defendants; but notwithstanding this, the court would not permit it. And upon the evidence to prove joint-tenancy, it appeared, that B. before entry of the demandant, was termor, or lessee at will, to T., and that he paid rent to him, and that he re-entered upon the demandant, claiming the former estate; and by the opinion of the court they are disseisors and tenants, because the termor cannot qualify his own wrong, &c. And at last a verdict was given for the plaintiff on both issues, &c. and judgment given accordingly. The ground of this case is, that by the re-entry of the disseisee, the lease was avoided, and the subsequent entry of the lessee was tortious to the owner of the inheritance. It was not confined to an existing estate, for no estate existed, and for that reason the rightful owner was at liberty to treat the former lessee entering wrongfully, as a disseisor. This decision then does not impugn the point, which it is the object of these observations to establish.

And the case of the Mayor and Commonalty of Norwich v. Johnson (b), supports this distinction. In that case, the

(b) 3 Lev. 35. 3 Mod. 90. S. C.

Y 2

plaintiffs in an action of waste declared upon a lease for thirty-one years made "to one Cooke, and that he died, and the "defendant being an executor to Cooke, "entered and did waste. The defendant

pleaded that Cooke died intestate, and "that administration was not granted to "him, nor the term assigned to him by "Cooke, or any administrator of Cooke; the

66

plaintiffs replied, that the defendant "after the death of Cooke, entered as executor, and did the waste: upon this the "defendant demurred, and it was argued, in support of the demurrer, that one "could not be a tort executor of a term, ❝ for no man can apportion his own wrong; "but if a man enter tortiously, he is a dis"seisor and not a termor. And cases were "cited that a tortious entry makes the party a "disseisor in fee, though he claims a parti"cular estate only. But after time taken "to consider, judgment was given for the

plaintiff, for in the cases cited, there was

no particular estate, or term, in esse: and "the claim of the tort-fesor cannot create a

particular estate, and so apportion his own 66 wrong but of necessity, he is a disseisor "in fee; because there is no particular or "other estate in esse. But in the case at "bar, there was a rightful term in esse, and

he in reversion cannot maintain trespass during the term: and therefore, it is rea

"sonable that he should have his remedy

upon the contract, against him that "claims to be in by the contract." And it was said, Moor, pl. 126," it seems to be "admitted that there may be a tort exe"cutor of a term."

This case, with the comment on the former cases, proves that a person who enters, claiming claiming a term, where there is such a term, or who enters claiming any particular estate, where there is such particular estate, may become tenant for that particular estate, by the dispossession of the termor or disseisin of the owner of the particular estate; without divesting the estate of the person, who has the reversion or remainder, or committing any wrong beyond the particular estate.

It is true, that Popham, Chief Justice, did in Helyar's case (c) say, "a lease for "years cannot be gained but by lawful grant; " and therefore, when one claims a lease for years, and the other claims by an elder

66

68

grant, there he shall traverse the latter

grant, but the other party shall traverse. "the elder grant, or show how he came to "it again, to enable the second grant. "But it is otherwise in case of a feoffment;

66

"for there, if the other party claims by a "former feoffment, he ought to confess and "avoid the latter feoffment as by disseisin, "&c. For a disseisor may gain an estate in fee, "but none can gain an estate for years, but by lawful conveyance, and so is the difference. And when he claims by a former assignment of a term, it will be impertinent to traverse absque hoc, that he "after that, assigned his interest; for per"adventure he assigned all his interest, " and yet had nothing therein."

But this judgment cannot be urged against the decision to be collected from the report of Levinz; for Popham was treating of the creation of estates; and it is true that a particular estate cannot be created without a lease, a grant, &c. but nothing advanced by Popham, denies that when there is a particular estate actually existing, there may not be an ouster or a disseisin confined to that particular estate, so as to leave the estate of the reversioner or remainder-man, nolens volens, a subsisting estate; and admitting the reversion or remainder to be a subsisting estate, then it follows that there is not a disseisin of the feesimple.

The case of the disseisin of the tenant for life of the king is material as an authority to this point. And it may be added, that when a tenant pur autre vie dies tenant, and

à stranger enters generally, he will by construction of law, be tenant for the life, thus filling the tenancy for that particular estate.

And it may readily be conceded, that when there is not any particular estate, or when the entry is general without a claim confined, in terms or by the circumstances to the particular estate, there will be a disseisin of the fee-simple.

But from all the cases and general principles, it may be collected that there can be a disseisin for a particular estate in those instances only in which there is a particular estate, and the entry is made, claiming that estate; and the lord, it should seem, may make such disseisor his tenant, by acceptance of rent from him; and after acceptance of rent, there are strong grounds for contending that the disseisor would be so connected in privity with the lord, as to be capable of a release in enlargement of his estate, giving the disseisor a good title against the lord, but leaving his title open to be impeached by the rightful owner of the particular estate.

These observations on the effect of disseisin, ouster, &c. of the owners of particular estates, under a claim of their estates, are intimately connected with the learning to be discussed under the next head, viz,