The

The text of Littleton is also full and explicit on the point, that a person who has merely a right of entry or of action, is not capable of this species of assurance. language of this text writer (f) is, "lease be made to one for a term reserving to the lessor and his heirs a "certain rent; if the lessee be disseised, and "after the lessor release to the lessee and his

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"If a

of life,

heirs, all the right which he hath in the land, and after the lessee entereth, albeit "in this case, the rent is extinct, yet nothing "of the right of the reversion shall pass." The rent will be extinct, because of the privity of contract, for the rent is payable notwithstanding the disseisin, since there is not any eviction under an elder title: but the disseisin of the lessee is a disseisin of the lessor, so that the lessor has no estate to grant, nor the lessee any estate capable of enlargement.

It may in this place be noticed, that every general disseisin acquires a fee-simple by wrong. Hence Lord Coke(g) has this passage.

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A

man disseiseth tenant for life, to the use "of him in the reversion, and after he in "the reversion agreeth to the disseisin, it is said, that he in reversion is a disseisor in "fee; for by the disseisin made by the stran

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Litt. sect. 456. (g) 1 Inst. 180, b.

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ger, the reversion was divested, which, say

they, cannot be revested by the agree"ment of him in the reversion: for that it "maketh him a wrong doer, and therefore "no relation to an estate by wrong can help "him." Lord Hobart (h) accounts for this point of law by these observations : "A grant to I. S. and his heirs during the life "of I. D. is no fee, but a special occupancy, "as is resolved in Chudleigh's case; but a "disseisin of an estate for life, by necessity in law, makes a quasi fee, because wrong is unlimited, and ravins all that can be gotten, and is not governed by "terms of the estate, because it is not con"tained within rules."

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When a lessor disseises his lessee, the lessor, it is true, is a disseisor; but if he conveys the fee, the lessee for life may restore his seisin, without defeating the estate which has been conveyed, to any greater extent than for the life-interest.(2)

According to the authorities collected from Lord Coke's Commentary, and from Lord Hobart's Reports, every disseisin, even under a claim of a particular estate, must necessarily be a disseisin or divesting of the estate of the reversioner or remainder-man; and yet it is acknowledged as a

(h) Hob. Rep. 333.

(i) 1 Inst. Cl. Confirmation.

proposition of law, that one man may enter claiming the term of years of another person, without divesting the reversion;(k) and it should seem on principle, that a disseisin of a tenant for life, or of a tenant in tail, merely claiming his estate, would not be a disseisin of the reversioner or remainderman, except at his election. He may, perhaps, for this is doubtful, elect to be disseised, by denying any privity between him and the disseisor, and treat the disseisor as a wrong doer, and not as his tenant. On the other hand, what reason is there against his acceptance of the new tenant? It is agreed, that a disseisin of the tenant for life, of the King, is a disseisin for life. only.(1) The ground of this point is, that the King cannot, on account of his prerogative, be disseised and therefore, if the King's tenant for life be disseised by two, and he releaseth to one of them, the releasee shall hold out his companion; for the disseisor gained but the estate for life. (m) And the next observation of Lord Coke is still more material, when he adds, (n) So if joint-tenants make a lease "for life, and after do disseise the tenant "for life, and he release to one of them,"

(the releasee)" he shall hold out his companion; for the disseisin was but of an "estate for life."

The next proposition in Lord Coke,(0) is, "If tenant for life be disseised by two, " and he in the reversion, and tenant for "life join in a release to one of the dis"seisors, he shall hold his companion out; "and yet it" (the release)" cannot enure

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by way of entry and feoffment. But if they "severally release their several rights, "their several releases shall enure to both "the disseisors." In this instance, the disseisin was of the fee-simple, and not merely of the life-estate. A release by both jointly would give the entire fee-simple; and therefore would annex the right of the fee-simple to the possession: but a release by either, or by each separately, would merely annex the right of his estate to the possession, and the possession could not by such release be made rightful: either for the estate for life, distinct from the reversion, or for the reversion distinct from the estate for life; for this would be to make a fraction of interests against the maxims of law; a particular estate without any reversion expectant on that estate; a difficulty which does not occur when a

(o) 1 Inst. 276, a.

tenant of the immediate reversion disseises his own tenant for life; for then it may be said, he merely claims and resumes the estate for life; for when there are interposed estates, it is agreed, that a disseisin of the tenant for life, unless it be special, and confined to the life-estate, will be a disseisin to those in remainder and reversion, so long at least, and perhaps, so long only, as the interest under these particular estates shall continue.

It remains only, that a few authorities should be adduced, in proof that there may be an ouster of a tenant for years, merely claiming his estate, without being a disseisin of the reversioner; and that there may be a disseisin of a tenant for life, by an entry, claiming his estate, without any disseisin of the reversioner.

The case of Kirton against Birling and Trappes, (a) is material to the point now under consideration. In an action of entry in the quibus in nature of assize, Birling pleaded non-tenure in abatement of the writ. Trappes took upon himself the entire tenancy, without this, that Birling had any thing on the day of the suing out of the writ, or at any time since; and

(a) Dyer, 134, b.