord a fair proportion of the rent.—STEWART. Tiedeman on Real Prop. 2 ed. par. 71. Washburn on Real Prop. 5 ed. 142. Schouler on Personal Prop. vol. I, p. 118, 2 ed. (30) Tiedeman on Real Prop. 2 ed. par. 67. Washburn on Real Prop. vol. 1, 5 ed. 133. Hoagland v. Crum, 113 Ill. 370 (1886). lessee a ratable proportion of rent from the last day of payment to the death of such lessor.(31) II. The next estate for life is of the legal kind, as contradistinguished from conventional; viz. that of tenant in tail after possibility of issue extinct. This happens where one is tenant in special tail; and a person, from whose body the issue was to spring, dies without issue; or, having left issue, that issue becomes extinct: in either of these cases the surviving tenant in special tail becomes tenant in tail after possibility of issue extinct. (32) As where one has an estate to him and his heirs on the body of his present wife to be begotten, and the wife dies without issue: (w) in this case the man has an estate tail, which cannot possibly descend to any one; and therefore the law makes use of this long periphrasis, as absolutely necessary to give an adequate idea of his estate. For if it had called him barely tenant *125] in fee-tail special, that *would not have distinguished him from others; and besides, he has no longer an estate of inheritance or fee, (x) for he can have no heirs capable of taking per formam doni. Had it called him tenant in tail without issue, this had only related to the present fact, and would not have excluded the possibility of future issue. Had he been styled (w) Litt. 32. (x) Roll. Rep. 184. 11 Rep. 80. (31) At common law, if tenant in fee die after sunset and before midnight of the last day when the rent becomes due, it shall go to the heir, and not to the executor; for the rent is not due till the last instant of the day. I Saund. 287, id. note 17. 2 Mad. 268. Where the mischief recited in the act of II Geo. II. c. 19 does not apply, and the lease does not determine on the death of the tenant for life, the case is not affected by it; and therefore if a tenant for life, with a leasing power, demises the premises pursuant to such power, and dies before the rent becomes due, as the rent and the means of recovering it will go to the remainderman or reversioner, (see 3 Maule & S. 382,) and will not be lost, the case is not within the act, and the executors of the tenant for life are not entitled to any proportion of the accruing rent. I P. Wms. 177. 2 Mad. 268. But if the lease or demise of the tenant for life is not within the power and determines on his death, this is a case of apportionment under the statute. I Swanst. 337, and the learned note of the reporter, 357. It seems that the executors of tenants in tail, who had made leases void as against the remainderman, and die without issue, are within the equity of the statute. Ambl. 198. 2 Bro. C. C. 639. 8 Ves. 308. At all events, if the remainderman has received the whole rent, it seems settled he shall account in equity to the executor of the tenant in tail, (id. ibid.;) and which doctrine seems to apply to the successor of a parson who has received a composition for tithe jointly accruing in the lifetime of the deceased incumbent. 8 Ves. Jr. 308. IO East, 334. It is laid down in 10 Co. 128, and Christian's edition, that this act is confined to the death of the landlord, who holds for his own life; and that therefore it seems if tenant pur auter vie leases, and the cestuy que vie dies, the lessee is not compellable to pay any rent from the last day of payment before the death of cestuy que vie. In 3 Taunt. 331, Mansfield, C. J., expresses his doubts, (see 2 Saund. 288, D.;) and it should seem that the case is within the act. See other cases as to apportionment, 1 P. Wms. 392. 3 Atk. 260, 583. 2 Ves. 672. Amb. 198, 279. 2 Bro. 659. 3 Bro. 99. 2 P. Wms. 502. There is no apportionment of an annuity, unless expressly provided for, (1 Swanst. 349, in notes,) but if there has been judgment on an annuitybond standing as a security for future payments of an annuity, the court will give plaintiff leave to take out execution for a proportion of a quarter, up to grantee's death, (2 Bla. R. 1017. 11 Ves. Jr. 361;) and in equity the maintenance of an infant is always apportioned. Id. ibid. I Swanst. 350. There is no apportionment of dividends in the case of tenant for life; but there is of interest of mortgages, as that is perpetually accruing. 2 P. Wis. 76. I Swanst. 349, in notes. See I R. S. 747.-CHITTY. It was doubted whether the statute of Geo. II. applied strictly to tenants for life, or whether persons who were exposed to a similar hardship could claim the benefit of it. Thus, it was frequently questioned whether the statute extended to tenants in tail after possibility of issue extinct. These doubts are now set at rest by the statute 4 W. IV. c. 22, s. 1, which, after reciting that doubts have been entertained whether the provisions of the statute of Geo. II. apply to every case in which the interests of tenants determine on the death of the person by whom such interests have been created, enacts that rents reserved on leases which shall determine on the death of the person making them shall be considered to be within the meaning of the act, although such person was not strictly tenant for life.-STEWART. (32) Williams on Real Prop. 6 ed. par. 54. Jones v. Britton, 102 N. C. 185 (1889). tenant in tail without possibility of issue, this would exclude time past as well as present, and he might under this description never have had any possibility of issue. No definition therefore could so exactly mark him out, as this of tenant in tail after possibility of issue extinct, which (with a precision peculiar to our own law) not only takes in the possibility of issue in tail, which he once had, but also states that this possibility is now extinguished and gone. This estate must be created by the act of God, that is, by the death of that person out of whose body the issue was to spring; for no limitation, conveyance, or other human act can make it. For, if land be given to a man and his wife, and the heirs of their two bodies begotten, and they are divorced a vinculo matrimonii, they shall neither of them have this estate, but be barely tenants for life, notwithstanding the inheritance once vested in them.(y) A possibility of issue is always supposed to exist in law, unless extinguished by the death of the parties; even though the donees be each of them an hundred years old. (z)(33) This estate is of an amphibious nature, partaking partly of an estate-tail, and partly of an estate for life. The tenant is, in truth, only tenant for life, but with many of the privileges of a tenant in tail; as not to be punishable for waste, etc.;(a)(34) or, he is tenant in tail, with many of the restrictions (2) Co. Litt. 28. (z) Litt. 34. Co. Litt. 28. (a) Co. Litt. 27. (33) Williams on Real Prop. 6 ed. 50. Tiedeman on Real Prop. 2 ed. par. 52. grey on Real Prop. 315. I Pin (34) See post, chapter xviii. of this book, p. 283. All authorities agree that tenant in tail after possibility of issue extinct is dispunishable for waste, (Doctor and Student, Dial. 2, c. 1;) but in Herlakenden's case, (4 Rep. 63,) C. J. Wray is reported to have said that, although tenant in tail after possibility, etc., cannot be punished for waste in cutting down trees upon the land he holds as such tenant, yet he cannot have the absolute interest in the trees, and, if he sells them, cannot retain the price. This dictum is noticed by Mr. Hargrave in his 2d note to Co. Litt. 27, b., and is countenanced by another dictum in Abraham v. Bubb, 2 Freeman, 53. Mr. Christian, too, in his annotation upon the passage of the text, considers it as settled law that, if a tenant in tail after possibility, etc., cuts down trees, they do not become his property, but will belong to the party who has the first estate of inheritance. In opposition, however, to the doctrine imputed to C. J. Wray and the obiter dictum in Abraham v. Bubb, it was distinctly resolved by the whole court of King's Bench (consisting of Coke, Crooke, Doddridge, and Haughton,) in the case of Bowles v. Be.tee, I Rolle's Rep. 184 S. C., 11 Rep. 84, that a tenant after possibility has the whole property in trees which he either causes to be cut down, or which are blown down, on the estate. And this seems to be now firmly settled by the case of Williams v. Williams. When that case was before lord chancellor Eldon, his lordship (as reported in 15 Ves. 427) intimated that he could not imagine how it was doubted that the tenant, being dispunishable, had not, as a consequence, the property in the trees; that it was singular there should be an argument raised that such a tenant should be restrained from committing malicious waste by cutting ornamental timber, (Garth v. Cotton, 1 Dick. 209,) if it was understood to be the law that he could not commit waste of any kind. Attorney-General v. Duke of Marlborough, 3 Mad. 539. However, as all the previous cases in which tenant in tail after possibility of issue extinct had been determined to be dispunishable of waste were cases in which the tenant had once been tenant in tail with the other donee in possession, and in the case of Williams v. Williams the tenant claimed in remainder after the death of the joint donee, lord Eldon thought it advisable, before he made a final decree, to direct a case to the court of King's Bench, not describing the claimant as tenant in tail after possibility of issue extinct, but stating the limitations of the settlement under which the claim was made. The case was accordingly argued at law, and a certificate returned that the claimant was tenant in tail after possibility of issue extinct; was unimpeachable of waste upon the estate comprised in the settlement; and, having cut timber thereon, was entitled to the timber so cut as her own property. 12 East, 221. A tenant for life without impeachment of waste, and a tenant in tail after possibility of issue extinct, seem to stand upon precisely the same footing in regard to all questions of waste, (Attorney-General v. Duke of Marlborough, 3 Mad. 539;) and a tenant for life of a tenant for life; as to forfeit his estate, if he alienes it in fee-simple: (b) whereas such alienation by tenant in tail, though voidable by the issue, is no forfeiture of the estate to the reversioner: who is not concerned *126] in interest, *till all possibility of issue be extinct. But, in general, the law looks upon this estate as equivalent to an estate for life only; and, as such, will permit this tenant to exchange his estate with a tenant for life, which exchange can only be made, as we shall see hereafter, of estates that are equal in their nature. III. Tenant by the curtesy of England is where a man marries a woman seised of an estate of inheritance, that is, of lands and tenements in fee-simple or fee-tail, and has by her issue, born alive, which was capable of inheriting her estate. (35) In this case, he shall, on the death of his wife, hold the lands for his life, as tenant by the curtesy of England. (c)(36) This estate, according to Littleton, has its denomination, because it is used within the realm of England only; and it is said in the Mirrour (d) to have been introduced by king Henry the First; but it appears also to have been the established law of Scotland, wherein it was called curialitas, (e) so that probably our word curtesy was understood to signify rather an attendance upon the lord's court or curtis, (that is, being his vassal or tenant,) than to denote any peculiar favor belonging to this island. (37) And therefore it is (b) Co. Litt. 28. (c) Litt. 35, 52. (d) C. 1, 2 3. dispunishable for waste is clearly not compellable to pursue such a course of management of the timber upon the estate as a tenant in fee might think most advantageous. Whatever trees are fit for the purpose of timber he may cut down, though they may be still in an improving state. Smythe v. Smythe, 2 Swanst. 252. Brydges v. Stevens, 2 Swanst. 152 n. Coffin v. Coffin, Jacob's Rep. 72. No tenant for life, however, of any description, although not subject to impeachment for waste, must cut down trees planted for ornament or shelter to a mansion-house, or saplings not fit to be felled as timber; for this would not be a fairly beneficial exercise of the license given to him, but a malicious and fraudulent injury to the remainderman. Chamberlayne v. Dammer, 2 Br. 549. Cholmeley v. Paxton, 3 Bing. 212. Lord Tamworth v. Lord Ferrers, 6 Ves. 420. In this respect, the claim which might perhaps be successfully asserted in a court of law, as to the right of felling any timber whatsoever, is controlled in courts of equity, (Marquis of Downshire v. Lady Sandys, 6 Ves. 114. Lord Bernard's case, Prec. in Cha. 455.) and that even on the application of a mere tenant for life in remainder. Davies v. Leo, 6 Ves. 787. And not only wanton malice, but fraud and collusion, by which the legal remedies against waste may be evaded, will give to courts of equity a jurisdiction over such cases, often beyond, and even contrary to, the rules of law. Garth v. Cotton, 3 Atk. 755. A tenant for life without impeachment for waste has no interest in the timber on the estate whilst it is standing; nor can he convey any interest in such growing timber to another. Cholmeley v. Paxton, 3 Bing. 211. If, in execution of a power, he should sell the estate, with the timber growing thereon, he cannot retain for his own absolute use that part of the purchase-money which was the consideration for the timber; though before he sold the estate he might, it seems, have cut down every sizable tree and put the produce into his pocket. Doran v. Wiltshire, 3 Swanst. 701. And the peculiar privileges which a tenant for life after possibility of issue extinct is allowed to enjoy, because the inheritance was once in him, are personal privileges: if he grants over his estate to another, his grantee will be bare tenant for life. 2 Inst. 302. George Ap Rice's case, 3 Leon, 211.-CHITTY. I Washburn on Real Prop. vol. 1, 5 ed. p. 116. (35) Heath v. White, 5 Conn. 236 (1824). (36) Tiedeman on Real Prop. 2 ed. par. 101. Washburn on Real Prop. vol. 1, 5 ed. p. 170. Williams on Real Prop. 6 ed. p. 227. Pemberton v. Hicks, I Binney, 13 Pa. (1808). Breeding v. Davis, 77 Va. 646 (1883). Bradstreet v. Pratt, 17 Wend. 46, N. Y. (1837). Thomson v. McAllister, 38 W. Va. 511 (1893). Goddard v. Whitney, 140 Mass. IOI (1885). Hunter v. Whitworth, 9 Ala. 966 (1846). Billings v. Baker, 28 Bar. 345, N.V. (1859). Ibid. 348. Pemberton v. Hicks, 1 Binney, 13 Pa. (1808). I Pingrey on R. P. 371. Bailey Onus Probandi, 67 (1886). Boone Real Prop. 59-60. 1 Pingrey on R. P. 375. (37) I should rather think, with Mr. Wooddesson, that this estate took its name from its peculiarity to England, and that it was afterwards introduced into Scotland and Ireland. 2 Woodd. 18. Tenant by the curtesy of England perhaps originally signified |