3

cular estate, and a consequent right of entry in the heir. The latter mode is unobjectionable, but, of course, can be used only when the heir will join the trustees. Lord Talbot indeed has said, that his concurrence has no other effect than that of supplying the want of proving the will; but his lordship was there clearly wrong, and his error proceeded from his assuming that the fee was in abeyance; a premise from which the conclusion we have rejected, is consistently drawn. But as no point is better settled than that, when the fee is put into contingency by a will, or limitation of use, it is not in abeyance, but in the grantor or heir of the devisor, it follows that when the heir joins the trustees in a conveyance to a purchaser, he passes the reversion. Hence, that estate meeting the estate for life in the same individual, they coalesce, and a merger is the result. It is, therefore, when the heir will not join, or from infancy or other disability cannot, that it is necessary to resort to the doctrine of estoppel, in order to bind the contingent fee in the survivor. In Vick v. Edwards, Lord Talbot said generally, that "a fine from the trustees would pass a title to a purchaser by estoppel ;" and cited the case of Weale v. Lower. It is evident, however, from what has been above stated, that if that learned judge laid this down in the general and unqualified way in which it appears in the report, the position is untenable, or rather extremely inaccurate. It should have been confined to a fine for years; for besides that the fine sur conuzance, taken alone, would be a forfeiture of the estate for life in the trustees, it would, as we have seen, work not an estoppel, but an extinguishment of the contingent remainder. But, on the other hand, as his lordship immediately cited Weale v. Lower, as the authority for his proposition, it would be absurd to suppose that he intended to deny the distinction which that case established, and it is consequently to be presumed that he meant a fine for years. Granting this, Mr. Fearne's criticism on this part of the judgment in Vick

1 In Vick v. Edwards, sup.

2 Raym. 28.

3 2 Co. 17 b.

Uses, 61.

2 Saund. 280. 1 P. Wms. 505. 2 Bro. Cas. Parl. 1.

10 Co. 78. 85 b. Litt. Rep. 159. 253. 285. Carth. 262. Bac.

4 Pollexf. 54.

5 1 Rep. 66. admitted by the Court, in 1 M'Clell. & Y. 58.

v. Edwards, is ill-founded; for such a fine is at once innocent in its operation,1 and capable of binding by estoppel. With respect to the chief question in that case, whether the trustees took an immediate fee, or as they were held to take by Lord Talbot, we should wander from the subject we have proposed to treat, if we entered into it in this place: we shall, however, say that we agree with Lord Talbot's construction of the devise, and upon similar grounds to those on which it has been defended in a recent treatise.

It does not, however, necessarily follow, that because the fee is in contingency in the devise on which we are commenting, a fine for years must be adopted in order to bind that interest by estoppel, when a sale is desirable, and the heir is not a party to the purchase deed. It is certain, that under those circumstances, a tortious conveyance in fee, whether of record, or by matter in pais, would defeat the object it was intended to accomplish, by destroying, instead of binding, the contingent reremainder in the survivor; but we have always thought, and a recent determination confirms our opinion, that a conveyance to the purchaser by an innocent assurance, (as a lease and release or bargain and sale) effected by deed indented, will have the desired operation as completely as a fine. And here Lord Coke's classification becomes important. The second kind of estoppel is" by deed indented," and so long as an assurance is made by an instrument clothed with this solemnity, the requisition of the law is complied with, and the grantor is estopped. For a long time a contrary opinion prevailed in the profession; but we were persuaded of its erroneousness, and that it flowed from connecting the specific mode of assurance with the instrument by which it was made. Hence the consequent idea, that because the former was void,

1 Pigott v. Salisbury, 2 Mod. 109,

2 Cornish on Remainders, &c. 229. Lord Talbot's decision on this point, however, though perfectly consonant to technical rules of construction, evidently clashes with the testator's intention. Hence, when analogous cases arise, we may certainly avail ourselves of any word which furnishes a reason for not applying those rules. We remember a case in practice in which the devise was to trustees to hold to them and the survivors and survivor of them, their heirs, executors, and assigns. The opinion

of an eminent and experienced conveyancer was, that the trustees were joint

tenants in fee. We agree with him, and on the ground we have adverted to. > Sup. 76.

the latter was so likewise, and that a lease and release by a person not having an estate at the time of making it, was a mere nullity.1 But nothing could be stranger than this idea. If the conveyance as such was void, how could the nature of it affect the abstract operation of the instrument? We were glad to find that the Vice Chancellor entertained the same opinion, and we trust that his decision, which is demonstrably in unison with the technical distinctions of our ancient law, as well as salutary in respect to social expedience, will be considered to have settled this point. And if we are now to regard it as settled, that a lease and release may work an estoppel when the latter is by a deed indented, which it almost invariably is, 3 it will follow that a title from devisees in trust under the limitation in question, depending merely on that assurance, is undoubtedly marketable; the more particularly, as from the influence of Mr. Fearne's opinion, which is at direct variance with that of Lord Talbot, on the construction of the devise in Vick v. Edwards, many of our most eminent practitioners have been satisfied with a lease and release on the ground of the devisee's taking the immediate fee.

We shall here, however, anticipate an objection which a misconception, or rather too wide an extension, of a position in the First Institute might lead to. "Whensoever," says Lord Coke," any interest passeth from the party, there can be no estoppel against him." He has given several illustrations of this principle; but it is unnecessary to cite them, as a little reflection will evince that none of them are analogous to the present case. For, beyond a doubt, to the present purpose, the particular estate, and the contingent remainder in fee, would be regarded as distinct interests; or rather the estate for life would be deemed the only legal tangible interest, and the latter as a mere possibility. In fact, it has been settled, that it is not a possibility coupled with an interest, so as to be

1 We believe this opinion to have been drawn from the principle contained in

Litt. 1. 446.

2 Bensley v. Burdon, 2 Sim. & Stuart, 519.

3 As a release by enlargement operates on a reversion, and is consequently in the nature of a grant, it must be by deed.

4 1 Inst. 45 a.

G

devisable under the statute of wills1 or descendable at the common law. It follows that with respect to the contingent fee in the survivor, the lease and release passes no interest, and may therefore bind it by estoppel.

ON THE MODES OF PROCEEDING AGAINST TENANTS HOLDING

OVER.

An action of ejectment is, in general, the best remedy for a landlord who seeks to recover the possession of premises from a tenant holding over after the expiration of his term. Cases, however, daily happen, where recurrence cannot conveniently be had to this method of redress. For, not to mention other manifest objections, the inevitable delay which still attends an ejectment suit would often be highly prejudicial. And, again, such might be the poverty of the tenant, that the landlord could not calculate on recovering the costs which he must incur in the prosecution, even of this comparatively speedy remedy. The practitioner, therefore, is often called upon to determine whether the landlord would in such a case be subjected to any and what legal liability, by taking the law into his own hands, and expelling the wrong-doer.

Conceiving that somewhat loose, and even mistaken, notions prevail upon this subject, it is our intention to enquire in what this liability (if any) actually consists.

In the first place, we incline to think that principle and authority concur in establishing that no action could be maintained against a landlord adopting the course in question. The only forms of action which can be alleged, with any show of plausibility, to be applicable to this case, are— trespass quare clausum fregit; ejectment; trespass for assault and battery, in case the expulsion is effected by personal

1 Doe v. Tomkinson, 2. M. & Selw. 165. And the converse of this position is established by 1 Hen. Bl. 30. Ibid. 33. 3 T. R. 88.

violence; and trespass to personal chattels, in case the eviction of the tenant be followed up by a removal of his goods from the tenement.

In such a case, then, could the tenant maintain trespass against his landlord for breaking and entering his close? and more especially, supposing the entry to have been forcible and violent? We shall abstain from citing the more ancient authorities with regard to this point; not because they at all militate against recent decisions, but that we would avoid encumbering our argument with superfluous matter; and that trespass is not maintainable will sufficiently appear, we think, from the following cases. The case of Argent v. Durrant, 8 T. R. 403. was trespass for breaking and entering the plaintiff's close and pulling down his wall. The defendant pleaded the general issue (together with a special plea not material to the present question), and gave in evidence, that the soil and freehold were his; that he had let the premises to the plaintiff, whose term therein was expired after due notice to quit, but that the plaintiff insisting on his right to continue there, the defendant entered, &c. This was held to be a complete answer to the plaintiff's case. And, indeed, although such evidence of title was urged to be inadmissible under the general issue, yet it was not contented that, if admissible under the general issue, (which however the court, upon argument, decided it to be,) it did not constitute an effectual bar to the plaintiff's action. And the silence, as well of the plaintiff's counsel as of the court, upon this last head, is to be accounted for by the then recent decision in the case of Taunton and Coslar, 7 T. R. 431. This last case was an action of replevin for taking the plaintiff's cattle, &c. The substance of the pleadings was as follows:-The defendant (tenant) avowed under a demise from year to year, of the locus in quo, and that he distrained the cattle damage feasant. The plaintiff (landlord) pleaded in bar that he gave defendant due notice to quit, by force of which the demise to him determined; after which he, the plaintiff, entered into the locus in quo, and put his cattle therein: the defendant (tenant) replied, that he ought not to be barred, &c. because he did not quit or give up the possession of the said place in which, &c. to the plaintiff (landlord), or in any manner abandon the possession of the same in pursuance of