This section is from the book "The Law Of Real Property and Other Interests In Land", by Herbert Thorn Dike Tiffany. Also available from Amazon: A Treatise on the Modern Law of Real Property and Other Interests in Land .
In the case of a lease for a term of years, even though the term is to commence immediately, the lessee is not regarded as a tenant until he enters upon the land, that is, until he takes possession, and until he does so he has been said to have merely an interesse termini,74 an expression also applied to the interest of one to whom a lease is made of a term to commence in futuro.75
102 Atl. 605; In re Woodville, 115 La. 810, 40 So. 174 (semble); Bradley v. Metropolitan Music Co., 89 Minn. 516, 95 N. W. 458; Jackson v. Kisselbrack, 10 Johns. (N. Y.) 336, 6 Am. Dec. 341; Grigs-by v. Western U. Tel. Co., 5 S. D. 561, 59 N. W. 734.
68. Doe d. Bromfield v. Smith, 6 East 530; Rollason v. Leon, 7 Hurl. & N. 73; Harrison v. Parmer 76 Ala. 157; Griffin v. Knisely, 75 111. 411; St. Louis Brewing Ass'n v. Niederlucke, 102 Mo. App. 303, 76 S. W. 645.
69. Chapman v. Towner, 6 Mees & W. 100; Arnold v. R. Rothschild's Sons Co., 37 N. Y. App. Div. 564, 56 N. Y. Supp. 161.
70. Doe d. Wood v. Clarke, 7 Q. B 211; Weed v. Lindsay, 88 Ga. 686, 20 L. R. A. 33, 15 S. E. 836.
71. Clayton v. Burtenshaw, 5 Barn. & C. 41; Hinckley v. Guyon, 172 Mass. 412, 52 N. E. 523.
72. John v. Jenkins, 1 Comp. & M. 227; Gibson v. Needham, 96 Ga. 172, 22 S. E. 702.
73. Jenkins v. Elderidge, 3 Story 325, Fed. Cas. No. 7, 268; Hallett v. Wylie, 3 Johns. (N. Y.) 44, 3 Am. Dec. 457; Jackson v. Kisselbrack, 10 Johns, (N. Y.) 336, 6 Am. Dec. 341; Potter v. Mercer 53 Cal. 667.
A release to one who has not entered under his lease cannot, at common law, operate to enlarge his interest, for the reason that "a release which enures by way of enlarging an estate cannot work without a possession"76 and it is said that the lessor "cannot grant away the reversion by the name of reversion, before entry.77 On the other hand the lessee may perfectly well, before entry, grant his interest to another.78 The death of the lessor before the lessee's entry does not affect the latter's right of entry, while, if the lessee dies before entry, his right passes to his personal representative.79 Until entry, the lessee cannot bring trespass, for the reason that the action of trespass is based upon possession.80
Though at common law a lessee who has not entered is not capable of taking a release so as to enlarge his estate, still, by means of a lease taking effect as a bargain and sale under the statute of uses, possession sufficient for this purpose may be given to the lessee without any actual entry by him.81 It is on this principle that the conveyance by lease or release was based.82 A lessee
74. Co. Litt. 46b, 2 Blackst. Comm. 144; Caldwell v. Center, 30 Cal. 539, 89 Am. Dec. 131.
75. 2 Preston, Conveyancing, 149 Smith v. Day, 2 Mees. & W. 684.
76. Co. Litt. 270a. To the same effect, see Litt. Sec. 459; Sheppard's Touchstone, 324.
77. Co. Litt. 46b; Iseham v. Morrice, Cro. Car. 109.
78. Co. Litt. 46b; Wheeler v. Thorogood, Cro. Eliz. 127. So he may make a sublease, Doe d. Parsley v. Day, 2 Q. B. 147; Chung Yow v. Hop Chong, 11 Ore. 220, 4 Pac. 326.
79. Litt. Sec. 66; Co. Litt. 46b.
80. Harrison v. Blackburn, 17 C. B. (N. S.) 678; Wallis v. Hands, (1893) 2 Ch. 75; Heilbron v. Heinlen, 72 Cal. 371, 14 Pac. 22.
81. Iseham v. Morrice, Cro. Car. 109; Barker v. Keat, 2 Mod. 249; Bac. Abr., Leases (M.); 2 Preston, Conveyancing, 217.
82. Post Sec. 100 note 43.
[ Sec. 44 by bargain and sale has not, however, such possession that he can maintain trespass.83
The statement, quite frequently found, that a lessee has no estate in the land until entry,84 is difficult to comprehend. The lessee's interest before entry is referred to by Coke and others of the older writers as an "estate,"85 and the occasional assertion that entry is not necessary to the vesting of a "term of years" in the lessee86 seems to be in effect that an estate for years vests before entry, "term of years" and "estate for years" being equivalent expressions. That one who has not entered is not a tenant is readily comprehensible, but that one who has an immediate right of exclusive possession and control for a term of years should not have an estate for years, merely because he has not entered upon the land, seems to involve a subversion of the conception of an estate in land which has prevailed since the abolition of the requirement of livery of seisin. A statutory conveyance of an estate in fee simple with out doubt vests an estate in the grantee before entry, and it is difficult to see why a common-law conveyance of an estate for years should have any less effect. The interest of a lessee under a lease in praesenti before entry, it may be remarked, is in its nature entirely different from that of one in favor of whom a term has been limited to commerce in futuro only, and the fact that the same expression, interesse termini, is applied to the two classes of interests, does not constitute a reason for regarding them as similar in character.
83. Lutwich v. Mitton, Cro. Jac. 604; Geary v. Bearcroft, Cart. 57, 66; Pollock & Wright, Possession, 56.
84. 2 Blackst. Comm. 144 (citing Co. Litt. 46, which does not support it); 1 Platt, Leases; 2 Preston, Conveyancing, 145; Williams, Real Prop. (21st Ed.) 507; Bunch v. Elizabeth City Lumber Co., 134 N. C. 116, 46 S. E. 24; Crane v. O'Connor, 4 Edw. ch. (N. Y.) 409; Austin v. Huntsville Coal & Mining Co., 72 Mo. 5S5, 37 Am. Rep. 446.
85. Coke says (Co. Litt. 46b): "A release to him is not good to increase his estate;" and in Saffyn's Case, 5 Coke, 125, it was said that "if a man makes a lease for years, in this case before the lessee enters, he has an estate for years in the land, which he may grant." In Sheppard's Touchstone, 324, and Bac. Abr., Leases (M.), it is said, following Coke, that the lessee's estate cannot, before entry, be enlarged by a release.
86. Williams v. Bosanquet, 1 Brod. & B. 238; Ryan v. Clarke, 14 Q. B. 65; Harrison v. Blackburn, 17 C. B. (N. S.) 678. So Coke says, "The interest of the term doth pass and vest in the lessee before entry, Co. Litt. 51b.
There are occasional decisions to the effect that, before entry, the lessee cannot maintain ejectment,87 but the weight of authority is to the contrary,88 and the latter view accords with the general rule that the action may be maintained by any person who has a right to the possession. In former times, when it was necessary, to support ejectment, that a termor should have been actually ousted from the land;89 the action could evidently not be maintained by a lessee who had not entered, either by himself or his sublessee; but after the introduction of the fictions in ejectment, by which one entitled to land was enabled to maintain the action without any actual entry or ouster, a lessee, it would seem, was in as good a position for this purpose before as after entry.