-1''„.l; lOOUNSELOR LAW, Jr. (IJnrnfU Slam ^rlynol Hibrary tl ,^w tv Cornell University Library The original of tiiis book is in tine Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/details/cu31924018801336 A TREATISE ON il'). THE LAW or LANDLOED AND TENANT. WITH OOPIOUS NOTES AND REFERENCES. By H. G D, AUTHOR OP "THE LAW OF FIRE INSORANCE," ETC., ETO. . ___,^^ r 5 I " . ». isei C" */ BANKS & BROTHERS, LAW PUBLISHERS. NEW YORK : 1*4 NASSAU STREET, ALBANY N.T. : 473 & 475 BEOADWAT. 1881. m< f^o^ Entered according to Act of Congress in the year eighteen hundred and eighty-one. By BAifKS & BROTHEIiS, In the office of the Librarian of Congress at Washington. PREFACE. I have endeavored to bring together the law relating to the relation of landlord and tefnant in this volume, and whether I have succieeded in doing so, in a practical and satisfactory manner, is for the profession to determine. I have made free use of such portions of the most approved English works upon the subject as are applicable in this country, and have en- deavored to present the important features of each topic fully, and in such a way that the work may be of practical value to those having occasion to use it. It is unnecessary for me to point out in detail what I regard as the valuable features of the work, as my judgment may be warped by the circumstance that I have found certain topics more interesting than others. Indeed, in my judgment, every work must jjj^nd or fall upon its own merits, and nothing that an author can say in reference to it can avail to change the ultimate verdict of those who subject it to the decisive practical tests that they are called upon to apply in the dis- charge of their professional duties. To these tests I submit this work. If it fails to stand under them, then several years of severe labor have been lost. If, however, as I hope may be the case, it withstands this ordeal, I shall feel weU repaid for all the labor I have bestowed upon it. H. G. WOOD. Boston, April, 1881. TABLE OF CONTENTS. CHAPTER I. LANDLORD AND TENANT. "Seo. 1. When relation exists. Seo. 2. The relation may be implied. ■Seo. 3. Presumption arising from occupancy. Seo. 4. Payment of rent. CHAPTER II. TENANTS BY SUFFERANCE. Seo. 6. Tenant, Definition of term. Sec. 6. Tenancy by suifrance— what is. Seo. 7. Origin of this species of tenancy— effect of o-^^er's assent— how established. Seo. 8. Has no demiasable estate— cannot maintain treapass against landlord— not entitled to notice to quit. Seo. 9. How the tenancy may be determined. Seo. 10. Rent not recoverable. Seo. 11. Right of tenant at sufferance to remove fixtures. Seo. la. Tenant liable for damages, when. Seo. 13. Landlord's right of election, as to tenant holding over, CHAPTER III. TENANTS AT WILL. Sec. 14. What is. Sec. 15. How a tenancy at will may be created. Seo. 16. Vendor and Vendee. What relation exists betwaen them. Seo. 17. Rights of tenant at will to crops, &c. Seo. 18. How determined. Seo, 19. Notice to quit. CHAPTER IV. MASTER AND SERVANT. ■ Sec. 20. Occupancy of Master's premises, relation created by. CHAPTER V. TENANCY FROM YEAR TO YEAK. Sec. 21. Distinction between, and tenancy at will. Sec. 22. How created. Sec. 23. Entry under agreement for a lease ; effect of. Sec, 24. What covenants will or will not be implied. Seo. 25. Void lease. Payment of rent under the effect of. ii Table op Contents. Sec. 26. Holding over and paying rent. Sec. 27. Determination of tenancy from year to year. Wben determinable. Sec. 28. Notice to quit. Where there is no express agreement. Sec- 29. Where there is an express agreement. Sec. 30. Period with reference to which notice mast be given. Sec. 31. Admission by tenant. Sec. 32. Where tenant keeps possession after expiration of lease. Sec. 33. Where tenant enters under avoid or parol lease. Sec! 34! Where tenant enters on different parts of demised premises at different times. Sec. 35. Where tenant enters between two quarter days. Sec. 36. When notice to quit is indispensable, and when not. Sec. 37. Form of notice. Sec. 38. By whom notice may be given. Sec. 39. Agents. Sec. 40. To whom given. Sec. 41. Mode of service. Sec. 42. Waiver of notice to quit. Sec. 43. Second notice to quit. Sec. 44. Acceptance of rent. Holding over. Sec. 45. What amounts to a disclaimer. By verbal disclaimer. CHAPTER VI. TENANCY FOE LESS THAN A TEAB. Sec. 50. WeeWy, Monthly, Quarterly, and aemi-Annual Tenancies. Sec. 61. Letting and Hiring of Furnished Houses and Lodgings. Sec. 62. Lodgings let for immoral purposes. Sec. 53. Liabilities of hirers of furnished houses, apartments, &o. Sec. 64. Letting for storage or deposit. Sec. 56. Dnration of term notice to quit, &c. CHAPTER VII. TENANCY FOR LIFE. Sec. 66. How created— qualities of. Sec. 57. Eights of tenant for life. Sec. 58. Liabilities of life tenant. CHAPTER VIII. ESTATE FOE YEAES. Sec. 59. What are. Sdc. 60. A year, what? Sec. 61. A month in law, lunar. With four exceptions. Sec. 62. Origin of estates for years. Sec. 63. Only chattels. Seo. 64. The term, what? Sec. 65. The lease- Gives a right of entry. And the entry gives the term. Sec. 6S. Term may expire before the time. Sec. 67. The lease gives no posession. Sec. 68. Lease for years a contract for possession in consideration of rent. Sec. 69. Lease or under-lease. Sec, 70. Concurrent lease. Lease In reversio Sec. 81. Sec. 8S. Sec. 86. Sec. 87. Sec. 88. Seo, 89. Table of Contents. iii Sec. 71. The distinction of livery and grant simplified. Sec. 72. Leases must be by deed and assignment in writing. SifiO. 73. And leases by the state, corporations, and husband and wife, must be by deed. Sec. 74. A deed, what? Sec. 75. FeoHment, gift, grant, lease. Sec. 76. The components of a lease. Sec. 77. Qualities of this species of tenancies. Sec. 78. How created. Seo. 79. May be determinable at option of either party. Sec. 80. When option is personal. Sec. 81. Leases for fixed term, and then from year to year. Sec. 82. Determination of term. Sec. 83. J^otice to quit. CHAPTER IX. WHO MAT BE LESSORS. Generally. Ijease by tenant ; valid when. How far binding upon himself. By tenant at will. By tenant by sufferance. By tenants by curtesy, dower, life, &c. Lease by tenant per autre vie. CHAPTER X. BY TENANTS IN COMMON OR JOINT TENANTS, Sec. 90. By joint tenants. Seo. 91. By co-parceners. Sec. 92. By tenants in common. CHAPTER XI. BY TENANTS FOR YEARS. Generally. Distinction between assignment and sub-lease, as regards liability of tenant or assignee. Under-tenant not liable for hreach of lessee's covenants, except. Under-lease amounting to assignment, treated as sub-lease between the parties, when. Sale of under-leases. Liabilities of under-tenant to his lessor. By tenants for less than years. CHAPTER XII. BY CORPORATIONS. Seo. 100. By corporations generally. CHAPTER XIII. BY INFANTS. Seo. 101. Generally. Sec. 102. Lease must be personal act of the infant. Seg, 103. Leases to infants- ■Sec. 104. When infancy does not' avoid lease or deed. ^ .Sec. 105. Right of disaffirmance, and how exercised. Seo. 93. Seo. 94. Seo. 95. Seo. 96. Sec. 97. Seo. 93. Seo. 93. iy Table of Contents. CHAPTER XIV. BY GUAEDIANS. Sec. 107. Kinds of guardianship. Sec. 108. Guardian by nature— powers of. Seo- 109. By guardians by nurture. Seo. 110. By guardians in socage. Seo. 111. Ey a testamentary guardian. Seo. 112. By guardian by appointment. Seo. 113. Intruder treated as a guardian. CHAPTER XV. BY FEME-SOLE-FEME-COVERT. Seo. 114. By feme-sole. Seo. 115. By feme-covert. Seo. 116. By husband and wife. Seo. 117. As to leasehold estates of the wife. Seo. 118, Bights of husband, in chattels real held by the wife or executiix, CHAPTER XVI. BY LUNATICS— IDIOTS— INTOXICATED PEESONS, ETC. Seo. 119. Generally. Seo. 120. By intoxicated persons, or persons under duress. Seo. 121. By persons under duress. Seo. 122. By person under influence of fraud. CHAPTER XVII. BY EXECUTORS OR ADMINISTRATORS. Seo. 123. Common law, powers of. Seo. 124. Leases by voidable in equity. Seo. 125, When executor is an infant. CHAPTER XVIII. BY MORTGAGOR AND MORTGAGEE. Seo. 12S. Relation of the mortgagor and mortgagee to eaeh other. Seo. 127. By mortgagor. Seo. 128. When tenant not entitled to crops. Seo. 129. Mortgagor and mortgagee should join in lease, Seo. 130. Lease by mortgagee. Seo. 131. Effect of a covenant to permit the mortgagor to take rents, &c Seo. 132. Liabilities of a mortgagee in possession. CHAPTER XIX. BY AGENTS. Sec 133. By an agent. Seo. 134. How should be executed- Seo. 135. Agent or attorney cannot delegate his power. Seo- 136. Real estate agents. Seo. 137, Authority must be strictly pursued, Seo. 138. Agent to take leases. Seo. 139. Misrepresentation by agent. Table or Contents. t CHAPTER XX. OF LEASES BETWEEN PAETICULAB INDIVIDUALS. Sec. 140. By principal to agent— By client to attorney— By ward to guardian— By cestui qoe trust to trustee— By mortgagor to mortgagee. Sec. 141. Leases to may be good. Seo. 142. Consideration may be mixed. Sec. 143. What aliould be done to avert suspicion of unfair dealing. Sec. 144. Effect of acquiescence. Sec. 145. Leases from client to attorney. Sec. 146. Kule in Dawson v. Massey. Sec. 147. Leases between relatives and members of tbe family. Sec. 148. Rule in MiUlaben v. Marum. Seo. 149. Mortgagor to mortgagee. CHAPTER XXI. LEASES UNDEE POWERS. Seo. 150. Generally. Sec. 161. Construction of power. Sec. 152. Execution of the power. Sec;. 153. What kind of leases may be granted. Sec. 154. In whom powers may vest. Sec. 165. Usual covenants— proviso for re-entry— counterpart Sec. 166. Leases in possession or reversion. Sec. 167. On what land they attach. Sec. 158. What is a lease in reversion. Sec. 159. Effect of existing leases. Sec. 160. Leases in possession or reversion. Sec. 161. What are usual covenants within such powers. Sec. 162. Ways, &c. Seo. 163. Power to grant leases with a proviso for re-entry. Sec. 164. What lands are considered as having been lands usually let. Sec. 165. "Whether lands not before in lease may be demised. Sec. 166. Whether such leases are good for part only. Sec. 167. Execution of powers delegated to infants, lunatics, feme-covert, &C. Sec. 168. Statutory powers. CHAPTER XXII. , BY TRUSTEES. Sec. 169. Generally. Sec. 170. Powers of cestui qui trust. Sec. 171. For what term, trustees may lease. Sec. 172. Confirmation of imperfect lease by cestui que trust. Sec. 173. Trustee not liable for loss, when. Sec. 174. Trustee cannot be compelled to specially perform contracts of his grantor, when. Sec. 175. Cannot subject property to his own debts. Sec. 176. Lease may be good in part, and bad in part. Sec. 177. Lease under power, requiring the best rent. Sec. 178. Leases by trustees of charities. Sec. 179. Grounds on which equity intervenes. Sec. 180. How rental value is to be ascertained. CHAPTER XXIII. BY DISSEIZOR AND DISSEIZEE. Sec. 181. Lease by disseizor. Sec. 182. By disseizee. Sec. 183. Sec. 184. Sec. 185. Sec. 186. Sec. 187. Sec. 188. Sec. 189. Sec. 190. Sec. 191. Sec. 192. Sec. 193. Sec. 191. Sec. 195. Sec. 196. Sec. 197. Sec. 198. Sec. 199. Sec. 200. vi Table of Contents. CHAPTER XXIV. AGREEMENT FOR LEASE. Wlieii a present demise. Agreement must be complete. When not a present demise. Entry under agreement for lease— Effect of. Agreement should contain all covenants tliat are to be embodied in tlie lease. Statute of frauds— Effect of, upon agreements for leases. Remedies upon valid agreements. Remedy at law. Specific performance of valid agreements- Illegal purposes. Surprise, mistake, fraud- Party will not be compelled to accept less than he contracted for— May elect to do so. Where anything remains to be fixed or decided by third persons. When contract conditional on lessor's ability. Where intended lessor has no sufficient title. Where the contract is uncertain. Common covenants. Not of part of a contract— Exceptions. Sec. 201. AfLer unnecessary delay by plaintiff. Sec. 202. Oral agreements partly performed. Sec, 203. What constitutes part performance. Sec. 204. Parties plaintiffs in actions for— Defendants. Sec. 205. What constitutes past performance. Sec. 206. Specific performances decreed when. CHAPTER XXV. LEASES. Sec. 207. What are, and of what may be made. Sec. 208. Reversion in lessor. Sec 209. Essential requisites of a lease. Sec. 210. Operative words— Description of premises. Sec. 211. The premises. Sec. 212. What passes as an incident of the property. Sbo. 213. Appurtenances.— What pass as. Sec. 214. Formalities required in the several States. Sec. 215. Leases not affected by statute of frauds. Sec. 216. Leases by deed,— What are. Sec. 217. Seal. Sec. 218. Signing. Sec. 219. Attestation. Sec. 220. Delivery. Sec. 221. Escrow. Sec. 222. Eecording.— Acknowledgement. Sec. 223. Date. Sec. 224. Entry of lessee. Sec. 225. Void or voidable leases. Sec. 226. Licence.— Distinction between, and a lease. Sec. 227. Leases in reversion. — luteresse termini. Sec. 228. Concurrent leases. Sec. 229. Estoppel.- Leases by. Sec. 230. Effect of estoppels on the lessor. Sec. 231. Effects of estoppel on the lessee. Table of Contents, vii CHAPTER XXVI. EASEMENTS, ,Seo. 240. Easements.— Generally. Sec. 241. Right of way. Sec. 24:;. By grant. . Sec. 243. Prescription, necessity, &c. Sec. 244. Duties of ttiose using. Sec. 245. Wlio must repair. Sec. 246. Public may acquire right. Sec. 247. Who liable for obstruction of, SEC. 248. Kigbta of commons, SEC. 249. Inter-commoidng. Sec. 250. Common of turbary. Sec. 251. Nature and description of common of estovers. Sec. 252. Common of hshery.— Nature of. Sec. 25i>. "Watercourse — Delinition of. Sec. 254. Nature of rights in natural streams. . Sec. 255. llighcs between mill-owners on the same stream, Sec. 26t>. Question of reasonableness for jury, Sec. 267. Limitation upon right to dam water. Sec. 258. Precautions to be adopted. Sec. 259. Prescriptive rights.— How acquired. Sec. 26U. Extent of right acquired.— Gilford v. Lake Co. Sec. 261. Lawlor v. Potter. Sec. 262, Carlisle v. Cooper. Sec. 263. Mer^z v. Dorney. Seo. 264, Change of machinery. Sec. 265- Ancient mills. Sec. 266. Etiect of prior use. Sec. 267. What is mill seat. Sec. 268. Artilicial watercourses. Sec. 269. Implied grant or reservation of drains, &c. Sec. 270- License to make or use drains, &c. Sec. 271. Extinguishment or suspension of drains, &c. . Sec. 272. Underground water. Sec." 273. Surface water. Sec. 274. Lateral support. Sec. 275. Subjacent support. CHAPTER XXVII; EXCEPTIONS— RESERVATIONS AND CONDITIONS. Sec. 276. What are exceptions. ■ Sec. 277. Distinction between and reservations. ,Seo. 278. Construction of exceptions and reservations. Sec. 279. Provisoes and conditions.- Description and nature of. Sec. 280. Conditions precedent or subsequent. Sec. 281. Construction of conditions. Sec. 2R2, By what instrument they may be made. Sec. 283. By what words they may be created. Sec. 284. Between what parties binding. ■Sec. 285. Schedules, indorsements, &c. — Schedule of fixtures, furniture, &c.— When part of the lease. . Sec. 286. Alterations indorsed before the lease is executed- viii Table of Contents. CHAPTER XXVIH. THE ESTATE, Sec. 287. Habendum.— Office of. Sec. 288. Coiumenoement of terms. Sec- 289. Commencement from tlie date-of the lease. Sec. 290. Commencement -with reference to entry. Seo. 291, Duration of terms for years.— What certainty is requisite generally. Sec. 292. Certainty with reference to collateral matters. Sec. 293. Where there is an optional number of years fixed. Sec. 294. Where there is a recurring of years. Sec. 295. Where the term depends on a contingency. Sec. 296. Leasee for life or lives. Sec. 297. Reddendum. Sec. 298. Rent payable in advance. Sec. 299. Certainty as to amount of rent. Sec. 300. Mode of reservation. Seo. 301. "Net rent." CHAPTER XXIX. CONSTRUCTION OF LEASES. Sec. 302. ' General rules for. Sec. 303. Oral evidence admissible to explain when. CHAPTER XXX. COVENANTS. Seo. 304. Express covenants. Sec. 305. Covenants for payment of rent. Sec. 306. Construction of covenants. Seo. 307. Liability of the parties and their assigiis. Seo. 308. When covenants are void or nugatory. Seo. 309. General rule as to covenants being real or personal. Sec. 310. What covenants run with the land. Seo. 311. Divisibility of liability on covenants. Seo. 312. Dependent or independent. — General rule with respect to such covenants, Seo. 313. Particular cases decided respecting repairs. Sec. 314. Cases decided respecting other mattei-s. Sec. 315. How covenants aredischarged generally. Sec. 316. When discharged by the operation of statutes. Seo. 317. Implied covenants. Sec. 318. Implied covenants by lessee. Sec. 319. Covenants, when implied from express words in other covenant*. CHAPTER XXXI. COVENANT TO INSTJEE. Sec. 320. Generally. Sec. 321. When no loss has occurred. Sec. 322. When loss has occurred, CHAPTER XXXII. COVENANT NOT TO ASSIGN OR UNDERLET. Sec. 323. Generally. Seo. 324. How broken, Seo. 325, Assignments generally.— Nature of. Sec. 326, Assignments of the reversion.— How made.— 32 Hen. 8, c. 34. Table of Contents. ix- Seo. 327. How aseignment of the reversion may be made. Sbo. 328. Effect of a mortgage of llie reversion Seo. 329. What amounts to an assignment. Seo. 330, Distinction between an assignment and an underlease. Seo. 331. Operative words in assignments. Seo. 332. Usual covenaiits in assignments. Seo. 333. General liability of lessee and assignee. Sec. 334. On what covenants the assignee is liable. Seo. 335. Eights and liabilities of assignee, Seo. 336. "Where covenants run with the land. — WThere *' assigns " are not mentionetl. Seo. 337. Where " assigns " are mentioned. Sec. 338. Covenants which will not run with land. Seo. 339. When the assignee's liability commences. Sbo. 340, Effect of an assignment over. Sec. 341. Assignment of part of the land. Sec. 342. Kights of assignees of a term. Seo. 343. By way of mortgage — Mortgagee's liability. Seo. 344. Equitable assignments by deposit. Seo. 345. Election by trustees to accept ordisclaim a lease. Sec. 346. What property passes by general words in such assignments, Seo. 347. Underlease.— Distinction between, and assignments. Sbo. 348. Sales of under-leases. Seo. 349. Effect of re-assignment. Seo. 350. Continued liability of lessee. Sec. 351. Rights and liabilities of assignee as against lessee. Sec. 352. Rights as to title. Seo. 353. Grant by the landlord of his reversion. Sec. 354. Conveyances good without attornment of tenant. Sec. 355. Effect of death of the lessor. Sec. 356. Death of lessee. CHAPTER XXXIII. COVENANTS FOR QUIET ENJOYMENT, Sec. 357. General implied covenant. Sec. 358. No covenant implied when there is express one. Sec. 359. Cesser of implied covenant. Sec. 360. Form of usual qualified covenant for. Sbc. 361. Unqualified covenant for. Sec. 362. Express includes implied covenant. Seo. 363. Decision on express covenants. Sec. 364. What is a breach of. Seo. 365. Damages for breach of. Sec. 366. On whom covenant is binding. Sec. 367. Breaches, how plead. CHAPTER XXXIV. REPAIRS. General aability. Express covenants to repair. Covenant to repair and keep in repair during the term. General covenant to repair. — How construed. Buildings erected during the term. In case of fire. Covenant to rebuild. Covenant to repair after notice. Conditional or qualified covenants to repair, &c, Seo. 377. Liability of landlord on express covenants to repair. Seo. 378. To what lessor's covenant extends. Shc. 379. Landlord's right to enter to repair. Seo. 368. Seo. 369. Seo. 370. Seo. 371. Seo. 372. Seo. 373. Seo. 374. Seo. 375. Seo. 376. X Table of Contents. Sec. 380. What tenant must do to charge landlord. - ■ ,Sbc. 381. Neglect of landlord, under obligation to repair, will not relieve tenant from liability to rent. ^ , Sec. 382. No implied covenant that premises are, or shall remain fit for use for purposes for which they were leased. SBC. 383. Kent issues out of the estate and liability exists so long as estate remains. Sec! 384. Instances in which landlord Is bound to repair. Sec. 385. "Where there are several lessors. Sec. 386. "When landlord has repaired. Sec. 387. Damages agaiust assignee of lease- Sec. 388. "When action is brought at the end of the term. Sec. 389. Subsequent erectioris. Sec. 390. Damages must arise from the defendant's neglect, . Sec. 391. Meaning of a covenant to repair.— "What amount of repair is necessary.— Evidence of previous disrepair. Sec. 392. "Where there is a conditional precedent. Sec. 393. Action against the lessor. Sec. 394. Effect of the entire destruction of the estate. Sec. 395. Furnished houses or apartments. Sec. 396. No implied covenants to repair by tenant. Sec. 397. Proof of custom. Sec. 398. To what tenancies applicable. Sec. 399- Covenants to repair.— "When implied. Sec. 400. How to declare on a new Implied tenancy. Sec. 401. Implied liability of tenant at will, or from year to year as to repairs. Sec. 402. Remedies of landlord fo: non-repair. — By entry or ejectment. Sec. 403. Damages recoverahle. CHAPTER XXXV. MISCELLANEOUS COVENANTS. Sec. 404. Against particular trade. Sec. 405. Waiver of forfeiture. Sec. 406. Covenants to work mines. Sec. 407. Other covenants. Sec. 408. Contracts to deal with particular persons. Sec. 409. Contracts in restraint of trade within a given distance. Sec. 410. How the distance is to he computed. Sec. 411. Covenants to re-deliver fixtures, etc. Sec. 412. Covenants to give up part of land. Sec. 413. Obligation of tenant of farm as to cultivation of land. Sec. 414. As to expenditure of produce on premises. ,Sec. 415. Express covenants as to mode of cultivation. Sec. 416. To renew. Sec. 417. To pay taxes. Sec. 418. Against incumbrances. Sec. 419. Miscellaneous covenants. ■ CHAPTER XXXVI. "WASTE. Sec. 420. Voluntary waste. Sec. 421. Permissive waste. Sec. 422. Accidental fires. Sec. 423. Fire spreading from railways to the adjoining property. Sec. 424. Fires occasioned by the negligence of servants. Sec. 425. Injuries from gunpowder and explosive substances.— Explosions of gas. Sec. 426. MeaniTig of, without impeachment for waste. Sec. 427. Remedies for waste.— Who liable for, &c. Sec. 428. Remedy by injunction. Sec. 429. Injunction by landlord against tenant for waste. Table of Contents. xi "Wliere lease is made " without impeachment of waste." Amdavit for the iiiiunction, iHjuuutioii by tenant agaiuat landlord to restrain the cutting of ornauieatal trees, &c* To prevent a nuisaiK-e. To compel observance of restrictive covenants. To restrain an ejectment brought to defeat a valid agreement for a lease. By tenant against third persons. CHAPTER XXXVII. FENCES AND PARTY WALLS. Seo. 437. Ownership of agricultural fences. Seo. 438. Ownership of party-walls. Sec. 439. Obligation to repair fences. Sec. 440. Kights respecting fences, boundaries and party-walls. Seo. 441. Waste and destruction of fences. CHAPTEK XXXVIII. TREES AND TIMBER. What is timber. Implied rights as to trees. Windfalls. Express contracts as to trees. For what purpose trees may be cut without waste. What acts amount to waste CHAPTER XXXIX. RENT. Seo. 448. Definition of the term. Seo. 449. Kinds of rent. Sec. 450. Rents payable in advance. Seo. 451. Covenants to pay rent. Sec. 452. When and where rent is payable.— Demand to create forfeiture. Sec. 453, Payment of rent as evidence of tenancy.— EfiEect of. Sec. 4o4. Assignable qualities of rent. Reservations of rent, or sums in gross as quasi rent. Penalty or liquidated damages. How distinguished. Payment of rent. Allowances by mistalie of deductions from rent. Where rent is payable. How rent may be paid. Payment by bills or notes. Sec. 463. What payments operate as payments pro tanto of the rent. Sec. 464. Payment of taxes, rates, &c. When other payments may be deducted from the rent. To whom rent should be paid. Payment before the rent day. Tenant holding over. Alternative provisions. Rent payable in specific articles. Incidental benefits. Implied benefits. Eviction.—Effect of. Surety for lessee. Sec. 475. Liability of undertenant. xii Table of Contents. CHAPTER XL. APPORTIONMENT OF RENT. Sec. 476. When May be made. Sec. 477. 11 Geo. 2, c. 19, ». 15. Seo. 4T8. 4 and 6 Will. 4, u. 22. Sec. 479. Interest. Sec. 480. How apportionment is made. CHAPTER XLI. EVICTION. Sec. 481. What constitutes an eviction. SBC. 482. Destruction of premises or disrepairs. CHAPTER XLII. DETERMINATION OF TENANCT. Sec. 483. By effiui of time. Sec. 484. Eights of lessor when term is ended. Sec. 485. Double rent- Sec. 486. Who may recover double rent. CHAPTER XLIII. SUKEENDEE. Sec. 487. What is, and by, and to whom. Sec. 488. How made. Sec. 489. When a surrender may be made on condition. Sec. 490. At what tiiae a surrender may be made. Seo. 491. What writing is sufficient. Seo. 492. By acceptance of a new lease. Sec. 493. What is a suflicient new lease. Sec. 494. Eilect of an invalid new lease. Sec. 495. Effect of a new lease of part only. Sec. 496. By estoppel.— By act and operation of law. Seo. 497. By consent and acceptance of possession. Sec. 498. Acceptance of another tenant in lieu. Sec. 499. Will not prejudice previous underlease. Sec. 500. Operation on underleases. Sec. 501. How a surrender must be alleged in pleading, Sbc. 502. When presumed. Seo. 503. Surrender may be presumed when. -Sbc. 504. When it Occurs. ■Sec. 505. What amounts to. CHAPTER XLIV. MEEGBE. CHAPTER XLV. EOEFEITUKB. Sec. 606. How incurred. Sec. 507. By record. Sec. 508. By acknowledgement of a title in a stranger, Seo. 509. By Statute. Sec. 510. Time and place of performance of condition. Seo. 511. Effect of the statute of limitations. Sec. 512. Estate of party entering. Seo, 513 Construction of provisoes for re-entry in leases. Taulb of Contents. 'Sec. 514. Who may avail themselves of a forfeltu SEC. 515. 32 Hen. 8, v. 34. Sec. 516. Entry for a forfeiture generally. Sec. 517. Demand of rent. — In what actions unnecessary. 'Sec. S18. Waiver of forfeiture, what amounts to. Sec. 519. Lessor must have notice of forfeiture. CHAPTER XLVI. FIXTURES. Seo, 520, Meaning of the term " fixture. ■Sec. 521. " Tenant's fixtures." Sec. 522. " liandlord's fixtures." Sec. 523. What are not fixtures. Sec. 524. Between what persons questions as to fixtures arise. Sec. 525. General rule as to fixtui'es. Sec. 626. General rule as to annexations by a tenant. Sec. 527. Exceptions to general rule. Sec. 528. Trade fixtures. Sec. 529. Decisions as to trade fixtures. Sec. 530. Fixtures for ornament and convenience. — What may be removed. Sec. 531. Contracts respecting fixtures. Sec. 532. When the tenant may remove fixtures. . Sec. 533. How the removal must be affected. Sec. 534, Eemedies respecting fixtures.— Remedies for the wrongful removal of fixtures Sec. 535. Remedies to recover the value of fixtures. Sec. 5.36. Remedies to recover damages for an improper sale of fixtures. Seo. 537. Buildings erected by tenant upon leased hands. CHAPTER XLVII. RIGHTS, EEMEDIES AND LIABILITIES OF THE PAKTIES. Sec. 538. Of the landlord. Seo. 639. Landlord's liability to third persons. Sec. 540. Right of entry. Seo. 541. Rights of tenant. Sec. 542. Remedies tor recovery of rent by distress. Sec, 543. What may be distrained. Sec. 544. Where and wlieii must be made. Seo. 545. How may be made. Sec. 646. Sale of distress. Seo. 547. When distre.s.s is irregular and remedies for. Sec. 548. Irregular distress. Sec 549. Use and occujialion. Sec. 550. Defences to action. Seo. 651. Premises Ut inr illegal purposes. Seo. 552. Damages recoverable. Seo. 563. Debt for rent. Sec. 554. Eemedies in court of equity. Seo. 555. Tenant must deliver up possession. Seo. 566. Encroachments by tenant. Sec. 557. Double value Seo. S58. Double rent. Seo. 559. Outgoing and incoming tenant Sec. 560. Eight to crops, &c. Sec. 561. Emblements. Seo. 562. Forcible entry and detainer. Sec. 663. Punishment by action. Sec. 564. Punishment by justices. Seo. 565. Eestitution how made. xiv Table of Contents, S2C. 566. 5 Hie. 2, c. 3. Sec. 667. Riot. Sec. 568. "What is forcible entry. $ECv 569. By whom may be made. Sec. 570. Wbat is a forcible detainer. Sec. 571. Remedies to obtain possession, ejectment. Sec. 572. Mesne profits. Sec- 573. Summary proceedings. Sec. 574. When a tenant may be removed summarily inNew York, Sec. 575. Who entitled to summary relief. Sec. 576. How applications must be made. Sec. 577. Petition by neighbor of bawdy house. Sec. 578. To whom application should be made. Sec. 579. What should be stated in the petition. Sec. 680. How served. Sec. 581. Amendments &c. Sec. 582. Answer, issues, &c. Sec. 583. Trial by jury. Sec. 584. Change of venue. Sec. 585. Adjournment. Sec. 586. Final order. Sec. 587. How possession is obtained, stay of warrant, &c. Sec. 588. Wlien lessor may redeem. 4 Sec. 589. Appeal, effect of, Powers of Appellate Court. TABLE OF CASES. Abbey v. Avelland, 246 Abbey v. Fetch, 945 Abbey v. Billings, 601, 138 Abbott V. Alsdort, 333, 489 Abbott V.Blair, .280 Abbott T. Crocnbie, 368 Abbott V. CroLiiartie, 372 Abbott V. May, 206 Abbott V. Parsons, 838, 138 Abbott V. Stewartson, 381 Abbott V. Wilkin, 364 Abdy V. Stevens, 863 Abeel v. Eadcliffe, 18, 25, 673, M9 Abell V. William, 905, 907 Aberoi'ombie v. Eedpath, 750, 929 Abney v. Miller, 680 Absalom v. Nimey, 934 Accidental Ins. Co. v. Mackenzie. 930 Academy of Music v. Haokett, 743, 742, 817 Academy v. King, 137 Acliison v. Fair, 680 Acbey v. Hull, 702 Achraest v. Mingay, 497 Aokroyd v. Smitb, 380 Acklaiid T. Luttey, 110, 450, 843, 859, 459 Ackeimau v. Lyman, 949 Ackerman v. Lyman, 2 Acocks V. Phillips, 964. Acocks V. Phillips, 744, 861, 869. Acquachanock Water co. v. Watson, 399 Acton V. Bundwell, 413, 415 Acton V. White, 162 Addison v. Dawson, 109 Adams v. Adams, 154, 414, 924 Adams V. Beao.h, 130, 545 Adams v. Breverton, 702, 705 AdaTns v. Briggs Co. 125 Adams v. Capron, 206 Aday v. Echols, 284 Adam v. FrotWngham, 431, 378, 489 Adams v. Greene, 936 Adams T. Gibny, 482, 515, 518, 621, 666 Adams v. McKinney, 354, 972 Adams v. Pease, 390 Adams V. Power, 201 Adams V. Warner, 410, 411 Airicaii Society v. Varick; 143 Ager V. Brown, 363, 828 Agand v. King, 63, 465 Agar v. Young, 369 Ainsworth v. Allen, 128 Aiken v. Blanchai-d, 141 Aiken v Smith, 253 Akelery v. Vilas, 564 All and v. Rus.sell, 981 AUcock V. Tyler, 968. Allen V. Alleji, 303, 898 Allen V. Anderson, 853 Allen V. Babbington. 569, 573 Allen V. Beal, 269 Alien T. Bennett, 268 Allen T. Blackenay, 860 Allen V. Brown, 849 Allen V. Bayair, 961 Allen V. Culvert 228 Allen T, Chatfield, 981, 368, 980 Allen v. Culver, 598, 605, 501 Allen V. Culvert, 358 Allen V. DeWitt, 367 Allen T. Devlin, 831, 840 Allen V. England, 52, 974 Allen V. Feland, 354 Allen V, Fiske, 362 Allen V. Howe, 590 Allen V. Jaquish, 16, 78, 95, 833, 835 Allen V. Mack, 921 Alleti V Moses, 335 Allen V, Ogden, 203 , Allen V. Pell, 765, 802, 815, 816 Allen V. Smith, 337 Allen V. Thayer, 374 Allen V. Wooley, 549, 503 AUis V. Billing 169 Alley T, Carlton, 380 Alley V. Deschampa, 283 Allore V, Jewett, 171 Alley V. Carlton, 381 Allegro V, Maryland Ine, Co. 477 Albam v. Ellis, 480 Albert v. Zeigler, 465 Alchorne v. Gomnie, 187, 933 Aldershaw v. Breach, 71 Aldenburgh v. People, 835, 843, 939 Aldereon V. Miller, 371, 374, 369 Aldridge v. Gt. West Rail, Co. 709 Aldridge v. Howard, 655, 664 Alder V. Keightly, 642 Aldrife v. Eibuyre, 185 Aldrich v. Reynolds,. 895 Aldridge v. Sturtevant, 913 Alder V. Fouracre, 680 Alderman v Nealej 259 Alderson v. Miller, 981 Aldrage v. Crampton, 295 Alexander v. Alexander, 206 Alexander v. Dyer, 961 Alexander v. Harris, 62 Alexander v. Frontman, 757 Alexander v. Mann, 438 Alexander v. Warrance 735 Alford V. Viokery, 86, 87, 734, 933 Algar V. Watson, 21 Alger T. Kennedy, 619, 803, 805 Alger V. Thacher, 669 Alpine v. Swift, 677 Alscheimer v. Krohn, 617 Alston V. Scales, 916 Alston V. Trans Co. 488 Alsop V. Pine, 221 Althorp V. Wolf, 928 Alton V. Pliom, 378 Alton V. Pickering, 41 Alton V. Trans, Co. 486 Alwood V. Mansfield, 368 Alyward v. Kearney, 214 Amat V. Alexander, 673 American Co. v. Bradford, 167, 407 American Bible Society v. Marshall, 13T American Ins. Co. v. United States, 208 Ames V. Burt, ,326 Ames V. Daivany, 176 Ames V, Schnesler, 3, 771j XVIU Table of Cases. Amas V. Ferrandon, 885 Amoskeag Co. v. Gordale, 405 Amory v. Kauoyfsky, 828, 841, 843 Ambrose v. Nott, 2fJ9 Armstrong v. Stuvall, 821 Amsby v. Woodward, 360 Amliler v. Woodbridge, 533, 871, 654 Anonymous, IIG, 120, 126, 131, 176, 965 Anderson v. Baughmau, 377 Anderson v. Biiiloe, 425 Anderson v. Darby, 980 Anderson v. Darby, 15'i, 368 Anderson v. Dickie, 915, 917 Anderson v. Dugas, 334 Anderson t. Hill, 175 Anderson v. Lemon, 680 Anderson v. Martindale, 485, 507 Anderson v. McGowau, 180 Anderson v. Midland K. R. Co., 3, 932 Anderson v. Midland, 31, 38, 40, 255, 262 Anderson v. Nesiiiitli, 916 Andrews v. Paradise, 573, 579, 570 Anderson t. Pitcher, 477 Anderson v. Prindle, 10, 33 Anderson v. Tighe, 810 Anderson v. Turner, 177 Anderson v. Knox, 697 Andrews v. Russell, 944 Andrewji v. Bruintield, 220 Andrew v. Hancock, 766, 136, 684, 934 Andrews y. Needliam, 246 Andrews v. Pearce, 982 Andrews v. Halle, 964 Andrus v Vreeland, 853 Andrews v. Needliam, 782 Anthony v. Hanley, 353 Anthony v. Lapham, 401 Anthony v. Smith, 205 iLnderton v. Miller, 981 inderton v. Smith, 981 ingel V. Boner, 854 intoni V. Belknap, 880, 90T Arran v. Crish, 688 Angue V. Dal ton, 424 Angell V. Duke, 263 Angerstein v. Handson, 519 Antrobua v. Jepson, 863 Ardesco Oil Co. v. North American Oil Co., 769 Ardftsco Oil Co. v. N. N. Oil Co., 816 Annapolis, &c., R. R. Co. v. Gault, 189 Ainsworth v. Ritt, 603 AnseUs t. Robson, 951 Ainsley v. Rutter, 614 Ansley v. Wadsworth, 789 Angier v. Webber, 658 Ansly V. Woodard, 3iO, 360 Appleton V. Bascom, 133 Appleton T. Binks, 204 Appleton V. Campbell, 94 Appleton V. Mowry, 963 Armstrong v. Colby, 303 Armstrong v. Gilchrist, 962 Armstrong v. Mudd, 464 Armstrong v. Pearce, 327 Armstrong v. Taler, 954 Armstrong v. Wheeler, 552 Arnold v. Bidgood, 160, 178 Arnold v. Grimes, 175 Arnold v. Mundy, 390 Arnold v. Richmond, 169 Arnold V. Stevens, 407 Arnold v. United States, 451 Annott V. Alexander, 674 Astrey v, Ballard, 426 Argols Case, 177 Arthur V. Case, 401 Arbeither v. Day, 466 Archer v. Dalby, 197 Argent Y. Durant, 16, 924 Arquello v. Edinger, 284 Arkwright v. Gill, 413 Arrison y. Harmstead, 342 Arregsou v- Harrison, 533 Argill V. Hemshead, 558 Archdeacon v. Jenner, 728 Anworth v. Johnson, 637 Arcedeckne v. Kelk. 719 Armfield v. Tate, 956 Archer v. Marsh, 659, 660 Arbuckle v. Nelans, 931 Arnott V. Pittston, 659 Ardera v. Pnllin, 518, 582, 606, 613 Ardesco Oil Co. v. Richardson, 592 Argenti v. San Francisco, 142 Aundel v. Steeve, 389 Arden v. Sullivan, 5, 23, 32, 636 Arkland v. Sutley, 451 And V. Magruder, 204 Ards V. Watkins, 508 Arnfield v. White, 688, 690 Armshy v. Woodward, 66, 110, 181, 868 Arthur v. Vanderplank, 497 Ashy Y. Mohiim, 739 Astor Y. L'Amoreux, 553 Astor V. Hoyt, 541, 552, 554, 555 Astor Y. Miller, 502, 507 Astor V. Miller, 692 Astor V. Turner 184, 186 Astor V. Union Ins. Co., 4^5 Ashton V. Bretland, G69 Arthur v. Lamb, 714 Ashton Y. Undeihill, 447 Aslin Y. Parkin, 982 Aslln v. Summersett, 85, 119, 628 Ashtield y. Ashfield, 149 Aston Y. Aston, 711 Aston Y. Noonan, 678 Aspdin Y. Austin, 521 Ashman t- Ayers, 327 Astry V. Ballard, 99 Ash Y. Dragg, 271 Ashley v. Warren, 33 Astley Y. Weldon, 759, 760, 761 Ashley v- Wivcot, 398 Atkins V. Chillson. 745, 747 Atkyns y. Horde, 215, 216 Atkyns y. Horde, 225 Atkyns y. Horde, 217 Atkyns y. Kinnier, 658 Atward Y. Barham, 286 Attack V. Brumwell, 936, 961, 946 Attoe Y- Hemmings, 540 Atto Y. Hemmings, 376 Atto Y. Hemmings, 867 Atton V. Pickering,,!) Atkins Y. Brynes, 783, 934 Atkins Y. Cilson, 598 Atkins Y. Humphreys, 949 Atkins V. Horde, 223 Atkins V. Sleeper, 450 Atkinson v. Coatsworth, 366 Atkyns v. Kinnier, 759 Attorney-General y. Backhouse, 240 Attorney-General y. Baliol College, 241 Attorney-General y. Baliol College, 211 Attorney-General v. Bishop of Ely, 681 Attorney-General v. Brooks, 240, 668, 669 Attorney-General y. Countess of Portland, 227 Attorney-General y. Cross, 240 Attorney-General y. Cox, 339, 861, 506, 850 Attorney-Genera) v. Dixie, 240 Attorney-General v- Foley. 823 Attorney-General y. Foord, 240 Attoniey-General y. FuUerton, 724 Attorney-General V. Gore, 137 Attorn ey-Geiieral y. Green. 242 Attorney-General y. Griflitb, 246 Attorney-General y. Griflith, 287 Attorney-Gejieral v. Hatham, 237 Attorney-General v. Hungerford, 240 Attorney-General y. .Tolly, 239 Attorney-General y. Maywood, 242 Attorney-General y. Mayor of CoYentry, 731 Attorney- General y. Newbury, 240 Attorney-General v. Moses, 137, 246 Attorney-General y, Morgan, 240 Table of Cases. xis -Attorney-General v. Kerr, 210 -Attorney-General v. Owen, 237 Attorney-General v. Pavgetur, 243 Attorney-General v. PemDroke, 2-U -Attorney-General v. Eochester, 241 Attorney-General v. Sltwell, 278 -Attorney-General v. Smith. 241, 669 Attorney-General t. So. Sea Co., 240 Attorney-General v. Gee. L. E., 402 Attorney-General v. Stewart, 402 Attorney-General T. Talbot, 239 Attorney-General v. The Mayor o£ Eye, 142 Attorney-General v. Warren, 669 Attorney-General v. ^, 675 Attorney-General v. Lord Hothman, 369 Attorney-General v. Leeds, 402 Attorney-General v. Lord Paley, 48 Attorney-General v. Warren, 237, 246 Attorney-General v. Wood, 394 Attorney-General v. Whitlor, 243 Ateherley v. Vernon, 855 Atward v. Mansfield, 368, 980 Austin T. Ewell, 277 Austin V. Field, 483, 603, 631, 798, 814 Austin V. Feridall, 332 Austin V Harris, 537 Austin V. Holt, 275 Austin T. Hudson E. E. B. Co., 915 Austin V. Sawyer, 336 Austin V. Stevens, 100 -Austin V. Thomson, 63 Austin V. Thomas, 132 Auter V. Miller, 271 Aubrey v. Fisher, 726 Aubray v, Jenkins, 116 Aurora Society v. Paddock, 138 Aukney v. Pierce, 370 Austell v. Eice, 203 .Avins V. Burges, 464 Averill v. Brady, 982 Avenell v. Croker, 944 Avenell v. Croker, 943 Avery v. Chesslyn, 875, 898, 899 Aughinbaugh v. Gopphenha£E6r, 356 Avery v. Fox, 393 Angerstein v. Handson, 634 Amswal v. Mills, 482, 497, 568 -Avery v. Langford, 659 Averrill v. Taylor, 184,253, 254 Aveline v. Whissou, 329 Avlett V. Ashton, 161, 162 Aymer v. Bill, 190 Ayroy's Case, 142 Ayres v. Duprey, 334 Ayer v. Starkie, 708 Ayar v. Young. 367 Anworth v. .Johnson, 582, 584, 594 Baber v. Harris, 491 Baboook v. Kennedy, 185, 186, 188 Babcock v. Orbison, 206 Babcock v. Scoville, 539 Babcock V. Williams, 508 Bacon v. Bacon, 927 Bacon v. Bowdin, 253, 259, 298 Bacon v. Brown, 10, 22, 25, 2.', 847 Bacon V. Gupling, 426, 429 Bacon v. Taylor, 157 Bacon v. Waller, 450 Bacon v. Western Furniture Co., 744, 746 Backett v. Bates, 281 Bachelome v. Gage, 497, 558 Backhure v, BrOwniC, 421 Bacon V. Waller, 450 Bradbee v. Governors of Christ's Hospital, 724 Baddeley v. Massey, 965 Badger v. Shaw, 904 Badeau v. Tyler, 962 Badoly v. Vigurs, 541, 554, 832, 867 -Baggs V. Muxley, 943 Baggott V. Orr, 389 3aggott V. Oughton, 232 Bagnall v. London N. W. E. E. Co., 623 Bagnall, v. G. E. Co., 622 Bagat V. Bagat, 703, 727 Baglor V. Peabody, 670 Bagallay v. Pettit, 509 Bagly v. Warhurton, 233 Bailey v. Delaplaine, 847 Bailey v. De Crespigney, 537 Baird v. Falliner, 7S5, 761 Bailey v. Foster, 367 Bailie v. Eadway, 539 Bailey v. Hughes, 574 Bailey v. Mason, 872 Bailey v. Oeden, 268 Bailes v. Weimian, 458 Bailey v. White, 464, 934 Bains v, Burbridge, 201 Bain v. Clark, 972 Bain V. Mattison, 177, 179 Bider v. Amhurst, 286 Baird v. Williamson, 416 Baker v. Boot, 771 Baker v. Davis, 684, 864, 884 Baker v. Greenhill, 686 Baker v. Gosling, 112, 134, 298, 545, 865 Baker v. Holtzapf ell, 631, 615, 818, 938 Baker v. Green, 686 Baker v. Hodgson, 601 Baker v. Jones, 522, 639, 860, 871 Baker v. Kennett, 149 Bakerv. Moll, 372, 368 Baker v. Pratt, 874, 841 Baker v. Boot, 3 Baker v. Eichardson, 442 Baker v. Swan, 246 Bakenian v. Talbut, 380 Baker v. Willoughby, 836 Baker v. White, 82, 143 Baker v. Wheeler, 125 Ball V. Beat, 214 Ball V. CuUimore, 33, 39, 43, 60 Ball V. Wvett, 603, 957 Ball V. Nye, 622 Balling v. Stokes, 687, 692 Balling v. Whittle, 892 Balleu V. Clark, 169 Ballon V. Hale, 124 Ballard v. Way, 257 Bailer v. New York, 995 Ballentine v. McDowell, 4 Baldwin v. Calkins, 412 Baldwin v. Eeed, 354 Baldwin v. Munn, 578, 642 Baldwin v. Walker, 185 Baldwin v. Van Vorst, 283 Balfour v. Weston, 582, 600, 614, 815 Balfour V. Willard, 667 Balder v. Blackborn, 156 Bainford V. Creasy, 719 Bamford v. Hayley, 109, 456, 550, 675 Earner v. Earner, 354 Bambaugh v. Bambaugh, 122 Bann v. Mayo, 695 Bank of Columbia, v. Patterson, 138 Bank of England v. Chambers, 138 Bank of Louisiana v. Bilery, 150 Bank of Middlebury v. E. & W. E. E. CO. Bank of Ogdensburgh v. Arnold, 186 Bank of Pennsylvania v. Wise, 749 Bank of U.-S. v. Dandridge, 138 Banks v. Ammon, 302 Bank v. Bailey, 327 Bank v. Beverley, 177 Bank v. Bugbee, 327 Bank v. Dudley, 176 Bank V. Eccles, 268 Bank v. Hall, 343 Bank v. Haight, 326 Bank v. Kyle, 433 Bank v Mitchel, 161 Bank v. Spenser, 332 Bank v. Warren, 330 Banks v. Haskie, 670, 671 XX Table of Cases. Banks v. "White, 613 Baiidy v. Cartwriglit, 264, 518 handle t. AmliurSt, 268 Barner v. Kacliime, 6iil Barner v. Sadioi)^, 398 Barnes v- Barnes, 352 Baiiaelber v. Battelle, 547 Barrey v. Burch, 484 Bawser v. Colby, 719 Bandy V. Caitwright, 564, 566, 568 Banett v. Duke ot Bedford, 687 Barrett V. Frencbi, 377 Bandums v. Fletcher, 794 Banders v. Fletcher, 807 Banorgee v. Havey, 200 Bainiibter v. Hyde, 943, 941 Biirrell v. Rolf, 297 Banhannon t. Lewis, ^27 Barrou v. Richards, 502, 915 Bartleon v. Smith, 941 Barret v. Thorndike, 342 Bawstion v, Taylor, 402 Barrick v. Thompson, 369, 149 Bancroft v. Wardwell, 94^, 953 Barrel v Wells, 403 Bannock v. Whipple, 21 Bangher v. Wilkins, 564 Barrett v. Parsons, 411 Barrett v. Barrett, 168, 699 Barrett v. Blagrave, 715 Barrett v. Buxton. 171 Barrett v. Duke ol Bedford, 686 ^arrett v. Dutton, 795 Barnett v. Spratt, 271 Barret v. Thorndike, 343 Barroilhert v. Battelle, 498 Barrington v. Clarke; 147 Burrows v. Gradin, 63 Barry v. Goodman, 262 Barry v. Merchants, 137 Barry v. Myent, 254 Barry v. Nugent, 259 Barber v. Laurence, 66, 865 Barlow v. St. Nicholas Bank, 689 Barclay v. Steamboat Co., 505 Barclay v. Pickles. 794 Barclay v. Raine, 504 Barclay v. Richardson, 675 Barclay v. Wainwright, 790 Bardwell v. Ames, 410 Bandine v. Fletcher, 566 Barfoot v. Freswell, 465, 486 Barker v. Barker, 927 Barker t. Brown, 769 Barker v- Barker, 915, 609 Bawker t. Burdkin, 336 Barker v. Davie, 962 Barker v. Dammer, 325 Barker v. Fletwell, 780 Barker v. Goldsmith, 865, 86S Barker v. Smark, 269 Barksdale v. Toomer, 508 Barksdale v. Payne, 271 Barker v. Seechrist, 374, 371 Barker v. Wilson, 145 Barney v, Adams, 865, 866 Barney v. Bennet, 952 Barry y. Glover. 861 Barnhartv. Campbell, 124 Barmso v. Maddan, 437 Barny v. Keith, 515, 616 Barnes v. Waterworks, 237 Barnes v. East London Waterworks, 2Z{ Barrusa v. Madan, 508 Barrusa v. Maddan, 509 Barnes v. Strohecker, 816 Barns v. Lea, 731 Barnum v. Barnum, 100 Bunny v. Wright, 137 Barnfather v. Jordan, 558 Barnard v. Godscall, 497, 558, 547 Bari'on v. Richards, 504 Bartlettv. Baker, 61 Bartlett v. Downe's, S52 Bartlett v. Greenleaf, 438 Barilett v. Farrington, 76!!, 792, 81^ Bartlett v. Rendle, 233 Bartlett v. Perkins, 337 Bartlett v. Sutherland, 177 Bartlett v. Wright; 301, 303, 308 Bartlett v. Woud, bbO, 883, 886. 887 Barton, v. Birney, 45 Barton v. Coe, 34 Barton v. Dawes, 466 Barton v. Dawes, 442, 378 Barton v. Fitzgerald, 491, 490 Barlow v. McKinley, 690, 606 Barlow v. Rhoder, 428, 3iU Barnfather v. Lee, 693 Bart V. Bart, 177 Bart V. State, 978 Bart v. Meats, 039 Bartleon v. Smith, 934 Bartle v. Vosburg, 467 Barthwaite v, Cooksey, 941 Barton v. Cox, 36 Barwick's Case, 96 Barwick v. Foster, 787 Baasett v. Bassett, 342 Bassett v. Company, 405 Baasett V. Salisbury Manufacturing Co., 404- Bassett v. Lewis, 452 Bassett v. Thomas, 207, 236, 298 Bastou V. Binney, 948 Bastouv. Cox, 66 Bascomb v. Philippe, 280 Battishill v. Reed, 916 Batten v. Earnley, 962 Batting v. Martin. 843 Batterman v. Piarce, 477 Baltimore v. Porter, 234 Bates V. Carran, i,81 Bates V. Wellis, 934 Bates V. B. & M. Y. R. R. Co., 327 Batchelder v. Batchelder, 49 Bakdieter v. Gage, 547 Bateman v. Allen, 548 Bateman v. Allen, 164 Bateman v. Hotchkin, 710 Baleman v. Murray, 677 Batishill v. Reed, 382 Baumannnv. Pamer, 267 Baumann v. Matthews, Baudeley v. Brook, 314 Baughv. Haynes, 221 Baugher v- Wilkins, 515 Baxter v- Bush, 146 Baxter v. Taylor, 915, 916 Bayley v. Bradley, 12 Bayley v. Fitzmanrice, 269, 454 Bavley v. Freeman, 552 Baylisv. LeGroB,360 Bayley v. Lawrence, 795 Bayley v. Peddie, 758 Bally V. Well, 132, 504, 523, 829 Baylis v. Church, 473 Baylis v. Dinely, 145 Baylis v. Le Gros, 588, 593, 664, 56& Baylis v. Le Gros, 339, 340 Baynham v- Guy's Hospital, 667 Baylis v. LeGros. 638 Boyer v. Smith, 980 Bangs V. Lowler, 509 Rayner v. Stone, 281 Bayne v. Walker, 602 Baynham v. Guys Hospital, 677 Ray V. Ayers, 915 Baylye v. Afford, 650 Bayntun v. Watton, 440 Beach v. Bainbridge, 989 Beach v. Grain, 599, 600 Beach v. Ferrish, 957 Beach v. Gray, 8 Beall V. Fox," 239 Beaty v. Gibbons, 968 Beale v. Hall, 367 Table of Cases. XXX Beale v. Hayes, 758 Boal V. Mix, 144 Beale v. Sanders, 5, 35, 79, 341, 662, 823 Baale v. White, 848 Beals T. Prov. R. E. Co., 687 Beals V. Providence Rubber Co., 687 Bealey v. Stuart, 520 Bealsy v. Sbaw, 412 Beaman v. Russel, 346 Bean v. Atwater, 509 Boau T. Coleman, 'i08, 380 Baaulieu v. Fiiiglam, 707 Beavau v. Delabay, 823 Beard v. Dennis, 659 Beard v. Durald, 306, 879 -Baardeu v. Rich, 758 Boaringer v. O'Hare, 931 Beardsley v. Knight, 326 Bealey v. Shaw, 400 Boaran t. DeKhaye, 587 Beanfort v. Bates, 591 Bentley v. Sill, 793 Baaty v. Gibbon, 665 Beatson v. Nicholson, 288 Beaumont v. Boulsbee, 210 Boarpaik v. Hutchinson, 751 Beauchamp v. Vanderheuvel, 45 Behoboth v. Behoboth, 137 Beckv. Allison, 639 Beck V. Rebour, 875, 897, 898 Beckett v. Bradley, 368 Beckham v. Drake, 761 Beokly V. Shafter, 421 Beckwith v. Fribbie, 172 Becar v. Flues, 927 Becker v. Forest, 927 Bedford v. Ford, 246 Bedford v. Kendrlck, 748 Bedford v. McEtherron, 78 Bedford T. Terhune, 544, 740, 834, 842 Bedford V. Terhune, 131, 543 Bedell v. Constable, 156 Bedingtord v. Onslow, 915, 927 Bedinger v. Wharton, 120 Beer v. Beer, 790 Beers t. St. John, 699 Bees T. Williams, 843, 848 Beel V. Hayden, 642 Beeson v. Carlton, 143 Beeckman v. Frost, 333 Beekley v. York, 220, 844, 325 Beely v. Perry, 541 Bell V. Armstrong, 622 Ball V. Chad wick, 982 Boll T. Elliott, 352 Bell V. Ellis, 40, 42 Bell V. Golding, 305 Boll V. Hayden, 688, 640 Bell V. Keefe, 327 Bell V. Twentyman, 622 Bell V. Quirk, 342 Bell V. Sawyer, 469 JBell V. S-ammon, 376 Ball V. Stewart, 9 Bell V. Teirney, 853 Bell V. Twentyman, 916 BoUany v. Brickender, 524 Bellany v. Burroughs, 295 Bellasis v. Burbriche, 63 Bollows V. McGinnis, 706 Bellasis v. Burbriche, 927 Bellas V. Hays, 203 Bellany v. Smith, 797 Belcher v. Collins, 192 Bellingham v. Alsop, 246 Belph T. Gist, 326 Belaryse v. Lucan, 309 Bellingham v. Alsop, 118 Belson v. Patterson, 432 Belcher v. Mcintosh, 591, 593, 628 Belate v. White. 233 Bemis v. Leonard, 451 Bemis v. Wilder, 533, 537 Bennan v. McDonnell, 170 Bennett v. Davis, 145, 158 Bennett v. Bittle, 350, 794, 566 Bennett v. Bayes, 934 Bennett v. Herring, 540, 552, 588, 604, 638, 639 Bennett v. Higgins, 234 Bennett v. Ireland, 36, 71, 341, 602 Bennett v. Judson, 208, Bennett v. Long, 89 Bennett v. Nichols, 450 Bennett t. Lynch, 498, 497 Bennett v. Robins, 933 Bennett v. Turner, 14. 17, 50 Bennett v. Reeve, Wilier, 385 Bennett v. Vade, 361 Bennett v. Waller, 503 Bennett v. Vanscykle, 539 Bemiett v. Womack, 264 Bennett v. Womack, 228 Benson v. Bollis, 10 Benson v. Chester, 385 Benson V. Gibson, 760 Benson V. Holbs, 509 Benson v. Saurey, 640 Benedict v. Gaylord, 432, 488 Benedict v. Lynch, 273 Benton v. Bailey, 184 Benton v. Barclay and Perkins, 554 Bower V. Hill, 915 Bentley v. Sill, 737 Benan v. Delahaye, 3 Benjiit v. Pixlej, 437, B09 Bendall v. Sunnnersett, 176 Bensell v. Chancellor, 169 Bertram v. Cook, 980 Berry' V. Derry, 342 Berry v. Cayly, 393 Berry v. Heard, 430, 915 Berry v. Ljndley, 323, 823, 949 Berry v. Moore, 785 Berry v. Staunton, 535 Berry v. Tauntan, 533 Berry v. Van Winkle, 671 Berry v. Wisdom, 758 Berry v. Wright, 302 Berry r. Young, 269 Berry v. Lindley, 71, 72, 75, 81, 83, 823 Berry v. White, 217 Berriman v. Peacock, 726 Bergman v. Robert, 982 Bernard v. Bonner, 838 Berney v. Moore, 133 Bernard v. Bonner, 835 Bertie v. Beaumont, 52 Bethell V. Blencowe, 85 Bertrand v. Bird, 326 Besdel V. Landsberg, 832, 838, 840 Best V. Drake, 717 Beswich v. Swindell, 490 Betts V. Burch, 760 Bettison v. Budd, 373 Betterworth v. Dean, &c. , of St. Paul's, 667 Betteley v. Stainsby, 526 Betknap v. Trimble, 399 Bevierley'9 Case, 169 Beverley v. Gas Light Co., 69 Beverley v. The Lincoln Gas Co., 140 Bevan v. Crooks, 936 Beavau v. Delahay, 940 Bevan v. Hapgood, 224 Benjamin v. Heeney, 610 Bevan v. Metropolitan Board of Works, 415 Bewick v. Whitlield, 915 Bewick v. Winglield, 727 Bex V. Baker, 973 Bever v. Dickinson, 815, 877 Biddle v.. Ash, 315, 316 Biddle v. Biddle, 931 Biddle V. Reed, 610 Biddle V. Vanderventer, 110 Biddulph V. Goole, 828, 832 Bedford v. Terhune, 113 Bickford v. Parson, 519. 637, 713 Table of Casks. Bicknell v. Hood, 255, 262, 299 Biokford v. Parson, 363 Biggs V. Brown, 972 Biggins V. GoodQ, 947 Bigelowv- Wilson, 451 Bigelow V. Collamore, 599 Bigelow V- Lehftr. 336 Bigelow V. Topliffl, 121, 123 BillT. Wilson, 4aO Billings V. Ames, 659 Billingisley v. Hersey, 296, Bilbie V. Lumley, 277 Billows T. McGinnis, 803 Billiter v. Young, 535 Binney v. Cliapinan, 980 Binks T. South Yorkshire Railway and Kiver Dun (Jo-, 724 Bingham v. Sprague, 35 Bird V. Baker, 451, 687, 820 Bird T. Bird, 302 Bird V. Carital, 951 Bird V. Defouville, 84, 811 Bird T. Elwes, 592, 594 Bird V. Great Eastern R. E. Co., 350 Bird V. Hjgginson, 13S, 733 Buckland v. Butterlleld, 897 Birch y. Dawson, 896, 898, 899 Birch V. Stephenson, 309, 664, 769 Birch V. Wright, 64, 82, 114, 187 Birmingham Canal Co, v. Bold,- 140 Birmingham t. Sheridan, 281 l^irdsong v. Birdsong, 171 Bishop of Bath's Case, 453 Bishop T. Bishop, 898 Bishop of Rochester v. Bridges, 807, 836 Bishop V. Bryant, 944 Bishop V. Elliott, 809, 898, 899 Bishop V, Howard, 18, 63, 79, 823, 949 Bishop of Winchester v. Wright, 960 Bissell T. Bissell, 451 Brish T. Calis, 503 Bish V. Keeling, 650 Bissell V. Mooney, 334 Bigelow V. Stutphen, 342, 344 Bittinger v. Baker, 972 Bittsworth T. Dean, 277 Bithell V. Blencowe, 82 Beach t. Cain, 588, 595, 600 Black V. Elner, 598, 611, 639, 768, 815, 816 Black's Estate, 177 Bluch T- Isham, 600 Black V. Mayes, 965 Black T. Payne, 189 Black V. Sheene, 332 Beach V. Farrish, 615 Blackney v. Bagot, 211, 212 Blackmore v. Boardman, 550, 667, 670 Blackspur's Case, 121 Blacknell v. Plowman, 852 Blackett V. R. Ex,, 476 Blackburn v. Smith, 208 Blackett v. Balis, 280, 283 Blackburn t. Edgley, 313 Blacknev v. Ferguson, 368, 980 Blackha'll v. Coombs 962 Blackwilder v. Loveless, 271 Blades y. Arundel, 737 Blades t. Higas, 963 Blair v. Claxton, 801, 809 Blain t. Eyerett, 76 Blair v, Hardine. 517 Blair v. Street, 50 Blake t. Baker, 692 Blalce T. DelisBhue, 941 Blake t. Foster, 117, 236, 367, 933 Blake v. Fosh, 336, Blake v. Graham, 334 Blake v. Jerome, 355 Blake v. Phinn, 134, 557 Blake V, Sanderson, 5, 663, 547 Blanchard v. Baker, 400 Blancharrt t. Brooks, 184 Blanchards &c. Co. t. Warner, 137 Blanchard v. Dyer, 128 Blanchard v. Puter, 395 Bland v. Lynscombe, 389 Bland T- Inman, 754 Blaiidford v. Marlborough, 687, 688 Blaney v. Bearce, 183 Barry v. Glover, 9t>4 Blatchford v. Mayer, 432, Blalchford \. Plymouth, 577, 571 Blatchford v. Mayor &c. of Plymouth, 571' Blanche v. Bradford, fi35 Bleecker v. Ballon. 691 Bleeckner v. Smith, 435 Bleakley v, Sniitli, 267, 268 Blencoe v. Bugby, 104 Blencowe v. Bugby, 533 Blether v. Lanb, 877 Blewitt V. Coleman, 125 Blewitt V, Tugouing. 389 Blenkman v. Gt. Central Gas Consumers' Co., 710 Bliss V. Conn. R. E. Co.. 169 Bliss V. Collings, 787 Bliss V. Mclntyie, .342, 343 Bliss V. Whitney, 877, 884 Blithen v. Fowle, 883 Bloomer v. Murrel, 8, 686, 687, 617, 845 Bloomer v. Henderson, 334 Blood V. Goodrich, 123, 200 Blogg V. Holmes, 163 Blose T. SuttoJi, 116, 202, 267, 268- Blossom T. Vancourt, 688 Blossom V. Brightnian, 124 Blount V. Johnson, 179 Bloxam v. Walker, 574 Boardman v. Osborn, 7.36, 737 Boardman v. Mostyn, 229, 285, 286 Boardman v. Osborn, T37 Bobik V. Rose, 415 Bodman v. American, 142 Bodine V. Gladding, 273 Bodehan v. Putchard, 313 Boggs v. Black, S3 Boggs V. Hargrove, 1S4 Bogart V. De Bussey, 204 Bogardus, v. Trinity Church, 124- Bogen V. Waler, 367 Bohuman v. Hugh, 326 Bokannan v. Lewis, 600 Boleston V. Kew, 715 Bollis V. Benson, 10 Boiling V- Stokes, 086 Bolton V. Bishop, 343 Bolton V. Bishop of Carlisle, 830 Bollin V. Carlisle, 326 Bolton V. Grantham, 216 Bolton r: Landens, 88, 89 Bolton T. Tomhn. 36, 341 Bolder V. Blackboru, 165 BoliYar v. Mfg. Co., 399 Bond V. Cartwright, 120 Bond V. Fay, 302 Bond V. Lockwood, 705 Bond T. Rosling, 323, 258, 35T Bond T. Storris, 204 Booth V. Alcock,316 Booth T. Macfarlane, 965 Booth V. Ammerman, 694 Booker V. Anderson, 239 Booker v. Kent, 249 Booker V. Stivender, 342 Booth V. Wilson, 923 Boodle V. Campbell, 961 Boodle V. Cam[>bell, 766, 767, SOS Boone t. Inn Co., 281 Boone v. Eyre, 509 Bool v. Mix, 14.-, 158 Bootheroyd y. WooUey, 788 Boothby v. Hathaway, 572 Boach V. Damson, 365 Boulton T. Canon, 498, 552 Bowser v Cobly, 5.35 Boultbee v. Stubbs, 785 Table of Cases. xxui Bowen v. Brick, S64 JJowen V. Irish, 271 Bonomiv. Backhouse, 417 Bomier v. Caldwell, 283 Bowes V. CroU, 499 Bowerman t. Sybourn, 852 Boraston v. Green, 3 Boraston's Case, 458 Borough's Case, 98 Borgnis v. Edwards, 594 Borastou v. Green, 823 Boscowen v. Bliss, 533, 860, 865 Boston Bank v. Chamberlain, 150 Boston V. Benson, 343 Boston &c. V. Condit, 122, 124 Boston & Worcester R. B. Co. T. Bipley,789, 800 Boston &o. E, E. Co. T. Bartlett, 252 Barlow v. Wainwright, 37 Bosley v. Sliauner, 172 Botts V. Armstrong, 973 Betting v. Martin, 106 Boudereau v. Mojitgomery, 177 Bonhain v. Newcomb, 199 Bonoyan v. Palmer, 119 Boudette v. Pierce, 731 Boulton V. Reynolds, 934 Boult V. Symonds, 5 Bowens v. Cator, 285 Bowes V. CroU, 79 Bowers v. Gatcliffe, 475 Bowers v. Nixon, 739, 769, 700 Bowers v. Williams, 178 Bowdish V. Dnpuque, 372 Bowdish V. Dubuque, 368 Bowry v. Bennett, 94 Bonney v. Seeley, 133 Bowman v. Bates, 174 Bowman v. Bofl, 327 Bowman t. Fool, 339, 340, 744 Bowman v. Lewis, 192 Bowman t. Wood, 451 Bowen v. Bowen, 532 Bowes V. CroU, 74 Bowes V. B. London W. Co., 114, 220 Bower v. Marshall, 500 Bowerman v. Sybourn, 852 Bosworth V. Sturtevant, 302 Bowen v. State Bank, 142 Boyse v. Ambrpse, 758 Boys V. Ancell, 760, 761, 761 Boys V. August, 267, 268 Boyce v. Brown, 382 Boynton t. Finnall, 160, 163 Boyce v. Gundy, 467 Boyce v. Guggenheim, 315 Boyce v. Watson, 175 Boyd V, Plumb, 203 Boyd V. Profaze, 941 Boydell v. McMicliael, 902, 903, 911 Boynton v. Babbitt, 808 Boynton t. Reynolds, 32' Boyle V. LysagM, 677 BjyleT. Faurbyn, 723 Bozeman v. Browning, 144, 148, 150, 151 Braoebiidge v. Cook, 166 Brace v. Whnert, 280 Brace ¥. Yale, 404, 412 Bracklington v. Saunders, 74 Bradley v. Bentley, 465 Bradley v. Covel, IB, 21, 23, 51, 75 Bradley t. Pigott, 931 Brady v. McKenney, 149 Brady v. Peiper, 829 Brady v. Spuroh, 132 Bradford v. Cressey, 300, 431, 489 Bradford T. Pratt, 915 Bradford v. P.itter, 667, 676, 678 Bradbury v. Wright, 735, 933 Bradbury v. White, 277, 462, 688 Bradshaw v. Bradbury, 302 Bradburne t. Batfleld, 126, 483, 485 Bradwell's Case, 457 Bradfleld v. McCormick, 326 Bradstreet v. Clark, 775, 777 Bragg V. Wiseman, 5, 17, 52, 112, 516, 521 Brahu V. Jersey City Forge, 368 Brahan v. Pope, 757 Brainerd v. Arnold, 778 Braitliwaite v. Cooksey, 946 Braithwaite v. Skir-ier, 960 Braithwaite v. Hitchcock, 3, 32, 33, 36, GO Braman v. Bingham, 333 Bramston v. Eobins, 136, 693, 763, 767 Brawley v. Wade, 541 Brandon v. Astor, 534 BKjindon v. Brandon, 197, 855, 933 Brandon v. Calvert, 852 Brandon v. Guinke, 337 Brandon Mfg. Co. v. Morse, 46f Branch Bank v. Fry, 186 Branch v. L>oane, 354 Branch v. Morrison, 896 Bramston v. Kobins, 684 Brane v. Rawlins, 11, 83 Brassae t. Martyn, 274 Bronson T. Coflin, 604 Branger v. Mancleb, 493, 616 Brashin t. Jackson, 260, 565 Bratton v. Clamson, 469, 854, 877, 888 Bransoombe v. Bridges, 934, 946 Brand v. Frumveller, 604 Bray t. Fogarty, 654, 657 Braythwayte v. Hitchcock, 341 Bree v. Holbech. 184 Bree v. Lees, 454 Breed v. Cunningham, 308, 319 Breed v. Green, 764 Brend v. Frumvelle, 670 Breese v. Bangs, 839 Breok v. Blanchard, 172, 172 Brecknock Co. v. Pritchard, 692 Bremmer v. Hill, 131 Bremer v. Conover, 9, 42 Bremer v. Knapp, 18, 20, 68, 76 Bremer v. Marshall, 132 Brennan v. Whittaker, 884, 885 Brevard v. Miley, 331 Brewer v. HiU, 504, 533, 545 Brewster v. De Fremeny, 582, 614, 624 Brewster v. Edgerly, 755, 755 Brewster v. Kidgell, 684 Brewster V. Kitchen, 6^8 Brewster v. Kitchell, 514 Brewster v. Parrott, 836 Brett V. Cumberland, 479, 494, 498, 558, 675 Brett V. Read, 748 Breton v. Evans, 161, 366 Breton v. Twohey, 6G6 Brellv. Cook, 252 Bremen v. Craig, 948 Brice v. Carre, 465 Brick V. Middleton, 976 Bridges v. Duke of Chandos, 851 Bridges v. Hitchcock, 677, 670 Bridges v. Longman, 654 Bridges v. Potts, 78. 790 Bridges v. Purcell, 331 Bridges v. Smythe, 932 Bridgman v. David, 534, 864 Bridge v. Pierson, 493 Bridge Co. v. Sids, 138 Bridges v. Winters, 345 Bredm v. Dubarry, 202, 206 Briggs V. Fish, 183 Briggs V. Hull, 792, 794 Briggs V. Oaks, 666 Briggs V. Large, 936 Bright V. McOuat, 77 Bright V. Rowland, 756 Brigham v. Calvert, 203 Bigelow V. Cattaniore, 600 Birkhead v. Cumins, 927 Brillhart v. McConnell, 200 Brinway v. Cobb, 878 Briscoe v. Kennedy, 161 XXIV Table of Cases. Brinckerhoff v. AH, 755, 757 Brinkley v. Walcott, 772, 771 Brisdeu v. Husaey, 15ti Brititow V. Old, 873 Brittain v. Newland, 142 Brittin v. Vaux, 638, 552 Breitliaupt v, Thurmond, 201 Bite V. Guest, 264 Brock V. Bprry, 925 Brodie v. St. Paul, 278 Brooks V. Biggs, 930 Brook V. Brydges, 869 Brooke v. Bulkeley, 504 Brooks V. (Jtristoplier, 780, 812 Brooks V. Cliftou, 927 Brooks V. Cunniiigliam, 732, 739,773 Brooks V. Galster, 908 Brooks V. Goring, 837 Brookes v. Humphreys, 575, 579 Brooke t. Noakes, 937 Brooks i^ Reynolds, 315, 316 Brooke v. Stone, 524 Brooks V. Wilcox, 773 Broom t. Hore, 496, 508 Browne v. Amyott, 790 Brown t. Austin, 332 Brown v. Adams, 775 Brown t. Armistead, 179 Browne v. Amyot, 750 Brown v. Burtinshaw, 846 Brown t. Bellows, 758 Brown v. Byne, 476 Brown t. Burtenshaw, 843 Brown t. BuiTington, 682 Brown v, Burrington, 614 Brown t. Bush, 412 Brown v. Crump, 519, 582, 634, 662 Brown v. Duncan, 937 Brown v. Dunning, 946 Brown t- Dysinger, 981 Brown v. Dysinger, 373 Brown v. Eaton, 200 Brown v. Guy, 659 Brown v. Glenn, 941 Brown v. Hobson, 179, 180 Brown v. Illins, 402 Brown v. Jaddrell, 170 Brown v. Keller, 15, 76, 88, 111, 370 Brown v. Kennedy, 390 Brown v. Langley, 488 Brown v. Lindsay, 161, 163, 164 Brown v. Lyddy, 671 Brown v. Mayor, &c., of London, 514 Brown v. Maulsby, 768 Brown v. Manter, 377 Brown t. McFarren, 324 Brown v. McKie, 500 Brown v. Meady, 428 Brown v. New York, 989 Brown v. Kite, 925 Brown v. O'Dea, 956 Brown v. Parsons, 678 Browne v. Powell, 769, 934 Brune v. Prideaux, 116 B.rown v- Quilter, 574, 602, 615, 818 Browne v. Rahau , 254 Brune v. Rawlings, 5 Brown v. Rahan, 264 Brown v. Bynolds, 333 Brown v. Shevill, 935 Brown v. Lillie, 306, 876, 880 Browne v. Sligo, 279 Brown v. Stewart, 191 Brown v. Storey, 6, 188, 193, 196 Brown v. Trumper, 454, 589, 590, 595 Brown v. Thiesell, 319 Brown v. Thorp, 784 Brown v. Tighe, 450, 667, 670, 668 Brown v. Warner, 257, 261 ■ Brown t, Watson, 307 Brown v. Wilkinson. 78, 635 Brown v. Woodworth, 350 Broadnell v. Broadnell, 271 Broadwater v. Dome, 120, 171 Broadbent v. Ramsbottom, 398, 416 Brooking v. Cham, 574 BromJey v. Chesterton, 6-k'2, 962 Bromley v. Stanley, 832, 836, 838 Brownell v. Haskell, 957 Bromheld v. Smith, 71, 73, 82, 152, 262 Bron V. Thiesell, 308 Bronford v. Pearson, 342 Broughton v. Coffen, 284 Brown v. Robin, 418, 421 Brown v. Russell, 919 Brown v. Winckor, 418 Browning v. Beston, 104, 163 Browning v. Dann, 941 Browner v. Lambert, 648 Broughton v. Coffen, 284 Brough V. Higgins, 99 Brudnell's Case, 117, 121 Brummell v. McPherson, 529 Brunton v- Rainsford, 926 Bruiis V. Rawlins, 532 Bruce v. Ruler, 847 Brush V. Young, 179 Bryan v. Bancks, 532, 654, 748, 860 Bryan v. Bradley, 368, 488 Bryan v. Butts 183, 184 Bryan v. French, 114 Bryan v. Lawrence, 882 Bryne v. Van Hoesan, 156 Bryan v. Wetherhead, 314 Bryan v. Whistler, 134, 352 Bryan v. Windwood, 369 Bryant v. Duskee, 203 Bryant v. Wippel, 127 Bryden v. Bi'yden, 150 Bryne v. Beason, 5, 981 Bryne v. Romaine, 608 Breyman v. Noyes, 652 Bryson v. Whitehead, 659 Bu'bb V. Yelvei-ton, 712 Buchanan t. Exchange Ins, Co., 306 Buchanan v. King, 728 ■ Buebanan v. Munroe, 189 Buck V. Buck, 289 Brels V. Jhue, 404 Buck V. Morton, 309, 311, 313 Buck V. Keeling, 650 Buck V. Pike, 98, 599 Buck V. Rogers, 610 Buckland v. Papillon, 110, 264, 539, 898 Buckiier v. Briggs, 138 Buckland v. Buttertield, 875, 883, 890 Buckland v. Hall, 274, 483, 680 Buckley v. Buckley, 884, 885 Buckley v. Daley, 189, 190 Buckley v. Pick, 503, 605 Buckley f . Taylor, 737, 932 Buckley v. W^illiams, 675 Bucklin's Case, 96 Buckhead v. Commins, 292 Bucher v. Crouse, 156 Beckman v. Kreamer, 390 Buckonib v. Phillips, 276 Bucks V. Rogers, 816. Buckworth v. Simijsou, 561 Buckhaven v. Strug, 390 Buckmaster v. Thompson, 272, 273 Bridge Co., v. Briggs, 352 Bridges v. Mather, lU, 343, 343 Biidlods V. Phillip, 754 Buerger t. Boyd, 631, 603 Buemin v. Caffcr, 337 Brell V. Cook, t.'62 Buner v. Hill, 2,. J, 299 Bulfum V. Deane, 808 Butferlan v. Menson, 373 Bull V, Ellis, 9 Bullv. Sibbs, « Bull V. Wyatt, 450, 699 Bullock V. Doniniitt, 692, 599, 600 Bullock T. Wilwon, 396 Bullen v. Denning, 427, 431 Table of Cases. XXV rBulwer v. Bulwer, 45 Bultin V. Dann«, 555 Bulky V. De Laoroix, 253 Bum V. Chaimer, 386 Buim V. Guy, 65», 658 Bungloe T. Goodson, 369 Bunii T. Phelps, 808 Buuner v. Storm, 176, 177 Burr V. Burton, 172 Burr V. Lewis, 451 Burr V. Spencer, 778 Burr T. Smith, 237 Burr V. Todd, 758 Burr V. Van Busklnk 737 Burris v. Jackson, 779 Burrows v. Graden, 82, 187, 194 Burroughs v. llichman, 171 Burbank v. Dyer, 76 Burch V. Pike, 588 Burdett v. Withers, 588, 596, 628, 644 Burdett v. Wrighte, 852 -Burden v. Thayer, 185 Buren v. Digges 758 Burgess v. Boetefour, 588 Burges V. Lamb, 712 Burgess v. Harris, 202, 206 Buckhardt v. Houghton, 352 Burk V. Baxter, 880, 882 Burke v. Creditors, 272 Burke v. Hale, 367, 980 Bulk V. Ritohenser, 391 Burleigh v. Coffin, 161 BurleighT. Stibbs, 324 Burling t. Reed, 17, 925 Burland t. Hurst, 468 BurlockT. Pick, 500 Burnham v. Ayer, 343 Burnham v. Hubbard, 6, 783, 847 Buraiham v. Eempton, 406, 407, 410 -Burnham v. Rogers, 948 .Burnside v. Mitchell, 892 -Barnside v. "Weightman, 750 Burnellv. Curtis, 254 Burne v. Cambridge, 126, 127 Burnev. Ewe, 437 Burne v. Richardson 984 Burney v. Adams, 195 Burney v. Mcliityre, 113 Burnby v. BoUett, 912 Burrell t. Bull, 680 Burnell v. Curtis, 260, 299 Burrows v. Gallup, 397 Burrell v. Guilford, 299 Burrows v. Pixley, 397 Burnett v. Frombeiger, 578 Burnett v. Guilford, 983 B irnett v. Lynch, 491, 497, 516, 548, 564, 675 Burns v. Phelp. 798 Burnett V. Little, 780 Burnton v. Hall, 432 Bunnick V. Morrie, 397 Buiister v. Kidgell, 443 Brough V. Whitmore, 477 Burner v. Bigelow, 370 Burns y. Cooper, 731 Burnill v. Rich, 370 Buron v. Bradley, 376 Burton v. Austin, 327 Burton v. Barclay, 541, 548. 552, 850, 961 Burton v. Bust, 266 -Burton v. Brown, 246 Burton v. Brown, 309 Burton v. Cai-ter, 337 Burton t. Pressley, 345 Bunton v. Smith, 284 BiLrton V. Stutley, 279 -Burt V. Slate, 973 Burwick v. Thompson, 980 Burrage v. Crump, 758 BuSBeU V. Landsberg, 949 Bussel V. Emm, 370 -Bussman v. Gauster, 92, 741 3us3el V. Shall, 404 Bussman v. Gauster, bl4, 803 Bussard v. Chapell, 313, 937, 946 Buskin t. Edwards, 776, 869 Bushnell v. Proprietors, 37, 78, 486 Bushby V. LittleHeld, 201 Buskurb V. Phillips, 257 Buswell V. Jackson, 504 Bushans v. Van Zandt, 694 Bush V. Coles, 427 Bush V. Whitney, 137 Butt V. Imperial Gas Co., 492 Butts V. Vookees, 973 Butterworth v. Crawford, 322 Butcher v. Butcher, 16, 924, 9 Bulman t. Hussey, 399 Butler V. Burleson, 658, 659 Butler V. Cowles, 9 Butser V. De Forest, 251 Butler V. Doddrington, 447 Butler V. Dodson, 447 Butler V. Gale, 696 Butler V. Swiniierton, 576, 571 Butler V. Miuiry, 0.34 Butler V. Maury, 509 Butler V. Mulvihill, 170, 171 BullerT. Powers, 268 Butler V. Rice, 82 Byron v. Acton, 277 Byran v. Banks, 339 Byrau v. Weatlierhead, 306 Bryon T. Denman, 86 Brown V. McAme, 365 Byers V. McClananan, 331 Byasse v. Reese, 877, 895 Byassie v. Reese, 895 Byrd t. Chase, 8, 949,952 Cabe t. Hill, 382 Cable V. Welborn, 672 Cady V. Quarterman, 63, 880 Cadby v. Martiney, 106, 662, 819, 829 Cadwallader's App., 108 Cadwallader v. Tindall, 73B CaddiJigton v. Dunham, 815 Cadman v. Johnson, 692 Cadogan v, Kennett, 91 Cahill V. Dawson, 526 Caimes v. Blucker, 200 Cains r. Chofert, 100 Cain V. Gurion, 372 Cains v. Jones, 334 Cain V. HearcL 200 Cairo, &c. R. B. Co. v. Niggins Ferry Co. 771 Cairns v. Chahert, 694 Callum V. Branch Bank, 696 Callahan v. DonnoUy, 658, 639 Callender v. Oelrichs. 636 Calveniug v. Claveiiig, 426 Calcock V. Ferguson, 152 Calvert v. Frowd, 89 Caldecott, v. Smvthies, 635, 967 Calvert V. Aldrich, 928 Calvert v. Bradley, 626 Calvert v. Seabright, 571 Calvert v. Reid, 667 Calvert v. Sebright 576 Calderwood v Brooks, 869 Calwell V. Lawrence, 755 Cavenaliv v. Ouget,36, 139, 362, 348 Callender v, Sherman, 371 Caldecott v. Smytliies, 473 Calmey v, Stanfield, 301 Caledonian K. R. Cr. y. Spot, 421 Calhorn v, Wilson, 598 California Steam Nav. Co. v- Wright, 659 Campbell v. Arnold, 916 Campbell v. Johnson, 501, 602 Campbell v. Lewis, 1.32, 547, 579, 573 Campbell v. Leach, 21C, 220 Campbell v. Malloiiy, 989 Campbell v. Shield, 779, 793, 876 Campbell v, Shipley, 746 Campbell v, Wenlock, 633 Table of Cases. CahJll V. EastmaD, 623 Camp V. Camp, 48, 374, 981 Camp V. Hamesley, 127 Camp V. Pulvey, 743, 501 Canipauv. Campau, 178 Cancey v. Ciuniniiigs, 337 Cannock v. Jones, 511, 481, 513, 590, 607 Comv. Haley, 924 Cambers v. Stantield, 302 Camden v. Batteibury, 949 CamptoHT. Cassacla, 203 Canal Co. v. Comeyge, 713 Canal Co. t. Mattliieson, 489 Canal Co. v. Pritchard, 600, 600 Canal Co. v. Wilniot, 138 Canrock v. Jones, 438 Cander v. Lunsford, 365 Caniian V. Hartley, 832, 851, 846 Canterbury (visct) v. Att. Gen. 707 Canterbury v. Wood, 138 Canady v. Sbepherd. 271 Cames v. Heraey, 693 Capel V. Buzzard, Capen v. Perklima, 878, 913 Capenhurst v. Capeiihurst, 454 (_);ipenhurst v. Capenliurst, 409 Capley v. Hepworth, 29S Carr v. Carr, 111 Carr v. Binson, 349. Carr v. Chapin, 391, 393 Carr v . Ellison, 667 Carr v. Foster, 407 Carrv. Hope, 333 n v. Bayley, 83 Finley v. Railway Co., 26 Fipp T. McGehee, 336 Fireman's Ins. Co. v. Drake, 99' Firman v. Orniandale, 677 Firth V Bowling Iron Co., 622 Fii-th V. Chapman, 316 Firth V. Greenwood, 202 Fish V. Bellows, 246 Fish V. Campion, 839 Pish V. Dodge, 918 Fi.sh T. Stratton, 819 Fisher T. Algar, 947 Fisher v. Ameers, -197 Fisher v. Cuthell, 85 Fisher v. Dixon, 894 Fisher v. Dickson, 889 Fisher v. Fisher, 179 Fisher V. Forbes, 972 Fisher v. Giles, 83 Fisher t. Goebel, 639 Fisher v. Hall, 331 Fisher v. Lewis, 604 Fisher v. Maguire, 582 Fisher v. Saifer 892 Fisher v. Staeffer, 889 Fisher t. Thirkell, 918 Fisk T. Eldridge, 203 Fitch V. Sargent, 844 Filchburgh Corporation v. Melvin, 539 Fitchburg Mlg. Co. v. Melvin, 186 Fitzgerald v. O'Connel, 131 Fitzgerald v. Beebe, 115 Fitzgerald v. Britt, 284 Fitzgerald v. Peck, 277 Fitzgibbons v. Seanton. 680 Fitzheibert v. Shaw, 882 Fitzmaurie v. Bayley, 267 Fitzpatrick v. Beathe, 272 Fitzpatrick v. Cottingham, 755 FitzwilUams' Case, 217 Flagg v. Flagg, 863 Flanagan v. Philadelphia, 395 Flanden v. Train 372 Fleet V. Borland, 694 Fleming v. Chunn, 770 Fleming v. Powell, .326 Fleming v. Snork, 663 Fletcher V. Ashley, 160 Fletcher v. Dyche, 759 Fletcher v. Clark, 303 Fletcher v. Bvsart, 202 Fletcher v. Fletcher, 912 Fletcher v. Holmes, 189, 191 Fletcher v. Manning, 904 Fletcher v. MoFarlane, 742 Fletcher v. Marilller, 937 Fletcher v. Ryland, 416 Fletcher v. Tayleur, 643 Flight V. Barton, 647 » Flight V. Bentley, 665 Flight V. Bolland, 289 Flight V. Booth, 649, Flight V. Glossop, 506 Flinn V. Callow, 466 Flint V. Brandon, 665 Fleet V. Bowland, 100 Fleet V. Hegeman, 391 FUnt V. Pearce. 589 Flint V. Sheldon, S)6 Flood V. Finlas, 278 Flood V. Flood, 31 Flood V. Yandee, 328 Flower v. Barby, 78 Flower v. Peck, 871 Floyd V. Herring, 179 Floyd V. Taylor, 336 Florena V. Thornhill,578 Flury V. Grimes, 940 Flynnv. Hatton, 815 Flynn v. Wask, 609 Table of Cases. xxxvu JFoard v. MoComb, 174 Fogarty v. Sawyer, 184 Foggo V. Hilbouru, 982 Folir V. Dean, 945 Folkingliam v. Croft, 51 Jolgev V. Kumer, 878 Folger V- Pearson, 395 Foley V. Addenbrooke, 658 Foler V. McKeegan, 765 FoUey v. Congill, 484 Folly V. Wirth, 417 Foley V. Wyetb, 46 Folsom V. Carl, 952 Folson V. Moore, 47 Folts V. Huntley, 808 Foltz V. Prouse, 770 Fonda v. Home, 165 Fonda V. Van Home, 156 Ford V. Belmont, 489 Fjid V. Cobb, 896 J'jrd V. Gregory, 335 Ford T. Tiley, 675 Ford V. Tynte, 936 Foot's Case, 246 Foot V. N. H. &o. Co., 325 Foot T. Tewksbury, 171 Footo V. Beckett, 618 Foot v. Cincinnati, 794 Foote V. Berkly, 462 Forney v. Scott, 427 Foquet t. Moor, 959 Ford T. Tynte, 711 Ford V. Tiley, 270 Forneaux v. Fotberby, 93T Fores v- Jones, 964 Forrer v. Nasb, 381 Forrester's Case, 143 Forster t. Wandlass, 869 Forsythe v. Day, 364 Forte V. Vine, 574 Fosgate v. Mfg. Co., 246 JFoss V. Hildretb, 172 Foster v. Batt, 583 Foster V. Browning, 350 Foster v. Fowler, 401 Foster v. Hilllard, 100 Foster v. Joice, 96 F'oster T. Kelsey, 973 Foster v. Mapes, 570 Foster v. Morris, 981 Foster v. Pierson, 580 J?oster T. Peyson, 921 Foster y. Rowland, 268 Foster v. Spooner, 429 JFortier v. Ballance 858 Poteaux V. Lepage, 770 JFoucber v. Cbappen, 795 Foulger v. Taylor, 937 loust V. Trice, 374 Fowell V. Wanter, 819 Powle V. Freeman, 268 Fawkes v. Joyce, 936 Fowle y. Welsh, Fowler v. Atkinson, 203 ' Powler y. Fory, 853 Fowler y. Payne, 601 Fox y. Briscoe, 638 Fox y. Nathans, 64, 455 Fox y. Piirssell, 718 Fox V. Prickwood, 227 Fox y. Seard, 668 Fox V. Swann, 535 3"ox y. Jones, 931 Foy y. Keddick, 878 Frame y. Danaon, 286 Francis y. Cockenll, 633 Francis y. Haryey, 369 Franks v. Crayen, 884 Francis y. Wiggell, 145 Franklin y. Ball, 196 Trank y. Kincaid, 10 Frankslinkai y, Bull, 195 Franklin y. Carter, 684 Franklin y. Carter, 360 Franklin y. Fisk, 398 Franklin v. Tuton,e39 Franklin y. Mederia, 371 Franklin y. Medin, 369 Franklin v. Osgood, 177 Franklin v. Palmer, 981 Franklin Telegraph Co. y. Pewtress, 3 Fansciscus y. Kiegart, 765 Frazer y. Ford, 268 Fraser y. Skey, 575 Frazier v. Spear, 120 Fray v. Johnson, 621 Pratier y. Small, 204 Frantz y. Wood, 67 Frailey y. Walerrf, 202 Frederick y. Callaghan, 539 Freeman y. Batenian, 865 Freeman y. Cooke, 912 French y. Carliart, 489 French y. Fuller, 916 French v. Pattern, ,343 Freeland y. Burt, 631 Freeland y. Mitchell, 510 Freeman v. Bateman, 132 Freeman y. Foster, 696 Freeman v. Hartmau, 160 Freeman y. Hadley, 352 Freeman y. Heath, 369 Freeman y. Jury, 28 Freeman v. Eoshier, 947 Freeman y, Whitbread 791 Freeman y. West, 469 Freesy y. Cooke, 391 Frietas y. De Santos 962 Prentz v. Klotch, 928 Freemantle v. Lend. & North-Weet Rail Co. 709 Frenzel y. Miller, 174 Frink y. Cole, 201 Frisby y. Ballance, 271 Frisbey y. Thayer, 937 Frusber y. Lee. 945 Friend y. Easlerbrook, 368 Frer y. Barton, 866 Friar v. Gray, 436 Friar v. Grey, 456 Frantz v. Wood, 4 Friar y. Davis, 932 Frazer y. Hani on, 97 Progley y. Earl Lovelace, 143 Frost y. Earnest, 572 Frost y. Moulton, 272 Frost y. Raymond, 517 Frontin v. Small, 762 Fuller y. Sweet, 369 Furnival v. Crew, 828 Furniyall v. Grove, 845 Fryett y. Harris y. Jefferys, 871 Fry y. Breckenridge, 933 Pullam y. Stearns, 886 Fuller y. Abbott, 136 Fuller y. Eastman, 502 Fuller y. Fenwick, 759 Fuller y. Giles, 679 Fuller y. Ruby, 792 Puller y. Taylor, 889 Fulton y. Stewart, 132 Fuller v. Sweet, 948 Fuller v. Taylor, 897 PuUer y. Wilson, 207, 208 Pulton y. Loftus, 174 Pulton V. Stewart, 664 Punar y. Durgin, 346 Punk y. Venida, 696 Funkliouser v. Langkopf , 387 Furbish y. Goodwin, 191 Furnival y. Crew, 6(i7 Purnivall y. Grove, 850 Furley y. Rogers, 36S Fussleman v. Worthington, 370 Gabes y. Lloyd, 477 Table of Cases. Gabell v. Shevill, 136 Gaffleld t. Hapgood, 905 Gage v. Acton, S54 Gage T. Smith, 724 Gaines v. Buford, 126 Gains£ord v. GiMth, 517 GaiBtod V. Stone, 367 Gallaway v. Herbert, 83 Gale v. Bates. 665 Gale V. Bonnell, 556 Gale T. Coburn, 377 Gale Y. Edwards, 539, 760 Gale T. Kalamazoo, 658 Galgey v. Great Southern & "Western E. Co., 415 Gallagher v. Bennett, 370 Gallagher v. Himelbeigh, 732 Gallagher v. Humphrey, 382 Gallagher v. Shipley, 929 Galloway v. Herbert, 32 Galloway v. Ogle, 368 Gallatin v. Cunningham, 149 Gallup V. Albany K. K. Co., 794 Galpen v. Abbott, 335 Gait V. Gandy, 518 Gamber v. Hackett, 745 Gammon v. Freeman, 489 Gamon V. Vernon, 554 Ganley T. Somerset, 682 Gamnett v. Alfice, 435 Ganard v. Grinburg, 278 Ganaly t. Daffy, 380 Gandy v. Jubber, 63 Gane v. Hart, 933 Gauge V. Lockwood, 594 Ganard t. Fick, 852 Gannon v. Hargdon, 162, 398 Gano T. Aldjldge, 303 Gardiner T. Corson, 509 Gardiner T. Williamson, 297, 733 Gardner v- Commissioners, 76 Gardener v. Corson, 436 Gardner v. Finley, 885 Gardner t. Gardner, sni Gardner v. Kenwavd, 661 Gardner v. Keteltas, 563 Gardiner v. Rowland, 354 Gardner v. Williams, 173 Garland V. Crow, 96 Garland v. Furber, 380 Garlside v. Tsherwood, 210 Gamer t. Hannah, 684, 691 Garnook T. Cliff; 430 Gannett v. Albree, 651 Garnhom T. Finney, 743 Garrett v. Hughett, 933 Garrett v. Clark, 96 Garnett v. Macon, 274 Garrett t. Scanter, 862 Garrison v. Garrison, 364 Garrison v. Eudd, 380 Garrison t. Sanford, 695 Garrod t. Olley, 83 Gaston v. Frankvern, 290 Garvey v. Dobyns, 737 Garvin t. Jennerson, 772 Gascon v. Sigmond, 272 Gask T. Keneda, 126 Gaskell v. Spry, 648 Gaskell v. Tramer, 743 Gas Co. V. Thurber, 876 Gaslight Co. v. Turner, 363, 499, 952 Gaston v. Smith, 72 Gates Y. Caldwell, 521 Gates V. Green, 612, 951 Gates v. Salmon, 124 Gatehouse v. Eees, 534, 870 Gatsworthy y. Strutt, 759 Gatting y. Newell, 467 Gange v. Lockwood, 588 Gaut Y. Chambers, 393 Gauntlet* v. King, 947 Gayed v. Martin, 399 Gay Y. Mitchell, 8, 32 Gayetty v. Bethune, 381 Gazely v. Price, 438 Geary v. BearcroJft, 248 Geary v, Ecason, 490 Geer v. Fleming, 915 Gee V. Gravet^, 220 Gheghegan v. Young, 841 Center v. Morrison, 331 Gent V. Matthivas, 389 Gent V. Parrish, 325 Gent V. Lynch, 128 Gentehnan, v. Soule, 407 Guillini v. Stone, 270 Gennijigs v. Lake, 314 Georgetown v. Alexandria Canal Co., George y. Putney, 313 Gerard y. FranKel, 299 Gerrard Y. Clifton, 472 Gerrish v. Brown, 397 Geiger v. Brown, 771 Geiger v. Green, 273 Gerry y. Eeason, 481 Germain y. Willan, 967 Gerzbek y. Lord, 610 Gerton y. Gregory, 501 Gerton y. Smart, 682 Gelston y. Sieniund, 273 George y. Putney, 808 Gibbs Y. Bryant, 133 Gibbes v. Jenkins, 680, 683 Gibbs Y. Boss, 750 Gibson y. "Wells, 637, 710, 683 Gibbons Y. Dayton, 79 91, Gibson y. Boggs, 378 Gibson' y. Doeg, 664 Gibson v. Cowthorpe, 951 Gibson y. Farley, 770 Gibson y. Farley, 184 Gibson Y. Hammersmith, 18 Gibson V. Hammersmith K. Co., 908 Gibson y. Hurst, 935,'946 Gibson t. Holland, 266 Gibson y. Tueson, 935 Gibson Y. Kirk, 948, 949 Gibson y. Perry, 814 817 Gibson y. Pearsall, 952 Gibson v. Smith. 716 Gibson y, "\^aughn, 877, 896 Gibson y. WulTs. 638 Giddeus v. Dodd, 109, 820 Gie Y. Eider, 837 Gifford Y. Thorn, 176 Gilbert v. Bulkly, 347 Gilbert v. Tenure, 357 Gilbertson y. Eichards, 459 Giles Y. Comstock, 737, 780 Giles Y. Ebsworth, 93-1, 981 Giles Y. Hooper, 482, 987 Giles Y. Simonds, 352, 367 Gilf ud Y. Lake, 407 Gil6B V. Diirgo, 696 Gilman y. Dwight, 658, 659 Gilman v. Elton, 936 * Gilman y. Here, 367 Gilman y. Wills, 189 Gilman y. Tilton, 404 Gilmore v. Johnson, 118, 168 Gilmore v. Wilber, 128 Gillespie y. Brooks, 326 Gill v. Logan, 235 Gillespie y. Thomas, 794 Gills Y. Hall, 658, 659 Gillett Y. Balcom, 895 Gillet Y. Johnson, 398 Gillet Y. Stanley, 144, 145 Gillingham y. Dwyer, 937 Giles Y. Spencer, 940 Gilham.Y. Arkwright, 939 Gilchrist v. Eea, 179 Gilhooly y." Washington, 803, 804 Gilford v. Lake Co., 410 Gimbart T. Pelot, 94T Table of Cases. xxxlx Girandy v. Richardson, 954 Girandy v. KicliavdBon, 93 Giville V. De Eutzeu, 26 Girham v. Brenoii, 373 Gladmaii v. Plumer, 932 Glasgow V. Hurtlett Alum Givens v- MulUiieux, 981 Girens v. Mallyneiix, 369 Glass V. Ellison, 183 Gleason v. GleasoD, 980 Glen V. Durgay, 949 Glein v. Rise, 370 Glickauf v. Manver, 610 Glldder v. Bennett, 896 Glinister v. Audby, 576 Glover v. Austin, 128 Glove V. Harding, 322 Glove V. Cope, 547 Glutton Union, 416 Goade v. Howell, 78 Goatley v. Paine, 872 Godard v. Gould, 884, 885 Goddard v. Chase, 877, 883 Goddard v. Keats, 962 Goddard v. R. R. Co., 78 Godfrey V. Cartwright, 12T Godsell V. Inglis, 82 GofE V. O'Connor, 894 Goff V. Harris, 902 GofE V. ObeitufEer, 350 Goff V. Kilts, 354 Goine v. Emery, 239 Goring v. Warner, 536 Goldsborough v. Baker, 75S Goldsmid V. Tunbudge, 402 Gooch V. Marshall, 719 Good V. Coombs, 124 Good V. Dodge, 405 Good V. Kerr, 277 Good V. Hill, 428 Good V. Need, 471 , Good T. Webb, 451 Goody V. Carter, 36, 48, 69 Goodbehere v. Beyan, 534, 535 Goodell V. Field, 282 Goodell V. Woodruff, 201 Goodenow v. Ewer, 184 Goodhill V. Brigham, 215 Goodhue v. Barnwell, 159 Goodland v. Blewett, 769 Goodman v. Henderson, 65ft Goodrich v. Burbank, 139 Goodrich v- Jones, 896, 893 Goodrich V. Thompson, 179 Goodright v. Cator, 746 Goodright V. Cordwent, 88 Goodright v. Davies, 530, 858 Goodright v. Forrester, 340 Goodright V. Mark. 466 Goodright v. NichoUs, 439 Goodright v. Richardson, 69, 662 Goodright v. Vinar, 428, 723 Goodright v. Walker v. Davids, 871 Goodright v. Noright, 745 Goodson v. Goldsmith, 608 Goodtitle v. Bailey, 463, 489 Goodtitle v. Duncan, 216 Goodtitle v. Funucan, 223, 357 Goodtitle v. Herbert, 32 Goodtitle v. Morse, 365 Goodtitle v. Paul, 307 Goodtitle v. Southern, 307 Goodtitle v. Tombs, 983 Goodwin v. Holbrook, 436 Goodwin v. Hubbard, 467 Goodwin v. Lynn, 508 Goodwin v. McClure, 329 Goodwin v, Robinson, 174 Goodyear v. Gary, 489 Goose v. Jones 284 Gorde v. Ruchle, 690 Gordon v. George, 549 Gordan v. Buttley, 200 Gordon v. Harper, 292 Gordon v, Trcvadyan, 267 Gordon v. Woodford, 711 Gore v. Baltinglass, 230 Gore V. Wright, 843 Gore V. Gibson, 170, 171 Gore V. Langton, 311 Gore V. Lloyd, 255, 634 Goring v. Warner, 534 Gorely v. Gorely, 199 Gorham v. Arnold, 190 Gorton v. Gregory, 505, 554 Gorton v. Falkner, 936, 946 Goswiller's Case, 451 Go3S V. Lord, 267 Gott T. Gandy, 607, 613 Gijttsberger v. Radway, 607, 614 Gough V. Howard, 663 Gould Y. Bradstook, 941 Gould V. Boston Dock Co., 403, 411 Gould v. Day, 332 Gould V. James, 390 Gould V. Kemp, 271 Gould V. Thompson, 940 Gould T. Womack, 271, 273, 377 Gould V. Webster, 46, 972 Gourley v. Duke of Somerset, 535 Governors of Harrow School v. Alderton, 899 Governors Christ Hospital v. Harrild, 687, 735 Governor v. Meredith, 927 Gowen v. Garrish, 755 Gower v. Carter, 755 Gower v. Hunt, 767 Gowser v. Smith, 327 Gowser v. Grantham, 137 Gonzales v. Douchauquette, 163 GozoUo V. Chambers, 927 Grabenborn v. Nicodemus, 798 Grace V. Shiveley, 939 Graddock v. Adridge, 436 Grandin v. Carter, 780 Grange v. Living, 233 Graham v. Anderson, 780 Graham v. AUsopp, 767 Graham v. Call, 272 Graham v. Carondolet, 137 Graham v. Chatoque Bank, 157 Graham v. Dunnigan, 694 Graham v. Houghtaling, 156 Graham v. Moore, 368 Graham v. Nichelo, 848 Graham v. Oliver, 810 Graham v. Thornborough, 754 Graham v. Scott, 852 Graham v. Wade, 694 Grand Lodge of Masons v. Knox, 876 Grumott v. Williams, 623 Granger v. Collins, 515 Granger v. Grovenor, 533 Grant's Case, 151 Grant v. Chase, 319. 320 Grant v. Johnson, 509 Grant v. Maddox, 475 Grant v. Smith, 784 Grant v. Townsend, 246 Grant v. Thompson, 170 Grant v. White, 980 Grantland v. Wight, 175 Grantley v. Butler, 653 Grassmeyer v. Beeson, 127 Grasselli v. Lawden, 659 Grassell v. Lowden, 757 Granz v. Croger, .368 Graves v. Berdan, 597 Graves v. White, 465 Gravenor v. Parker, 480 Gray V.Clark, 484 Graves v. Tucker, 333 Graves v. Dudley, 331 Graves v. Pierce, 884 Graves v. Porter, 502, 547 Graves v. School, 405 Graves v. Tucker, 333 xl Table of Cases. Graves v. Wella, 859 Gray t. Actor, 166 Gray v. Baldwin, 713 Gray v. Burdick 393 Gray v. Boston Gaa Light Co., 619 Gray v- Clark, 490 Gray v. Cuthbertsou, Gray v. Harris, 405 Gray v. Blauchard, 433 Gray t. Stavion, 837, 846 Grayson v. Richards, 347 Greason v. Keteltas, 237 Great Western K. R. Co. v. Crippen, 277 Greaton T. Smith, 24 Greatrex v. Hayward, 413 GreffeiLhoofe T. Danbury, 696 Gregg T. Coates, 592 Greggs v. Wells, 912 Greggs V. Woodruff, 174 Gregory v. Crab, 981 Gregoi-y v. Brooks, 589 Gregory v. Doidge, 748, 763, 930 Gregory v. Mighell, 2«6 Gregory v. Mighell, 288 Gregory t. Shelby College, 234 Gregory v. Wilson, 719 Gregson v. Davids, 361 Gregson v. Han-ison, 531 Green v. Baker, 861 Green v. Bell, 816 Green v. Bridges, 524 Greer v. Browne, 277 Green's Case, 7 Green v. Cole, 712 Green v. Coiilland, 282 Green v. Bales, 630, 639 Green v. Eden, 589 Green v. Goodall, 160 Green v. James, 368 Green v. Keen, 713 Greene v. KoDpe. 203 Green v. Liter, 129 Green v. Low, 282 Greeno v. Munson, 370 Green v. Mussie, 770 Green v. Price, 769 Green v. Smith, 277 Greeno v- Munson, 980 Greenland v. Chapin, 623 Greenslade v. Halliday, 414 Greenslade v. Tapscott, 533, B36 Greenway v. Adams, 538 Greenly v. Hall, 128 Greenaway v. Hart, 502 Greenwood's Case, 126 Greenwood v. Tyber, 163, 165 Greer v. MoBeth, 218 Gresham v. Landers, 172 Greaoott v. Green, 538, 552 Greton v- Smith, 949 Gretton v. Biggies, 555 Grey v- Bompas, 26 Grey v. Cuthbertson, 547, 505 Grey v. Friar, 513 Grey de Wilton v. Saxon, 714 Grice v. Scarborough, 696 Grier v. Cowan, 932 Grimman v. Legge, 840 Gridley v. Blooming, 921 Gribbins v. Creed, 214 GritHn v. Ford, 219 Griffin v. Griffin, 680 Griffin v. Richardson, 365 Griffln v. Scott, 946 Griffin v. Stanhope, 439 Griffln V. Sketoe, 174, 713 Griffith V. Schwenderman, 146 Griffln V. Sheffield, 370 Griffiths V. Chichester, 765 Griffith V. Hodges, 811, 847 Griffith V. Frederick, 271 Griffith V. Harrison, 217 Griffith V. Hodges, 811 Griffith V. Kinseley, 743 Griffith V. Parmley, 980 Griffith V. Lloyd, 741 Griffith V. Pritchard, 865, 871, 534, 743 Griffiths V. Puliston, 940 Griffiths V. Tombs, 970 Grigsby v. Clear Lake, 408 Grimstead v. Marlow, 389 Gi'imman v. Legge, 958 Grinnell v. Buchanan, 205 Grist V. Hodges, 572 Griswold v. Johnson, 124 Groom v. Bluck, 546 Grossman v. Lauber, 126, 7G5 Groves v. Groves, 34 Grove v. Watt, 211, 214 Grosvenor v. Green, 135 Grosvenor v. Hampstead, 307 Grosvenor v. Woodhouse, 929 Grovendyke v. Cramer, 360 Grubb V. Bayard, 349 Gruffly V. Pindar, 725 Grundin v. Carter, 780 Guy V. Barnes, 468 Gruchs V. Edwards, 480 Grute V. Locrof t, 120 Grute V. Locroft, 166 Grymes v. Boweran, 898 Grymes V. Boweran, 876 Guard v. Bradley, 289 Guardian &o., v. Koferts, 160 . Guardian v. Wilson, 132 Gudgen, v. Bessett, 951 Gudgell V. Duvall, 672 Gugon V. Smith, 365 Guerrant v- Anderson, 334 Guerand v. Dandelet, 659 Guest v. Buson, 332 Guest v. Hornfuy, 270 Guest V. Tanmadge, 156 Gulliver v. Poyntz, 309 Gunn V. Scoville, 765 Gunnsin V. Bancroft, 487 Gunning v. Gunning, 304 Gunter v. Husley, 284 Gunter v. William, 329 Gulett V. Lopes, 386 Gulick V. Grover, 203 Gultey V. Prother, 177 Gusmes v. Peacock, 311 Gutteridge v. Munyard, 592, 594 Guthman v. Castleberry, 767,768 Guthrie v. Jones, 877, S80 Gute V. Locholt, 449 Gustin V. Burnham, 3 Gwathney v. Little Miami E. R. Co. 921 Gwennell v. Pamer, 921 Guy V. West, 721 Gwynne v. Johnson, 980 Gwyjme v. Jones, 980 Gwynne v. Maynestone, 455 Gwillim V. Stone, 566 Gybsou V. Searl, 835, 836 Habehdashek Co. v. Isaac, 529 Hack V, Runka, 92, 303 Haskett V. Richards, 925 Hackett V. King, 172 Hackett v. Mcjsainara, 668 Hadden v. Shoiity, 431 Hadden v. Scott, 642 Hadden v. Boxendall, 642 Haett V. Wylile, 479 Haffrer v. Dickson, 283 HafEner v. Irwin, 447 Hagar v. Bnch, 505, 747 Hager v. Dibble, 323 Haggart v. Scott, 289 Haigh V. London and North- Western E. Co. 724 Haighy v. Lee, 299 Haight V. Keokuk; 395 Haight V. Pierce, 399 Hair v. La Brouse, 465 Table of Cases. xli Halbert v. Bruce, 619 Halcombe v. Johnson, 748 Haldane v. Jolmsou, 776 Haldane v. Newcomb, 592, 607 Haldeman v. Jpennings, 758, 761 Hale V. Bowen, 170 Hale V. Buvton, 931, 932 Hale V. Lord, 300 Haley v. Hammerley, 903 Haider v. Taylor, 490 Half ord v. Dunnett, 713 Halford v. Hatch, 31, 133 Halifax v. Chamber, 519, 662 -Hall V. Arrowsinith, 114, 115 Hall V. Augsbury, 408 Hall T. Betty, 664, 625 Hall V. E03S, 273 Hall Y. Bulkley, 217, 221 Hall V. Burgess, 782, 841,843, 847 Hall V. Butler. 931 Hall V. City of London Brewery Co. 669, 5 Hall V. Combs, 300 Hall V. Davey, 370 Hall V. Foster, 302, 464 .Hall V. Fuller, 193 Kill T. Goodwin, 96 Hall V. Gould, 812 Hall v. Hall, 67 Hallv. Huffman, 474 Hall T. Jacobs, 6 Hall V. Jones, 155 Hall T. Land, 300, 618 Hall V. Mayor of Swansea, 141 Hall V. Mayers, 61, 76 Hall V. Piddock, 124 Hall V. Richardson, 449 Hajl V. Savill, 183, 184 Ha* T. Sealiight, 255,367 Hall V. Spaulding, 661 Hall V. Vanness, 201 Hallv. Wadsworth, 70 Hall T. Warren, 271 Hall T. Western, Trans. Co. 949 Hall V. Woods, 203 Hallen v. Runder, 903, 910 Hallett V. Wylie, 612, 614 Halley v. Young, 678 Hallidav v. Marshall, 671 Halligan v. Wade, 803 Hallochv. Slater, 766 Hallovan t. Fitzgeiald,980 HalloweU v. Morell, 489 Halton V. Simpson, 962 .Halls T. Thompson, 174 Ham V. Goodrich, 284 .Hambriton v. Congen, 467 Hame v. Banks, 257 Haniel v. Lawrence, 980 Hamer v. Rnowles, 421 Hamerton v. Stead, 71 Hamig v. Riding, 426 Hamilton v. Cardcross, 149 Hamilton t. Elliot, 434 Hamer v. Bean, 363 Hamitt V. Lawrence, 78, 95 Harnett v. Yielding 272 -Hamilton v. Clanncarde, 200 Hamilton v. Denny, 680 Hamilton v. Elliott, 532 Hamilton t. Marsden, 371, 981 -Hamilton t. Newcastle, R. E. Co. 139 Hamilton v. Rose, 20; Hamly t. Hengon, 656 Hamlin v. Jones, 161 Hamlinton v. Wudolf , 352, 357 Haramell v. Hammell, 332 Hammer v. Breidenbach, 766, 768 Hammer v. McEldonney, 272 Hammerton t. Stead, 3, 844 Hammond v. CoUis, 867 Hammond v. Dod, 574 Hammond v. Hannin, 202 JUamptou V. Overzeller, 461 Hampshire v. Wiskins, 264 Hanbuusv. LitcTilield, 279 Hancock v. Austin, 52, 432, 941 Hancock V. Cotlin, 251, 2,59 Hancock v. Entwistle, 759 Hancock v. Watson, 377 Hanchett v. Whiteney, 67, 84 Handley v. Cunningham, 451 Handrahan v. 0"Kegan, 613 Handschy v. Sutton, 697, 630 HanhamT, Sherman, 839, 852 Hanley v. Wood, 638 Hannaley v. Warren, 273 Hannanv. Osborn, 125 Hannan v. McEldonney, 273 Hannon v. Ewatt, 5 Hanop V. Cooke, 861, 852 Hanson v. Cooper, 300 Hansen v. Kintley, 295 Hansen v. Meyer, 501, 549 Hanslip V. Paderick, 270 Haurahan v. O'Keilly, 880, 893 Hansan v. Stevensoii, 951 Hapgood V. Harlay, 333 Haralson v. Bridges, 161 Harlin v. Barton, 120 Hardin v. Hays, 170 Harder v. Harder, 704 Harder v. Howaid, 758 Hardcastle v- South Yorkshire Railway and River Dun Co. 723 Hartcourt v. Wyman, 165 Hardy v. Nelson, 578 Hardy v. Sever, 434 Harding v- Crethom, 8 Harding v. Wilson, 320 Hare v. Cator, 554 Hare v. Celey, 3.57 Harev. Groves, 601, 815 Hare v. Harton, 376 Harger v. Edmonds, 613 Hargrave v. King, 634 Harkins v. Pope, 18 Harlan v. Harlan, 884 Harland v. Brownley, 846 Harley v. Estes, 184 Harley v. King, 819 Harley v. King, 559 Harrow v. Ba,cer, 973 Harlow v. Thomas, 696 Harman v. Harman, 172 Harmer v. Bean, 541 Harmony Lodge v. White, 742 Harper v. Taswell, 944 Harris v. Arnold, 331 Harris v. Brafford, ;!44 Harris v. Bryant, 677 Harries v. Bunett, 261 Harris v. Carson, 972 Harris v, Caulbourn, 598 Harris v. Dut, 467 Harris v. Evans, 456, Harris v. Frink, 33 Harris v. Goodwyn, 498 Harris v. Goslin, 702 Harris v. Goodwin, 514. Harris v. Goodwyn, 546 Harris v. Graham, 233 Harris v. Greathead, 303 Harris v. Haynes, 884 Harris v. Jones, 591 Harris v. Manster, 6.S4, 713 Harris v. Masters, 717 Harris v. Morris, 296 Harris v. Nicholas, 002 Harris v. Norton, 335 Harvie v. Oswel, 871 Harris v. Ryding, 423 Harris v. Saunden, 332 Harris v. Tremenheere, 209, 210, 211 Harris v. Wing, 936 Harris v. York, 99 Harrison v- Barry, 934, xlii Table op Case Harrison t. Barnby, 127 Harrison v. Bla -kburn, 927, 961 Harrison t. Buhock, 687 Harrison v. Close, 784 Harrison v. Great Northern R. R. Co., 622 Harrison v. Jackson, 200 Harrison v. Middleton, 85 Harrison v. Myers, 795 Harrison v. Murrell, 16 Harrison v. North, 616, 631 Harrison v. Lord North, 612, 795 Harrison v. Wright, 754 Harrison v. Wyse, 186 Harrington v. Wise, 754, 862 Harrow v. Baker, 973, 976 Harsha v. Keid, 500 Harrod v. Myers, 86, 145 Hart T. Fanners, 334 Hartv. Hart, 679 Hart V. Windsor, 613 Hartford & Salisbury Ore Co. v. Miller, 124 Hartford & Steamboat Co. v. New York, 618 Hartford & N. Y. L. B. Co. v- Mayor, &c., of N. York, 615 Hartley v. Allen, 790 Hartly v. Pehall, 667 • Hartman v. Kendall, 149 Harnettjv. Maitlaiid, 517 Hartshorne t, Watson, 347 Harshaw V. McKesson, 200 Hartridge v. Gilbert, 224 Hartshorne v. Kiernan, 931 Hartshorne v. Watson, 546 Hartnett v. Maitland, 710 Hartnell v. Yieldings, 277 Harvard College "v- Boston, 686 Harvey v. Bringes, 17 Harvey v. Francis, 71 Harvey v. Harvey. 898 Harvey v. Mitchell, 464 Harvey v. McGraw, 545 Harvey v. Newton, 466 Harvey v. Pocock, 946 Harvey v. Thomas, 165 Harvie v. Oswel, 870 Hasbronck v. Paddock, 859 Hasbrouck t. Tappen, 836 Haskell v. Bailey. 192 Hasker v. Storer, 132 Haskins v. Pope. 70 Haslage v. Krugh, 770 Hasley v. McCormick, 305 Hassell v- Southwaite, 751 Hassler V. Lemovne, 940 PTaslettv. Burt, 899 Hassell t. Long, 490 Hastings v. Crunckleton, 700 Hastings v. Don glass ,165 Hastings v. Perry, 713 Hastings v. "Vaughn, 326 Hatch V. Bates, 332 Hatch V. Bullock, 368 Hatch V. Dwight, 194 Hatch V. Gurza, 303 Hatch V. Hale. 934 Hatch V. Hatch, 347 Hatchett v. Hykes, 979 Hatchett v. McNamara, 181 Hatch T. Penderghast, 368 Hatfield v. Lockwood, 750 Hatfield v. Sohier, 98 Hathaway v. Payne, 333 Hatherton v. Bradbum, 734 Hatha v. Ash, 449 Hatley v. Scott, 228 Haughabaugh v. Honald, 121, 122 Haughers v. Lee, 258 Hauxhurst v. Leoru, 16 Haven v. Adams, 195 Haven v. Boston & R. R. Co., 193 Havens ^. Bale, 377 Haw V. Oglejl4:i , Hawkins v. Kelly, 789 Hawkins v. Kemp, 217 Hawkins v. Large, 202 Hawkes v. Orton, 576 Hawkins v. Sherman, 54&. Hawley v. Burgess, 161 Hawes v. Shaw, 370 HawBS V. Smith, 489 Hawley v. Cramer, 962 Hawralty v, Warren, 273 Hawxhurst v. Lebi u, 13 Hay V. Cohn Co., 417 Hay V. Cumberland, 308 Haycock v. Richards, 690 Hayden v. Bradley, 599 Hayden v. Cabot, 133 Hayden v- Heirs of Shiff, 549' Hayden v. Patterson 10 Hayford t. Griddle, 557 Hayland v. Bromly, 840 Hayling t. Okey, 972 Hayling v. Obey. 46 Haylett v. Powell, 624, 922 Hayne v. Cummings. 862 Hayne v. Maltby, 499 Haynea v. Seachrist, 201 Hayner v. Smith, 780 Hayes v. Bickerstaff, 575' Hayes v, Bonman, 393 Hayes t. Carrel, 282 Hayes v. Doane, 883 Hayes v. Kershaw. 482. Hayes v. Sturges, 177 Hayes v. Tindall, 205 Hayes v. Waldron, 402' Hayton •^. Benson, 849 Hay ward v. Cope, 267 Hayward v. Haswell, 256" Haywood v. Miller, 53 Hayward v. Parks, 133 Hayward v. Sedgeley, 927 Hayward v. Young, 668 Hazard Powder Co. v. Loomis, 107 Hazelrigg v. Donaldson, 172 Head v. Head, 374 Heading v. Mayor of London, 142 Healey v- Grant, 859 Healey v. Tront, 113 Health Dept. v. Foli^e Dept., 3 Heat V. Barton, 897. 90S Heaply V.Hill, 2f2 Heard v. Champlin, 633 Hearle v. Greeiibank, 160, 233 Heam v. Allen, 311, 314 Hearii v. McClellan. 798 Heanie v. Tomlins, 39, 42 Heaiix V. Mash, 403 Heath V. Elliot, 3^6 Heath v. Maydew, 717 Heatli V. West, 147 Herreyong v. Goddand, P39' Heatli V. Whidden, 132, 504 Heath v. Williams, 5, 370 Hebden v. Hancock, 765 Hedges v. Ricker, 158 Heerniance v, Vernoy, 882 Hegeman v. McArthur, 845, 847 Heg:an v. Johnson, 260, 734 Heichen v. Hamilton, 658 Heffeltinger v. Shute, 342 Hellawell v. Eastwood, 886, 888 Hellier v. Casband, 457 Hemblings' Case, 169 Heramenway v. Hemmenwav, 206 Memming v. Cutter, 892 Hemmings v. Dumford, 639 Hemingway v. Fernandes, 551 Hempburn v. McDowell, 352 Heminway v. Stevens, 904 HemphiU'v. Fliim, 4.21, 25 Hemphill v. Giles. 63 Hender v. Pinkerton. 327 Henderson v. charnock, 78, G35- Henderson v. Hay, 254, 271 Table of Cases. xliiL Henderson v. Grenell, 335 Henderson v. Mayor, 33G Henderson v. Mears, 797, 798 Henddx v. Money, 170 Henderaon'v- Feake, 83 Henderson v. R. 11. Co. 208 Henderson v. Squire, 8 Hendriok v. Cannon, 82, 111 Hondrick v. Stark, 090 Heiidrickson v. Hendrickson, 976 Henfree v. Bromley, 343 Henger v. Edmonds, S15, 816 Henniker t. Turner, 127 Henniker t. Watts, 433, 862 Herropis v. Shippam, 414 Henery v. Root, 150 Henry v. Wood Mfg. Co., 501 Henshaw v. Willis, 193 Henson v. Cooper, 460, 487 Henstead's Case, 60, 119, 159 Heiiwood V. Clreesman, 948, 949 Hepburn v. Hepbuin, 694 Herbin v. Chard, 120, 166 Herbert v. Herbert, 331 Herbert v. Laughluyn, 389 Herbert v. Maclean, 508 Herbert v. Lavalle, 389 Hermitage v. Tompkin, 365. 366 Hermance v. Verjiey, 355, 915 Hern v. Nichols, 348 i Herndon v. Kimball, 334 Her]ie v. Benbow, 48 Heme v. Benbow, 637, 704 Herning v. Brett, 17 HeiTick V. Baldwin, 345 Herrick v. Hopkins, 377 Herrick v. Moore, 696 Herrick v. MuUin, 343 Herron v. Abbjy, 922 Herrell v. Sizeland, 2, 3, 32, 34 Herriu v. Libbey, 923 Hershay v. Clark, 370 Horsey v. Giblett, 110, 267 Herz V. The Union Bank of London, 719, 720 Hess V. Newcomer, 59r, 600 Hesse v. Stevenson. 491 Hester v. Hooker, 271 Hester v. Hester, 180 Hester v. Knox, 610 Hessltine v. Seaver, 829, 849 Hetlield v. Central R. R. Co., 350, 351 Hetherington v. Vane, 387 Hetrick v. Dechler, 403 Hetts V. Miller, 328 Hew V- Greek, 499 Hewitt V. lahani, 431 Hewitt V. Rankin, 189 Hewlins v. Shipraan, 352 Hext V. Gill, 420 Hexter v. Knox, 588, 641 Hey V. Wvche, 524 Hyde t Watts, 340 Heywood v. Cope, 272 Hey wood v. Heywood, 773 Hiffard v. Hurlburt. 469 Hibbelwhite v. M'Moine, 361 Hibbard v. Newman, 618 Hicks V. Downing. 5o3, 542, 556 Hicks V. Doty, 539 Hicks V. Hawey, 450 Hickman v. Isaacs, 652 Hickman v. Machin, 192, 194 Hickman v. Royl, 438 Hickman v. Thome, 388 Hide V. Thombourough, 423 Higgs V. Terry, 85 Higgins V. Andrews, 356 Higgins V. Grant, 310 Higgins' V. Hallighaii, 451 Higgan V. Mortimer, 703 Higgins V. Senior. 203, 268 Higgins V. Turner. 368, 981 Higgins V. Laurels, 257 Higginson v. Clowes, 278 Higginson v. Weld, 768, 761 Higginbolham v. Barton, 11, 187, 183 Higher v. Rice, 336 Highley v. Barrow, 151 Highman v. Baker, 311 Hill V. Bannister, 203 Hill V. Barry, 296 Hill V. Barclay, 747 Hill V. Boxley, 189 Hill T, Bolton. 121 Hill T. Bonday, 682 Hill V. Bishop, 697 Hill V. Browne, 575 Hill V. (bawdry. 534 Hill T. Davis, 128 Hise V. Foster, 755 Hill V. Grange, 743 Hill V. Hanke, 795 Hill V. Hill, 677 Hill V. Hewitt, 180 Hill V. Kempshall, 869 Hill V. Jordan, 195 Hills V. Miller, 315 Hills V. Morris, 638 Hill V. Worth, 348 Hill V. Patten, 443 Hill V. Robertson, 190, 191 Hill V. Robinson, 847 Hills V. Rowland, 664 Hill V. Sanderson, 782 Hill V. Saunders, 70, 117, 164, Hill T. Schawkl, 879 Hill V. Sewald, 893 Hill T. Stocking, 989 Hill V. Staffordshire R. R. Co., 8 Hills V. Sughrue, 795 Hill v. Taylor, 705 Hill V. Tupper, 348 Hill V. Waldron, 675 Hill V. Ward, 404 Hill V. West, 369 Hill V. Wentworth, 886 Hill V. White, 205 Hilling V. Lumby, 257 Hilary v. Gray, 16, 821 Hilbourn v. Fogg, 45, 370, 925 Hilman v. Here, 366 Hilton V. Goodrich, 748 Hilton V, Lord Granville, 420 Hiraes V. Ament, 892 Himley v. Wyatt, 935 Hinchcliffe v. Kinnval, 247 Hinchcliffe v. Earl of Kennoul, 315 Hinchcliffe v. Beckwith, 598 Hincliman v. Isles, 49 Hindle v. PoUitt, 665 Hindley v. Emery, 714 Hindley v. Eickarby, 536 Hinde v. Grey, 520 Hinds V. Schnltz, 406 Hinley v. Margavitz, 149 Hines V. Ainent, 877 Hintner v. Ege, 596 Hinter V. Stirgel, 239 Hintz V. Thomas, 374 Hintze V. Thomas. 498 Hippie V. De Price, 793 Hiaeocks v. Hissocks, 471 Hise V. Foster, 757 Hitch V. Barr, 329 Hitchcock V. Cooper 660 Hitchcock V. Coker, 659 Hitchcock V. Harrington. 191 Hitchens v. Shaller, 350, 135 Hitchman v. Walton, 909 Hitner v. Ege, 583 Hirst V. Horn, 965 Hoag V. Delorme. 410 Hoag v. Hoag, 981 Hoare v. Lee, 947 Hobson V. Cowley, 846 Hobson V. Middleton, 571 siiv Table of Cases. Hoby V. Sosbuck, 959 Hockenbury v. Snider, 980 ilockeiibury v. Snider, 369 Hocker t. Jamsin, 345 Hodder v. Shorty, 489 Hodge T. Gilman, 345 Hodges V- Hodges. 400 Hodgea v. Howard, 267 Hodges V. Lawrence, 937 Hodgea v. Eaymond, 404 Hodgkin T. Queeuborough, 563 Hoddson v. Andersou, 764 Hodgson V. Ranson, 441 Hodgson V. Kast India Co., 576 Hodgsou T. Jeffries, 350 Hodgson V. Temple, 956 Hodgkius V. Lniion, 416 Hodgkins v. Jordan, 973 Hodgkiiid V. ilobsoii, 780 Hodgkinson v. Crowe, 264 Hodgson V. Moulsou, 654 Hodson V. Staple, Hij2 Hoen V. Simmonds, 980 Hore V. Grover, 482 Hoof V. Ladd, 20 HolTell V. Ami ^.tead, 53, 79 Hoifmau v. Haniraer, 465 Hoffman v. Kielil, 301 Hogau V. Fitzgerald, 131 Hoitt V. Holcomb, 174 Holbrook v. Chamberlain, 885 Holbrook y. Tinell, 347 Holbrootc V. Waters, 659 Holbrook v. Young, 611 Holcomb V. Coryell, 124 Holcomb T. Hewsoii, 657 Holcomb V. Johnson, 453 Holdyne v. Johnson, 763 Holdeu V. Liv. Gas Co., 710 Holden v. Shattuck, 722 Holden t. Smallbrooke, 751 Holder v- Taylor, 516 Holder v. Goates, 726 Holder v. Soulby, 93 Holding T. Pigott, 968 Holford V. Diumett, 630 Holf ord V. Hatch, 554 Holgate T. Kay, 791 Holland v. Birds, 934 Holland v. Boudin, 434 Holland v. Cole, 535 Holland v. Hopkins, 733 Holland v. Falser, 736 Holland v. Worsley, 534 HoUersbeck v. Kowby, 382 HolUngsworth v. Surrett, 21 Hollingsworth v. Sterrett, 4 Hollis V. Pool, 16 Hollis -V. Carr, 521 Holley V. Young, 260 Holly V.Brown, 925 Holley V. Hawley, 246 Hotley V. Scott, 865 Holley V. Yonnge, 175 Holman v. Creagmiles, 696 Holmes t. Blogg, 152 Holmes v. Field, 160 Holmes t. Guinn, 779 Holme V. Guffy, 759 Holmes v, Halloway, 976 Holmes v. Misroom, 206 Holmes v. Sbepard, 678 Holmes v. Seller, 574 Holmes v. Seeley, 311 Holmes V. Seeley, 156 Holmes v. Tremper, 355 Hoen V. Simmonds, 367 Holloway v. Lacy, 489 HoUoway v. Galilee, 371 Holeman t. Abrams, 674 Holman v- Johnson, 956 Hosman v. Boiling Springs Co., 402 Jiolt V. Holt, 680 Holt V. Martin, 981 Holtzappel v. Baker, 601 Home Life Ins. Co. v. Sherman, 8 Homes v. Peace, 324 Home V. Scarratt, 939 Homer v. Leeds, 981 Honeyman v. Mai7att, 272 Hood v. Kendall, 664 Hood V. Mathis, 980 Hoof V. Ladd, 63 Hoof V. Ladder, 22 Hospen v. Alderson, 380 Hooker v. Cummlngs, 392 Hooke V. Delamy, 365 Hook V, Crighead, 201 Hooper v. Brodiick, 653 Hooper v. Clark. 503 Hooper v. Cummings, 340 Hooper v. Hobson, 395 Hooper v. Hooper, 271 Hooper v. Myer, 126, Hooper v. Wilkinson, 405 Hooper v. Wilson 189, 190, 191 Hop wood T. Schofield, 916 Hope V. Atkins, 466 Hope V. Boot, 30 Hope V. Eddlngton, 780 Hope V. Hayley, 556 Hope V. Hope, 281 Hopecraft v. Keys, 809 Hopkins v. Bradford, 598 Hopkins V. Calloway, 973 Hoppers v. Cheek, 560 Hopkins V. Lee, 485 Hopkins v. Organ, 549 Hokkins v. Young, 438 Hopwood V. Barefoot, 686 Hopwood V. Whaley, 502 Hordeman v. Ford, 2U6 Horsfall v. Hey, 903, 711 Horsetail v. Mather, 584, 637, 713 iiorsefall v. Testar, 511, 633 Horner v. Ashford, 659 Horner v. FlintofE, 759 Horner t. Grans, 760 Horner v. Knowles, 420 Horneby v. Clifton, 425 Hornby v. Howdltch, 497 Home V. Howell, 74, 124 Horn V. Baker, 882 Hornldge v. Wilson, 561 Hornback v. Westbrook, 427 Hosier v. Read, 278 H^94 Howard v. Tns^ersnls 395 Howard V. Moore, -'Ti Table of Cases. xlv Howard v. Morris, 48 Howard t. Ramsay, 935 Howard v. Shaw, 9, 43 Howard's Lessee t. Sherwood, 823 Howard v. Shephard, 538 Howard v. Thomas, 467 Howard v. Woodard, 658 Howe V. Gruk, 112 Howe V. Green, 713 Howe V. Kennett, 656 How T. Whitfield, 223 Howe V. Kennett, 947, 951 Howe V. Palmer, 427 Howe V. Russell, 949, 952 Howes V. Shaw, 981 Howell T. Ashmore, 981 Howell V. Howell, 39, 48 Howell V. McCoy, 402 Howell V. Richards, 759 Howell V. Schenck, 972 Howeth V. Aderson, 494, 607 Hewlett T. Tarte, 754 Howland v. Leach, 437, 509 Hoyne v. Cummings, 518 Hoylo V. Stone, 127, 147, 148 Hoyt T. Holby, 668 Hubhard v. Bell, 393 Hubbard v. Cummings, 150 Hubbard v. Miller, 658, 659 Hubbard v, Norton, 695 Huddlestone v. Buscoe, 268, 272 Huddlestone v. Johnstone, 842, 843 Huddlestone v. Woodrowe, 310 Hud;ou V. Hill, 154 Hudson V. Hudson, 176 Hudson T. Poindexter, 326, 327 Hudson V. Warner, 334 Hudson T. Wheeler, 371 Hudson E. E. Co., v. Laef, 402 Huerstel v. Lorillard, 749 Huff V. Baum, 771, 772 Hull V. Nickerson, 480 Huft V. MoCauley, 351 Huff V. Walker, 157 Huffiell V. Armistead, 75, 83 Huffman v. Starke , 292 Huggs V. Van Berkle, 674 Hugh T. Birge, 43 Hughs V. Chatham, 55 Hughes v. Bucknett, 195, 19S Hughes T. BuckneU, 187, 188 Hughes' Case, 457 Hughes V. Clark, 65, 324, 499 Hughes T. Clarkeville, 3r4 Hughes V. Corbett, 82 Hughes V Dedham, 326 Hughes V. Edwards, 435 Hughes V. Fisher, 758 Hughes V. Hughes, 930 Huges V. Palmer, 339, 360 Hughes V. Parker, 267 Hughes V. Riohman, 664 Hughes v. Young, 694 Hull V. Alexander, 884 Hull V. Babcook, 354 Hull V. Culver, 218 Hull V. Dan, 696 Hull V. Lund, 515 Hull V. Noble. 334 Hull V. Seabright, 349 Hull V. Vaughn, 9, 41 Hull v. Wadswortb, 35, 37 Hull V. Weston, 10 Hull V. Wood, 32, 66 Hulme V. Shiieve, 404 Humbard v. Humbard, 271 Humble v. Glover, 961 Humble v. Langston, 658, 559 Humberstone v. Dubois, 932 Hume v. Rundell, 491 Hummings v. Brabason, 451 Humphries v. Brogden, 417, 420 Humphrey v. Dale, 203 Humphreys v. Frank. 20, 80 Humsford v. Fisher, ^36 Humphries v. Humphries, 32, 38 Humphreys v. Newman, 879, 887 Hunchett v. Whitney, 78 Hungerl'ord v. Clay, 196 Hunham v. Sherman, 846 Hunlocke v. Blackstoue, 669 Hunson v. South Western E. Co., 307 Hunt V. A.danis, 345 Hunt V.Allen, 574 Hunt V. AUgood, 88, 89 Hunt V. Amidan, 504, 684 Hunt V. Bailey, 19, 26 Hunt V. Bishop, 504, 873 Hunt". Clifton, 367 Hunt V. Colsen, 52 Hunt V. Comstock, 10 Hunt V. Cope, 793, 802 Hunt V. Gardner, 847 Hunt V. Danforth, 641, 549 Hunt V. Gray 346 Hunt V. Harris, 257, 258 Hunt V. Morton, 70 Hunt V. MuUanphy, 880, 882 Hunt V. Otis Company, 477 Hunt V. Orwig, 578 Hunt V. Peake, 418 Hunt V. Remnant, 540, 606 Hunt V. Silk, 208 Hunt V. Thompson, 749, 948 Hunt V. Watkins, 99 Hunt V. Wolfe, 18 Huntley v. Eussell, 881, 883 Hunter v. Atkins, 209, 210, 211 Hunter v. Biglyon, 467 Hunter v. Le Conte, 934 Hunter v. Hopetown, 676 Hunter v. Hunt, 786 Hunter v. Miller 664 Hunter v. Oslehont, 24, 531 Hunter v. Sar. C. S. Co., 461 Huntington v. Finch, 343, 346 Hunter v. Galliers. 534, 867 Huntington v. Havens, 376, 377 Huntingdon v. Huntingdon, 162 Huntley's Case, 126 Huntley v. Raper, 787 Huntley v. Eussell, 707 Hupport y. Morrison, 136, 354 Hurd V. Curtis, 600 Hurd V. Fletcher, 579 Hurd V. Miller, 948 Hurd V. Rutland &c. R. E. Co., 722 Hurlbert v. Po.st, 250, 253 Hurlestone v. Woodrosser, 310, 311 Hurley t. Ramsney, 326 Hurst V. Hurst, 765, 760 Hurst V. Rodney, 502, 740 Husklns V. Pond. 936 Huron v. Heminghway, 395 Huron v. Yong, 382 Husaey v. Jewett, 148 Hutchins V. Chambers, 943 Hutchins v. Gilman, 206 Hutchins v. Groom, 467 Hutchins T. Kay, 903 Hutchins v. Martin, 830, 835 Hutchins V. Masterton, 898 Hutchins v. Scott, 739, 912 Hutchins v. Smith, 918 Hutchins v. Dixon, 489 Hutchinson v. Barkee, 477 Hutchinson v. Dixon, 431 , Hutchinson v. Hay, 442, 902 Hutchinson v. Morrison, 237 Hutchinson v. Read, 437, 610 . Huth y. Carondelet R. E. Co. 15), 14» Hutson v. Lalfee, 351 Hutterneir v. Allvo, 318, 322 Hutton V. Parker, 660 Hutton V. Warren, 663, 823 Hutt V. Morrell 947 xlvi Table of Cases. Huyser v. Chase, 79 Hyatt V. Griffiin, 969 Hyatt V. Griffiths, 74, 857 Hyatt V. Wood 13, 924 Hyde v. Hill, 684, 693 Hyatt V. Jamaica, 381 Hyde v. Moakes, 7, 31, 848 Hyde v. Palmer, 747 Hyde v. Skinner, 675, 682 Hyde v. Matts, 522, 532 Hydeville Slate Co., v. Eagle R. R. Slate Co., 433, 948 IBES V. Richardson, 28 Jbhett V. De La Salle, 572 Ibbotsonv. Peat, 416 Ichiguiii V. Brunell, 670 Igguiden V, May, 516 Illinois L. &. L. Co., v. Bonner, 143 Inches v. Dickinson, 176 Ingle V- Jones, 179 Ingersoll v. Sergeant 735 Ingraham t. Baldwin 169 Ingraham t. Baldwin, 980 Ingram v. Ingram, 205 Ingram v. Little, 370 Ingram V. Eothill, 753 Ingham v. Child, 957 Inman v. Stamp, 2G6 In Re Black, 967 In Re Gross, 240 In Re Ware, 951 Insane Asylum, v. Higgins, 142 Incham v. Bircham, 580 Ireland V- Johnson, 946 Irens v. Elnes, 481 Irish Society, v- Needham, 736 Irvine v. Irvine, 149 Irvine v. Wood, 918 Irvin V. Humphrey, 451 Isac V, Clarke, 373 Iowa R. R. Co. V. Stewart 204 Irwin V. Cavade, 99 Isenberg v. East India Co. 319 Isenberg v. The East India House Estate, Co., 719 laeham v. Morrice, 355 Isherwood v. Oldknow, 222 Isham v. Morrice, 246 Isteed V. Stoneley, 504 Istell V. Stoneley, 483 Ins. Co. V. Fitzgerald, 325 Iman v. Stamp, 112, 342 Ives V. Sanns, 830 Ives V. Wood, 924 Ives V. Van Anken, 426 Ivemonger v. Newsam, 497 Izon V. Gurton, 923 Jack v. Hudnall, 129 Jack V. Mclntire, 308 Jaclin V. Cartwright, 63 Jacobs V. Locke, 289 Jackson v. Aldrick 33 Jackson v. Allen, 631 Jackson v. Ancher, 702 Jackson v. Andrews, 699 Jackson v. Ashhurner, 254 Jackson v. Ayer, 365 Jackson v. Baker, 768 Jackson v. Bradt, 32 Jackson v. Brodt 37 Jackson v. Bronson, 341 Jackson v. Brownson, 702 JacksoTi V. Bryan, 61 Jackson v. Burchin, 151 Jackson v. Burjis, 177 Jackson v. Campbell, 1.39 Jackson v. Cantellon, 924 Jackson v. Carpenter 147 Jackson v. Caton, 116 ■Jackson v. Cobhin, 518 Jackson v. Combo, 155 Jackson v. Cooley, OSl Jackson v. Co-liss, QS'i Jackson v. Davia, o4t> Jackson v. Delacroix, 634 Jackson v.De Watts 1-81 Jackson v. Dobbin, 181 Jackson v. Duke, 31(. Jackson v. Duke of Newcastle, 719 Jackson V. Duiilap, 3^1 Jackson v. Eddy, 793 Jackson v. Fanner IC Jackson v. French 88 Jackson v. Gardner, 829 Jackson v. Given, 177, 123 Jackson v. Harder, 980 Jackson v. Harman, 370 Jackson v. Harper, 370 Jackson v, Harrison, 434 Jackson v. Hamaon, 924 Jackson v. Hartwell, 137 Jackson v. Harrington, 406 Jackson v. Hathaway, 313 Jackson v/ Hudron, 486 Jackson v. Hugos, ;^27 Jackson v. Hughur 298 Jackson v, Huntington, 246 Jackson v. Jackson, 280 Jackson v. Kingsley, 33 Jackson v. Kipp, 744 Jackson v. Sann, 305 Jackson V. Ladd, 144 Jackson v, Luk. 981 Jackson v. Lodge, 183 Jackson V. Loomir, 382 Jackson v. Malin 342 Jackson v. Mancius, 853 Jackson v. Marsh, 464 Jackson v. McCallan 434 Jackson v. McLeod, 15 Jackson v. Mordant, 163 Jackson v. Morse, 924 Jackson v- Mowry, 8 Jackson v. Munroe, 481 Jackson v, Murry, 245 Jackson v. Oglander, 272 Jackson v- Osbone, 346 Jackson v. Page 347 Jackson v. Penine, 469 Jackson v. Pesked, 916 Jackson v. Port, 550 Jackson v. Parkhurst, 12 Jackson v. Ramshottom, 70 Jackson v. Randal, 984 Jackson v. Ransom, 302 Jackson v. Rogers, 32 Jackson v. Root, 302 Jackson v. Rowland, 333 Jackson v. Salmon, 21 Jackson v. Schutz 341 Jackson v. Sheldon. 331 Jackson v. Silveruail, 534 Jackson v. Smith 932 Jackson v. Spear, 365 Jackson v. Stanford, 329 Jackson v. Sternburgh. 695 Jackson v. Steles, 370 Jackson v, Sternterus, 33 Jackson v. Stewart 368 Jackson v. Stuker 313 Jackson v. Steles, 980 Jackson v. Tibbitts, 702 Jackson v. Todd 148 Jackson v. Topping, 377 Jackson v. Tyler, 2, 9 Jackson v. Van Hoesen 253 Ja Sands v. Lyon, 451 Sandwill v. Franklin, 748 Sandwith v. De Silver, 74tt Sano V. Morse, 987 Sanfon v. 5'lagler, 268 Sandford v. Handry, 467 Sandrord v. McLean, 145 Sanger v. Filtou, 31)5 SangBter v. Birkhead, 687 Santos V. HoUingshead, 8 / / / / y Sanguior v. Benedetto, 275 Sauvesbye v. Arden, 332 SapUam v. Curtis, 400 Sapaford t. Fletcher, 766 Sargent v. Adams, 469 Sargent V. Pray, 693 Sargent v. Stark, 407 Sarsfield v. Healey, 30 Sassyn v. Adams, 246 Satewetch v. Aulton, 249 Satterloe v. Matthewson, 372 Soulsay v. Neving, 905 Saumda v. Lawford, 281 Saunders' Case, 99 Saunders v. Houghton, 99 Saunders v. Musgrave, 66 Saunders v. Newman, 401 Saunder v. Norwood, 638 Saunders v. OlefEe, 311 Savage v Foster, 287 Savage v. Eix, 203 Savelaiid v. Green, 202 Saveny v. Yumby, 283 Savell v. Cordeli; 454 Saward v. Leggett, 594 Saxon V. Blake, 269 Say V. Barwick, 171 Say V. Guy, 180 Say V. Mattraw, 480 Say V. Merrill, 370 Say V. Smith, 449 Say V. Stoddard, 38 Scales V. Anderson, 948 Scales V. Lawrence, 595 Scarlett v. Hunterg283 Scarlett v. Samarqtie, 97S Scissor v. McLaws, 337 Schaidler v. Ames, 925 Schefler v. Tithiar, 347 Schefflin v. Carpenter, 831 Schelling v. Holmes, 3 Schemmer V, North, 894 Schenley's Appeal, 939 Schentz v. Awatt, 372 Schermerhom v. Buell, 915 Schifflin v. Carpenter, 698 Schilling v. Holmes, 86, 795 Scholelieldv. Eedfern, 791 Scholes v. Hargreavesj 385 Schrader v. Decker, 145 Schroeder v. King, 537 Schroder v. Ward, 592 Schumam v. Ganatt, 365 Schumnin v. Railroad Co. 393 Schultz V. Elliot, 374 Schultz V. Arnot, 981 Schniitz V. McManamy, 346 Sohutt V. Lang, 334 Schuyler v. Leggatt, 32 Schuyler V.Smith, 21 Sohwarer v. Bo5;l8ton Market, 380, Scofield V- Lansing, 397 Scot V. Scot, 870 Scott V. Benson, 819 Scott V. Bental, 322 Scott V. Bandillon, 484 Scott V, Buchanan, 145 Scott V. Buckley, 941 Scott V. Do^, 334 Scott V, Haweman, 81 Scott V. Lunt, 750 Scott V. Mayer, 675 Scott V. Morrell, 144 Scott V. Ruthford, 368 Scott V. Simons, 625 Scott V. Steward, 231 Scott V. Wilson, 392 Scovell V. Caell, 434 Scranton v. Stewart, 149 Scribner v. Holmes, 696 Scruggs v. Brackin, 326 Scully V. Miny, 262 Scudder v. Trenton Delaware Fall Co. 701 Seabrook v. Gregg, 1.52 Seabrook v. Myer, 809 Seago v. Deane, 607 Seagood v. Meal, 286 Sea Ins. Co. v. StefEens, 1 Seaman v. Hogeborn, 377 Sealey v. Randolph, 68 Seals v. Cashier, 184 Searing v. Bulter, 202 Searle v. Laverich, 633 Seaver v. Phelps, 169 Seavy v. Lattlin, 761 Sec. Oougl. Soc. v. Providence, 685 Seddon v. Senate. 570 Seeger v. Petit. 893 Seem v- McLees, 79 Seers v. Hind, 534, Seibrecht v. New Orleans, 141 Seidenspazger v. Spear, 849 Seitzinger v. Weaver, 517 Selby V. Browne, 782 Selby y. Chute, 573 Selby V. Greaves, 733 Seldon v. Del. Hud, 352 Selden v. Myers, 467 Selby V. Selby, 268 Seldon V. Senate, 465 Sellers v. Biekford. 514 Senior v. Armytage, 519 Sencerbox v. McGrade, 203 Swett V. Norni, 479 Seppings v. Nokes, 558 Sepulueda v. Sepulueda, 246 Series v. Stranshaw, 517 Sessions v. Richmond, 758 Severn v. Clark, 521 Seven v. Mihill, 764 Sewell V. Gibbs, 475 Seward v. Leggatt, 627 Sewell V. Taylor, 650 Seymour v. Bell, 179 Seymour V. Delancey,272 Seymour v. Lewis, 322 Seymour v. Wyckoffi, 201 Shadwell y. Hutchinson, 927 Shallcross v. Palmer, 443 Shallies v. Wilcox, 769 Shannon v. Broadstreet, 143, 221 Shannon v. Burr, 925 Share v. Wilson, 489 Sharman v. Ranger, 696 Shariilefler v. Durr, 399 Sharp V. Key, 749 Sharpe v. Kelly, 5 Sharp V. Kellogg, 246 Sharp V. Milligan, 283, 820 Sharp V. New York, 208 Sharp V. Pratt, 177 Sharp V. Sharp, 248 Sharp V. Spier, 692 Shattuck V. Lovejoy, 533 Shaw V. Barber, 114 Shaw V. Cumisky, 915 Shaw V. Farnsworth, 251, 260 Shaw V. Hoffman, 578 Shaw V. Hoadley, 191 Shaw V. Coffin, 263 Shawv. Kay, 590 Shaw V. Nudd 206 Shaw y. Partridge, 161 Ixvi Table of Cases. Shaw V. Slenton, 577 Sliaw V Sumners, 226 Shed T. Lislie, 411 Shelbourne v. Jones, 46 Shelbury t Scotsford, 808 Shelby t. Hearne, 503 Shelby v. Hearne, 606 Sheldon v. Davey, 51 Sheldon v. Delaware, 350 Sheldon v. Edwards, 853 Sheldon v. Newton, 147 Shelton v. Albert, 481 Shelton t. Carwal, 374 Shelton v. Codman, 502 Shelton V. Dewig, 345 Shelley v. Wright, 481 Shee V. Burtchell, 309 Shee V. Hale, 536 Sheets v. Selden, 615 Sheets V. Sheldon's Lessee, 75 Sheen t. Kickie, 910 Slieeconib v. Hawkins, 226 Slieehan v. Davis, 329 Slieppard y. Allen, 654 Slieppard v. Doolan, 668 Sheppard v. Watrous, 172, 173 Sliepai'd V. Briggs, 114 Shepard v. Elmore, 691 Shepard v. Martin, 980 Shepard v. Pratt, 336 Shepard v. Philbrich, 895 Shepherd v. Gunimings, 72 Shepherd t. Spaulding, 913 Shepardson v. Kowlaiid, 123 Sherlocli v. Thayer, 742 Sherlock v. Thayer, 740 Sherman v. Hicks, 218 Sherman v. Wilkins, 780 Sherman v. Williams, 308 Sherwood v. Phillips, 941 Sherwood v. Seaman, 815 Sherwood t. ScuUan, 624 Sherwood v. Sehman, 582 Shewitt V. Buckles, 377 SliilUbeer v. Jarvls, 288 Shields v. Amdt, 398 Shields T. Jjozear, 126, 189 Shiere t. Voorhouse, 405 Shiell V. McNitt, 758 Shippy T. Derrison, 266 Sliipwick T. Blanchard. 947 Shipworlh v. Green, 158 Shiner v. Crosby, 326 Shipman v. Horton, 147 Shipwith V. Steed, 116, 163 Shirley y. Ayres, 336 Shoneberger v. Hay, 484 Shooner v. French, 746 Shopland v. Kyder, 16 Shore v. Porter, 78 Shore v. Wilson, 469 Shorey v. Farrell. 65 Shortridge v. Catlett, 326 Shortridge v. Larapleigh, 630 Shortwell v. Murray, 277 Shreve v. Brereton, 758 Shrewsbury v. Gould. 481 Shrewsbury v. No. StafEordshire E. E. Co., 25 Shulrick t. Salmond, 601 Shuetz T. Bailey, 200 Shults V. Barker, 704 Shumw4y v. Collins, 780 Shunk V. Schuylkill Co., 395 Shury v. Brown, 733 Shury t. Pigott, 321 Shuvis V. Stokes, 41T Shute V. Grimes, 191 Shutz V. Selden, 451 Sibthorp v. Brunei, 509 Sickles V. Fay, 766 Sicklemore v. Simonds, 497 Sicklemore v, Thistleton, 490 Sienteaud t. Jeanneaud, 549 Sientes v. Odier, 466 Sigmund v. Bank, 564 Signorette v. Magrue, 450 Sigourney v. Munn, 335 Silbs V. Allen, 36 Silsby V. Trotter, 349 Silney v. Thomas, 981 Silver v. Sumner, 979 ' Silloway v. Brown, 196 Simer v. Salters, 982 Sinikin v. Abhurst, 28 Simpkins v. Rogers, 349 Simmons v Norton, 699 Simmons v. Robertson, 370 Simons v. Farren, 651 Simons v. Marshall, 638 Simonds v. Turner, 692 Simms v. Jolinson, 375 Simons v. Patchett, 642 Simper v. Foley, 720 Simpson v. Butcher, 114 Simpson v. Clayton, 604 Simpson v. Gutteridge, 176 Sinclair v. Jackson, 245 Simons v. Johnson, 484 Singleton v. Williamson, 936 Simpson v. Hartopp, 946 Simpson v- Leaiiey, 410 Simpson V. Margitson, 455 Simpson v. McGlatheny, 333 Simpson v. Savage, 916 Simpson v. Seavey, 129 Simpson v. Titterel, 433 Sims V. Bland, 468 Sims V. Glazner, 367 Sims V. Hampton, 450 Sims V. Man yat, 912 Sims V. McLure, 170 Sinclair v. Jackson, 201 Singleton v. Scott, li39 Sinker v- Long, 312 Six Carpenters* Case, 934 Sir Moyle Pinclie's Case, 176 Skaggs V. Emerson, 780 Skeggs V. Ellcus, 60 Skerry v. PreJiton, 934 Skidmore v. Hart, 689 Skidmore v. Kawline, 170 g Skin V. Drnmmond, 467 Skinner v. Kilbys, 575 Skinner v. McDowall, 272 Skipwith V. Green, 364 Skull V. Gleniiister, 311 Slack V. Crowe, 202 Slack V. Gay, 880 Slack V. Sharp, 850 Slackthart v. Lee, 611 Slanty V. Hayes, 568 Slater v. Rawson, 502 Slater v. Stone, 610 Slator T. Brady, 143 Slator V. Trimble, 147 Sleddon v. Cruikshank, 903 Sleap V. Newman, 561 Slim V. Roberts, 438 Slingerly v. Fox, 769 Slingsby's Case, 128 Slipper V. Tottenham, 534 Sloan V. Cantwell, 86 Sloan V. Lawrence Furnace Co., 427 Slocum V. Branch, 847 Slocnra V. Hooker, 784 Slossfield V. Mayor of Portsmouth, 904 Small V. Edrlck, 451 Smalman v. Agburrough, 164 Smallman v. Agborou, 120 Smart v, Morton, 420 Smart v. Eea, 271 Smart v. Wathen, 128 Smartler v. Williams, 654 Smarth v. Williams, 186 Smead t. Foord, 642 Smiley v. Van Winkle, 543 Table op Cases. Ixvii Smith V. Adams, 400 Smith V. Agawam Canal Co,, 405 Smith V. Allen, 278 -Smith V. AUt, 722 Smith T. Ambler, 940 Smith V. Arnold, 502 Smith V. Attick, 884 Smith T. Aylesworth, 742 Smith T. Baker, 326 Smith V. Barratt, 13T Smith V. Benson. 894 ■Smith V. Bland, 770 Smith V. Bole, 430 Smith V. Bowm, 143 Smith V. Brannon, 340 Smith V. Brown, 672 Smith V. Briiiker, 740 Smith V. Burnham, 279 ■Smithson v. Cage, 91 307 Smith V. Campbell, 696 Smith V. Carroll, 877 Smith V. Carter, 714 Smith V. Catham, 302 Smith Y- Chambers, 616 Smith V. Chance, 664 Smith V. Chichester, 680 Smith V. Clark, 87 Smith V. Coe, 646 Smith V. Calson, 732 •Smith V. Compton, 571 Smith V. Coobv, 6o4 Smith V. Cranilall, 284 Smith V. Dav, 358 Smi.h V. DoTliii, 829 Smltb V. Dickerson, 329 ■Smith V. Dol, ^46 Smith V. Douglas, 627 Smith V. Earl of Jersey, 229 Smiih V. Eldridge, 95H Smith V. Ferguson, 269 Smith T. Floyd, 387 Smith V. Tyler, 931 Smith V. Galloway, 303 Smith V. Goodwin, 934 Smith V. Hardsters, 419 Smith T. Harrow, 128 Smith V. Harnich, 521 Smith V. Hendriok, 419 Smith V. Hoiskill, 877 Smith V. Hevber, 465 Smith V. Hoibrook, 853 Smith V. Houston, 8 Smith V. Hull, 334 Smith V. Humbert, 918 ■Smith v. Humble, 136 Smith V. Dersey, 97 Smith V. .Tones, 363 ■Smith V. Henrick, 416 Smith T. Kinkaid, 949 ■Smith V. King, 179 Smith V. Liittlefield, 76 Smith V. Lovell, 851 Smith V. Low, 149 .Smith V. Lewis, 391 Smith T. Male, 267 Smith V. Mace, 342 Smith V. Malines, 781 Smith V. Maplsback, 831 SmiLh V. Meanor, 934 Smith V. MoCann, 327 Suiith V. McCurdy, 372 Smith V. McGowan, 3-14 Smitii V. Marral)le, 292 Smith V. Martin, 312 Smrtll T. Mills, 104 Smith V. Morse, 141 Smith V. Nangle, 667 Smith V. Niles, 666 Smith V. NevinK, 841 Smith V. Newf>am, 733 Smith V. Niver, 847 Smith v.O'Hara, 412 Smith V. Peal, 626 Smith T. Pearce, 766 Smith V. Perry, 200 Smith V. Pocklington, 618 Smith V. Putmaii, 537 Smith T. Kaleigh, 782 Smith V. Render, 909 Smith V. Hichards, 174 Smith ¥■ llidgeway, 311 Smith V. Eose, 409 Smith V. Russell, 937 Smith V. Simons, 298 Smith V. Simonds, 299 Smith v^ Smith, 711 Smith V. Scott, 352 Smith V. Sharpe, 705 Smith V. Sherifl, 931 Smith V. Shepard, 808 , Smith V. So. Koyaliton, 333 Smilli V. Steiglemaiu, 780 Smith V. Stewart, 9 Smith V. Stowell, 243 Smith V. Strong, 578 Smith V. Sublet, 205 Smith V. Taylor, 193 Smith V. Toft, 982 Smith T. Turner, 286 Smith V. Twoart, 947 Smith V. Tyndall, 295 Smith T. Wainwright, 758 Smith V. Wiggins, 381 Smith V. Wil.^on, 300 Smith V. "White, 93 Smith V. Whitbeck, 746 Smith V. Whitbeck, 744 Smith V. Wood, 273 Smith V. Wunderlich, 579 Sneesby v. Thorne, 277 Snell V. Eickly, 912 Snell T. Cass, 467 Snell V. Tour, 83 Snell V. Young, 444 Snediker v. Warring, 876 Snook V. Sutton, 157 Snow T. Parsoms, 401 Snow T. Cutter, 226 Snowden v. , 227 Snyler v. Lane. 695 Snyder v. Kunkleman, 934 Snyder v. Middleton, 742 Sneezum v. Marshall, 442 Society v. Stark. 447 Soden v. Smith , 666 Sohier v. Coflin, 246 Solwin T. William, 289 Solly V. Forbes, 375 Soloman v. Glover, 265 Solomon V. Vinters Co. 417 Somerville v. Chapman, 669 Somer v. Skinner, 334 Soprani v. Skuno, 330 Sorsbie v. Park, 485 Sore V. Eyldns, 872 Sarley v. Sarles, 97 Sotiliches v. Kemp, 478 Souter V. Drake, 44 South V. Berwick, 347 S. Carolina K., R. Co. T. Toomer, 218 Sebom v. Savings' Bank, 343 Southard v. R. R. Co., 340 Southard v. Central E. R. Co., 435 Southall V. Leadbetter, 687 Southcomb v. Ep. of Exeter, 282 Southcote V. Hoare, 128 Southern v. Bailasis, 789 Southgate V. Chaplin, 575 Southwarts v. Smith, 638 Southwell V. Brown, 325 S narrow v. Paris, 761 Spalding v. Couzelam, 287 Sparhawk, v. Allen, 770 Sparke v. Sparke, 454 Sparks v. Smith, 131 Sparks v. State Bank, 877 Table of Cases. Sparkes v. Smith, 132 Speake v- Slieppark, 487 Spears v. Allison, 806 Spear v. Fuller, 532 Speekels v. Sax, 597 SpeerB v. Lewell, 170 Spencer v. Bayes, 132 Spencer v. Burton, 926 Spencer v. Carr, 151 Spencer v. Darlington, 537 Spencer v. Field, 203 Spencer v. Godwin, 863 Spencer y. Marriott. 569 Spencer v. McGowen, 356 Spencer v. Murreatt, 133 Spencer's Case, 71 S perry v. Sperry, 843 Spice V. Webb. 942 Spicer V. Cooper, 477 Spicer v. Lea, 79 Si>ies V. Doram, 306 Spindlomes v. Bui'kit, 137 Spraggs V. Hammond, 684 Spratt V. Jeffery, 546 Sprague v. Baker, 696 Spiry V. Seary, 393 Springdale &c. Assn. v. Smith, 768 Springtield v. Harris, 400 Springstein v. Schemerhorn, 827 Spurr V. Andrew, 696 Spyre v. Topham, 445 Squier v. Marger, 897 Squire t. Campbell, 278 Staats V. Freeman, 713 Stacy V. Bostnick, 368 Stacey t. Buttrick, 980 Stacey v. Vr. Centl. K. R. Co., 949 Stagg V. Car. Co.. 980 Stagg V. Eureka Taniiing Co-, 370 Staekpole v. Curtis, 412 Stiihler v. Coumau, 326 Stames v. Morris, 582 Stambaugh v. Hallabaugh, 367 Stamp V. Clinton, 430 Stamper v. Griffin, 8 Stander v. Christmas, 584 Staines v. Morris, 738 Staniforth t. Fox, 269 Slanty v. Agnew, 584 Stanley v. Chamberlin, 318 Stanley v. Green, 431 Stanty V. Hayes, 567 Stantey T. Koehler, 845 Slant^i V. Fongard, 628 Stanley v. Wharton, 937 Stannard v. Forbes, 617 Stansbury t. Taggart, 9 Stansfield t. Mayor &c. of Portsmouth, 908 Stansell v. Jolland, 423 Stantrope v. Skeggs, 534 Stanton v. Miller, 272 Stanway v. Rock, 39 Staples V. Anderson, 817 Staple T. Heydon, 319 Starr v. Jackson, 915 Starkpate v. Arnold, 268 Starknether v. Martin, 326 State Bank v. Evans, 333 State V. Boning, 346 State V. Bonham, 876 State V. Cargill, 973 State T. Elliott, 896 State y; Freeport, 398 State V. Gasconde, 951 State.y. Glen, 391 State V. Halloway, 174 Stater y. Hatch, 344 State y. Layal, 184 State y. MeClay, 920 State v. Page, (< State y. Plaisted, 115 State y. Pollok, 973 State y. Kagland, 189 State y. Schnierle, 451 State y. Sluder, 172 State y. William, 918 Stalls y. Locke, 689 Stathamv. Liverpool Docks TruBtees, 676- Stead V. Doner, :.67 Stead v. Nelson, 162 Stedman v. Bates, 123 Stednian v. Gassett, 13 Stedman v. Macintosh, 69 Steamlioat Co. v. Bron, 4ti7 Steam Nav. Co. v. Wright 659 Stearns v. Godfrey, 370 Stearns v. Morse, 335 Stearns v. Sampson, 924 StearDs y. Stearns, 178 Steams y. Warren, 880 Stebbins y. Peck, 949 Steadman y. Page, 119 Steel y. Briggs, 383 Steel y. Fink, 259 Steele v. Mart, 451 Steel V. Midland, 307 Steele v . Miller, 332 Steel y. Payne, 284 Steel y. Fink. 265 Steen y. Wadsworth. 372 Steffem v. Collins, 472 Steffens v. Earl, 74 Steiglits y. Eggington, 200 Stein y. Burden, 400 Stephens v. Bridges, 854 Stephani v. Brown, 919 Stefflns V. Collins. 474 Stephens v. Elliott, 248 Stephens v. Huss, 336 Stephens v. Orman, 175 Stephens v. Reynolds, C79 Stetson V. Day, 705 Stevens v. Barritt, 7,58 Stevens y. Cooper, 957 Stevens v. Copp, 551 Stevens v. Hatch, 332 Stevens v. Stevens, 350 Stevenson v. Case. 479 Stevenson y. Lombard, 483 Stevenson y. Silvernail, 537 Stern y. Freeman, 150 Steward v. Lombe, 902 Steward y. Winters, 649 Stewart y. Aston, 829 Stewart v. Clark, 96 Stewart v. Doughty, 972 Stewart y. Drake, 695 Stewart v. Finch, 6 Stewart y. Fitch, 918 Stewart v. Hall, 334 Stewart y. Murray, 466 Stewart v. Preston, 343 Stickney v. Monroe, 928 Stirling y. Warden, 921 Stinson v. Stinson, 770 Stinson y. Smith. 686 Stiles y. Brown, 331 Stiles v. Cow'per, 116 Sliles y. Hooker, 404 Stiles y. Probat, 331 Stitt v. Little, 174 Still y. Probet, 343 Stillman y. Hamer, 881 Stilwell v. Chappell, 708 Stohie y. Dills, 847 Stockett y. Watkins, 10 Stockton y. Martin, 444 Stookbridge Iron Works T. Hudson Iron Go, 348 Stockdale v. Onwhyn, 954 Stockett y. Watkins, 919 Stockport Water Works Co. v. Potior, 468 Stockwell v. Campbell, 885 Stockwell V. I-Iiinter, 631 Stockwell y. Mark, 10 Stoddert v, Nestus, 268 Table of Cases. Ixix .Stoddard v. Waters, 18 Stoops V. Delain, 375 Stokes V. Appomalox Co., 406 Stokes V. Cooper, 951 Stokes V. Bussell, 499 Stokes V. Moore, 268 Stomlil V. Hickes, 63 Stomsil V. Hickes, 62 Stopplekamp v. Marryeat, 77 Stockton V. Briscoe, 335 Stoner v. Cam, 161 Stone V. Evans, 051 Stone V. Patterson, 195 Stone V. Sprague, 9 Stone V. Tlivveed, 680 Stone V. Whiting, 813 Staveley v. Alloock, 933 Storey v. Robinson, 936 Storer v. Ellis, 316 Storer v. Hunter, 897 Storer V. Wliitman, 744 Story V. Odin, 315 .Story V. Jolinson, 149 .Story V. Langford, 888 Stougliton V. Baker, 205 Stoughton V. Lynch, 3G5 Stoughton V. Leigh, 426 Stouffer V. Latshaw, 173 ■Stout V. Kean, 719 .Stout T. Merrill, 160 Stout V. Mc Adams, 405 Stowe V. Patterson, 749 .Stowell V. Eobinson, 269 Stowman v, Landie, 775 Strabe V. Fehl,704 Strache t. Fehl, 163 Strade v. Seaton, 117 Straight V. Burn, 319 Strahan v. Smith, 747 Strangeways v. Bishop, 264 Stranks v. St. John, 270 Straper v. Williams, 755 Stratford v. Bosworth, 272 Strahan v. Smith, 11 Stratice v. Fehl 701 Stratton v. Pettitt, 22 Strautss v. St. John, 518 Strickconib v. Marsh, 205 Strickland v. Maxwell, 967 Strode t. Kussell, 473 .Strode V. Seton, 366 Stromaiher v. Zeppenfield, 674 Strafford v. Wentworth, 789 Strong V. Benduk, 411 Strong V. Crosby, 32 .Strong V. Gartteid, 949 Strong V. Grannis, 172, 173 Strong V. Moffiatt, 981 Strongman v. Knowles, 418 Stuyvesant v. Mayor, 272 Stutty T. Dickey, 972 Stuart V. Clark, 393 Stubba V. Parsons, 934 Studin V. Chinmar, 363 Stukeley v. Butter, 425 Sturgess v. Farrington, 135 Sturgess v. Gatchell, 180 Sturgis V. Warren, 833 -Sturger v. Bridgman, 424 Sturgeon v. Winglield, 245 Stute V. Kiukh, 175 Stutts V. Dickey, 46 Stuyvesant v. Mayor, 132 Style V. Hearing. 516 Styles V. Wardle, 451 Styper v. Vanderbilt, 450 Suffenn v. Butter, 328 Suffleld V. Brown, 114 Sullivan v. Bishop, 734 Sulybacher v. Dickie, 600 Sullivan v. Jones, 7 Sullivan v. Bosbee, 825 .Summer v. Bromilow, 873 Summers v. Pumphrey, 169 Summer v. Williams, 517 Sunderland v. Newton, 882 Supervisors v. Harrington, 981 Surcome v. Peninger, 287 Surplice v. Farns worth, 633 Sury V. Brown, 754 Smydam v. Jackson, 617 Snydam v. Jones, 504 Snydam v. Jackson, 815 Suiclifle V. Bootb, 413 Sutherland v. Briggs; 2tj8 Sutliff V. Atwood, 497 Sutton V. Chaplin, 790 Sutlon V. Harvey, 226 Sutton v.- Temple, 92 Sutton's Case, 112 Swan V. Stransham, 617 Swann v. Falmouth, 941 Swaine v. The Great Northern R. Co., 719 Swain v. Dolman, 162 Swatman v. Ambler, 499 Swasey v. Brooks, 132 Sweeney v. Garrett, 713 Sweeper v. Kandall, 114 Sweet V. Anderson, 677 Sweet V. Selgar, 766 Sweetman v. Cush, 639 Sweetzer v. Jones, 884 Sweetser v. Lamell, 336 Swere v. Leach, 936 Swift V. Dean 372 Swift V. East Waterloo Hotel Co., 586 Swift V. Gage, 368 Swift V. Eyres, 303 Swett V. Paliiek, 128 Swirt V. Thompson, 880 Swindells v. Beswick, 377 Swinfen v. Bacon, ()6o Swinfen v. Swinfen, 855 Swinnerton v. Miller, 781 Swinton v. Pedie, 819 Swords v. Edgar, 618 Syberson v. Slade, 852 Sybrey v. While, 928 Syckel v. Emery, 701 Syers v. Jonac, 475 Symcock v. Payn, 948 Symson v. Butcher, 531 Symes v. Hagden, 273 Syme v. Plarvey, 875 Symonds v Harris, 884 Symons v. Symona, H4 Tabu v. Bradley, 312 Taflfe V. Warwick, 883 Taggard v. Rosevelt, 323 Taggard v. Roosvelt, 35 Taintor v. Cole, 123 Tailors of Exeter v. Clarke, 660 Talbot V. Dennis, 161 Talbot V. Whipple, 705 Taler v. Seabrook, 775 Talmage v. North Am. Coal Co,, 141 'J'allm,an v. Bressler, 541 Tallman v. Frankliu, 266 Tallman v. CofBn, 4fl9 Town V. Butterfleld, 370 Tanner v. Waslibourne, 970 Tanner v. Valentine, .'JSO Tancred v. f;liristy.-27 Tanfield v. Rogers, 741 TanKerville v. Wingfleld, 229 Tanners v. Crouther, 272 Tapli.s V. Grane, 941 Taplin v. Florence, 414 Tappan v. Dubois, 239 Tappan v. Redfleld, 98, 329 Targus v. Padget, 446 Tarrant v. Hellier, 860 Tarte v- Darby, 846 Tarry v. Ashton, 920 Tasker v . Bartlett, 320 ]xx Table of Cases. Tasker v. Burr, 82 Tassey v. Church, 203 Tate V. Austin, 162 Tate T. Church, 114 Tate V. Gleed, 936 Talson v. Garner, 169 Tatum V. Chaplin, 650 Tatum V. Calamore, 443 Taunton v- Costar, 16 Taylor v, Adams, 177 Taylor v. Ashton, 208 Tiiylor V. Baily, 624 Taylor v. Baldwin, 028 '1 ay lor v. Blanchard, 658 1 aylor v. Briggs, 477 'J aylor v. Caldwell, 348 'J'aylor v. Caroudolet, 137 laylor v. Chapman, H-i'S Taylor v. Clemson, 051 'I'aylor v. Cole, 915 Taylor v. BeBue, 497 Taylor v. Dulwich Hospital, 669 Taylor v. Eckford. 335 Taylor v. Galloway, 177 Taylor v. Glazer, 327 Taylor v. Johnson, 872 Taylor v, Leith, 174 Taylor v. Mayor, 921 Ta>lor V. Morton, 326 Taylor v. Needham, 367 Taylor v. Partingon, 281 Taylor v. Patrick, 171 Taylor v. Pantou, 272 Taylor v. Peters, 940 Taylor v. Salmon, 207 Taylor V. Sandiford, 758 Taylor v. Shaford, 365 Taylor v. Shum, 561 ' Taylor v. Stendall, 916 Taylor v. Stibbert, 668 Taylor v. Townsend, 881 Taylor v. Whitehead, 722 Taylor v Wildin, 88 Taylor v. Winter, 679 Taylor v. Tamina, 135 Taymouth v. Hockler, 138 Tchieder v. Biddle, 674 Ulbbetts V. Pircey, 466 Tea v. Buck well, 4 Teer t. Winterton^ 9^2 Temple v. Brown, 560 Temple t. Johnson, 284 Tempest v. Bawling, 636 Tempest v. Kawlings, 260 Templeman v. Biddle, 972 Tennant v. Field, 942 Tenant v. Blaker, 329 Tenant v. Goldwin, 584 Tenney v. East Warren, 302 Terrell v. Legion, 931 Terry v. Hazel wood, 344 Terry t. Hopkins, 160 Terry v. Bobbins, 882 Terry v. Eosell, 183, 184 Terry v. Richardson, 269 Tew V. Jones, 31 Tew V. Perkins. 593 Tewksbury v, Bueklin, 722 Tewksbury v. Magroff, 367 Tenn v. Harrison, 200 Thackeray v. Wood, 571 Thames Haven Dock Co. v. Brymer. 509 Thasker v. Henderson, 749 Thayer v. Cramer 183, 184 Thayer v. Towrey, 303 'rheoloffical Inst. v. Barbour, 949 Theobald v. Duffy, 459 Threerv. Barton, 850 The Agricultural Cattle Insurance Co. v- Fitz- gerald, 362 The Banks v. Poitaux, 138 Tlie Board of Education v. Greenham, 138 The King v. Eddington, 190 The King v. St. Michael, 190 The Mayor, etc. v. Lawton, 138 Threw v. Barton, 297 Theed v. Starkey, 687 Thiebaiid v. Vevay, 77 Thetfoid V. Tyler,' 21 Thetford v. Thetfoid, 164 Thielnian v. Carr, 887 Ihomas v- Cadvvallader, 510 Thomas v. Brackney. 403 Thorn V. Woolconib, 297 Thomas v. Cook, 843 Thomas v. Croui, 892 'I'homas v. Frederick, 749 Thomas v. Harries, 1*49 Thomas v. Hayden, 742 Tbomas v. Hayward, 503 Thomas v. Howell, 446 Thomas^ v. Miles, 659 Thomas v. Nelson, 844 Thomas v. Packer, 79 Thomas v. Parker, 857 Thomas v. Peinberton, 951 Thomas v. Pullis, ii'.) Thomas v. Kii gle, G8 Thomas v. Roberts, 61 Thomas v. Thomas, 416 Thomas v. A' an KaJf, 523 Thomas v. Wright, 70 323 Thomas v. Williams, 958 Thomas v. Wiggen, 308 Thomlinson v. Uighton, 220 Thomson v. Willcot, 469 Thomson v. Amey, 584 Thomjjson v. Gih.soii, !)19 Thompson v. Gray, 436 Thompson v. Guyan, 076 Tliomxjson v. Hakewlll, 500 Thomson v. Amery, 26 Thompson v. Amey, 323 Tliompson v. Leach, 828 Thompson V. Brown, 514 Thompson v. Bullock, 334 Tliompson v. Crocker, J(I5 Thompson v. Doming, 5:58 Thompson v. Hammond, 33t Thompson v. Hokewell, 4&'5 Thompson t. Lapworth, 692 Thompson v. Leach, 324 Thompson v. Liiiscott, 147 Thompson v- Luckwood, 172 Thompson v. Maberley, 60 Thomas v. MarshHeld, 406 Thompson t. Miles, 601 Thompson v. Pettitt, 935 Thompson v. Strickland, 104, 151 Thompson v. Thompson, 435 Thompson v. Todd, 273 Thompson v- Trafford, 835 Thompson v. Waterlow, 319, 320 Thompi-on v. AVhalley, 319 Thompson V Wilson, 840 Tborn t. Woolcombe, 542 Thorndekv. Allen, 962 Thomdike v. Bunage, 588 Thornton v. Adams, 937 Thornton v. Appleton, 16* Thornton v Payne, 253 Thornton v. Shenatt, 657 Thornt(m v. Thornton, 122 Thorpe V. Eyre, 969 Thorp V. Field, 604 Thorp V. Freed, 412 Thorp y. Pellit, 281 Thorpe v. Brumlitt, 383 Thorpe v. Lughi, 957 Thoroughgood v. Walker, 768 Tlioeser v. Coventry, 412 Thrall v. Newell, 463 Thiall v. Omaha Hotel 368 Throckmorton v. Tracey, 447 Thresher v. East London Waterworks, 90S- Throp v. Feltz, 186 Table of Casks. Ixxi Throppv. Field, 30C Thrope v. Bruinfltt, 380 Thunder v. Belcher, 187 Thurber v. Bwyer, 75 Thurber t. Leggett, 76 Tliurber v. Martin, 441 Thurman v. Morrison, 397 Tllursby v. Plant, B46 Thurston's Case, 245 Thuriton v. Dickinson, 100 Thurston v. Hancock, 417 Thurston v. Mink, 315 Theuner v. Nante, 878 Thurton v. Mink, 317 Thynn v. Chalmley, 754 Thynne t. Glengall, 272 rhyer v. Society of United Brethren, 5 Tibbals T. Jacobs, 333 Tibbitts V. Moore, 202 Tiddjweii v. Whitsworth, 603 Tidey v. Mallett, 323 Tidey v. Mollett, 607 Tidrick V. Rice, 202 Tilden v. Tilden, 600 Tilghman v. Little, 981 Tillinghast v. Holbrook, 148 Tillotson V. Boyd, 553 Tilloston V. Doe, 370 Tillman v. Heath, 371 Tillmer t. Marsh, 382 Tileston v. Newell, 509 Tiley v. Moyers, 796 Tilt V. Stratton, 13, 35 Tiley v. Mayers, 801 Tilton V. Tilton, 278 Timmins v. Bawlinson, 6ft Timbrell v. Bullock, 780 Tinn v. Bear, 403 Tinokler v. Prentice, 136 Tipping V. Bckersley, 717 Tipling V. Pexal, 142 Tisdale v. Essex, 574 Tisdale v. Sir W., 569 Tobey v. Co. of Bristol 271 Tobie V. Smith, 8 Tobey v. Webster, 916 Todd V. Jackson, 111 Todd V. Philimer, 469 Todd V. Summers, 437 Joler T. Slator, 164 Toley V. Wilson, 192 Tomes v. Chamberlain, 51 Tomlin v. Dubuque, 395 Tomlin v. Railroad Co., 392 Tomlin's Law Die, 12 Tompson v. Field, 744 Tomlinson's Case, 459 Toralinson v. Day, 338 Tompkins v. Lawrence, 62 Tomkiiis V, Pincent, 8.0 Tomkinson v. Straight, 284- Tomkinson v. Snow, 370 Tondro v. Cushman, 367 Tonner v. Hardey, 846 Toplarly v. Sealey, 137, 35S Tooker v. Smith, 263 Toole V. Beckett, 619 Toole V. Medlicott, 68, 287 Toonies v. Couset, 199 Tottle V. Reynolds, 89 Torrey v. Buck, 174 Torrey v. Torrey, 13 Torrey v. WaUis, 602 Torrey v. Wallis, 687 Torriano v. Young. 713 Towne v. Campbell, 75 Towne v. Butterfield, 39' Town V. De Heinrich, 949' Townrow v. Benson, 767 * Townsend v, Albens, 845 Townsend v. Cowles, 467 Townsend t. Davis, 979 Townsend y. Downer, 332. Townshend v. Early, 535 Townsend v. Gilsey, 804 Townsend t. Hubbard, 206 Townsend V. Nickerson W. Co., 806 Townsend v. Scholey, 630 Townsend v. Stargroom, 278 Lcughran v. Smith, 323 Tracy v. Albany Exchange Co., 679 Tracy v. Button, 159 Tracy v. Talmage, 954 Trapnall t. Merrick, 631 Trade v. Cope, 553 Trask v, Patterson, 381 Tiask V. Wheeler, 859 Treacle v. Coke, 483 Treadway v. Shawn, 892 Treat v. Hxmt, 944 Treat v. Lord, 397 Treat v. Shoninger, 659 Treat v. Shoninger Melodeon Co., 658 Trecking v. Rolland, 102 Tremain v. Coher, 418 Tremeere v. Morisou, 561 Tresham v. Lamb, 304 Tress v. Savage, 258 Trevnan v. Laurence, 366 Trevilian v. Andrew, 821 Truesdell v. Booth, 617 Truss V. Old, 156 Truss V. Savage, 26 Trubtee v. Bootle-eum-Lincaie, 393 Trnell v. Fuller, 884 Ti-ycross v. Fitchburgh E. E. Co., 692 Tubervil v. Stamp, 708 Tiibervil v. Stotston, 839 Tucker v. Adams, 33 Tucker v. Keeler, 171 Tucker v. Moreland, 148 Tucker v. Morse, 116 Tucker v. Newman, 916 Trull V. Biglow, 334 Trull V. Granger, 254 Trigg V. Bead, 277 Tugnam v. Pickard, 867 Tunis V. G randy, 779 Turner v. Bai-nes, 940 Turner v. Bennett, 49 Tnrner V. Coal Co., 31 Turner v. Cameron, 885 Turner v. Clay. 271 Turner v. Duplock, 748 Turner v. Field, 326 Turner v. Ford, 734 Turner v. Handy, 952 Turner v. Hutchinson, 202 Turner v. Lamb, 588 Turner v. Lucas, 957 Turner v. Maymatt, 16 Turner v. McCarthy, 915 Turner v. Meymott, 821 Turner v. Sheffield, 916 Turner v. Steam Coal Co., 195 Tnrner v. Wilcox, 206 Turner v. Wliidden , 336 Turner v. Wright, 711 Turner v. Gadsden. 174 Turner v. Allday, 737 Turly V. Eogers, 980 Tumey v. Sturges, 165 Tunis V. Grandy, 779 Turnpike Co. v. Bennett, 713 Tuman v. Loder, 478 Tally V. Dunn, 292 TuUer v. Eddy, 189 Tullett V. Armstrong, 162 Tuynam v. Pickard, 497 Tucteer v. Dickinson, 393 Tuctier v. Robinson, 474 Tapper v. Caldwell, 147 Tupper V. Faulkes, 202 Tapper v. Faulkes, 330 Tustin V. Faut, 329 Tuttle V. Reynolds, 88 Ixxii Table of Cases. Tutton V. Darke, 939 Tyler v. Heidorn, 5 Tyler t. McCurdle, 282 Tyler v. Seed, 78 Tyler v. WilkinBon, 402 Tynam v. Pickard, 541 Tysou V. Yawn, 372 Tyson, v. Musson, 189 Tyson v. Wattd, 272 Tyrrell v. Clarke, 790 Uhl v. Dighton, 937 Uhde V. Walters, 477 Underwood v, Birchard, 563 United States v. Athens Armory, 183 Underwood v. Harwood, 451 United States v. Appleton, 315 United States v. Bostwick, 584 United^ States v. Hickey 749 United States v. Parrott, 701 Union &c. Mining Co. v. Rocky Mountain Natl. Bank, 206 Union &c. Co. v. Murphy & Co., 193 Upham V. Varney, 235 Upton T. Areher 342 Upton V. Ferguson, 565 Upton T- Townsend, 796 Upsliaw V. McBride, 367 Urban v. Grimes, 151 Uredall v. Halfpenny, 446 Utben V. Godfrey, 297 Utty Dale's Case, 117 Vallajjt v. Dodmede, 552 Vall^ V. Fargo, 688 Valentine v. Jackson, 732 Valentine v. Penney, 312 Valk V. Eldred, 395 Valet V. Herner, 795 Van Alstyne v. van Slyck, 328 Van V. Corfe, 647 Vau Cortland v. Underbill, 671 Vane v. Lord Barnard, 711, Vane v. Marshall, 160 Van Bunt v. Van Bunt, 343 Van Brunt v. Pope, 772 Vance v. Schuyler, 108, 335 Vanderbaugh v- Van Bergan, 401 Vandepool v. Smith, 603 Vanderkarr v. Vanderkarr, 517 Vandenhennel v. Storrs, 9 Van Dover v. Ever^t, 46 Van Densen v. Young, 705 Van Dyner v. Vreeland, 289 Van Home v. Grain, 673 Vanhoak v- Story, 978 Van Ovman v. Phelps, 928 Van Kemner v. li. R. Co. , 887 Van Ness v. Packark, 891 Vaner v. Fisher, 178 Van Rensselaer v. Ball, 746 Van Rensselaer v. Barringer, 340 Van Rensselaer v. Chadwick, 735 Van Rensselaer v. Dennisun, 693 Van Rentselaer v. Hays, 740 Van Rensselaer v. Jewett, 744 Van Rensselaer v. Jones, 539 Van Rensselaer v. Puiniman, 832 Van Rensselaer v. Radcliff, 389 Van Rensselaer v. Slingerlaiid, 340 Van Rensselaer v. Snyder, 746 Vansantv. Roberts, 142 Van Slyck v. Kimball, 572 Van Syckel v. Emery, 704 Van Wicklin v. Pantson, 752 Vardernan v. Ross, 179 Varley v. Leigh, 960 Varnum v. Smith, 980 Varick v. Smith, 395 Vance v, Faunk, 327 Varney v. Stevens, 694 Varnis v. Goodcheape, 497 Varnum v. Babcock, 282 Varnum v. Smith, 564 Vason V. Ball, 189 Vatel V. Hernet, 794 Vater v. Herner, 801 Vaughn v. Blanchard, 794 Vaughan v. Hancock, 033 Vaughn v. Haldeman, 877 Vaughn v. Lyrin, 465 Vaughn v, Mattock, 403 Vaughan v. Meulon, 709 Vaughn V. Parr, 148 Vaughan v. Tapp Vale Rail Co., 709 Vaughn v. Tracy, 334 Veale v. Prior, 295 Veal V. Robei-ts, 359 Veazie v. Dwinel, 393 Vecht V. Brownell, 941 Veeder v. Fonda, 271 Vedder v. Vedder 918 Veghte V. Ranit, Power Co., 352 Veghte V. Canal, 350 Venam v. Smith, 264 Vendors v. Purcbasers, 269 Vermojit v. Society, 340 Yt. Central R. R. Co. v, Richardson, 417 Verminy v. Bray, 770 Vernon v. Bethell, 199 A''ernon v. Vernon, 789 Vernon v. West, 450 Vernon v. Smith, 675 Verney v. Verney, 680 Veutrice v. Goodcheape, 497 Vewton v. Allin, 781 Vertue v. Beasby, 934 Victory v. Stroud, 1 Vickery v. Jackson, 58S Videau v. Griffin, 329 Vighte v. Raritan Canal Co., 390 Villers v. Beaumont, 165 Vincent v. Beverly, 780 Vincent v. Rather, 202 A''incent v. Godson, 341 Vinder v. Ellsworth, 784 Vine V. Loveden, 264 Viner v. Vaughn, 701 Vizoneaii v. Pegram, 162 Vivian v. Blomoerg, 137 Vivian v. Champion, 642 Vyvyan v. Arthur, 521 Yoak V. Amador, 366 Voonheer v. McGinnis, 306 Vochell V. Doncastell, 781 Vogel V. Forahee, 658 Vogle V. Ripper, 342. Volk V. Eldred, 396 Vonbollen v. Knowles, 375 Voorheea v. Burchaud, 312 Voorheee v. De Meyer, 270 Voorhis v. McGiniiiss, 877 Voorhies v. Voorhies, 157 Vorhees v. Trueman, 893 Vorhis V. McGinniss, 878 Vose V. Bradstreet, 469 Vowles V. Miller, 721 Voyce V. Voyce, 721 Wabash &c. Canal Co. v. Brett, 594 Makerbin v. Whitecroft, 792 Wade V. Baker, 156 Wade v. Benhani, 324 Wade v. Culvert, 171 Wade v. Cooper. 734 Wade v. Halligan, 515. Wade V. Johnson, 876 Wade V. Johnston, 880 Wade V. Simon, 172 Waddilove v. Barnett, 363 Waddilove v. Barnett, 194, 195 Wadhamv. Marlowe, 558 Wadham v. Post Master Genl. L., 439 Waddington v. Hill, 488 Wadleigh v. Janvrin, 886 Wadman v. Calcraft, 719 Table of Casks. Ixxiii "AVadmonev. Selwyn, 458 Wadswortli v. Smith, 396 "Wadswoi-th v. Tilsoii, 400 "Waffle V. N. Y. Central Ballroad Co., 620 Wagner v. Cleveland &c. R. It. Co., 884 Wager v. Duffy, mi Wagoner v. Jeimain, 918 Wagner v. Long Island K. K, Co., 398 Wagner v. Wagner, 329 Wagner t. White, 798 Wager v. Stone, 184 Wagstaftv. Smith, 161 Wain V. Bickford, 576 Wain T. Warltens, 267 Wainscott v. Silvers, 927 Wakelield v. Brason, 951 WaltefCeld v. Duke of Buccleuoh, 420 Wakely v. Davidson, 410 Wakeman v. Lindsey, 944 Wakeman v. Walker, 232 Wakeman v. Walker, 573 Walgamott v. Bonner, 934 Wakin v. Williamson, 610 Walls T. Atcheson, 843 Wall V. Granger, 247 Wall V. Goodenough, 858 Wall V. Hindi, 890 Wallis V. Carpenter, 761 Wallis r. Delniar, 49 Wallis V. Ehea, 334 Waller v. Andrews, 136 Waller v. Deaii, 330 Waller v. Draketord, 912 Waller v. Morgan, 3 Waller v. Northern Coal Mining Co., 282 Waller v. Pettey, 430 Wallis V. Ehea, 334 Wallis v. Wallis, 488 Wallace v. Brown, 284 Wallace v. Dun, 399 Wallace V. Forrest, 982 Wallace v. King, 944 Wallacse t. Latham, 151 Wallace v. Lent, 922 Wallace v. Lewis, 144 Walluston v. Hakewell, 131 WallasLon v. Hukewill, 112 Walling V. Toll, 952 Walcap V. McKenney, 191 Walcott V. Sullivan, 609 Walden v. Bodley, 368 Waldo T. Eussell, 334 Waldron v. Chastney, 219 Waldron v. McCarthy, 572 Walker v. Andrews, 691 Walter v. Dewey, 775 Walker v. Constable. 39, 61 Walker v. Ellis, 147 Walker v. Englar, 868 Walker v. Forbush, 943 Walker v. Giles, 38 Walker v. Gilbert, 815 Walker v. Gode, 80 Walker v. Groves, 254 Walker t. Harper, 980 Walker v. Hatton, 133 "Walker V. Button, 915 Walker v. Jnflreys, 283 Walker v. Keile, 327 Walker v. King, 189 Walker t. Pierce, 382 Walker v. Eeeves, 190 Walker v. Richards, 844 Walker v. Richardson, 846 Walker v. Sharpe, 75 Walker v. Sherman, 884 Walker v. Shepardson, 393 Walker t. Shoemaker, 793 Walker v. Smith, 206 Walker v. The Board of Public Works, 395 Walker v. Tucker, 583 Walker v. Walker, 314 Walker t. Webber, 607 Walker v. Whittemore, 691 Walmaley v. Milne, 894, Walsal V. Healh 164 Walsh V. Fussell, 499 Walsh v. Freely, 131 Walsh V. Pemberton. Walsh V, Powers, 150 Walsh V. Eijiger, 465 Walsh V. Trevajiion, 484 Walsh V. Watson, 5U3 Walter v- Rumbal, 945 Walters v. Hutchins, 493 Walters v. Pttel, 419 Walters v. Vanderveen, 465 Waterfall v. Peiiistone, 904 Walterman v- Harkneiss, 688 Walton V. File, 924 Walton v. Helc, 574 Walton V. Johnson, 600 Walton V. Watertrouse, 598 Walton V. Wilson, 283 Wamen v. Causett, 325 Wambaugh v. Beimer, 756 Wamble v. George, 179 Wane v, Wane, 713 Wartteld v. Booth, 659 Wankford v. Wankford, 167 Wansbrough v. Muxton, 886 Waples V. Hastings, 145 Waples et ai. v. ^'\'ap^es, 700 Ward v. Buckingham, 666 Ward v. Bull, 770 Ward V. Byrne, 659 Ward V. Camp, 201 Ward V. Const, 687 Ward V. Day, 986 Ward T. Hartpole, 209, 210, 211 Ward Y- Kellsey, 640 Wardv. Lumley, 829 Ward V. Maccaulty, 292 Ward V. Mcintosh, 372 Ward V. Mason, 958 Ward V. Shew, 933 Ward V. Morril, 161 Ward V. Ward, 306 Ward V. Willingale, 872 Warden v. Usher, 726 Wardlaw v. Gray, 161 Wardle v. Brooklehurst, 412 Wardroper v. Cutfleld, 790 Wardsworth v. Manning, 271 Waring v. King, 25 Waring v. Mackreth, 823 Waring v. Martin, 405 Waring v. Smyth, 344 Warnian v. Paithf uU, 253 Warner v. Brown, 323 Warmer v. Browne, 261 Warren v. Chambers, 393 Warner v. Hale, 949 Warner v. Hitcliins, 600 Warner v. Willington, 267 Warren v. Arthur, 35t? Warren v. Blake, 322 Warren v. Comings, 951 Warren v. Feanside, 450 Warren v. Ferdinand. 948 Warren v. Forney, 934 Warren v. Kauffman, 928 Warren v. Leland, 245 Warren v. Lynch, 326 Warren v. Mathews. 389 Warren v. Merrylield, 484 Warrington v., Arthur, 656 Warner v. Mower, 139 Warren v. Sweet, .?32 Warwick v. Noakes, 764 Washburn v. Cutter, 246 Washburn v. Black, 943 Washburn v. Gould, 484 Washburn v. Spront, S92 Washington v. Conrad, 981 Watchman v. Crook, 484 Table of Cases. Waters v. Howard, 273 Waters v. Tazwell, 168 Waters v. Weigall, 766 Waters v. Young, 771 Waterman v. Hookness, 691 Wateman v. Soper, 726 Watherell v. Howell b, 701 Watriss v. First National Bank of Cambridge, 905 Watson V. Alexander, 980 Watson V. Anderson, 170 Watson V. Atkins, 694 Watson V. Boyston, 486 AVatson v. Brainard, 8 Watson V. Eachin, 7 Watson V. Hunkins, 749 Watson V. Hinsworth Hospital, 669 Watson V. Hill, 120 Watson V. Home, 693 Watson V. H. Hospital, 241 WaLson V. Lane, 910 Watson T. Main, 939 Watson T. Master &c. Hemsworth Hob. , 681 Watson V. McLean, 363 Watson T. Wand, 810 Watson V. Walthara, 556 Watson V. Whitney, 973 Watkins v. Baird, 172, 173 Watkins v. Edwards, 335 Watkins v. Gravesand, 52 Watkins v. Holeman, 9 Watkins v. Pick, 407 Watkins v. Pick, 406 Watkins v. Taliaflero, 932 Watts V. Ainsworth, 267 Watts V. Coffin, 387 Watt V. GroTC, 211, 214 Watts V. Hawkins, 722 Watts V. Judd, 644 Watt y. Maydewell, 839 Watts V. Mason, 374 Watts V. Rogers, 271 Watts V. Slieppard, 765 Watts T. Wellman, 696 Watlen v. Coal, 274 Watters T. Travel, 810 Wallonv. Hill, 163 Waters v. Howard, 271 Water Works Co. v. Potter, 402 Waugli T. Eussell, 343 Waulkey v. Bucknell, 341 Wawn V. Horn, 79 Way T. Eeed, 859 Way V. Holton. 545 Weatherhead t. Curwood, 63€ Weatherley v. Ross, 719 Weatherett v. Geeiing, 5.35 Weatherby v. Sleeper, 892 Weaver v. Belclter, 16 Weaver v. Eureka, 412 Weaver v. Jones, 145 Weaver v. Wood, 267 Weakley v. Bucknell, 257 Weale v. Lawer, 367 Weston V- Incorp. of Tailors, 928 WebbT. Austin, 365 Webb T. Alexander, 673 WebbT. Dixon, 819 Webb V. Noah, 659 Webb T. Plummer, 635 Webb T. Portland Manf . Co., 401 Webb V. Plummer, 473 Webb V. Patonster, 355 Webb T. Portland. 399 Webb V. Russell, 740 Webb v. Webb, 377 Weber v. Reinhard, 693 Webster v. Fleming, 401 Webster v. Gilman, 96 Webster v. Holland, 6 Webster v. Harris, 201 Webber V. Sberman, 18 Webster v. Woodford, 169 Weed T. Beebe, 150 Weeks v. Bowerman, 805 Weeks v. Hull, 451 Weeks v. Matllerdet, 442 Weidelt v. Wales, f 83 Weidner v. Foster, 7 Weigall V. Waters, 601 Weill v. Lucerne Mining Co., 303" Weeton v. Woodcock, 907 Wetlicot V. Nine, 663 Wellesley v. Wellesley, 712 Wells V. Bannister, 897 Wells V. Coons, 203 Wells V. De Leyer, 671 Wells T. Jackson Mfg. Co., 246 Wells V. Mason, 807 Wells V. Mason, 981 Wells T. Moody, 942 Welch T. Myers, 951 Wentz T. Fincher, 896 Wesley v. Thomas, 467 West V. Blakenay, 883 West T. Davis, 869 West v. Dobb, 535 West v. Hart, 698 West T. Nibbs, 935 Western R. R. Co. v. Babock, 27T West V. Stewart, 566 Western Trans. Co. v. Lansing, 64, 67$ Weston T. Alden, 401 Weston T. Collins, 282 Western E. R. Co. v. Cripps, 274 Weston V. Weston, 880 Wetherell -v. Bird, 727 Wetherell v. Howell, 726 Whalen v. Ahl, 403 Whalen v. Gloucester, 921 Wlialey v. Laing, 402 Whaley v. Morton, 314 Whalin v. White, 982 Wlialley v. Thompson, 319 Wharton v. Fitzgerald, 949 Wharton v. Taylor, 936 Whayman v- Chaplin, 85 Wliayman v. Chapman, 11? Wheadon v. Sugg, 447 Wheatley v. Boyd, 499 Wheaton v. East. 1 U WlKeldon v. Paul, 870 Wheeler v. Bates, 196 Wheeler v. Branscombe, 194 Wheeler v. Earle, 43 Wheeler v, Gorman, 96 Wheeler t. Hill, 113 Wheeler v. Montefiore, 198 Wheeler v. Nivins, 200 Wheeler v. Schad, 499 Wheeler v. Stevenson, 797 Wheelock v. Freeman, 342 Whoelock T. Thayer, 499 Wheelock v. Wafschaiier, 981 Whelden v. Lowell, 356 Whichcote v. Lawrence, 206 Whiply v. Dewey, 904 Whipple V. Cumberland Mfg. Co., 401 Whitaker v. Hales, 188 Wliitbeck V. Cook, 572 Wbitbeck v. Skinner, 612 Wliitchurch v. Bevis, 285 Whitcot V. Fox, 629 White T. Albany Railway, 589 White V. Bailey, 52 White V. Brooks, 123 Wliite T. Cox, 171 White V. Crutcher, 451 Wliite v. Curtis, 128 White T, Cuyler, 204 White V. Deumam, 201 White v.Elwell, 365 White V. Flora, 148 White V. Fohinabe, .%7 White V. Greenish, 854 White V. Guy, 302 Table of Cases Ixxv ■White V. Joiiee, 173 White V. Laugdeu, 364 While V. Leesou, 229, 380 White V. Livinj^aton, 9 White V. Maildon, 144 White V. Moatro, 814 White V. Mealia, 915 White V. Molyneaux, 631 White V. Montgomery, (il9 White T. Nicholson, 637 White V. Osborne, 375 White V. Kittemeyer, 139 White V. Sayer, 968 White V. Tiidora, 271 White V. Wak'.ey, 591 White V. Walker, 964 White V. Warner, 524 White V. Wazer, 637 White V. White, 681 White V. Whitney, 502 . White V. Wiltshire, 355 White V. Yaw, 282 Whiteacre v. Symonds, 88 Whitehead v. Bennett, 895 Whiteheail v. Brockhurat, 286 Whitehead v. Clitrord, 840 Whitehead v. Parks, 416 Whitehead v. Taylor. 933 Whitehead v. Wells, 206 Whitehouse v. Birmingham Canal Co., 622 Whiteman v. King, 388 WhiUvoith V. Maden, 947 Wliit:'.eld V. Buritt, 426 Whitlield V. Binndw )0d, 693 Whitlleld V. Loiigtellow, 172, 173 Whitlield T. Pindar, 789 Whitlield v. Weedon, 723 Whistler V. Newman, 161 Whistler V. Paslnw, 430 Whiling V. Daniel, 343 Whitley v. Gough, 835 Whitley v. Koberts, 9J3 Whitlook's Lease, 236 Whitloek v. DiilHeld, 673 Whitlook V. Hortoii, 299 W'itlock T. Hutchinson, 385 W .Uman v. NicoU, 690 Whitman v. Lex, 239 Whitmore v. Shiverick, 184 Whitmore v. Empson, 904 Whitmore v. Walker, 767 Whitney v. Allaiue, 026 Whitney v. AUire, 266 Whitney v. Bramble, 337 Whitney v. Brastow, POT Whitney v. Cochran, 41 Whitney v. Slayton, 658 Whitney v. Dutch, 158 Whitney v. Gordon, 78 Whitney v. Meyer, 781 Whil-ney v. Myers, 780 Whitney v. Spencer, 436 Whitney v. Sweet, 925 Whitney v. Levett, ,37 WhiLstone v. Davis, 673 Whittalcer v. Brown, 427 Whittaker v. Hales, 192 Whittaker v. Howe. 653 Whittaker v. Miller, 300 Whittemore v. Bean, .334 Whittemore v. Gibbs, .938 Whlttingen v. Clarke. 328 Whittey V. Davis, .327 Whittingliam's Case, 148 Whittle V. Webster, 584 WhiUock V. Duffleld, 671 Whittome v. Lamb, 453 Whittou V. Whitton. 124 Wliitty V. Lord DillOTl, 725 Whitway v, Pinseiit. 497 Whonn V. Drizzle, 32 Wicker v. I^ewia, 009 Wicker v. Pope, 346 Wickenden v. Webster, 650 Wickham v. Lee, 967 Wickham v. Hawkes, 389 Wickersham v. Orr, 367 Wiegall V. Waters, 690 Wigg's Case, 120 Wiggiii V. New York, 794 Wiggin V. Peters, 451 Wiggin V. Wiggin, 45 Wiggin V. Woodruff, 989 Wigglesworth v. Dallison, 519 Wigglestou V. Steers, 171 Wight V. Dickson, 658 Wilbraham v. Swisay, 265 Wilbraham v. Snow, 934 Willard V. Tillman, 614 Willard v. Taylor, 505 Wilbur V. Paine, 927 Wilcoxen v. Bowles, 777 Wilcox V. Calloway, 334 Wilcox V. Cahn, 518 Wilcox V. Davis, 853 Wilcox V. Ten Eyck, 509 Wilcox V. Wilcox, 125 Wilcox V. Wood, 75 Wildbor v. Kainforth, 821 Wilde V. Cantillon, 13 Wrlde V. Minsterley, 417 Wilde V. Waters, 910 Wilder v. Brooks, 334 Wilder v. Houghton, 194 Wilder v. Maine, 506 Wilder v. Wilder, 722 Wilby v. Christ, 347 Wilgers v. Gettings, 892 Willes V. Castle, 921 Wilks V. Smith. 509 Wilkies v. Caulk, 345 Wilkins v. Pry, 324 Wllkins V. French, 191 Wilkins V. Wood, 473 Wilkinson v. Cawood, 766 Wilkinson v. Colley, 826 Wilkinson v. Gaston, 451 Wilkinson v. Goodier, 83 Wilkinson v. Hall, 127 Wilkinson v. Ibbett, 945 Wilkinson v. Kirby, 982 Wilkinson v. Libbey, 690 Wilkinson v. Manliu, 66 Wilkinson v. Pearson, 170 Wilkinson v. Pettit, 675 Wilkinson v. Scott, 367 Wilkinson v. ebster, 650 Wilkinson v. Rogers. 652 Wilkinson v. Traiiimer, 376 Wilkinso]! v. Williamson, 531 Willis V. Astor, 670 Willis V. Birchmore, 367 Willis V. Canlk, :i44 Williams v. Cooper, 89 Willis V. Castle, 814 Willis V. Jorinaine's Case, 142 Willis V. Mangation, 402 Willis V, Parlcinson, 724 Willis V. Whitewood, 156 Will^ V. Homish,940 Williams v. Bartholomew, 763 Williams v. Beard, 189 Williams v. Bosanquet, 951 Williams v, Bnrrell. 516 Williams v. Chandler. 365 Williams v. Cheney, 633 Williams v. Cush, 368 Williams v. Davies, 534 Williams v. Davis, 534 Williams v. Day, 715 Williams v. Deriar. 60 Williams v. Evans, 904 Williams v. Earle, .529 Williams v. Fry, 435 Wiliiams.v. Flight, 759 Williams v. Gale, 400 Ixxvi Table of Casks. ■Williams v. Geer, 32T Williams t. Grancott, 723 "Williaiiis V. Haiidly, 32» "Williams v. Hayward, 556 "Williams v. HolmeSj 235 "Williams v. Hallis, a48 Williams V. Jones, 710 Williams y. Lake, 267 Williams V. Matthews, 223 AViliiams V. M'Namara, 716 Williams v. Menitt, 206 Williams v. Morris, 362 Williams v. Mabee, 149 "Williams v. Pasqueelli, 111 Williams v. Pearson, 239 Williams v. BawUiis, 178 Williams v . Roberts, 937 AVilliaiiis v. Kobiusoii, 459 Williams v. Saffoid, 382 "Williams v. Sawyer, 827 Williams T. Steven, 933 "Williams v. Storrus, 202 "Williams v. Taylor, 635 WiUiams v. Wliitlield, 981 Williams v. Williams, 639 Williams v. Young, 327 AVilliamson v. Brown, 334 Williamson v. Carle, 160 "Williamson V. Hall, 695 Williamson v. Polton, 70 Willis T. Stradling, 286 Williamton v. Mason, 16& Williamson v. Paytoii 77 Willingliam v. Joyce, 682 AVilmartli v. Bridges, 98 Willingbam v. Joyce, 257 Williiigton V. Brown, 369 Willisou V. Watkins, 5 Wlllison T. "Watkins, 870 Willoughby v. Backhouse, 942 Wilson V. Cliisholm, 254 Willsoii V. Abbott, 95 Wilson V. Abbott, 83 Wilson V. Abel, 820 Wilson T. Astor, 669 Wilson T. Bagshaw, 319 Wilson v- Bigger, 171 Wilson V. Chattort, 349 Wilson V. Chalfant. 350 Wilson V. Chisholm, 256 Wilson T. City of New Bedford, 623 "Wilson V. Daiiiell, 160 "Wilson V. Davenport, 934 Wilson V. Deen, 585 Wilson v. Edmonds. 100 Wilson T. Fiiieh Hatton, 587, 633, 922 Wilson V. Fuller, 20R Wilson V. Gamble, 126 Wilson T. Hard, 325 Wilson V. Hart. 648 Wilson V. Hunter, 312 Wilson V. Jones, 745 Wllstm V. Leonard. 605 Wilpon V. Nightingale, 944 Wilson V. Phillips, 440 Wilson V. Oldham, 170 Wilson V. Phillips, 857 Wilson V. Pig, 83S Wilson V. Eavbould, 578 Wilson V. Smith, 722 Wilson v. Sewell, 8.36 Wilson V. Smith, 5 Wilson V. Townend, 720 Wilson V. Waddell, 620 Wilson V. Watkins, 368 Wilson V. Watkins, 554 Wilson V. Whattley, 901 Wilson V. Wilson, 622 Wilson V. Willis, 312' Wilson V. Woolfryes, 329 Wiltshear v. Cottrell, 876 Wiltshire v. Lidtoid, 722 ■Witton y. Bye, 734 Witty V. Matthews, 616 Wimberley v. Jones, 149 Winch V. Winchester, 278 "Winchester v. Wright, 960 Wickmere v. Hobart, 447 Windsor v. China, 451 Windsor v. Grover, 296 Waig V. Harris, 836 Wing V. Bruggis, 302 Wing V. Chase, 327 Wingate v. ITry, 273 Wingate v. Wilkins, 981 Wingford v. Wollaston, 584 Winn v. Cole, 340 Winn v. Ingleby, 899 Winn V. White, 637 Winnipiseogee v. Perley, 489 Winuipseogee Co. v. Malhiesoii, 431 "\\ innpesegee Lake Co. v. Young, 406 Winship v. Pitts, 699 Winslow Y. Band, 308 ' "Wiuslow V. Fighe, 675 Wiiistell V. Hebe, 981 Winton v. Coniish, 631 Wintou V. Pinkney, 734 Winston v. President, 980 Winter v. Brockwell, 355 Winter v. Trimmer, 754 Winter v. Loveday, 228 Winterbottom v. Ingham, 39 Wintoii V. President, 368 Wintermute v. Kidington, 177 Wiiitermute V. Snyder, 277 Wisconsin Bank v. Mortley, 201 "Wiscot's Ca.se, 164 Wiss V. John, 937 Wise V. Metcalf, 702 Wisseler v. Herchey, Wiswell V. Hall, 305 Witt V. New York, 926 Witt v. Pierson, 769 Witte V. Cawklns, 161 Witte v. Derby Fishing Co., 141 Witherell v. Geering, 554 Withers v. Birchem, 607 Withers V. Birti am, 128 Witliers v. Larabee, 35 Witton v. Eye, 729 Witton V. Dunn, 194, 195 Witty V. Matthews, 613 Witty V. Williams, 736 "Wolcott V. Sullivan , 610 Waklin v. Bodly, ! 80 Wolf V. Johnson, 981 Wolf T. Meiritt, 740 Wolf V. Meiner, 779 Wolfe V. Frost, 350 Wollan V. Harmstead, 603 Wollaston v. Hakerville, 507 Wottan V. Hele, 569 Wolveridge v. Steward, 491 Wolveridge v. Stewart, 481 Womach v. McQuarrie. 814 Womsby v. Church, 402 Wood V. Avery, GOl Wood V. Bovle, 693 Woody. Claike, 936 Wood V. Copper Mines Co., 499 Wood V. Cope, 277 Wood V. Cow, 451 Wood T. Day, 611 Wood V. Dermett, 660 Wood V. Felton, 189 Wood V. Fleet, 124 Wood V. Foster, 296 Wood V. Gaynon, 714 Wood V. Gosling, 160 Wood V. Hartpole, 217 Wood V. Hewett, 883 Wood V. Lake, ,357 Wood V. Hildebrand, 342 Wood V. Hubbell,n57 Wood V. Lake Saye. , jo5 Table of Cases. Ixxvii Wood T. Leadhetter, 414 Wood V. Mauley, 52 Wood V. Mayov &o. o£ New York, 768 Wood V. Midgley, 272 Wood V, Murtoii,337 Wood V. Nuim, 937 Wood V. Patridge, 841 Wood V. Peniiell, 365 Wood V. Phillips, 125 Wood V. KowcliUe, 442 Wood v. Sparks, 177 Wood V. Sutiliffe, 402 Wood V. Tate, 138 Wood V. Turner, 371 Wood V. Walbridge, 831 Wood V. Wood, 91 Wood V. Wilcox, 8 Woods V. Durraiit, 743 Woods V. Hyde, 282 Woods V. Pope, 644 Woodard v. Seeley, 352 Woodbridge v. Kichardson, 783 Woodbury v. Fisher, 333 Woodbury v. Luddy, 276 Woodbury v. Short, ;199 WoodcoclJ V. North, 848 Woodcraft V. Thompson, 947 Woodcock V. Tittert0M,937 Wooden V. Haviland, 457 Woodliouse V. Jeultiiis, 577 Woodhull V. Rosenthal, 131 Wooley V. Gregory, 844 Woodman v. Pease, 876 Woodman v. York 327 Woodrull V. Adams, 915 Woodroll V. Greenwood, 675 Woodroso V. Greenwood, 575 WoodruB V. Cox, 160 Woodward v. Aston. 837 Woodward v. Gates, 701 Woodward V. Giles, 760 Woodward v- Lindley, 828 Woodward v. Payne, 913 Woolwich V. Forest, 142 Woolam V. Hearne, 278 Woodcock V. Dew, 593 Woolinan v. Heam, 299 Woolsey V. Thompliins, 204 Woolston V. Start ord, 943 Woolter V. Hele, 575 Woottey V. Gregory, 829 Worce ter v. Dally, 035 Worcester Bank v. Eaton, 145 Worcester v, Eaton, 148 Worcester v. Green, 365 Worcester v. Rowlands, .598 Woice.'fter &c. Trustees v. Kowland, 609, 627 Wo ing V. King, 18 Worley v. Frumpton, 238 Worall V. Munn, 329 Woothingtoti v. Hyler, 465 Woottlngton v. McCann, 496 Worthington v. Gimson, 319 Worthington v. Weston, 127 Worthington v. Wigley, 764 Wottan V. Edivin, 753 Wragg V. Denham, 197 Wren v. Woodlau, 467 Wrejifood v. Gyles, 458 Wright V. Burbank, 202 Wright V. Burnett, 154 Wright V. Borroughes, 867 Wright V. Calls, 270 Wright V. Calhoiise, 208 Wriilit V. Cochran, 93, 302 Wright. V. Cartwight, 458 W.ightv. Dewes, 936 Wright V. Hazen, 365 Wright V. Howard, 399 Wright V. Johnson , 7S3 Wright T. Lattin, 816 Wright T. Newport &c., 243 Wright V. Newton, 8 Wright v. K. B.Co,, 206 Wright V. Roberts, 704 Wright V. St. George, 266 Wright T. Smith, 825 Wright V. Tuttle,4T9 Wright V. Tuzwant, 254 Wright V. Wright, 272 Wright V. Williams, 402 Writer v. Stevens, 14 Wrottesly v. Adams, 839 Wyatt V Byron, 131 Wyatt V Harrison, 417 Wyatt v. Staggs, 831 Wyburd v. Tuck, 496 Wyman t. Ballaul, 695 Wyman v. Farras, 515 Wyman v. Hook, 952 Wyman v. Perkins, 364 Wyman v. Brooks, 133 Wyman v. Humphrey, 116 Wyudham v. Hulcomb, 231 Wyndham v. Kobart, 726 Wyndham v. Way, 431 Wynkoops v. Burger, 382 Wynne v. Bampton, 736 Wynne v. Humphreys, 114 Wynne v, Ingleby, 897 Wynh^im v. Carew, ?5 Wyoming Land Co. v. Price, i Wythe's Case, 968 Yamould v. Moorehouse, 537 Yale V. Church, 531 Yale V. Flanders, 328 Yard y. Yard, 171 Yates v. Boen, 196 Yard v. Carman, 391 Yard v. Ford, 405 Yates T. Church, 116 Yates V. Dunster, 644 Yates V, Jack, 319 Yates V, Milwauke, 3ffT Yates V. Searel, 947 Yates V. Tearle, 946 Yates V. Yates, 790 Yellowby v. Gower, 229 Yeo V. Leman, 693 Yeruel t. Sutton, 242 Yocum V. Brands, 479 Young V. Baxter, 882 Young V. Bradford, 854 York V. Jones, 539 Young V. Duke, 32, 266 Young V. Timmins, 600 Young V. Harris, 644 Young V. Harrison, 395 Young V. Holme, 180 Young V. McKee, 150 Young V. Mautz, 591 Young V. Peyser, 556 Young V. Radford, 105 Young V. Raincock, 570 Young V. Smith, 111 Young V. Young, 37 Youngblood v. Lawrey, 936 Youngborough v. Monday, Younger v. Welsh, 283 York V. Jones, 750 Zilkin T. Carbart, 176 Zink T. Gaunt, 964 Zouch V. Wallston, 221 THE LAW OF LANDLORD AND TENANT. CHAPTER I. LANDLORD AND TBNAKT, Sec. 1. Wheii tlie relation exists. SeK). 2. The relation may be implied. Sec. 3. Presumption arising from occupancy. Sec. 4. Payment of rent. ■When the relation exists. Section 1. A tenant, is one who occupies the lands or premises of another, in suhordination to that other's title, and with his assent, express or implied. ' But, in order to create the relation, the two ele- ments must concur. The fact that one is in possession of the lands of another, does not of itself establish a tenancy, ^ because, if he is in possession under a claim of title in himself, or under the title of another, or even in recognition of the owner's title, but without his assent, he is a mere trespasser, and cannot be compelled to yield rent for his occupancy, nor is he estopped from attacking the owner's title. In such a case, all the elements requisite to create the relation of land- lord on the one hand, or of tenant on the other, are lacking, to wit, assent upon the one hand, and subordination to title upon the other. If the owner gives his assent to the occupancy of one who has entered 1 McKissaok v. BuUington, 37 Miss. 373. Not only may a tenancy in some 535 ; Farrow v. Edmundson, 4 B. Mon. cases be implied from possession, but (Ky.) 605 ; MosMer v. Reding, 12 Me. also a contract to pay rent, Jackson'!). 478 ; Howard v. Ellis, 4 Sandf. (K Y. Mowry, 30 Ga. 143 ; Phelps v. Conant, Superior Ct. ) 369. 30 Vt. 277 ; Littleton v. Wynn, 31 Ga. 2 Edmonson «. Kibe, 43 Mo. 176 ; 583 and, unless the character of the Jordan v. Mead, 19 La. An. 101. But tenancy is such as to negative the exist- possession, coupled with circumstances ence of a tenancy, it has been held that that establish assent upon the one hand, the law will imply a contract to pay and subordination to title on the other, rent therefor, Chambers v. Ross, 25 IS". is sufficient. Victory d. Stroud, 15 Tex. J. L. 293 ; Oakes v. Oakes, 16 111. 106. 2 Landlord axd Tenant. upon his lauds adversely, a tenrmey is not thereby created. In order to have that effect^ the x)erson in possession must accept such permis- sion, and consent to hold under him, and in subordination to his title. ' Where a person goes into the possession of premises wrongfully, it is undoubtedly competent for the parties, by a contract subsequently made, to change the relation from that of a trespasser to that of ten- ant. But in such a case the contract must be explicit, and embrace all the elements previously referred to ; and if it is intended to have the tenancy commence from the date of the original entry, so as to change the owner's remedy for the period of wrongful occupancy, from trespass to an action for rent, the contract should explicitly embrace the whole period of occupancy, or neither the character of the prior occupancy, or the remedy, will be changed. ^ Patterson, J., in an English case ^ said, " Use and occupation may arise from the loaiver of a tort, or from simply letting into possession." But it is apprehended that an action for use and occupation could not be maintained for a tortious entry and occupancy, because the owner of premises cannot by elect- ing to do so, compel a person, who entered into the possession of prem- ises against the owner's right, to occupy towards him the relation of tenant, unless such person elects to assume that relation. That is, the owner cannot, at his option, elect to treat such person as a wrong- doer or a tenant ; but, in order to enable him to treat him as a tenant, and proceed against him for rent, the relation between them m,ust be such as to raise the presumpMon of a contract, or the remedy is by an action ex delicto. * A contract to pay rent is not essential in order to create the relation, ^ although this is the usual incident of tenancy. ^ It is competent for a person to permit another to occupy his premises gratis if he chooses to do so, and if the person enters into possession under such permission, the fact that no rent was to be paid, or that no term was agreed upon, does not divest them of the relation of land- 1 Jackson v. Tyler, 2 John. (N. T. ) in a house rent free by the sufferance of 444. Where the owner does not con- the owner, is a tenant at will. Eex v. sent to the occupancy there is no ten- Collett, K. & E. C. C. 498 ; Eex v. Job- ancy, Aclverman d. Lyman, 20 Wis. ling, 2 Euss. C. & M. 28. Thus in Eex 454, see holding that a person who en- d. Fillongley, 1 T. E. 458, it was held tered with the assent of the owner upon that the words "I give you a close to a condition that has not been complied enjoy as long as I please, and to take with, is not a trespasser until after the again when I please, and you shall pay possession has been demanded, Carson nothing for it," constituted a tenancy ■c. Baker, 4 Dev. (N. C.) 220. at will. See also, NichoU v. McKaey, 2 Howard xi. Carpenter, 11 Md. 259. 10 B. & C. 721 ; Jones -e. Jones, 10 id. * Church V. Imperial Gas Light Co., 118, and any compensation paid or ser- 6 Ad. & El. 854. vice rendered for the use of premises, * Mayor of Stafford x,. Till, 4 Bing. however slight, is treated as rent, and •77, opinion of Best, J. establishes a tenancy. Thus a; person ° McKissack v. Bullington, 37 Miss, who occupies a house on condition that 535. he shall sweep a church, Edney v. Ben- « Piatt on Leases. Herrell b. Size- ham, 9 Jur. 662, or ring the church bell, land, 81 111. 457 ; McKissack v. Bulling- is a tenant paying rent. Edney v. Bil- ton, 37 Miss. 535. A person who lives lett, 9 Jur. 662. Landlobd and Tenant. 3 lord and tenant. Thus, if a man, witli his family, moves into the house of another, by his invitation, and remains there and takes care of him until his death, he is a tenant at will, even though no rent whatever is or was to be paid. ^ In order to create the relation of landlord and tenant, no particular words are necessary ; but the intention of one party to dispossess himself of the ijrcmises, and of the other to enter and occupy them, as the former himself had a right to do, must in some way appear, ^ and in all cases where the facts are disputed, the ques- tion as to whether a tenancy exists is for the jury. ° The relation may be implied. Sec. 2. In the absence of an express contract, the relation may be implied from the conduct of the parties in reference to each other, and in reference to the premises, ^ as, that the person sought to be charged as tenant, or who, himself, seeks to establish that relation, paid rent therefor to the owner or his agent, '^ or entered into possession as agent of the owner, " or under a lease that has expired, '' or that he entered 1 Herrell v. Sizeland, 81 111. 457. In Health. Department v. Police Depart- ment, 41 51. T. Superior Ct. 323, it was held that, one who permits another to enter upon his premises, and occupy them rent free, such possession being only for a temporary purpose, cannot regain possession by force, and in this case, it was held that the police depart- ment of a city have no greater rights than an individual. 2 Moshier v. Eeding, 12 Me. 478 ; "Waller v. Morgan, 18 B. Mon. (Ky.) 136. ^ In Franklin Telegraph Co. v. Pew- tress, 43 Conn. 167, the defendant en- gaged desk room in a part of the office of the plaintiff at a rent of $250, a year, the term to begin on the 1st of the suc- ceeding April. During the month of April he was several times at the office, sometimes alone, and sometimes with a person in his employment or in part- nership with him, spoke to the agent in the office about a railing to be made, and as to the plan to put his sign. The railing was never made nor the sign put up. He also engaged the agent to act for him in attending to inquiries, and on one occasion left some parcels at the office and placed his business cards in the front windows, describing it as his office. The court held that it was for the jury to say from this evidence whether the defendant entered into the possession of the office. Eigg v. Bell, 5 T. K. 471 ; Chamberlain v. Donohue, 44 Tt. 57. * Jackson v. Mowry, 30 Ga. 143 ; Chambers v. Ross, 25 N. J. L. 293 ; Phelps V. Conant, 30 Tt. 277 ; Littleton V. Wynn, 31 Ga. 583 ; Eedfield v. TJtica, &c., R. R. Co., 25 Barb. (N. Y.) 54; Pinero b. Judson, 6 Bing. 206 ; Gustin V. Burnham, 34 Mich. 50 ; Dunn v. Trustees, 39 111. 578 ; Hammerton v. Stead, 3 B. & C. 478 ; Darned v. Hud- son, 60 N. Y. 102 ; Anderson v. Mid- land R. R., 30 L. J. Q. B. 94. Taking the key of a house for the purpose of occupancy has been held sufficient to raise an implied tenancy, although the person did not in fact occupy. Little v. Martin, 3 Wend. (N". Y. ) 219. 5 Porter v. Bleiler, 17 Barb. (N. Y.) 149 ; Smith's Landlord and Tenant, 24 29 ; Thompson v. Amey, 12 Ad. & El. 476 ; Rigg v. Bell, 5 T. R. 471 ; Braith- waite V. Hitchcock, 10 M. & W. 494 ; Manning v. Lovejoy, Ry. & Moo. 355 ; Richardson v. Gifford, 1 Ad. & El. 52, and the same rule applies to a corpora- tion, Pennington v. Lamere, 12 Q. B. 998 ; Hill v. South Staffordshire R. Co., 11 Jur. N. S. 192, L. J. ^ Farrow v. Edmundson, 4 B. Mon. (Ky.) 605. ' Knight V. Bennett, 3 Bing. 363, opinion of Best, J. Benan v. Delahay, 1 H. Bl. 5 ; Borastoni). Green, 16 East, 71 ; Schelling v. Holmes, 23 Cal. 227 ; Baker v. Root, 4 McLean (IT. S.), 572 ; Ames V. Schnesler, 14 Ala. 60. In the case of a tenant continuing in posses- sion after his term expires, in the ab- sence of any new agreement, the law presumes that he holds under and sub- ject to the terms of the previous lease. Quiileth c. Carpenter, 35 Mo. 502 ; La- guerenne v. Dougherty, 85 Penn. St Lawdlokd ani> Tenant. tinder an agreement for a lease, ^ or under an invalid lease or agiee- 45 ; De Toung v. Buehanan, 10 Gill & J. (Md. ) 149, but this presumption may be overcome by proof to the contrary. Frantz v. Wood, 2 Hill (S. C), 367; Bremer v. Knapp, 1 Pick. (Mass.) 3-32. But the fact of tenancy cannot be de- nied if the owner seeks to enforce such a relation, as, in the case of a person holding over after his term has expired, the landlord may elect whether to hold him as a tenant, or as a trespasser, and his election is binding on the person holding over, Hemphill v. Flinn, 2 Penn. St. 144. 1 Weakley v. Buckley, 4 Cow. (N. T. ) 473 ; Doe v. Smythe, 4 M. & S. 347. In Hammerton v. Stead, 2 B. & C. 278, it was held that the occupation of a bouse pending the execution of a lease, con- stitutes the relation of landlord and ten- ant, and that the landlord in such a case can maintain quantum valebat for the rent although no distress therefor can be made. See also, HoUingsworth V. Stennett, 2 Esp. 717, where a similar doctrine was held. In the latter case the tenant had been in possession under a previous lease, and continued in pos- session pending a treaty for a further lease for seven years, but which came to nothing. But before the treaty for the new lease was at an end, the plaintiff brought ejectment. The court held that the defendant was a tenant at will, and could be put out at any time with- out no'tioe, the agreement being void under the statute of frauds. But it be- ing proved that an agreement for a lease had been entered into, and that the lease had been actually prepared and the 31st of July fixed upon as the time when it should be executed, Lord Kenton held that ejectment brought before that date would not lie, as the de- fendant was in by the lessor of the plain- tiff's permission, and consequently was not a trespasser. See also, Yea v. Buck- nell. Camp. 473, where it was held that an occupation for eighteen years, under a void agreement for a lease for twenty- one years, constituted a tenancy, al- though no lease had ever been tendered by the lessor or demanded by the lessee. But where one gets into possession wrongfully, and without the privity of the landlord, a tenancy is not created, although they afterwards enter into^ treaty for a lease, but differ as to the terms. Knight v. Quigley, 2 Camp. 50.5. In the latter case, the plaintiff had a lease of ahouse and wished to un- derlet it. While it remained empty, the defendant got into it, intending to take a lease of it from the plaintiff, and some negotiations to that end were after- wards had, but the parties disagreed about some of the details, and no agree- ment was ever arrived at. Ejectment was brought to recover the possession, and Loud Ellbnboeotjgh held that there was no evidence of any tenancy, and that if the defendant could be said to be a tenant of any sort, he was a mere tenant at sufferance, and entitled to no notice to quit. But if a person gets into a house or premises without the privity of the owner, although ne- gotiations are afterwards opened for a lease, he is not a tenant if the negotia- tions came to nothing. In Rogers v. PuUen, 2 Bing. N. C. 749, the defend- ant in possession under a lease for four- teen years assigned the lease by way of mortgage to the plaintiff and then com- mitted a forfeiture, for which ejectment was brought by the lessor. It was af- terwards agreed that judgment should be signed in the ejectment suit, and a new lease made to the plaintiff, who was to grant an underlease to the de- fendant. After the new lease was made the plaintiff delivered the key to the de- fendant, saying : "Go on as usual ; pay the money (due on the mortgage), and when you have done so you shall have your underlease." It was held that this did not constitute the defendant a tenant from year to year, because there was a condition precedent which he did not perform, and when the first quar- ter's rent became due, he not having paid it was ejected. Under such cir- cumstances tlie occupier is a mere ten- ant at sufferance at most, until he per- forms, and failing to do so may be turned out without previous demand. Price V. Price, 9 Bing. 356. See also, Jackson v. Ashburner, 5 T. E. 163 ; risk V. Moores, 11 Eob. (La.) 279; How- ard ^j. Carpenter, 22 Md. 10 ; Kerrains V. People, 60 N. Y. 221 ; McElderey v. Flanagan, 1 H. & G. (Md.) 308. In an action for the use and occupa- tion of a ferry and ferry-landing, the plaintiff proved that the defendant, who was then in occupation of the premises under a former agreement, had a con- versation with the plaintiil's agent, in which the latter wished the defendant to agree to pay a specific rent, to which the defendant made no other objection than to the amount of rent required, and offered a smaller sum, which was not agreed to, and that the defendant continued to use and occupy the prem- ises. Held, that the evidence was in- sufficient to establish the relation of landlord and tenant, or to support the action. Ballentine v. M'Dowell, 3 111. 28. Landlord and Tenant. ment for a lease, ^ or from any acts of the parties, or facts or circum- stances that show an intention to create the relation, or that in law do create it. It is enough, if there is permission upon the part of the owner, and an entry or occupancy in pursuance of such permission on the part of the tenant, ^ and the owner's assent may be implied. ^ Thus, where a lessee for a term assigns the lease, the assignee, without any express contract to that effect, by accepting the assignment, takes it, subject to all its conditions, including the payment of rent as it there- after becomes due, ^ or the payment of assessments, ' or the making of repairs, or any other covenant or condition therdn that runs with the land, ° including the manner of occupancy.' And the assent of 1 Warner «. Brown, 8 East, 165. In the case of a lease, void as to its dura- tion, it is nevertheless held that it must regulate the terms on which the ten- ancy subsists in all other respects, as to the rent, the time of the year when the tenant is to quit, the nature of the oc- cupancy, &c. It was also so held in a case where a farm was leased for seven years, by parol, and was consequently void un- der the statute of frauds, but under which the tenant entered into posses- sion, Eiggs V. Bell, 5 T. E. 471 ; Little V. Martin, 8 Wend. (N. Y.) 219. Even where a person enters into possession under a void lease, or under an agree- ment for a lease which is not executed, he is a tenant, and estopped from deny- ing the title of the person under whom he entered, without first surrendering his possession, Eichardson v. Harvey, 37 Ga. 224 ; Thyer v. Society of United Brethren, 20 Penn. St. 60 ; Patterson V. Hansel, 4 Bush (Ky.), 654; McCon- nell V. Bowdry, 4 T. B. Mon. (Ky.) 392; Heath v. Williams, 25 Me. 209 ; Bryne V. Beeson, 1 Doug. (Mich. ) 179 ; King V. Murray, 6 Ired. (N. C. ) L. 62, as he cannot controvert the title of him who let him into possession. Lane v. Ed- monston^ 1 Ired. (N. C.) L. 152; Wilson V. Smith, 5 Terg. (Tenn.) 879 ; Sharpe V. Kelley, 5 Den. (N. Y.) 431. See also holding that a person in possession un- der a void lease is to be treated as a tenant, and not as a trespasser, Boult V. Symonds, 10 East, 18; Brune v. Raw- lings, 10 id. 261 ; Martin ». Watts, 7 T. E. 83 ; Ludford ». Barber, 1 id. 86 ; Gallaway v. Herbert, 4 T. E. 680 ; War- ren V. Fearnside, 1 Wils. 176. In Beale V. Sanders, 3 Bing. (N. C. ) 850, it was held that a tenant who, as assignee un- der a void lease, had been in possession several years, was bound to repair to the end of the term according to the covenants in the lease. 2 Eainey v. Copps, 22 Ala. 288 ; Mc- Klssack D. Bullington, 37 Miss. 535. 3 Jackson v. Tyler, 2 John. (IST. Y.) 444; Willison v. Watkins, 3 Pet. (U. S.) 50 ; MoKee v. Angelrodt, 16 Mo. 283 ; MoKeou I). Whitney, 3 Den. (N". Y.) 452. * Graves v. Porter, 11 Barb. (N". Y. ) 592 ; Overman v. Sanborn, 27 Vt. 54 ; Blake v. Sanderson, 1 Gray (Mass.), 382; Main v. Davis, 32 Barb. (N". Y.) 461, and it is held that an action of covenant for arrears of ground rent accruing before the assignment was made will lie against an assignee of a lease, Hanuen B. Ewalt, 18 Penn. St. 9. 5 Kearney v. Port, 1 Sandf. (IN. Y. Superior Ct.) 105. . Park, 1 Edm. Sel. Cas. (N. Y. ) 223 ; Gunn v. Scovill, 4 Day (Conn.), 228; Estep v. Estep, 23 Ind. 114 ; Pierce v. Pierce, 25 Barb. (N. Y. ) 243 ; Russell u. Fabyan, 34 N. H. 218 ; Osgood V. Dewey, 13 John. (N. Y. ) 240, and it is for the jury to say from all the facts and circumstances, whether a ten- ancy exists. Chamberlain ». Donahue, 44 Vt. 57. To create the relation of landlord and tenant, an agreement ex- press or implied must exist. The facts must show, expressly or impliedly, that the defendant occupies as tenant of the plaintiff, to authorize a recovery in an action of assumpsit for use and occupa- tion. WTien a person occupies the land of another, not as tenant, but adverse- ly, or where the circumstances under which he enters show that he does not recognize the owner as his landlord, this action will not lie. The remedy is trespass for mesne profits after a recov- ery in ejectment. Biitler v. Cowles, 4 Ohio, 205-213. 2 Jackson v. Tyler, 2 John. (N. Y.) 444. A person who entered by the ap- parent permission of the owner may properly claim to be treated as a tenant, Marquart v. La Farge, 5 Duer (K. Y.), 559, 10 Landloed and Tenant. convert his occupancy into a tenancy unless he accepts such jjermis sion, and holds in pursuance of it. K"or even in the latter instance would a tenancy exist except as to the subsequent occupancy. ■* There- fore, it is erroneous to say that mere proof of occupancy is sufficient to establish a tenancy. The owner must go farther and show an occu- pancy under such circumstances that a contract, express or implied, can be predicated thereon, which can never be done unless the original entry was lawful or the occujsancy during the period for which rent is claimed was with the assent of the owner, express or implied. ^ Tlie relation may also be created by operation of law, as where a person gets into possession under a levy upon the tenant's term, or as an assignee in bankruptcy, or by the provisions of a statute, " or where he goes in as an assignee of a tenant or by his connivance or j)ermis- sion, he may be treated as a tenant or not, as the landlord elects.' But this is hardly the rule when the person is in as an under tenant. ^ Payment of rent. Sec. 4. The payment of rent, by one in occuj^ancy of jJremises, is evidence of a tenancy, but the mere jjayment of money by the tenant to the landlord is not evidence of a tenancy of any particular kind, nor even of a tenancy at all, if the payment is referrable to any other con- sideration, ^ or if paid vmder such circumstances as clearlj^ to rebut the idea of a tenancy. ' In order to constitute a tenancy from a payment 1 Howard D. Carpenter, 11 Md. 259. that a purchaser of the premises at a But where a person enters under an sheriff's sale under the execution could agreement to accept a lease, he cannot, maintain an action of assumpsit under by afterwards refusing to accept it, de- § 119 of the act of June 16, 1836, for feat his relation as tenant, Hunt v. Com- rent accruing after he received the sher- stock, 15 Wend. (If. T.) 665; Anderson iff's deed. Hayden v. Patterson. 51 V. Prindle, 23 id. 616. Penn. St. 261. 2 Pierce v. Pierce, 25 Barb. (N. T.) * Benson b. BoUis, 8 Wend. (X. Y.) 243 ; Stockett v. Watkins, 2 Gill. & J. 115; Hull b. Western Trans. Co., 34 jST. (Md.) 326; Edmonson v. Kite, 43 Mo. T. 284 ; Bacon v. Brown, 9 Conn. 358 ; 176 ; Watson v. Brainerd, 33 Vt. 88 ; Graves v. Porter, 11 Barb. (N. T.) 592. Dalton V. Landahn, 30 Mich. -349 ; Nance ^ Mason ». Breslin, 9 Abb. Pr. (N. Y. ) V. Alexander, 49 Ind. 516 ; Espey d. N. S. 427 ; Jennings v. Alexander, 1 Fenton, 5 Oregon, 423; Lankford v. Hilt. (N. Y.) 154. Green, 52 Ala, 103; Quimby b. Stebbins, " Right v. Beard, 13 East. 260 ; Phil- 55 N. H. 420. In Mitchell v. Pendle- lips v. Mosely, 1 C. & P. 262. ton, 21 Ohio St. 664, the court held that, ' In Strahan v. Smith, 4 Bing. 91, one where land is occupied by a person not T holding pictures of P, as security for the owner, in such a manner and under an alleged debt, hired rooms of tlie such circumstances that a contract to plaintiff in which to deposit them. P pay rent cannot be implied, rent for having died, the defendants (his admin- such occupancy cannot be recovered un- istrators) contested T's claim by a suit less an express contract to pay it is in chancery. Pending the suit, in order shown. to prevent the pictures from being dis- 3 Frank v. Kincaid, 5 Md. 404. In trained, they petitioned the court to Hayden v. Patterson, 51 Penn. St. 261, satisfy the plaintiff's rent, out of cer- B came into possession under a defend- tain funds paid into court in the course ant in execution with an understanding of the cause. T's claim having been dis- that he should pay rent, the amount allowed by the court, the pictures were not being fixed ; and J subsequently ordered to be delivered to the defend- came into possession under B. Held, ants, who, in order to obtain them, paid Laitdloed and Tenant. 11 of rent it must be paid in the capacity/ of a tenant, and if it is fiaid in any other capacity, it does not have that effect. ^ So, too, where rent has been paid by one in the capacity of a tenant, and the term is unex- pired, in an action to recover for subsequent rent, the tenant may show that he paid it under a mistake, and that the title of liis lessor to the prem- ises has expired. ^ Thus, in an English case, ^ the lessor being seized in fee of certain land mortgaged them, but remained in possession and afterwards leased apart of it to Barton, who entered under the lease, after which the lessor executed a second mortgage, and Barton after that paid rent to the second mortgagee. The second mortgagee afterwards leased the balance of the land to the other defendant, Warburton, who also went into possession under his lease. Subsequently, the first mort- gagee gave the defendants notice to pay the I'ent to him, which they did. The second mortgagee then brought ejectment against them, and the court held that the defendants might show the existence of the first, mortgage ; notice from the first mortgagee to them, and payment of rent to him pursuant to such notice : for, although Barton could not dispute his lessor's title at the time of the demise, he might show that the second mortgagee had no derivative title from his lessor, and that he was not precluded by having paid rent to him under a mistahe of the facts. Thus, it will be seen that the question as to whether the payment of rent is evidence of a tenancy, depends entirely upon the circumstances under which it was paid, and although prima facie evidence of a tenancy is liable to be rebutted by proof. '' rent to the time of delivery. Tlie court tenancy. In order to have that effect, held that the payment of rent under it must be paid by the party in the ca- these circumstances did not constitute pacity of a tenant." the defendants, tenants to the plaintiff. ^ In Neave v. Moss, 1 Bing. .360, a 1 Best, C. J., in Stralian v. Smith, 4 tenant for life, with power to lease for Bing. 94, in commenting upon the facts twenty-one yeays, leased for fifty-three of this case, as given in the preceding and died. After his death, and more note, and their effect, said : "In order than twenty-one years after the making to constitute the relation of landlord of the lease, the lessee underlet : after and tenant between them (the defend- which the remainderman gave both the ants and the plaintiff), there must have lessee and the under-lessee notice to been a contract express or implied. Ex- quit, and then gave the under-lessee a press contract, there is none ; but it has new lease, and received rent from him. been urged that such a contract may be The lessee distrained on the under-les- implied from the payment of rent by the see, and it was held that he might plead defendants. There certainly are cases non-tenuit, because he was entitled to in which such an implication would show that the lessor's title had expired, arise from the payment of rent, but ^ Higginbotham v. Barton, 11 Ad. & every such implication is liable to be re- El. 307. butted, and the circumstances under * Strahan v. Smith, 4 Bing. 91 ; Brane which this rent was paid, do rebut any i>. EawlinS, 10 East. 261 ; Eight v. Eaw- such implication. The mere payment don, 3 id. 260 ; Higginbotham v. Bar- of rent will not of itself, constitute a ton, 11 Ad. & El. SOY. 12 Kinds of Tenancy. CHAPTER U. KINDS OF TENANCY TENANT BY SUEFEEANCB. Sec. 6. Definition of term. Sec. 6. Tenancy by sufleranoe — 'wiiat is. Sec. 7. Origin of this species of tenancy — effect of owner's assent — how estab- lislied. Sec. 8. Has no demisable estate — cannot maintain trespass against landlord — not entitled to notice to quit. Sec. 9. How tlie tenancy may be determined. Sec. 10. Eent not recoverable. Sec. 11. Eight of tenant at sufferance to remove fixtures. Sec. 12. Tenant liable for damages, •vyhen. Sec. 13. Landlord's right of election, as to tenant holding over. Definition of term. Sec. 5. The ■word tenant is derived from the Latin word tenere, which signifies to hold, and as a legal term, is applied to a person who holds or possesses lands or tenements by any species of title, pither in fee ; for life ; for years ; from year to year ; at will ; by sufferance, or under any kind of claim or title which confers an interest in the prop- erty, long or short. ^ But the species of tenancy with which we shall deal in this work is that, by sufferance, at will, from year to year, for years, and for life. Tenancy by .sufferance — vrhat is. Sec. 6. A tenant by sufferance is one who comes into the possession of real estate lawfully foi a specified term or purpose, but who, after his estate is ended, holds over without authority, ^ as a tenant for a 1 3 Tomlin's Law Die. 573. Bayley v. Bradley, 5 C. B. 396 ; HoIHs 2 Co. Litt, 57b, Moore v. Lawder, 2 v. Pool, 3 Met. (Mass.) .350 ; Knight v. Camp, 308 ; Simpkins v. Ashurst, 4 Quigley, 1 Stark's, 505 ; Rising v. Stan- Tyr, 781 ; Keay D. Goodwin, 16 Mass. 1 ; nard, 17 Mass. 282; Jackson v. Mc- Kingsley v. Ames, 2 Met. (Mass.) 29 ; Leod, 12 John. (N.T.) 182 ; Jackson v. Tenant by Suffeeance. 13 year or a tenant for any other specified term or purpose, who holds over after his term expires, is a tenant by sufEerance."^ So, a mortgagor who remains in possession after a decree of foreclosure has expired, or after a sale of the mortgaged premises under the mortgage, ^ or a per- son who enters under a contract to purchase a leasehold interest to be paid for by instaMents, with stipulation for a forfeiture in case of non-performance, after condition broken, * or a lessee of a tenant for life who holds over after the lessor's death, ^ or a lessee of a tenant in dower ^ or by curtesy after the death of the person in whom such estate is vested,^ or an under-tenant who continues in possession after the determination of the original lease, ' or a tenant at will who keeps possession, after the will has been determined by the death of the lessor or otherwise, * although in the case of a tenant remaining in Parklmrst, 5 id. 128. "An estate by- sufferance," says Blackstone, in vol. 2, c. 150, of liis commentaries, "is ■where one comes into possession of land by lawful title, but keeps it afterwards without any title at all. As if a man takes a lease for a year, and, after the yeai is expired, continues to hold the premises without any fresh lease from the owner of the estate. Or if a man maketh a lease at will, and dies, the estate at will is thereby determined ; but if the tenant cometh into posses- sion, he is tenant by sufferance, Co. Litt., 57 b. But no man c^n be ten- ant at sufferance against the king, to whom no laches or neglect in not enter- ing and ousting the tenant is ever im- puted by law ; but his tenant, so hold- ing over, is treated as an absolute in- truder Co. Litt. 57 b. But in the case of a subject, this estate may be destroyed whenever the true owner shall make an actual entry on the lands, and oust the tenant ; for before entry, he cannot maintain an action of tres- pass against the tenant by sufferance as he might against a stranger, Co. Litt. 57 b. ; 4 John. (jST. Y.) 150 ; 4 Kent's Com. 117, and the reason is, because the tenant once being in by lawful title, the law (which presumes no wrong in any man) will suppose him to continiie upon a title equally lawful ; unless the owner of the land by some public and avowed act, such as entry is, will de- clare his oontiimance to be tortious, or, in common language, wrongful." After the expiration of his term, a ten- ant becomes tenant by sufferance, 1 Pyer, 62 a pi ; Flower v. Darby, 17 R. 159 ; Tilt V. Stratton, 4 Bing. 446, and so remains until by payment of rent, or other acknowledgment of tenancy, he is, by construction of law converted into a tenant at will, or from year to year, Clarke v. Smaridge, 9 Jur. 781 ; Mower v. Darby, ante ; Manning v. Lovejoy ; 1 Ry. & Moo. 355 ; Culvert V. Frowd, 4 Bing. 557 ; Keay v. Good- win, 16 Mass. 1 ; Hyatt v. Wood, 4 John. (N.Y.) 150 ; Wilde i). Cantillon, 1 John. Cas. (N.Y.) 128 ; Hauxhurst v. Lebru, 38 Cal. 563. 1 Overdeed v. Lewis, 1 W. & S. (Penn. ) 90; Hyatt v. Wood, 4 John. (N. Y.) 150 ; Keay v. Goodwin, 16 Mass. 1 ; Wilde V. Cantillon, 1 John. Cas. (N". Y.) 128 ; Hauxhurst v. Lebru, 38 Cal. 563. 2 Stedman v. Gassett, 18 Vt. 346 ; Kinsley v. Ames, 2 Met. (Mass.) 29. ^ Moore v. Lawder, 1 Stark, 505. Thus, in Cole v. Gill, 14 Iowa, 527, the defendant entered into possession of premises under a bond for a deed, and held over after the premises had been sold upon an execution to satisfy the balance due on the purchase contract, it was held that he became a mere ten- ant at sufferance, after such sale. 1 Torrey v. Torrey, 14 N. Y. 430 ; Liv- ingston V. Tanner, 14 id. 64 ; Preston v. Love, jSToy, 120 : Jordan v. Ward, 1 H. Bl. 99. ^ Miller v. Maynewaring, Cro. Oar. 397. ^ Piatt on Leases, 97. ' Simpkins v. Ashurst, 4 Try, 781. ' Knight V. Quigley, 2 Camp. 505, Co. Litt. 57 B. A valid lease for years, by the owner of premises then occupied by a tenant at will, terminates the tenancy, and makes him a tenant at sufferance of the' lessee, Dillon v. Brown, 11 Gray (Mass.), 179, ^nd if a part of the estate is leased or sold he becomes a tenant at sufferance as to that, but remains ten- ant at will as to the remainder, Dillon V. Brown, ante. 14 Kinds of Tenancy. after the determination of an estate at will, but slight evidence 'wdl be required to convert it into a tenancy at will again, ^ and any undue laches on the part of the landlord in entering into possession will have that effect. ^ The distinction between a tenancy at will and by sufferance is marked. A tenant at will is always in by right ; but a tenant by sufferance holds over by wrong, after the expiration of a lawful title. ^ If there is a joint occupation of land by the owner and another by agreement, the latter cannot be a tenant at sufferance. * But if a per- son goes into possession under an agreement for a lease by the cestui que trust but pays no reat, and the cestui que trust dies without exe- cuting a lease, he is only a tenant by sufferance as against the trustee. ^ So, where a person goes into possession imder a parol lease for years, but agi'ees to quit if the demised premises shall be sold within the time, upon the sale thereof he becomes a mere tenant at sufferance. ^ A per- son who holds over after the termination of his estate, under an agree- ment with, or by the permission of one who had no authority in the premises, is a tenant at sufferance. Thus, where a tenant for years, on the expiration of his lease, applied to the attorney who drew the lease for a renewal of it, and the attorney told him that he had no authority to renew it, but that he (the tenant) might keep possession until he heard from the landlord, it was held that the tenant was a mere tenant at sufferance. ' A grantor of land, no time being fixed in which i^os- session shall be given, instanter, upon delivery of the deeds, or if a time is agreed upon after the expiration of the time, becomes a tenant at sufferance; and if, before the time for delivering up possession, he permits another to enter, they both become tenants at sufferance. * A tenant who goes into possession under a written lease, at a rent pay- ^ lu Bennett v. Turner, 7 M. & M. 226, after the expiration of his lease, under Pakke, B., said: "Slight evidence an agreement for a lease of the same, would probably satisfy a jury that a re- and additional premises, be was held lation so inconvenient as that of a ten- to be a tenant at willi4 Emmons v. Scud- ancy by sufferance, in which the tenant der, 115 Mass. 367. is not entitled to the fruits of his own ''Dallas v. Pool, 3 Met. (Mass.) 350. industry (as he has no right to the em- In Writer v. Stevens,9 Allen (Mass. ), 526, blements, Vin. Abr. Emblements, 79), two persons entered into an agreement would not be long continiied." If the to buy land and build a house thereon, lessor receives rent from the tenant, the A conveyance was made to one only, tenancy by sufEerance is at once changed who boarded in the house with the into a tenancy at will, or from year to other, who paid no rent, but occupied, year, according to the circumstances, under a written agreement, the one in HoUingsworth v. Stenwell, 2 Esp. 716 ; whom the legal title was vested, having Kowan v. Little, 11 Wend. N.Y. 619. conveyed the land ; it was held that the " Bennett v. Turner, ante. other became a mere tenant at suffer- ^ Co. litt. 57 b ; Cole on Ejectment, ance after the conveyance. 546 ; Woodfalls' Landlord and Tenant, ' Jackson v. Parkhurst, 5 John. 190. (N.Y.) 128. * Johnson v. Carter, 16 Mass. 443. « Hyatt v. Wood, 4 John. (N.Y.) 150 ; ^ Howard v. Carpenter, 22 Md. 10. Wood «. Hyatt, 4 id. 313. In any event So long, however, as the agreement for a grantor, under such circumstances. Is the lease Is operative, he is a tenant at no more than a tenant at will. Jack- will. Thus, where a tenant held over son v. Aldrich, 13 John. (N.Y.) 106. Tenant by Sufferance. 15 able quarterly, and holds over after the expiration of his term, is, in the absence of any agreement to the contrary, a tenant at sufferance, and he does not become a tenant at will by virtue of stipulations in the lease that he will " during the said term, and for such further term as the said lessee or any other person claiming under him shall hold the premises, pay unto the said lessor the said quarterly rent upon the day hereinbefore appointed for the payment thereof" and that he will " at the expiration of said term, peaceably yield up unto the said lessors, or those having their estate therein, all and singular the premises." Such a lease does not operate to give the lessee any right to occupy the premises beyond the term fixed therein. ' Origin of this species of tenancy — effect of o-wner's assent — hovr estab- lished. Sec. 7. This species of tenancy is believed to have been originally a mere device to prevent a tenant, who went into possession lawfully, from setting up title in himself by adverse possession, and thus defeat- ing the title of his landlord. ^ The tenancy is of such a nature as neces- sarily imjDlies an absence of any agreement between the owner and the tenant, and if express assent is given by the owner to such possession, the tenancy is thereby, instanter, converted into a tenancy at will, ^ or from year to year, according to the circumstances. * If a tenant holding the premises for a sjaeoifio term, hold over, after the term is ended, in the absence of any evidence to the contrary, the jJi'esumption is, that his possession is wrongful, ' but this presumjjtion may be overcome by any evidence that shows that the landlord or owner of the premises assented thereto, ^ as, that the landlord received rent from him, '' or after a notice to quit, permitted him to remain upon the premises with- out suit or objection for a considerable period. * 1 Edwards i;. Hale, 9 Allen (Mass. ), so even though the lease contains lan- 462. gnage from which it may be inferred 2 Smith's Landlord and Tenant, 31 ; that a further term is contemplated. Fawcett's Landlord and Tenant, 49. The burden is upon the tenant to show ^ Kowan v. Little, 11 Wend. (N. T.) that the landlord has given his assent 619 ; Smith's L. T. 31. to his remaining, in some definite man- ^ Eowan v. Little, ante. ner, and the mere fact that he has made '' Brown v. Keller, 32 111. 151. This no objection thereto does not change presumption attaches, and it is incum- the character of his occupancy, Ed- bent on, the tenant to show that the wards d. Hale, 9 Allen (Mass.), 462. landlord has in some way assented to ^ Newell v. Sanford, 13 Iowa, 191. his holding over, so as to convert his ten- '' HoUingsworth v. Stennett, 2 Esp. aney from that at sufferance, to a ten- 716. ancy from year to year. Prima facie he ^ jj^ Ifewell v. Sanford, 13 Iowa, 191, is a tenant at sufferance, Wilde v. Oan- the defendant, by the permission of the tillon, 1 John. Gas. (N. T.) 123 ; Jack- owner, entered upon premises ancf son D. McLeod, 12 John. (K. Y.) 182. erected a house thereon. Shortly after Thus, a tenant, under a written lease, at the house was completed, the owner a rent payable quarterly, who holds over served him with a notice to quit. He after the expiration of his term, is, in did not leave the premises, however, but the absence of any agreement to the con- remained there for several years with- trary, a tenant at suSerance, and this is out molestation from the owner. In an 16 Kinds of Tenanct. Has no demisable estate — cannot maintain trespass against landlord — not entitled to notice tD quit. Sec. 8. A tenant by sufferance has no demisable interest in the prem- ises, at least, except against himself, ' and a tenant under him takes no better title than he himself had. ^ He stands upon a mere naked pos- session, and being a -wrong-doer, if the landlord so elects to treat him, he cannot maintain trespass against the owner for an entry upon the premises, because the owner has the right to enter and put an end to the tenant's possession by force, instanter, ^ and this applies to all per- sons holding under him. * Except where provision is made therefor by statute, he is not entitled to notice to quit ; ^ although at common law where the holding over had been long continued a demand of jjossession was required, ^ or an actual entry by the landlord or some person author- ized by him, before the landlord could maintain trespass or ejectment against the tenant. ' In many of the States provision is now made by statute for the giving of notice, providing how and what notice shall be given, and the practitioner will find it advisable to consult the statutes of his own State upon this question. Landlord may dispossess by force — cannot maintain trespass against, until after actual entry. Sec. 9. The tenant's possession, a,t common law, is treated as wrong- ful, and he has no interest as against the landlord, or even as against a stranger, except that conferred by possession, and the landlord under certain circumstances can enter and put him out by force, jjrovided he uses no more force than is necessary, and gather the croiDS, without liability to the tenant, ' but his original entry having been lawful, the action brought by the owner to recover 263 ; Hauxhurst v. Lebru, 38 Cal. 563 ; rent for the use of the house for the Allen b. Jaquish, 21 "Wend. (jST. T.)628; period subsequent to such notice, the Clapp v. Paine, 18 Me. 624 ; Stockwell court held that the notice did not v. Mark, It id. 455 ; Hollis v. Pool, 3 change the relation or liability of the Met. (Mass.) 350 ; Doe v. Adams, 12 N. tenant from what it was before, and J. L. 99 ; Kingsley v. Ames, 2 id. 29 ; that he was not liable for rent. Wallis v. Delmar, 29 L. J. Exchq. 276 ; 1 Weaver v. Belcher, 3 East. 450 ; Doe v. Turner, 7 M. & W. 235 ; Doe v. Shopland v. Eyder, Cro. Jac. 55 ; Cole Maisey, 8 B. & C. 767 ; Doe v. Lawder, on Ejectment, 456. 1 Starkie, 308. ^ Shopland v. Ryder, Cro. Jac. 55 ; ^ Price v. Price, ante ; Crisp v. Bar- LoBD Elleh-bobough in Thunder v. ber, 2 T. E. 749 ; Harrison v. Murrell, Belcher, 3 East. 451 ; Hyatt u. Wood, 4 8 C. & P. 134. John. (N. T.) 150. ' Co. Litt. 57 B. 3 Curtis V. Galvin, 1 Allen (Mass.), ^ Hilary v. Gray, 6 C. & P. 284 ; 215 ; Moore v. Mason, 1 id. 407 ; 9 id. Ives v. Ives, 13 John. (N. T.) 235; Jones 530 ; 6 id. 77 ; 7 Met. (Mass.) 147 ; 5 v. Muldrow, 1 Rice (S. C), 64 ; 12 Vt. Cush. (Mass.) 218. 273; Jackson v. Farmer, 9 Wend. {N. « « Hyatt V. Wood, 4 John. (N. T.) Y.) 201; 2 W. & S. (Penn.) 225; Butcher 150 ; Wood V. Hyatt, 4 id. 313. v. Butcher, 7 B. & C. 399; Taunton v. 5 Ellis V. Paige, 1 Pick. (Mass.) 47 ; Costar, 7 T. R. 431 ; 31 Me. 293 ; Samp- Price u. Price, 9 Blng. 356; Livingston son v. Henry, 11 Pick. (Mass.) 579; V. Tanner, 14 N. T. 64 ; Torrey v. Tor- Newton v. Harland, 1 M. & G. 644 ; rey, 14 id. 480 ; Keich v. Hall, Doug. 22; Turner v. Maymatt, 1 Bing. 158; Taylor Dorrell v. Johnson, 17 Pick. (Mass.) «. Cole, 3 T. R. 292 ; Argent b. Durant, Tenant by Sufpeeance. 17 landlord cannot maintain trespass against him until he has determined the estate by an actual entry thereon, or some other equally decisive act. ^ Bat as a tenant by sufferance must oome into the possession by the act of the owner, if he comes in by any other method, as by act of law, he is a trespasser or abator as soon as the estate or interest acquired by operation of law is determined, and, as against the State, no such tenancy can exist, as the State cannot be held guilty of laches. - Ho-w the tenancy may be determined. Sec. 10. A tenancy by sufferance may be determined at any time by the entry of the landlord without any previous demand or notice to quit, ° and he may forcibly eject the tenant, using no more force than is necessary ; * but it is held that where a tenant is put out by force, without a previous demand, while he cannot maintain ejectment, he may maintain trespass ^ for the assault and battery or injury to his goods, but not for trespass to the land, or the disturbance of his jdos- session. ^ The landlord may maintain ejectment against the tenant without any jjrevious demand or notice to quit. ' Rent not recoverable. Sec. 11. At common law, rent is not recoverable of a tenant by suf- ferance, and if the landlord elects to treat him as a wrong-doer, he must be content to waive all contract liabilities that might exist if he elected to treat him as a tenant at will. ^ Eight of tenant at sufferance to remove fixtures. A tenant for a term, who holds over on sufferance, after his term 8 id. 403; Harvey d. Bridges, 14 M. & maintain trespass qu. cl. against tlie W. 437 ; Norton v. Harland, 1 M. & G. defendent for his subsequent entry. 644 ; Pollen v. Brewer, 7 C. B. (N. S.) Mussey v. Scott, 32 Tt. 82. 371 ; Davison v. Wilson, 11 Q. B. 890 ; i .Jackson v. MoLeod, 12 John. (N. Burling v. Reed, 11 id. 901, but the T. ) 182. landlord, while not liable to the tenant, ^ Co. Litt. 57 b. ; 2 Bl. Com. 1.50. unless guilty of excessive force, subjects ^ Bennett v. Turner, 7 M. & W. 235. himself to an indictment for a forcible * Fifty Associates v. Howland, .5 entry, Archibald PI. & Ev. in Cr. Cas. Cush. (Mass.) 218 ; Currier v. Gale, 9 15th Ed. 738. The plaintiff having the Allen (Mass. ), 530 ; Crisp v. Barber, 2 T. right to the possession of a house oo- K. 749 ; Harrison v. Murrell, 8 C. & P. cupied by the defendant, and having 134. given him notice to quit, afterwards, ^ Harrison v. Murrell, 8 C. & P. 134 ; while the defendant was temporarily Crisp v. Barber, 2 T. E,. 749. absent, for the day only, from the ^ Cole on Ejectment, 456, and the house, which he had fastened upon landlord would only be liable for exces- leaving, entered the premises by fore- sive force, or an unnecessary injury to ing open the door, and placed the de- his goods, Overton v. Lewis, 1 "W". & S. fendant's furniture in the street, and (Penn.) 90. fastened up the house and left it. The ' Bennett v. Turner, 7 M. & W. 226 ; defendant, on returning, forced open Heming v. Brett, H. & W. 3 ; Cole on the door, and re-entered and occupied Ejectment, 457. the premises. Held, that the plaintiff's * Flood v. Flood, 1 Allen (Mass.), 217; entrj was the exercise of a legal right 4 Cush. (Mass.) 42. in a legal manner, and that he could 2 18 Kinds of Tenancy. has expired, may remove such fixtures as he might have removed during the term ; but if he is put out of possession, or if he quits in pur- suance of a notice and demand of possession, his right to them is gone. ^ Tenant liable for damages, -when. Sec. 12. Where a tenant holds over after his term has expired and interferes with the re-letting of the premises, he is liable to the land- lord for the damages resulting to him therefrom ; ^ but if the premises are leased to another party, and the tenant in possession i^efuses to let him in, the lessee's remedy is not against the landlord, but against the tenant holdina; over. ^ Landlord's right of election, as to tenant holding over. Sec. 13. When a tenant under a demise for a term holds over after the termination of the time for whioh the premises were let to him, witliout any new demise, the landlord may elect to treat him as a tres- passer or as a tenant holding under the terms of the original lease, ^ unless it appears that by agreement or by notice, the terms of the original agreement or lease were changed and notice given by the landlord to the tenant, before the term expires, that, if he remains upon the premises it must be upon certain different terms, specifically ^ Leader v. Homewood, 5 C. B. X. S. 516; Woodfall's Landlord and Tenant, 534; Gibson v. Hammersinitli R. E. Co., 32 L. J. Ch. 337. 2 Stoddard -o. Waters, 80 Ark. 156. '" Gardner v. Keteltas, 3 Hill (N. T.), 530. < Heniplilll V. Flynn, 2 Penn. St. 144 ; Jackson v. Salmon, 4 Wend. (K. Y. ) 321 ; Conway v. Starkweather, 1 Den. (N. Y.) 11 ; Phillips «. Monges,4Whart. (Penn.) 226. When a tenant holds over, wheth- er he is a tenant for a term of years, or from year to year, he impliedly holds, according to the terms, and subject to all the conditions of the original lease which are applicable to his new situa- tion, and the law will imply those terms which are found in the contract which has expired. De Young v. Buchanan, 10 G. & J. (Md.) 149 ; Doe v. Bell, 5 T. E. 471 ; Witt v. Mayor, &c., 5 Eobt. (N. Y. Superior Ct. ) 248 ; Bradley v. Covel, 4 Cow. (N.Y.) 349; Osgood v. De- mey, 1.3 John. (N. Y.) 240 ; Quinette v. Carpenter, 35 Mo. 502 ; Deller v. Eob- erts, 13 S. & E. (Penn. ) Co. ; Longue- more o. Dougherty, 35 Penn. St. 45 ; Eight ■». Darby, 1 T. E. 162 ; Moore v. Basely, 3 Ohio, 294 ; Bacon v. Brown, 9 Conn. 334 ; Bruner v. Knapp, 1 Pick. (Mass.) 332; Harkins v. Pope, 10 Ala. 493 ; Hunt v. Wolfe, 2 Daly (N". Y C. P.), 298 ; and he' is subject to a distress, whether the lease is by parol or by deed. Webber D. Shearman, 3 Hill (N. Y.), 347; Frantz v. Wood, 2 Hill (S. C), 807. It makes no difference upon what pre- tence the tenant holds over, the rule is the same in all cases. Thus, where the defendant held premises under a lease for years, which expired at mid- summer, 1821, but he then refused to give xip possession, claiming to be en- titled to a notice to quit, and he con- tinued to occupy until Christmas, and paid two quarters' rent, it was held that such occupancy conclusively show a new tenancy from year to year, and that he was liable for rent due at Lady's- Day, 1822, although he quit at Christ- ma's, 1821. Bishop V. Howard, 2 B. & C. 100 ; Waring?). King, 8 M. & W. 571. By holding over, he is a wrong-doer, and ejectment lies against him by the landlord without any demand for pos- esslon or notice to quit, but if the land- lord has in any wise assented thereto, he becomes a tenant from year to year. Den. V. Adams, 12 N. J. L. 99 ; Hemp- hill V. Flynn, 2 Penn. St. 144, and there- after, is entitled to notice to quit. Jack- son V. Salmon, 4 Wend. (N. Y.) 327 , Evertsen v. Sawyer, 2 Wend. (N". Y. ) 507 ; Sherwood v. Phillips, 13 id. 479 ; Abeel v. Radcliffe, 15 John. (N. Y. ) 505. Tenant by Suffekance. 19 stating them. If he remains, whether he signifies his assent thereto or not, he will be treated as subject to the original lease as amended hy such notice. Thus, where a notice was given by a landlord more than three months prior to the expiration of the term, informing the tenant that if he desii'ed to retain the premises he could have them at a speci- fied ]-ate, provided he signified his assent by a certain designated day, but that if he did not accede to the terms offered, but continued to hold, a certain additional rent would be exacted, and the tenant made no answer to the notice but held over, and at the first rent day there- after refused to pay the increased rent, but tendered the amount due according to the prior lease, it was held that by continuing in posses- sion after notice and remaining silent, the landlord had a right to construe his silence into an assent or acquiescence and hold him for the increased rent. -^ The old lease controls, except in so far as it has been changed by parol, and the fact that it is by deed or under seal, does not affect the question, because the lease is not the contract under which he holds over, but only evidence to uphold the implied contract resulting from such holding over, except so far as it has been changed b}^ notice or agreement, and assumpsit and not cove- nant, is the joroper remedy for a recovery of the rent or a breach of any of the conditions of the old lease. "^ An alteration in the rent to be jjaid will not 'overcome the presumption that the premises in other respects were to be held, subject to the terms of the former demise ; ^ but this presumption may be overcome by proof of an intention ^ Hunt v. Bailey, 39 Mo. 257. lu he pleased, for the time subsequent to Roberts v. Hayward, 3 C. & P. 432, a Lady's-Day, 1827, and if the plaintiff party occupied premises under an agree- would not accept them, to turn him out ment for three years at £45 a year, of possession." In Digby v. Atkinson, which expired at midsummer, 1826. He 4 Camp. 276, the doctrine that the ten- did not then go out, nor did the land- ant holds subject to the terms of the lord take any steps to compel him, but old lease, except as amended by parol at Michaelmas following gave him no- was forcibly illustrated. In that case tice to quit at Lady's-Day, 1827, or pay premises were leased to the defendant rent at £50 a year. He remained in for a term, the lease containing a condi- possession but refused to pay more than tion that the tenant should keep the £45 rent. The court held that, under premises in repair. After his term had the circumstances he must be taken to expired, he verbally agreed to hold over •have acquiesced in the new proposal, at an increased rent, nothing more being and was bound to pay the £.50 rent, said by the parties as to the terms of hold- Best, C. J., said : "The tenancy under ing. tinder these circumstances the the agreement expired at Midsummer, court held that he must be presumed to ■ 1826. Immediately after that time, the hold under the covenants of the former plaintiff was a trespasser ; but the land- lease, as far as they were applicable to lord was not obliged to treat him as his new situation, and that a change as such, but might make proposals to him, to the rent did not amount to a new de- to renew the relation of landlord and mise, and the premises having been tenant between them. This he did, and burned by accident, he was held liable the plaintiff did not say, ' I will go out to rebuild them. directly.' His silence is tantamount ^ See Digby v. Atkinson in the last to saying, ' I will continue in on the note. Monck b. Geekie, 9 Ad. & El. 841. terms of your proposal.' I am of the ^ Monck v. Geekie, 5 Q. B. 841 ; Doe opinion that under the circumstances, v. Eaffan, 5 Esp. 4 ; Digby v. Atkinson, the distress was regular. I think the 4 Camp. 275. landlord had a right to make any terms 20 Kinds of Tenancy. to alter the terms, or of a new demise. ^ If the rent, under the lease, was payable weekly, monthly, or quarterly, it will be so payable under the new implied demise, * and in all respects the covenants and terms of the old demise will ap]ily to that which is implied,^ except whei-e the covenants are collateral to its ojseration, or are such as can only be performed during the term. * When the title to premises occupied by a tenant are in dispute, and there is no recognized landlord, a tenant holding over is liable to the person in whom the title is, for their use and occupation, but the rate iixed in the former lease, under such cir- cumstances, is not conclusive upon either " when the lease itself con- tains a jirovision for renewal, but provides for the appraisement of the premises at the end of the term, and for the payment of a specified percentage upon the valuation so fixed, as rent, under the renewed tenant from year to year under the terms of the old lease, and the new rates only take effect from the time when the renewal lease was ten- dered. ^ But when the circumstances are such that no inference can be drawn as to the terms upon ^\'hich the tenant did hold over, the ques- tion must be left to the jury. ' By the common law, if a tenant who has occupied and paid rent annually, holds over into a new year, it is evidence of a new demise for a year, ^ or rather from year to year, 1 Thetford v. Tyler, 8 Q. B. 95. 2 Conway v. Starkweather, 1 Den. (?r. T.) 113 ; Dorrill u. Stephens, 4 Mc- Cord (S. C), 59. 8 Frantz v. Ward, 2 Hill (S. C), 367 ; Humphreys ii. Frank, 18 C. B. 853 ; Har- klns V. Pope, 10 Ala. 493 ; De Young V. Buchanan, 10 G. & J. (Md.) 149; Breener v. Knapp, 1 Pick. (Mass. ) 332 ; Phillips V. Monges, 4 Wliart. (Penn.) 226 ; Bacon v. Brown, 9 Conn. 3.34. * Diller v. Roberts, 13 S. & R. (Penn. ) 60. s Van Brunt v. Pope, 6 Abb. Pr. N.S. (N. T.)217. 6 Ryder v. Jenny, 2 Robt. (N. T. Sup- erior Ct. ) 65. ' In Mayor, &c. v. Tyler, 10 Jur. 68, A was tenant to the plaintiff of premises, which the plaintiff gave him notice to quit on the 11th day of October, 1843. After the notice was given, the de- fendant agreed to take a lease from that day. Before that day, the de- fendant was, with the consent of the plaintiff, substituted as tenant in place of A for the balance of A's term. The plaintiff and defendant could not agree as to the terms of the lease to be grant- ed to the defendant ; but the defendant continued to occupy premises for half a year after October llth. It was held that, under these circumstances, there was no presumption that he occupied subject to the terms of the determined lease, but that it was a question for the jury, whether he occupied under the old lease or under a new taking. 8 Bacon v. Brown, 9 Conn. 334; Hoof V. Ladd, 1 Cr. (U. S. C. C.) 167 ; Har- kins V. Pope, 10 Ala. 493, but in Ala- bama it is held that a yearly tenant un- der a void lease, by holding over, be- comes a mere tenant at will, and that his tenancy may at any time be put an end to, by quitting the premises, oi\by a demand of the possession on the part of the landlord. Crommelin m. Thias, 31 Ala. 412. In Iowa, in a case where a tenant at will of a lot of land built a house thereon, and was then served by his landlord with a notice to quit, after which, however, he remained in pos- session for several years, by the suffer- ance and permission of the landlord, it was held that the character of his ten- ancy was not changed by the notice, and that he was not thereby placed under any different liability than he was under before, and consequently was not liable for the rent of the house built by him. Newell v. Sanford, 13 Iowa, 191. In Maine, by Statute, a tenant holding over by consent, after the expiration of his term, is a tenant at will merely, and is only liable for rent so long as he oc- cupies (Kendall v. Moore, 30 Me. 327), and it is held that this tenancy may be determined by him by his doing any act inconsistent with the lease xuider Tenant by Stjfferakoe. 21 according to the circumstances, ^ or a tenant at will, if the circum- stances are such as to rebut a renewal of the former tenancy. Thus, if a tenant whose lease has expired, is permitted to continue in possession pending a treaty for a further lease, he is not a tenant from year to year, but so strictly a tenant at will, that he may be turned out of possession without notice. ^ But, if a tenancy has commenced, that is, if there has been a holding o^er without the intervention of negotiations for a wliich he lield originally, as by receiv- ing a deed from a stranger, and causing it to be recorded. Bannock o. Wiipple, 12 Me. 346. 1 Den. V. Adams, 12 K. J. L. 99; Jaclv- soni). Salmon,4Wend. (N.Y.) 327; Brad- ley V. Covel, 4 Cow. {N. Y. ) 349 ; Hemp- hill V. Flynn, 2 Penn. St. 144. In New- York city it is held that a tenant who holds over and remains in possession of premises leased to him at a certain rent with the assent of the owner, after the expiration of the term, without any new agreement as to rent, becomes a tenant from year to year, and liable for the rent at the same rate up to the 1st of May next after the holding under such ten- ancy commenced. Witt ». Mayor, &c., 5 Eobt. (N. Y. Superior Ct.) 248; Schuy- ler V. Smith et al., .51 N.Y. 309, 17 Am. Rep. 609. To the same effect see Digby V. Atkinson, 4 Camp. 275, in which it was held that a tenant holding over, impliedly holds subject to all the condi- tions in the former leases applicable to his new situation, and that the fact that the lease is in writing and under seal, does not make any difference, and that a parol change in the terms of the lease made to apply to the new situation may be shown, and that the lease will co]jtrol except as to such changes. The lease is not the contract, but is evidence of the terms of the implied contract, and assumpsit may be brought to recover the rent, although the lease is under seal, and it is also the proper remedy for a breach of any of the conditions of the old lease, and in this lease, was held to be a proper remedy for a breach of the condition as to repairs. Covenant would not Ue, because the case is not in force, as a lease, but only affords the evidence, from which the terms of the new holding are to be implied. The li- ability of a party holding over after the expiration of a tenancy by agreement, says Mr. Smith, in a note to Eigg & Bell, ante, 2 Smith's L. C. 73 a, is rather a matter of evidence than of law ; and although Lord Kenyon, in Eigg v. Bell, 5 T. R. 47, and Lord EUenborough, in Digby D. Atkinson, 4 Camp. 278, seem to lay down the rule as one of law, yet in all the more recent cases upon the subject, the existence of any tenancy in the party holding over, (beyond a ten- ancy of sufferance, which exists, by law in every case where a person holds over by wrong after the determination of a rightful estate, but which imports no privity between the landlord and ten- ant, Co. Litt. 57 b, 270b, 271 a,) as well as the terms upon which such tenancy exists, have been considered as ques- tions for the jury : the construction of any written agreement, and the appli- cability of its terms to a tenancy from year to year, being for the decision of the court. See the remarlvs of Lord Denman, C. J., and Littledale, J., in Johnson v. The Churchwardens of St. Peter, Hereford, 4 A. & E. 525 ; see also Jones D. Shears, 4 A. & E. 832 ; Algar V. Watson, Car. & Marsh, 494 ; and The Mayor of Thetford v. Tyler, 8 Q. B. 95, in which case Mr. Justice Wightman says, " When a party is allowed to hold over after the expiration of a tenancy by agreement, the terms on which he continues to occupy are matter of evi- dence rather than of law." The law, it is apprehended, does not infer any par- ticular contract from the mere fact of entry under an agreement for a future lease, or holding over after the expira- tion of a past agreement, per Lord Ab- inger, C. B., Waring v. King, 8 M. & W. 575. See also Jenner v. Clegg, 1 M. & E. 217 ; Jones v., Shears, 4 A. & E. 832; Chapman v. Towner, 6 M. & W. 104, per Parke, B. ; Eiseley v. Eyle, 11 M. & W. 16 ; and The Mayor of Thetford V. Tyler, 8 Q. B. 95. But where the party so occupying pays rent according to the terms of the agreement, either past or future, and thereby becomes ten- ant from year to year, the inference is irresistible, in the absence of anything to show a different understanding, that the parties intend the occupation to con- tinue upon such of the terms of the agreement as are applicable to such a tenancy ; and this is probably all that was intended by Lord Kenyon in the principal case, and by Lord EUenbor- ough in Digby v. Atkinson. 2 Hollingsworth v. Sennett, 2 Esp. 717. 22 Kinds of Tenanct. new lease, /br however short a period^ the tenant cannot absolve him. self from liability for the rent for the unexpired term that has set in. in consequence of his holding over, by abandoning the f)Ossession, if the landlord elects to hold him as tenant, ^ .even though he gave the land- lord notice, before his term expired, of his intention not to kee]) the premises. ^ The same principle applies where the letting is by the day, week, month or quarter; if the tenant holds over, he is a tenant for another week, month or quarter, according to the terms of the agree- ment under which he entered. ^ The tenant has no election in the matter. It is not for him to say whether he will occupy the relation of a wrong-doer or of a tenant, but the right of election belongs exclu- sively to the landlord, and his election binds the tenant, whatever the tenant's intention may have been, and although the landlord knew vi-hat his intentions were before the time exjjired. ^ Thus, in the case cited from the 51 N. Y., the defendant entered into the ocoujjancy of a wharf belonging to the plaintiff under a lease for a year, to commence May 1st, ,1863. In March, 1864, before the lease had expired, the plaintiff gave the defendants notice that if they desired to take the premises for another year, that he would incre.'ise the rent one hundred dollars. Upon receiving such notice, and before their term expired, they gave the j^laintiff notice that they should not take or keep the premises for another year, after the 1st of May, 1864, and then hired another wharf, of which the plaintiff was aware. The wharf rented by them, not being ready for occupancy on the 1st of May, 1864, they continued to land their boats at the plaintiff's wharf up to May 21st, 1864, when they ceased to occupy it at all. The rent was, by the terms ^of the old lease, payable quarterly, and the rent for two quarters, ending Nov. 1st, 1864, not having been paid, the plaintiff brought an action therefor, to recover the rent at the rates fixed in the old lease. The defendants had offered to pay the plaintiff for the use of his wharf for the twenty-one days that they held over, and insisted that, in view of their notice to him, and the circum- stances, they could not be held chargeable for rent, except during the ilnAVitti). Mayor,&c.,of N".Y.,.5Eobt. May 1st, 1864, althougli they did not oc- (N. Y. Superior Ct. ) 248, the defend- cupy them. ants who entered into possession under ^ Conway v. Starkweather, 1 Den. a written lease, remained in possession 113 ; Schuyler v. Smith, 51 N. Y. 309 ; from year to year after the expiration of 17 Am. Eep 609. that lease in May, 1S61, until May 1st, » Qy..^j ^_ Bompas, 11 C. B. (N". S.) 520. 1863, with the assent of tlie owners, and * Conway v. Starkweather, 1 Den. (N. with (lie like assent, continued to oe- Y. ) 113; Schuyler v. Smitli, 51 N. Y. cupy the premises for at least a week 309 ; 17 Am. Eep. 609 ; Hemphill v. after the last-mentioned date, without Flynn, 2Penn. St. 147; Bacon w. Brown, givino; any notice to the lessor that they 9 Conn. 334 ; Harkins v. Pope, 10 Ala. would not continue to occupy the prem- 493; Hoop v. Ladd, 1 Cr. (U. S. C. C.) ises during the wliole of tlie year, com- 167; Osgood v. Dewey, 13 John. (N". Y. ) mencing May 1st, 1863. The court held 240; Logan v. Herron, 8 S. & E. (Penn. ) that they were liable for the rent up to 459. Tenan-ts by Sufferance. period of actual occupancy. The Commission of Appeals, however, held that they were cliargeable as tenants for the whole year, and that they could not by any notice or otherwise, change their relation to the landlord. ^ In an English case ^ an apparently different doctrine was 1 Tlie opinion of Eaul, C, is given entire, so far as it relatesto this ques- tion. He said : " Tlie answer admits tlie relation of landlord and tenant be- tween the parties, as to the wharf, and that the defendants liad held the wharf as tenants for several years prior to tlie 1st day of May, 1864, and paid rent for tlie same ; that the tenancy expired May 1 , 1864, and that ,they held over the term until May 21s*t. It does not appear precisely what the rights of the defendants were under their lease, nor upon what water the wharf was located. From the fact, however, that it was used for a steamboat landing, we may infer that it was upon the Hudson river. The defendants admit that they hired the wharf and were tenants of it under the plaintiff, and if they did not have the exclusive right to use it as a steam- boat landing, they at least had the ex- clusive right to collect wharfage from all who did use it. Commissioners of Pilots V. Clark, .33 N". Y.. 251. I am, therefore, of the opinion that the de- fendants' liabilities are the same as if they hired a house instead of a wharf. , - The plaintiff claims that because th^ defendants held over and continued in the occupancy of the premises for three w oeks. after the expiration of the lease, he had the right to hold them as ten- ants for the whole year. This tliey deny, because they gave him notice be- fore the expiration of the term, that they did not intend to occupy the prem- ises for another year, and made arrange- ments with his knowledge to occupy an- other wharf. I am of opinion that the plaintiff's claim is well founded. The law is too well settled to he dis- puted that where a tenant holds over after the expiration of his term, the law will imply an agreement to hold for a year upon the terms of the prior lease. Woodf. Landlord & Tenant, 218 ; Right V. Darby, 1 T. K. 162 ; Bradley v. Covel, 4- Cow. .849 ; Evertson v. Sawyer, 2 Wend. .507. But the defendants claim that tliis implication of law may be re- butted, and that the tenants may show by proof that they did not intend to hold upon the same terms as the prior lease ; and they claim that the notice which they gave in this case was sufficient to overcome this implication. The argu- ment on the part of the appellants is that the relation of landlord and tenant for any given time, can only be created by agreement, and, in order to make the agreement there must be mutuality. TJie minds of the parties must meet, and both assent to the agreement, and that the notice in this case shows that the defendants did not assent to the tenancy claimed. This argument, as apjilied to most contracts, would be sound. The general rule undoubtedly is that it takes two parties to make au agreement, and that their minds must meet. But this rule is not of universal application. The law sometimes steps in and makes agreements for parties which they did not mutually intend. A wrong-doer converts my personal' prop- erty, intending never to pay me for it. I may sue him in trover, or I may sue him as upon a sale, upon an implied promise to pay. Another may receive my money, intending not to pay me. Yet I may sue him for money had and received, upon an implied promise to pay. In neither of tliese cases would the Avrong-doer have the option to de- -.(j|j|j|nine, whether I should sue him in tWc or upon contract. In this case the defendants held over wrongfully. It cannot be disputed that they were tres- passers ; and their notice did not de- prive their act of holding over of its tor- tious character. The law should not give* them the option to detennine whetlier they should be treated as tres- passers or as tenants. This option should be accorded to the innocent owner of the property. The law re- gards the possession of real estate as a great advantage in any dispute in refer- ence to it. And, hence, a tenant who has obtained possession of real estate cannot dispute the title of his landlord : and, having obtained possession from his landlord, he should not be permit- ted to hold over, deny his tenancy and convert himself, at his option, into a wrong-doer. If he may give notice that he does not intend to hold over as ten- ant, and yet hold for three or six months, without being a tenant at any -time, leaving his landlord to an imper- fect and uncertain remedy by action of trespass or ejectment, he may greatly embarrass his landlord and defeat a let- ting for the balance of the year. The safe and just rule I believe to be the 2 Jones V. Shears, 4 Ad. & El. 433. 2-1 Kinds of Tenancy. Leld, and the court seemed to be of the opinion that the intention of the tenant was to be considered, as well as the intention of the land lord, and that it was for the jury to say whether the tenant by holding over, intended to continue his tenancy. But the doctrine of this case is contrary to the doctrine of the English courts, both before and since it was made, and is ignored by English text writers, and was expressly repudiated by Eakle, C, in the New York case previously referred to. Indeed, at the Assizes the question does not seem to have been raised, but the case turned upon the question whether the defendants, who one established by authority, that a ten- ant liolds over the term at his peril ; and the owner of tlie premises may treat him as a trespasser or as a tenant for another year upon the terms of the l^rior lease, so far as applicable. If the argument of appellants' counsel, as to mutuality and consent of both parties, is sound, then a tenant may hold over an entire year, and give notice at its commencement that he will not pay as much rent as stipulated in tlie prior lease, or that he will not perform some other covenant contained in the same, and then claim, at the end of the year, that he was not liable to pay the rent, or bound by the covenant, because he did not assent, and, thus, that the mind of the parties did not meet. In such case, no matter what objection the ti ant made, so long as the landlord SH not consent to new terms, he would be bound by the terms of the prior lease. The conclusion which I have reached upon this branch of the case is sus- tained by authority. In Conway v. Starkweather, 1 Den. 113, it was held that where a tenant, before the expiration of his term, com- municated to tlie landlord his determin- ation not to keep the premises another year, but, nevertheless, remained in possession a fortnight after the expira- tion of the term, such continuance in possession, notwithstanding what had taken place, enabled tlie landlord to treat him as a tenant for another year, upon the same terms as the prior lease. It was held that the landlord had the election to treat liiui either as a tres- passer or as a tenant. The tenant there claimed, as the defendants do here, that the holding over only furnished pre- sumptive evidence of the continuance of the tenancy, which was sufficiently rebutted by proof that the tenant had given notice that he liad hired other premises, and refused to hire the prem- ises in question. But it was held that the act of the tenant, in holding over, gave the landlord the legal right to treat him as a tenant for another year ; and that it was not in his power to throw off that character, however onerous it might be. It is* conceded on the part of the appellants that this case is an au- thority in point for the plaintiff herein. But we are asked to overrule it. This we should not do. The case seems to have been well considered. It has stood unquestioned for more tlian twenty-five years. It has-been cited without disap- proval in the following cases : Hunter V. Osterhoudt, 11 Barb. 3.3 ; Witt v. Mayor of New York, 5 Eobt. 248 ; S. C, 6 id. 441 ; Giles v. Comstock, 4 N. Y. 270; Park v. Castle, 19 How. Pr. 29 ; G-reaton v. Smith, 1 Daly, 384. In the case of Witt v. The Mayor of New York, the tenants gave notice that they had hired other premise's, and that they would not hold the premises wliich they "ad occupied, and yet, becausB they held over from the 1st to the 12th c^if May, during which time they were en- gaged in removal, they were held liable for another year. This case was twice before the court, was argued by able counsel, and fully considered. In Park b. Castle, Mr Justice Bat.- ODJi says : " When a tenant, for a year, or for one or more years, holds over af- ter the expiration of his term, without any express agreement, but with the assent of his landlord, the law implies that he holds the premises upon the former terms for another year." Wil- lard, in his work on Real Estate (p. 97), cites the case of Conway r. Starkweath- er, "svith approval, and as authority for the doctrine therein enunciated. And the learned editor of the eleventh ed. of Kent's Com. Vol. 4, p. 117, citing this case in a note, says : "If the landlord elects, as he may, to treat the tenant as holding under the terms of the original lease, the tenant cannot deny the ten- ancy." In Bacon v. Brown, 9 Conn. 334, HosMER, C. J., says : "After the expiration of a lease for a year, if the tenant holds over, the law considers him responsible to his landlord as on a hiring for another year, upon the same terms as before." Tenants by Suffeeance. 25 went into the possession of certain mines under a lease for twenty-one years, under which they were to pay a sleeping rent of £100 per annum and a royalty upon the coal mined, having held over into a third year, were chargeable with the rent for that year. The lease contained a condition that the tenants would work the mine " so long as it was workable," and Coleedge, J., at the Assizes, held that the mine could not be regarded as " workable " when it was run only at a " dead loss," and that when that condition existed, they had a right to quit. It seems that there was also a provision in the lease that the defendants might at any time put an end to the lease, by giving six months' notice, which was given, but they held over two months after the second year expired, for the purpose of working out certain portions of the coal which they claimed it was usual for a tenant to take away on abandon- ing such mines. It also appeared that two of the tenants withdrew at the expiration of the second year, and consequently that the holding over was by the remaining two tenants. The verdict being for the defendants, was upheld by the court, which, upon the facts, was clearly right, if for no other reason, because ther^ was no holding over by tioo of the defendants, and consequently no continuance of the tenancy as to them, ^ but the ground upon which the judges at King's Bench pre- dicated their judgment, that it was a question for the jury to deter- mine whether the defendants held over with an intention of becoming- tenants for a longer period, is contrary to the doctrine of all the cases, and inconsistent with the principles upon which they rest. ^ In all the cases the doctrine is held that as to the tenant who holds over he is a wrong-doer, and only becomes a tenant upon the tei'ms of the old ten- ancy, because the landlord elects to treat him as sicch. By the mere act of holding over, he does not become a tenant from year to year. ' Something more must occur in order to show the existence of a ten- ancy by a renovation of the old contract, and this is done by the land- lord making his election whether to treat him as a tenant, or as a tres- passer, ■* and the landlord's election is conclusive, both against himself and the tenant, and after he has once disaffirmed the tenancy while the holding over continues, he cannot afterwards set it up for the pur- pose of enforcing a claim for rent, nor if he has affirmed the tenancy, can be afterwards treat the tenant as a tenant at sufferance merely. ^ So, on the other hand, if the tenant uses the premises as a tenant, he is estopped from denying that relation and insisting that he is a tres- 1 Jones V. Shears, 7 C. & P. 346. * Hemphill v. Flyim, 2 Penn. St. 144 ; 2 Jones V. Shears, 4 Ad. & El. 832. Bacon v. Brown, 9 Conn. 334 ; Osgood s Davis V. Crofts, 15 M. & W. 166 ; v. Demey, 13 John. (K Y.) 240; Abeel Christy v. Tancred, 9 M. & "W. 438, affd. v. Kadclifee, 13 id. 297 ; Lee v. Smith, 12 M. & W 316 ; Waring v. King, 8 M. 9 Exchq. 965. & W. 571 ; opinion of Abingbe, C.B., ^ Featherstonhaugh v. Bradshaw, 1 GiBsajr, J., in Logan v. Herron, 8 S. Wend. (N.T.) 134. &E. (Penn.) 459. 26 Kinds of Tenanct. passer. ^ But if the doctrine of Jones v. Shears is correct, the elec- tion lies with the tenant as well as with the landlord, and he may stand as a trespasser or as a tenant, at his option, and the landlord has no election in the matter whatever, but is left at the mercy of the tenant, and the doctrine of the previous English cases would be left without any foundation upon which to stand. " If there is a lease for a year," says LoKD Maxsfield, C. J., ^ " and by consent of both parties the tenant continues in possession afterwards, the law implies a tacit reno- vation of the contract.'' In a case where the original lease was void^ '■' it was said by Hatiiaii, B., as to the status of a tenant to a tenant for life, who lield over after the death of the latter, with reference to the remainder man, "the rent having been receive!! eo nw7^^'7^.e as rent, which was evidence of a contract, the defendant ceased to be a tres- passer," and he held that, though the cases had decided the lease to be void, they did not go the length of deciding that the act of the person in remainder might not create a new tenancy from year to year. This docti-ine was affirmed in the King's Bench. * Laween-ce, J., among other things, saying, " if the defendant was not a tenant, he must have been a trespasser, and so he must have continued if he had remained on the prem,ises for any number of years ; but the plaintiff has, by his own act, admitted the defendant to be his tenant and caii- not, therefore, now consider him a trespasser.^' In none of the cases is there any suggestion that the tenant may elect as to the capac- ity in which he will hold, but having held over, and the landlord having elected to treat him as a tenant, he is presumed to be so, upon the terms of the old agreement. * But in order to have this effect there must be an actual holding over, and the implication does not arise from a constructive holding over, as, by the accidental detention of the key to the premises beyond the term. " So, too, the previous occupation must have been in the capacity of tenant under a contract that the person in possession was competent to make. ' 1 Waring v. King, 8 M. & W. 574. v. Savage, 4 E. & B. 35 ; Tlaorasou v. 2 Eiglit V. Darby, 1 T. R. 159. Amery, 12 Ad. & EI. 476 ; Mann v. s Martin ij. Watts, 1 Esp. 501. The Lovejoy, Ey & M. .',55. In Giville v. De tenant's assent is irrebutably presumed Rutzen, decided in Excbequer, but not from tlie fact tliat he remahied in pos- reported, and in a dicium of Maetin, B., session. Conway v. Starkweather, 1 in Finlay b. Railway Co., 7 Exchq. 418 ; Den. (N. Y. ) 113 ; Schuyler b. Smith, the doctrine of Jones ». Shears finds ante ; Hemphill v. Flynn, 2 Penn. St. some support. 144 ; Osgood v. Demey, 13 John. (N. Y. ) '^ Grey v. Bompas, 11 C. B. N. S. 520. 240 ; Hunt v. Bailey, 39 Mo. 257, and The Court held that the accidental de- the landlord's assent may be implied tention of the key by the tenant beyond from the receipt of rent by him, or any the expiration of the term, did not other act that shows that he treated the amount to any evidence of use and oc- occnpant as a tenant. 2>rewell v. Sand- cupation by him, so as to render him ford, 13 Iowa, 191 ; Hollingsworth v. liable for another quartei-'s rent. Stennett, 2 Esp. 716. ' Einlay ». The Bristol and Exeter ■1 Martin v. Watts, 7 T. R. 83. R. R. Co., 7 .Exchq. 410 ; Cole & Gill, ^ Lee 1). Smith, 9 Exchq. 665 ; Cum- 14 Iowa, 427. berland v. Glamis, 15 C. B. 348 ; Tress Tenants by Sufpeean-cb. 27 Thus, in the case last cited, the defendant, an incorporated company, entered into the possession of the plaintiff's premises under a parol lease for a year, and occupied for two years, at the expiration of which time they removed their goods without any notice to quit. They held over for eleven days beyond the second year, but paid a quarter's rent. In an action to recover for the remaining three quarters' rent, the court held that they were not liable for the rent during that period, since they did not occupy, and that no contract could be implied against them, because being a corporation, they could only contract under seal. So, too, the holding over must be by the tenant himself or by an under tenant, with his assent, and if he has let in an under tenant who holds over^ without his assent, the original tenant is not thereby made liable as a tenant from year to year, ^ nor, if there are two tenants under the original lease, and one only holds over, is the tenant who goes out of possession when the the term expires, made liable as a tenant for an additional term, by the acts of his co-tenant. ^ Thus, one Crofts and a Mr. Bartlett were tenants to the plaintiff for the term of three years. Crofts never occupied the premises, but Bartlett held over. No assent on Crofts' part to such holding over was proved, and the court held that, as one tenant cannot bind his co-tenant by holding over without his as- sent, no recovery could be had against Crofts for rent subsequent to the expiration of the term, and such seems to be the doctrine in this coun- try.'' But if tlie lessee gives his assent to such holding over by the under tenant, he is liable to the landlord as tenant for the entire period of holding over. Thus, a lessee of a term underlet the prem- ises, and the under tenant held over for a portion of a year, against the will of the lessee, so tliat he could not give up the term. But, during such holding over the lessee distrained upon the under tenant for rent 23reviously due, and a few days after the distress was made, the under tenant quit possession, and the lessee surrendered the possession to the landlord and the court held that this was such a recognition of the under tenant's act, as made the lessee liable for the I'ent of the prem- ises during the period that they were actually occupied by him.'' If a 1 Christy v. Tancred, 9 M. & W. 438. over even thous/Ji he received rent from 2 Christy v. Tancred, 12 M. & W. .316. the military authorities duriny his term. 8 Draper v. Crofts, 15 M. & W. 166. That is, the court held that the military * Christy v. Tancred, 9 M. & W. 438 ; authoi ities stood in the relation of an Tancred c. Cliristy, 12 M, & W. 316. under tenant, to the lessee, and that, as ^ McKing V. Mmnford, 10 Wend. ("N". the under tenant could not bind the Y. ) 3."il. In Constant r. Abell,30Mo. 174, lessee by his acts, without his consent, the doctrine of the English cases, was the lessee could not be held chargeable fully adopted. In that case it was held for the rent of the premises during the that a lessee of lands, during whose term period th.at the uTuler tenant held over, the military authorities took possession In Connecticut, in Bacon v. Brown, 3 of tlie premises and hold over, without Conn. 384, it was held that the tenant his consent, was not liable to the land- was rendered liable for the rent for a lord in consequence of such holding whole year, by the act of an under les 28 Kinds of Tenancy. tenant holds over, however, and he has let in an under tenant as to part of the premises, v/ho also holds over, the under tenant assumes the same relation to him that he holds to the laiwUord. ^ Where prem- ises are let to a tenant for a certain definite period, with an 02otion of retaining them for a longvr term, and he lets them to an under tenant who holds over, in the absence of notice to the landlord of his intention not to keep the premises beyond the first term fixed in the lease, the tenant will be liable for the rent during the whole period that the under tenant occupies the premises. Under such circum- stances, in the absence of notice to the contrary, the landlord has a right to regard the act of the under tenant as evidence that the tenant has exercised his option in favor of retaining the premises. ^ An under tenant who thus holds over after the determination of the original lease, and is permitted to remain in possession by the landlord, is quasi tenant at sufferance, and the mere fact of occu2)ation, even though rent is paid, does not of itself raise a presumption of a tenancy from year to year, or for years upon the terms of the former demise. In order to establish such a presumption there must be some evidence of an agreement for a demise for the term. ' Daring the entire period of holding over, until the landlord has in in some manner signified his election, the tenant is a mere tenant at sufferance, and however long continued, cannot be set up as adverse to the landlord or those who claim under him. ^ Thus, a tenant being in possession of lands under a lease for thirty-one years, made in 1753, remained in possession until 1811, and after the expiration of his term he paid no rent, nor did he in any manner acknowledge a tenancy. The court held that, after the expiration of the tenancy, he became a tenant at sufferance, and could not set up an adverse title against the lessor or those claiming under him, ^ but if a new tenant comes in under a lease from the landlord, and the under tenant holds over for a few months and then quits with- out any notice, he cannot, from the mere circumstance of holding over, be charged with a new continuing tenancy for a year, or made to pay rent beyond the period of his actual occupancy. ^ If a person enters see in holding over and paj'ing rent to Not as trespassers, but as tenants Jiav- tlie tenant during part of the year. But ing received their option under the orig- in this case the tenant's assent was inal contract, by comTnunioating an in- confirmed by the acceptance of rent for terest to other parties. » * I consider, a part of the period, and virtually made therefore, that until something be done the holding over by the under tenant, on the one side or on the other to put that of the tenant himself. an end to the interest these parties held 1 Ibbs V. Richardson, 9 Ad. & El. 894. under the contract, they remained in. 2 In Waring v. King, 8 M. & W. 571, the relation of landlord and tenant." under a lease such as is referred to in the ^ Simkiu v. Ashurst, 4 Tyr. 781. text,the defendant sub-letthe premises to * Logan v. Herron, 8 S. & R. (Penn. ) a tenant who held over, and in an action 459. against him for the rent, Lokd Abingeb ^ Howard v. Sherwood, 1 Al. & Nap. C- J., said : "In what capacity, then, (Irish) 217. is the plaintiff to look to the defendants ? ^ Freeman v. Jury, M. & M. 19. Tenants by Suffeeence. 29 upon the possession of premises under a parol lease that is void under the statute of frauds, he may quit possession when the period for which a parol lease would be good has expired ; but if he holds over beyond such period, he is liable for another year's rent, or for rent for the balance of the term, if it expires ^inside of another year. ''■ For other instances as to the effect of holding over, see Tenant for Tears, post. 1 Savage v. Dupuis, 3 Taunt. 410. 30 Tenancy at Will. Sbc. 14. Sec. 15. Sbc. 16. Sec. 17. Sec. 18. Sec. 19. CHAPTER III. TENANCY AT WILL. What is. How a tenancy at will may be created. Vendor and Vendee. What relation exists between. Rights of tenant at will to crops, &c. How determined. Notice to quit. What is. Section 14. A tenant at will, is one who enters into the possession of the lands or tenements of another, lawfully, but for no definite term or purpose, hut whose possession is subject to the determination of the landlord, at any time he sees fit to put an end to it. He is called a tenant at will " because he hatli no certain or sure estate, for the les- sor may put him out at what time it pleaseth himP It differs from a tenancy at sufferance, in that, under a tenancy at will, both the entry and the occupancy are lawful until determined by the landlord, while under a tenancy at sufferance, the entry is lawful, but the occupancy is wrongful. " There is a great diversity between a tenant at will, and a tenant at sufferance ; for tenant at will is al- ways by rights, and tenant by sufferance enters by lawful lease, and holds over by wrong." ' So too, a tenant at will is liable for rent, un- 1 Co. Litt. 5Y B. ; Cole on Ejectment, that such estates are very well known at 448 ; 2 Blaekstone's Com. 145; Faw- t/ie present time both in this country and cett's L. & T. 50. " Strictly speaking," England, and that the only instance in says the court, in Sarsfield b. Healey, which the courts have exhibited a ten- 50 Barb. (N. Y.) 345, " an estate at will dency to discourage them, is in those in- arises when one man lets land to an- stavices where a fixed annual or quarter- other to hold at the will of the les- ly rent is reserved, fairly referable to a sor; the agreement expressly providing yearly tenancy, in which case, in the that it shall be held at the will of the absence of any express agreement crea- lessor. But if the tenant be placed ting a tenancy at will, they construe It on the land without any time pres- as a tenancy from year to year. See cribed, or rent reserved, and as a cases cited past. In many of the States, mere occupier, he is a tenant at will, by statute, all tenancies u.nder parol Mr. Taylok, in his work upon Land- leases are made tenancies at will, and it lord and Tenant, copying from 1 Piatt will be seen by the cases cited hereafter on Leases, p. 652, says that this species in this chapter, that they were well of estate is comparatively unknown. But known to, and recognized by the court;s. an examination of the cases discloses Ki-STDS OF Tenancy. 31 less he was let in free of rent, and if the rent is fixed, it may be des- trained for, ^ or if no rent is agreed, an action for use and occupation may be brought ; '^ while a tenant at sufferance, being a wrong-doer, cannot be compelled to pay rent at all, ' " for it was the folly of the lessor to suffer his lessee at sufferance to continue his possession of the land after his term," * and if the landlord receives rent from him, he ceases to be a tenant at sufferance and becomes a tenant at will, or from year to year, according to the circumstances. ^ Either party may put an end to the tenancy at any time he pleases, even though it is expressed to be a tenancy at the will of the lessor only. ^ Where the tenant holds a,t a fixed rent, the rent may be dis- trained for, ' or if no rent is fixed upon, and there was no understand- ing that the tenant should occupy, free of rent, the landlord may re- cover a fair sum for use and occupation. Bat there must have been an occupancy of the premises by him as tenant to the jplaintiff, by his per- mission or sufferance. ^ If there was an occupancy merely, as the ten- ant of another person, as, under the lessee of the plaintiff, and there had been no express substitution of tenants, this form of action will not lie, ^ and such substitution is not wrought, even though the tenant agrees to pay the rent to the landlord, so long as there is a lease outstand- ing in favor of the person imder whom the tenant entered, unless the lease has been assigned to him, or the lessee has assented to the tenant being substituted in his place, ^'' or if the defendant was in possession as a trespasser, and holding adversely to the plaintiff, no recovery for the use and occupation of the land, as such, can be had. He is not a tenant in any sense, but a mere trespasser, against whom a recovery can only be had as for a tort. " 1 Davies %. Thomas, 6 Exchq. 858 ; 13 M. & W. 12 ; Litchfield «. Eeady, Anderson v. Midland E. E. Co. 30 L. J. 5 Exchq. 539 ; Turner u. Coal Co., 5 id. (i. B. 94. 932. 2 Hyde b. Moakes, 5 C. & P. 42; Mar- ^ Phipps v. Sculthorpe, 1 B. & Aid. wood ?). Waters, 13 C. B. 820 ; Halford 50; Hyde v. Moakes, ante. D. Hatch, 1 Doug. 183. i" Hyde v. Moakes, ante. But the ^10 Viner's Abr. 415 ; Flood m. Flood, rule is otherwise where the defendant 1 Allen (Mass.), 217. But now, in Mas- enters under the plaintiff, as tenant in- sachusetts, and indeed in many of the stead of another whose term has not States, provision is made by statute for fully expired. Phipps d. Sculthorpe, the recovery of rent from such tenants, ante. * Sir Moile Finch's Case, 2 Le. 143, " In Tew v. Jones, 13 M. & W. 12, pi. 178. the defendant conveyed to the plaintiff ^ HoUingsworth v. Stennett, 2 Esp. an undivided moiety of five houses, and 716. he continued to occupy one of them ^ Smith's L. & T. 17 ; Co. Lltt. 55 a ; after the conveyance. The court held Cole on Ejectment, 448, 552. that this afforded no evidence of a ten- ' Davies v. Thomas, 6 Exchq. 858 ; ancy of any kind, and that no recovery Anderson v. Midland E. E. Co. ante. for use or occupation could be had. In ^ Marwood ti. Waters, 13 C. B. 820 ; such a case, the only remedy Is, either Hyde v. Moakes, 5 C. & P. 42; Cripps «. in ejectment, or by an action for not Blank, 9 D. & E. 480 ; Churchwarden delivering the possession. Churchwar- ». Ford, 2 H. & IS". 449 ; Tew v. Jones, den D. Ford, 2 D. & N. 449. 32 Tenattct at Will. How a tenancy at ■will may be created. Sec. 15. Leases for an uncertain time, a,rep7Hma facie leases at will. ^ A reservation of rent is not essential to uphold a tenancy of this char- acter, as a person who occupies rent free, by the sufferance of the owner, may occupy that relation, " or one who occupies, by the naked permission of the owner, ^ or one who enters without permission, even as a squatter, disclaiming title, * or a person who holds under a void deed or lease, ° or who enters under a contract to purchase " or who ' Rich 13. Bolton, 46 Vt. 84 ; Jackson V. Bradt, 2 Cai. (X.Y.) 169 ; Larned v. Hudson, 60 N. Y. 102 ; Jones v. Shay, 50 Cal. 508 ; Richardson v. Langridy, 4 Taunt. 128 ; Rae v. Lewis, 2 W. Bl. 1173. 2 Rex V. Jobling, 2 Ross. C. & M. 28 ; Rex V. Colleit, R. & R. (C. G.) 498 ; NichoU V. McKing, 10 B. & C. 721 ; Jones V. Jones, 10 B. & C. 718 ; Rex v. Fillogley 1 T. R. 458. Thus, where the owner permits a person to occupy premises without any lease or agreement to pay rent, and the occupier merely takes care of tlie premises for the owner, lie is a tenant at will. Jones v. Shay, 50 Cal. 508 ; Horrell v. Sizeland, 81 111. 457. In Humphries v. Humphries, 3 Ired. (N. C.) L. 302, it was h^ld that, where a person is put in possession of land without any agreement for rent, but with an express provision that he shall leave whenever the owner shall require him to do so, he is strictly a tenant at will, and not entitled to notice to quit. In Whoon v. Drizzle, 3 Dev. (N. C. ) L. 414, the owner of land agreed that A should cultivate it during his life, or as long as he pleased, with a restriction as to the sale of it, and it was held that only a tenancy at will existed. 3 Hull V. Wood, 14 M, & W. 682 ; Williams, v. Deriar, 31 Mo. 13 ; Jones v. Shay, 50 Cal. 508 ; Larned v. Hudson, 60 N. Y. 502. A mere general letting, Richardson v. Langridge, 4 Taunt. 132 ; Roe V. Lees, 2 W. Bl. 1173, or a simple permission to occupy urless ther; is an evident intention to create a tenancy from year to year, or some otlier term, create a tenancy at will, Hull v. Wood, ante ; Doe v. Gardiner, 12 C. B. 319, so a cestui que trust in the actual jDosses- sion by the consent or acquiescence of the trustee is a tenant at will ; but mere- ly receiving the rents, does not make him so, MelUng v. Leak, 16 C. B. 652. The fact that a person pays rent, does not change the character of the tenancy, unless he pays it with reference to a yearly holding. Bastow d. Cox, 11 Q. B. 122; Anderson v. Midland Ry. Go., 3 E. & E. 614 ; Cox v. Bent, 5 Bing. 185 ; Braithwaite v. Hitchcock, 10 M. & W. 497 ; Hull v. Wood, ante ; Rich v. Bol- ton, ante. * In Stamper v. Griffin, 20 Ga. 312, this doctrine was held and the squatter was held to become a tenant at will to the true owner ; and in Gay v. Mitchell, 35 Ga. 159, it was held that he could not defeat the tenancy by secretly at- torning to another. The same doctrine has also been held in Alabama, Smith V. Houston, 10 Ala. Ill ; Weaver v. Jones, 24 Ala. 420. ^DeediEzelle v. Parker, 41 Miss. 20 Leases ; Cromelin v. Thies, .31 Ala. 412; Gallowayi). Herbert,4T. R. 680;Warren V. Fearnside, 1 Wils. 176 ; Medina u. Poison, Half. 47. In Tennessee, wliere a parol lease for two ye.irs is void, a tenant entering under it is held to be a tenant at will, Duke b. Harper, 6 Yeng. (Tenn. ) 280, and in Maine, a parol lease at an annual rent creates a tenancy at will. Wethers v. Larabee, 48 Me. 570 ; Cole on Ejectment, 456 ; but he holds, subject to the terms of the lease in all other respects, except as to duration of the terra. Riot's v. Bell, 5 T. R. 471 ; Tress v. Savage," 4 E. & B. 36 ; Richardson v. Gilford, 1 Ad. & El. .52; Pennington «. Taniere, 12 Q. B. 998; Lee V. Smith, 9 Exchq. 632 ; Arden v. Sullivan, 14 Q. B. 832, but upon pay- ment of rent, he becomes a tenant from year to year, under the terms of the void lease so far as they are applicable to, and not inconsistent with, a yearly tenancy. People v. Rickert, 8 Cow. (N. Y.) 226; Strong «. Crosby, 21 Conn. ,398; Schuyleri). Leggett, 2 Cow. (K. Y.) 660. Bui see Jackson u. Rogers, 1 John. Cas. (N. Y. ) 33, where a tenant who went into possession under a void lease was held to be a mere trespasser, and not entitled under the statute to a no- tice to quit. Goodtitle v. Herbert, 4 T. R. 680 ; Denn. v. Fearnside, 1 Wils. 176. See post n. « Patterson v. Stoddard, 47 Me. 355 Proprietors, &c. d. McFarland, 12 Mass, 325 ; Jones v. Jones, 2 Rich. (S.C.) 542 Manchester v. Doddridge, 3 Que. 360 Stanway v. Rock, 6 Jur.'SOO. Consider- able confusion exists in the cases as to the true relation between the owner and Kinds of Tenancy. 33 enters under an agreement for a lease, which is not executed ^ or un- der a lease of premises, until they are sold, ° or a person, who, with the consent of the purchaser, remains in the possession of premises after they have been sold under an execution against him, ' or a squa-^ ter, who remains in possession after a conveyance by him, * or a per- son who goes in under an agreement that he may occupy, as long as he remains in the owner's employ, ° or until a certain contingency hap- pens, " and generally, without stopping to recapitulate all the special occupier during the pendency of a con- tract to purcliase. Some of the cases hold that, wlietlier the contract is com- pleted by a conveyance or not, no ten- ancy exists. Carpenter o. United States, 6 Ct. of Bl. (U. S.) 157. But while it is true that the relation of landlord aiid tenant does not exist in its full sense, or to the extent that rent may be recov- ered unless specially so agreed, yet, there would seem to be no question but that tlie relation in a restricted or limit- ed sense, does exist. The contractee .went in by the permission of the owner, and while from sucli permission alone a contract to pay rent cannot be 'implied, and the liabilities of strict tenancy are not incurred, yet, during tlie pendency of the contract, he certainly liolds under the owner, and his possession cannot be adverse to liim. Therefore he stands as a tenant at sufferance or will, and can be put out of possession by the owner, if from any cause tlie convey- anci; is not made without notice to on, and the court held that the tenancy was merely one at will, because there was no res- ervation of rent referable to a year, or any aliquot part thereof. And it seems that an implied obligation to pay rent, is not enough to convert a tenancy at will into a tenancy from year to year. Thus in a Vermont case,'' the defendant, by the parol permission of the plaintiff, went into possession of certain premises, as tenant, without any agreement as to the terms of holding, or the payment of rent, and continued in posses- sion about fourteen years. He erected a barn on the premises and re- paired the house. The i^laintiff tried to settle with him, but could get nothing from him beyond the repairs, and it a))peared that he refused to pay rent. The plaintiff brought an action to recover the possession of the premises, giving no notice to quit. The defendant resisted the action upon the ground that his tenancy had ripened into a tenancy from year to year, and consequently that he was entitled to six months' notice to quit. But the court held that the tenancy was merely one at will, because it lacked the essential element of annual rent, and that the fact that the repairs upon the premises were to be allowed upon the rent, did not amount to a yearly payment of rent, but wore merely payments in gross for the whole occupancy. the lease, when the tenant laays, and the landlord accepts the rent, isiiby v. Allen, 48 Vr. 172. In Morris v. Niles, 12 Abb. Pr. [IS. Y.) 103, it was held that payment of a quarter's rent is evidence of a yearly tenancy at that rate. It seems that actual payment of the rent is not necessary, but in one case an ad- mission by the tenant of a half year's rent in an account of the landlord was held sufficient. Cox. d Burt, .5 Bing. 185; CtOselek, J. , l)ef ore whom the case was tried at the assizes, saying, "The admis- sion «as equivalent to the payment of so much rent, and that the plaintiff thereby became tenant from year to yeai." See for Englisli cases holding that a tenant under a void lease is a ten- ant from year to year. Tress ti. Savago, 4 F. & B. 36 ; Doe v. Calling, T. C. B. 933 ; Lee b. Smith, 9 Exchq. mi ; Davenish v. Moffatt, 15 Q. B. 257. Hold- ing that a similar result ensues from an entry under an agreement for a lease, Bolton I). Tomlin, 5 Ad. & El. 80(; ; Doe V. Smith, 1 Man. & K. 1.37 ; Mann «. Lovejoy, Ry. & Moo. 355 ; Bennett «. Ireland, E.B. & E. 320; Knight v. Bennett, 3 Bing. 301 ; Chapman v. Towner, G JI. &. W. 100 ; Cox d. Bm-t, 5 Bing. 185 ; Braithwaite v. Hitcli- cock, 10 M.. & W. 494 ; Doe ». Amey, 12 Ad. & El. 476 ; although the agree- ment is void. Knight v. Bennett ante; also tliat it arises from implication of law by payment of yearly rent. Braith- waite B. Hitchcock, ante ; Hull v. Wood, 14 M. & W. 6S2 ; Tress v. Sav- age, .'tnte ; Devenish o. Moffatt, ante ; Doe v. Taniere, 12 Q. B. 993. But, as stated elsewliere, p. , note , tliis is only an inference of law that cannot be raised against llio intention of the parties clearly expressed, and it seems that it cainiot arise where the tenant fails to comply witll conditions prece- dent establisliedc i<,licr by contract, usage or law. Tims, in an Iowa case, Du- buque i;. ililler, 11 Iowa, 583, the ten- ant of a market stall, under lease for one year, from the city, at the close of the lea33, held over without com- plying with certain terms as to the pay- ment of rents made by the city for such second year, and the court held that liis tenancy was only at will. 1 Roo ex d r. Lewifi. 2 "W. Bl. 1173 ; Jackson r. Brodt, 2 Cai. (N. Y. ) 169 ; Rich -0. Bolton, 4'! Vt. 84 ; Chamber- lain x>. Dunham, 45 id. 50. ^ Ricliardson u. Langridge, 4 Taunt. 128. 3 Rich XI. Bolton, 4G Tt. 84. KiKDS OF Tenancy. 37 In Veiinoiit, under the statute, a pai'ul lease, with a stipulation to pay an annual rent, is an " estate at will " only, but it has been held in sev- eral cases, that the character of the tenancy may be changed, and be- come one from year to year by substquent acts of the 2:)arties ; as, by entry into possession by the tenant, and a jiayment by him, and an ac- ceptance by the landlord of the rent stipulated to be paid, and con- tinuing in jiosscssion beyond the first jear,' and this change is not wrought by the length of time that the tenant holds and pays rent, but by the fact that lie enters and holds under a stipulation to pay annual rent, and pays accordingly. ^ It has been held that an entry upon, and a continuance in, possession of premises for several years under a parol agreement to sujaport the owner, creates a tenancy from year to year, be- cause the support furnished is treated as in the nature of yearly rent. " But in New Hampshire, as well as in all other States Avhere the statute provides that no estate or interest in lands, except an estate at will, can be created except in writing, a tenancy from year to year cannot be raised from any occupancy, however long, or the payment of annual rent. * It may be said that prima facie leases, indefinite as to the term, merely create a tenancy at will ; and only a reservation of annual rent converts them into leases from year to year. ^ It is not essential that there should be stipulation for the payment of rent in money, or of a certain amount, but there should be a reservation of some benefit or adv.intage that stands as yearly rent. ° A lease, indefinite as to terms, but re:-erving an annual rent payable quarterly, is held in Penn- sylvania to be a lease from j'ear to year, and cannot be terminated exoejit by regular notice to quit, and, if such notice is not given, and if the tenant commences a new year without any notice to quit having been given, the landlord cannot put him out until the end of the next year ; but for the second year the tenant must pay according to the terms of the lease,' and the courts latterly are inclined to construe all leases at will at an annual rent, as leases from year to j^ear. ' But when the lease in terms creates only a tenancy at will, the fact that rent is reserved and paid in pursuance of such reservation does not change the character of the tenancy. The intention of the parties, if ^ Barlow v. Wainwriglit, 22 Vt. 88 ; Lewis, 2 W. Bl. 1173; Jackson v. Brodt, Silsby V. Allen, 43 Vt. 172 ; Hull v. 2 Cai. (N. Y. ) 109. Wadsworth, 28 Vt. 410. ^ Richardson v. Langridge, 4 Taunt. 2 Silsby V. Allen, 43 Vt. 172. 128. ^ Hancliett v. Wliituey, 1 Vt. 311. ' Lesley ». Randolph, 4 Eawle (Penn.), * Whitney v. Swett, 22 N. H. 10 ; 123. Davis 13. Thompson, 13 Me. 214 ; Young » Pople v. Garland, 4 You. & C. 394. I!. Young, 36 Me. 133 ; HoUis v. Pool, 3 In many of the States al) parol leases Met. (Mass.) 351. See ante, page merely create a tenancy at will, as in note. Massachusetts, Maine, Vermont, &c. s Eich V. Bolton, 46 Vt. 84 ; Roe o. 38 Tenancy at Will. clearly expressed, will control. Thus, where a tenant entered under an agreement "to become tenant at the will and pleasure of" the land- lord, " and at and after the rate of twenty-five pounds per annum, pay- able quarterly," the tenancy was held to be at will, and not from year to year, Loed Denman, C. J., said : " The courts are desirous to pre- sume a tenancy from year to year where parties do not express a dif- ferent intention, but here they have expressed it." ^ In another case, ^ it was held that a clause in a mortgage that the mortgagors should become tenants to the mortgagees of the demised premises during their will, at a yearly rent, created only a tenancy at will. ^ 1 Bartow v. Cox, 11 Q. B. 122. The reservation of yearly rent is not incon- sistent with a tenancy at will, Co. Litt. .556 ; Walker v. Giles, 6 C. B. 662, and where the terms of the lease are such as to show a clear intention to create a tenancy at will, the reservation and pay- ment of yearly rent, and an occupancy under it for a period of time, however long, will not change its character, Dixie B. Davis, 7 Exchq. 89. The Eng- lish courts are inclined to hold all ten- ancies for an indeterminate period, ex- cept where otherwise clearly provided, tenancies from year to year, where there is a reservation of annual rent, and even in som e cases they have so held where there v.'as no such reservation, but rent had been so paid, Parker v. Wallcer, 1 Wils. 25, and a similar doctrine was held in Jackson ». Bryan, 1 .John. (N". T. ) 32:3, but this is only the case, where there is nothing to indicate a contrary intention. When it is clearly the in- tention of the parties to create only an estate at will, their intention will be up- held, notwithstanding the reservation of an annual rent, Anderson v. Midland R. E. Co., 30 L. J. Q. B. 94 ; Stedraan i). Mcintosh, 4 Ired. (N". C.) L. 291; Humphries «. Humphries, 3 id. 363. In a Massachusetts case it was held that a written lease of a house at a certain rent per annum, payable "in monthly payments, otherwise pro rata," for a term to begin "where said house is suit- able to be occupied " by the lessee, and undefined in duration, except by a stipu- lation that if, after two years from the time when the lessee should move into the house, the lessor should wish to live there, he might do so, and the lessee might then retain, if he should desire, certain rooms " for such a time as may be agreeable to us both," creates only a tenancy at will ; and parol evidence is Inadmissible to give it a diifereut con- struction, Murray v. Cherrington, 99 Mass. 229. Where, by the terms of a written lease, the tenancy is to continue so long as the parties shall mutually agree, and either party may determine it on four days' notice— the rent to be paid month- ly or semi-monthly, as may be most con- venient—such renting creates a tenancy at will ; and the lessee, in such case, acquires no certain indefeasible interest in, the premises, which he can sell and transfer to another. Such tenancy will be determined, by implication of law, upon the death either of the lessor or lessee ; or by the desertion of the prem- ises by the lessee ; or by the sale and transfer of his possession to another. Therefore, where during such a ten- ancy the lessor died, having by will de- vised the premises ; and the lessee, a month afterwards, sublet a portion of the premises to the plaintiff, without the consent of the devisee ; and shortly thereafter removed wholly therefrom ; and the devisee thereupon entered and removed doors and windows from a dwelling-house situated on the demised premises, and in the occupancy of the plaintiff ; without unnecessary inter- ference with the person or property of the plaintiff, and without a breach of the peace, such entry and acts of owner- ship were not tortious, and do not con- stitute a cause of action in favor of the plaintilf against the devisee. Say v. Stoddard, 27 Ohio St. 478. 2 Walker v. Giles, 6 C. B. 662. ^ In Dixie v. Davis, 7 Exchq. 89, an indenture of mortgage, among other things, contained a proviso and cove- nant by the mortgagee, that no sale, or public notice, or advertisement for any sale, should be made or given, nor any means be taken for obtaining jDossession, until the expiration of twelve calendar months after notice in writing of such intention should have been given to the mortgagor, as tenant at will to the mortgagee, on the payment of a certain yearly rent, by two equal half yearly payments. No livery of seizin was made to the mortgagor. It was held Kinds of Tenaxct. 39 Vendor and Vendee. "What relation exists between Sec. 16. As previously intimated, some confusion exists in the cases, as to the nature of the relation existing between a vendee in possession under a contract to purchase, and the vendor. But, while in some cases it is held that the vendee is to be treated as a mere licensee, ' yet, in a majority of the oases, and those entitled to the most weight as authority, it is held that the vendee is a tenant at will in a qual- ified sense, to wit as owner, ^ the tenancy being raised by impli- cation of law, " and it has been held in several English cases that this relation must be determined by a demand for the possession before ejectment can be brought. * " It is not the agreement," says Baeon that, under this provision, the mort- gagor was tenant at wiU only to the mortgagee, and that a tenancy from year to year was not thereby created. Pollock, C. B., said: "There can be no doubt tliat a tenancy at will may be coupled with a yearly rent." 1 Doolittle !). Eddy, 7 Barb. (N. Y.) 74. ■^ Towne v. Butterfield, 98 Mass. 106; Jones V. Jones, 2 Rich. (S. C.) 542; Proprietors, &c. v. McPai-land, 12 Mass. 325 ; Carpenter v. United States, 17 Wall. (U. S.) 489 ; afe'g S. C, 6 Ct. of Claims (U. S.) 157; Winterbottom v. Ingham, 7 Q. B. 611; Milburn u. Edgar, 2 Bing. (N. C. ) 498 ; Manchester v. Doddridge, 3 Ind. 360 ; Love v. Ed- mondston, 1 Ired. (N". C.) L. 152 ; Pat- terson v. Stoddard, 47 Me. 355 ; Hearne V. Tomlins, Peake, 192; Xewbyu. Jack- son, 1 B. & C. 498 ; Hope v. Booth, 1 B. & Ad. 498; Kirtland v. Paunsett, 2 Taunt. 145. •' Ball V. Cullimore, 5 Tryw. 753 ; Lewis D. Beard, 13 East, 210, " There is no doubt," said Pakke, B., in Gray v. Stanion, 1 M. & W. 700, "but that if there be an agreement to purchase, and the intended purchaser is thereupon let into possession, such possession is law- ful, and amounts, at law, strictly speak- ing, to a hare tenancy at will." * Gray v. Stanion, 1 M. & W. 700 ; Lewis v: Beard, 13 East, 210 ; Stanway V. Rock, 4 M. & G. 30 ; Milburn v. Ed- gar, 2 Bing. N. C. 498 ; Newby v. Jack- son, 1 B. & C. 448. If the landlord does that which is equivalent to a de- mand of possession, as, if he exercises any act of ownership upon or over the land, as by entering and cutting down trees, or makes a feoffment or lease for years to commence immediately, the es- tate at will is determined. Ball v. Culli- more, 2 C. M. & R. 122 ; Howell ». Howell, 7 Ired. (N. C. ) 496 ; Rising v. Stannard, 17 Mass. 282; Kelly v. Waite, 12 Met. (Mass.) 300 ; Keay c. Goodwin, 16 Mass. 1 ; Ellis v. Paige, 1 Pick. (Mass.) 43, ii partition of the lanil. Rising u. Stannard, ante, the granting of another lease at will and giving seizin and possession to the lessee, Ellis v. Paige, ante, or the death of the land- lord, Robie V. Smith, 21 Me. 114 ; Page 0. Wright, 14 Allen (Mass.), 182, or by any act that determines the will under which the estate is held, Howell v. Howell, ante, Lobd Denman, C. J., in Turner v. Bennett, 9 M. & W. 643, very forcibly expressed the true rule as to the effect of an entry by the landlord in the case of a tenancy at will. He said, " The intent of an entry is undoubtedly iu many cases important, but in the case of a tenancy at trill, whatever be the intent of the landlord, if he do any act upon the land for which he would other- wise be liable in an action of trespass at the suit of the tenant such act is a de- tennination of the will, for so only can it be a lawful, and not a wrongful act." LoKD Aeingek, C. B., in Ball v. Culli- more, ante, says, "A tenant at will has a viere scintilla of interest, which the landlord may determine by making a feofment, with livery upon the land, or by a demand of possession." In Ball v. Cullimore, ante, one Richard Withers entei-ed into a contract M'ith his son Thomas Withers, to sell to him a cer- tain estate for the sum of £5, and in pursuance of that agreement Thomas went into possession and remained in possession six or seven years, but at the expiration of that time, the father not having received the purchase money at the plaintiff's request, agreed to sell him the laud for £5, which the plaintiff paid and a feofment was executed by the father with livery of seizin endorsed, and livery of seizin was made when Thomas was off the land, but Thomas Withers disputed the possession of the land, and the jury found that he did not go off the land for the purpose of giving up possession. It did not appear tlut he had any notice of the determination 40 Tenancy at Will. Paeke, ^ " hut the letting into possession, that creates suoli tenancy, for the person suffered so to occupy cannot, on the one hand be considered as a trespasser when he enters, and, on the other hand, cannot have more than the interest of a tenant at will, the lowest estate knovvn to the law." 2 A tenant thus let into possession, cannot in the absence of an agree- ment to that effect, be charged for use and occupation, at least so long as the contract is in force '" whether the contract subsequently goes off in consequence of the fault of the occupier or of the owner of the es- tate. * And this is so, even though he is to pay interest at a siDecified rate annually upon the purchase money. '' But where a yearly sum is reserved which is to stand as rent if the contract goes off, or as pur- chase money if the sale is completed, the relation of landlord and ten- ant is created, and the tenant is entitled to nocice to quit. ^ So where a person goes into possession under a parol contract to purchase, and advances the purchase money, but subsequently refuses to accept a deed, it has been held that he thereby becomes liable to the vendor for use and occupation for the time he was actually in possession. ' ol: the will, but tlie court held that the fi'ofment with livery of seizin as stated determined the will. "I am entirely of the opinion," said Pakke, B., "that Withers, the son, was notliing more than a tenant at will. He had nothing mure than a lawful possession ; and must be considered as having that kind of legal title to the possession, which, in law; is recognized as a tenancy at will. Then the father executes a feofment, to the plaintiff, and livery of seizin is given. I am, clearly of opinion Uuit the fntry on the land to lu'tte livery of ■Hf'izin determined the w'U; any act of that kind determines the will, whether the tenant known it or not." 1 Gray v. Stanion, 1 iX. & W. 700. ^ Howard v. Shaw, S il. & W. 118 ; Ball V. CuUimore, 2 C. :d. & R. 12) ; Kirtland v. Paunsett, 2 Taunt. 145. ^ Winterbottom v. Ingham, 7 Q. B. Gil; In Ee Banks, 2 Law. M. & R. 4"y2. ■i Saunders v. Musgrave, 2 C. & P. 204, LoKD DENjr.vN, C. J., in Winter- bottom B. Ingham, ante ; Tomes u. Chamberlain, .5 M. & W. 15 ; Bell v. Ellis, 1 Stew.& P. (Ala.) 295. ■' In Tom?s v. Chamberlain, ante, the d:;fendant, upon the 22d of Feb., 1833, entered into a contract with the plain- tiff to purcliase. of him a certain estate, and was let into possession forthwith, and was to pay intei'pst on the purchase money at the rate of £5 per annum, un- til the purchase was completed, which was to be done by the 22d of the ensu- ing Ma ■. There was no evidence that any conveyance had ever been made or tendered, or that the plaintiff had taken any steps to complete the purchase. The defendant remained in possession and built upon the land. After the estate had been occupied several years by the defendant, the plaintiff brought ejectment against him. The defendant insisted that he was a tenant from year to year under the agreement, and that the stipulation f jr the payment of an- nual interest, must in law be treated as a stipulation for so much annual rent. But the court held that this stipulation for the payment of interest annually was clearly not in the nature of rent. ''At law," said Parke, B,, " this is no'hmg more tlian an estate at will ; there is a provision also for payment of intcrpsi. hut not by way of compensation for th ■ occupation o'^the land. The agreement for payment of interest is quite inde- pendent of the occupation of the estate. * * * He has nothing but the lowest estate known to the law, viz., an estate at will, which may be determined by demand, or by entry." " Saunders u. Musgrave, 6 B. & C. 524, disapproving S. C. 2 C. & P. 294. See, also, to same effect, Gould c. Thompson, 4 Jlet. (Mass.) 224, also Anderson v. Midland R. R. Co., 30 L. J. Q. B. 94. ' Gould V. Thompson, 4Met. (Mass.) 224, But, according to the doctrine of this case, his refusal to accept a deed determines the tenancy at will, and from that time he becomes a trespasser. Kinds of Tenancy. 41 But while this doctrine has been sustained by the dicta of a few cases, ^ and was i^redicated upon the doctrine of an Englisli case, ^ yet, it is not believed that it can be regarded as expressive of the true doc- trine as now held, either by the Englisli or American cases. It is not ajsprehended that any distinction can be said to exist, because the pur- chase money is paid in advance, but that whether the jjurchase money is paid in advance, or not paid at all, if the contract goes off, .the par- ties must be relegated to their contract, and that, unless there is some^ thing in the contract itself, for which a promise to jiay for the benefi- cial enjoyment of the property can be implied, an action for use and occupation cannot be maintained. In the absence of such circum- stances, the vendee is treated as a naked tenant at will, and the pay- ment of the purchase money is the only compensation that the vendor had any right to rely upon, for the vendee's occu2:)ation. If parties see fit to jeopardize their interest by entering into contracts in such a manner that they cannot be enforced, or so loosely that certain rights that ought to have been saved to them are lost, the law cannot be dis- torted to protect them against the consequences of their folly. The fault is not with the law, but with the parties. In fact, the doctrine of the Massachusetts case ^ is not sustained by the English case upon which it relied. ^ In the English case the action was not brought by the vendor, but was an action brought by the vendee against the ven- dor for the use and occupation of the premises, during the pendency of an action brought b_v the vendee against him for specific perform- ance, which was subsequently decreed. The ground upon which the court proceeded in that case was, that the vendor got into jDossession by the vendee's permission under a mistake of facts, and Rich- AEDS, C. B., held that the judge below erred in ruling that the action could not be maintained, because it was brought by one who had no right to the land, against one who had. He held that a 23erson equity ably entitled to the land was to be considered as the owner from the time of making the contract, if specific performance was after- wards decreed, and that the vendor, entering into possession by the jser- mission of the vendee, if not indeed by practising a fraud upon him, ■\\as answerable to him for use and occu.pation. That is, where a pter- son enters into the possession of lands, with the permission of the and- no longer liable for rent. Upon default, from the time of default the this point there are several English purchaser becomes a mere tenant by cases in fall harmony with it, holding sufferance, Moore v. Lawder, 1 Stark, that where a contract is made for the 308; Rogers v. PuUen, 2Bing. M". C. 749. sale of lands to be paid for in instal- ^ Clough v. Hosford, 6 N. H. 231 ; ments, and providing that if default is Alton v. Pickering, 9 id. 494 ; Whitney made therein, all previous instalments v. Cochran, 2 111. 210. paid shall be forfeited, and the vendor ^ jjuji ^_ Vaughn, 6 Price, 157. not compellable to convey, and the pur- ^ Gould v Thompson, ante, chaser is " •^t into possession and makes * Hull v. Vaughn, 6 Price, 157. 42 Tenancy at Will. owner, under such circicmstances that it cannot he said that his iccu- panel/ was to be gratuitous, and the compensation therefor is 7ioi referable to any other consideration, the law will imply the requisite promise to xiphoid an action for use and occupation therefor. But, where a vendee goes into possession under a contract to purchase, and there is nothing in the contract to indicate that anything is to ho paid for such occupancy, the fact that he went in by the permis- sion of the vendor, as a part of the contract, has no tendency wliatever to create liability on his part for the use and occupation of such premises, because the payment of the purchase money is the only coTnpensation that, in the eye of the law, the parties had in coiv- templation, and the law cannot imply a promise where the contract is exjirciss, and repels any such presumption ; and the relation of land- lord and tenant, to that extent, does not exist until the contract goes off by the default of one or both of the parlies thereto. ^ It was for- 1 Kirtland u. Pounsett, 2 Taunt. 145, Parke, B. and Ai.dekson, B., in Howard u. Shaw, 10 L. J. Exchq. 338 ; Hearne x>. Tomlin, Peake, 19:^ ; Right r. Beard, 13 East, 210. In Smith ». Stew- art, 6 John. (]Sr. Y.) 46, the defendant Iiad been for several years in possession of lands belonging to the plaintiff nndei' a contract to purchase, and from time to time promised to pay the purchase money, but not having done so the plaintiff brought assumpsit for use and occupation against lum. The court held that the action would not lay, as the relation of landlord and tenant did not exist, and that the defendant, by his refusal to perform, had become a tres- passer, and in that character miglit be turned out and made responsible for tlie mesne profits; and the same doctrine has been held in numerous American cases, Vanderhennel n. Storrs, 3 Conn. 203 ; Bancroft v. Wardwell, 13 John. (N. y. ) 4S9. In Bell i;. Ellis, 1 S. & P. (Ala.) 295, the court laid down what would seem to be the correct doctrine. " The correct doctrine of the books," said the court, " is that this action upon an implied promise for rent will only be by virtue of the statute when the rela- tion of landlord and tenant is preserved, and that this relation will be destroyed when the possession is held under a contract »f sale, though that contract r.iay be void, ineffectual to convey the premises, or even though the sale is prevented by the purchaser himself." See also, to the same effect. Hough «. BirT;e, 11 Vt. 190 ; Brewer u. Conover, 13 N. J. L. 215, and even in Kentucky, where it has been held that assumpsit for use and occupation lies where a party goes in with the assent of the owner, and there has been a beneficial occupancy, it was held that the action would not lie where the party entered as a purchaser, because the relation of vendor and vendee, rather than that of landlord and tenant existed, and thus the ijresumption of a promise was di- rectly repelled. Jones v. Tipton, 2 Dana (Ky. ), 295. See also, Little v. Pearson, 7 Pick. (Mass.) 301. In the case of Winterbottom b. Ingham, 7 Q. B. 611, this question was carefully considered, and. the doctrine settled in acordance with the statement in the text ; Lord Denman, C. J., carefully reviewing the previous cases. In that case the de- fendant went into possession of an es- tate under a purchase at an auction sale, and held the premises pending an investigation. The contract was after- wards determined fbr want of title, and the court held that an action for use and occupation would not lie against the purchaser. Lord Deistman said : " Upon the facts of this case, the plain- tiff's counsel contended that by the contract of sale the defendant was not to be let into possession until the pur- chase money paid ; that his entry there- fore could not be referable to that con- tract, and his occupation not merely as purchaser, but that both enti'y and oc- cupation must be referred to a distinct contract arising upon the ordinary im- plication, and involving the ordinary consequences as to the payment of com- pensation. But he admitted that the entry was because lie was the contrac- tor for the purchase, and that, if the contract had been completed, and so long as it was pending, this action could Kinds of Tenancy. 43 merly thought, although not directly held, that the right to recover ia such cases depended upon the question whether such occupation was beneficial to the vendee or not ; ■' but this notion does not now prevail ; but the right of recovery is made to depend upon the circumstance whether there is anything in the contract that warrants the inference, that during the pendency of the contract the parties stood to each other in the relation of landlord and tenant, or merely in that of vendor and vetidee, or, in other words, whether anything more than naked tenancy at will existed. ^ When, at the time a contract of purchase is entered into, the vendee is in possession as a tenant, the question as to whether, under the con- tract, his relation is changed from that of tenant to a mere vendee, de- pends upon the intention of the parties to be gathered from the con- tract, and the attendant circumstances ; and the contract and the circum- stances must be such as to overcome the presumption that a tenancy once shown to exist, continues until it is shown to have been determined, and it would seem that a contract of sale absolute in its terms, and which involves no contingency, has that effect. Thus, in an Alabama case, ^ a person who entered into possession under a lease for a definite term, subsequentlj'^ entered into a contract with the administrator of not have been maintained. The more correct view of these facts seems to us to be, that the entry and possession were not upon an understanding that any compensation was to be made in the event which has arisen. The de- fendant certainly was considered, both by himself and the plaintiff, as pur- chaser, not ns tenant, and the plaintiff cannot convert him into an occupier, liable to pay for his occupation. * * We think a negative must be put on the proposition that the defendant promised to pay, because both parties understood that he made no such promise. Parties may easily secure themselves by stipu- lating for the event of a non-completion of the purchase, in their contract of sale and purchase." 1 In Hearne ». Tomlin, 1 Peake, 192, the defendant was permitted to intro- duce evidence to show that the occu- pancy had not been beneficial, and, although the plaintiff was not permitted to recover, yet from tlie observation of IjOEI) Kenyoin that the occupation had not been productive of actual loss, al- though not beneficial to the defendant, and from the fact that the defendant was pennitted to give evidence upon this point, it is evident that he regarded this as a material point. In Kirtland u. Poun- sett, 2, Taunt, 145, it is evident that, if the occupation had been shown to have been beneficial, a recovery jvould have been pei-mitted ; and in the case of Win- terbottom v. Ingham, 7 Q. B. 616, al- though LoiiD Denman seemed to ques- tion whether this circumstance would have any effect upon the question, yet he seemed to go upon the presumption that the occupation must be regarded as not beneficial, even though the jury found that it was. He said : " The jury have in- deed found that the occupation M-as bene- ficial ; but this statement is not without ambiguify. It may have been beneficial, supposing that he actually had become the owner, by making a fair return of profits on all his outlay, and the amomit of the proceeds during his actual holding. On the other hand, he may have expended, as owner, in improvements, a sum much larger than a reasonable rent." 2 Eight 1). Beard, 13 East, 210; How- ard V. Shaw, 8 M. & W. 118; Doe v. Jackson, 1 B. & C. 448; Tomes v. Cham- berlain, 8 M. & W. 14; Parker v. Boul- ton,6 M. & S. 148; Winterbottom v. In- gham, ante ; Ball v. Cullimore, 2 C. & M. & E. 120; Stanway v. Rock, Car. & M. .549; 5 .Jur. 121; Hugh v. Birge, 11 Vt. 190; Jones i;. Tipton, 2 Dana (Ky.), 295; Little V. Pearson, 7 Pick. (Mass. ) 301; Smith c. Stewart, 6 John. (N. Y.)746; Vandenhennel o. Storrs, 3 Conn. 203; Bell !). Ellis, 1 Stur. & P. (Ala.) 295; Bancroft v. Wardwell, 13 John. (N.Y.) 489. Bell V. Ellis, 1 Stew. & P. (Ala.) 295. 44 Tenanoy at Will. his lessor to purchase the premises from him. In point of fact, the ad- ministrator had no power to sell the premises, and the contract was not performed by him. The court held that, upon the making of the con- tract to purchase, althougli void, the relation of the parties was changed from that of landlord and tenant to that of vendor and ven- dee, and that no recovery could be had from the vendee for the use and occupation of the premises under the contract. But vidiere the contract is dependent upon contingency, as, if the tenant contracts to purchase, if the landlord " can make a good title," it is held that the relation of the parties is not changed by the contract until the j)ur- chase is actually consummated. ■'■ 1 In Gray v. Stanion, 1 M. & W. 695, the defendant occupied a house belong- ing to the plaintiff as tenant from year to year, and while so occupying, he en- tered into a contract with the plaintiff for its purchase, as follows: "1831, Sept. 2, Samuel Stanton purchases an estate in the parish of Corbey, bought of Rob- ert Gray, at the sum of £100. Received on account 10s. Mr. R. G. is willing to let the sum lie by paying 4 per cent." The court held that as there was an im- plied condition in tlie contract, that tire vendor should make out a good title, the agreement for the purchase did not operate as a surrender of the tenancy by operation of law, and consequently that ejectment would not lay without notice to quit. It was insisted by the plaintiff's counsel that the contract for the pureliasf; determined the tenancy. " It depends," said Pakke B., page 697, " entirely on the effect of the agreement. If it amounts to an agreement to pur- chase loitliout any inquiry intoHIie title, it may determine the tenancy; but if it is an agreement to purchase, provided a goiiil title be made, can it be contended that the tenant was bound to pay the pur- chase money before tlie title was inves- tigated? In delivering the opinion of the court Pakke B. said: " There is no doubt but that if there be an agreement to purchase, and the intended purchaser ! • thereupon let into possession, such jiQSf esfion is lawful and amounts at law, strictly speaking, to a bare tenancy at will. Lewis v. Beard, V-i East, -ilO. It is not, however, the ar/reement, but tlie lettiii'i into possession, that creates such tenancy; for the person suffered so to occupy cannot, on the one hand, be con- sidered as trespasser, when he enters, and, on the other hand, cannot have more than the interest of a tenant at will, the lowest estate known to the law. But where the purchaser is already in possession as tenant from year to year, it must depend upon the intention of the parties, to be collected from the agree- ment, whether a new tenancy at will is created or not, and from what time. In this case, if the true construction of the agreement be, that from tlie date of it (or any other certain time) the defend- ant was to be absolutely a debtor for the purchase money, paying interest on it, and to cease to pay rent as tenant from year to year, a tenancy at v/ill would probably be created after that time; and. the acceptance of such new demise at will, would operate as a sur- render of the interest from year to year, by operation of law. But if tlie agree- ment is conditional, only ivovided a good title should be made out, and to pay the purchase when that would have been done, and the estate conveyed, there is no room f oi' implying any agree- ment to hold as tenant at Avill in the mean time; the effect of which would be to absolutely surrender the existing term, whilst it would be uncertain whether the agreement would be com- pleted or not. And this is strongly illustrated by supposing such an agree- ment to be made by a term or for a long term of years, of considerable value beyond the reserved rent; in which case, it would at once stiike any oTie as im- possible to give this effect to the agree- ment. In such a case no one would doubt but that llio intention was that the lease should not be given up unless the purchase was completcl. Is, then, the contract in question a contract of this conditional nature, to purchase for £100, provided a good title should be made and the esiate transferred? We conceive that there is no doubt but that it is to be so construed; for, in the first place, in contracts for the sale of real estate, an agreement to make a good tille is alinnysiinplied. Sout.ei' p. Drake, 5 B. & Ad. 992; and, in the next, it is out of the question to suppose that this .Kinds of Tenancy. 45 Whatever may be the conflict upon the other points stated, it seems to be well settled that no recovery can be had for use and occupation, while the contract of sale is unrescinded, ^ or if it is comjDleted by a conveyance of the property, ^ or if the holding was adverse. ' Right of tenants at ■will to crops, etc. Sec. 17. A tenant at will possesses no demisable estate in premises held by him''' except that he may, as against himself, create a tenancy by estoppel, but he does possess such an interest that he can maintain tresjiass against any person who interferes with his present possession, or case against any person who commits a nuisance or other injury affecting either the comfort or convenience of his enjoyment of the premises, ^ but not for an injury to the reversion, altliough he is in under a contract to purchase, which is siibsequently consummated by a conveyance." He may terminate his tenancy at any time he chooses to do so, even though the lease is expressed to be at the will of the lessor,' but if he does determine the estate after he has planted a crop and before it is harvested, he thereby relinquishes all right there- to, and it belongs to the landlord ; but if the lessor determines the estate after a crop has been planted or sown, the tenant is entitled thereto, " unless the estate is determined, because it has expired by defendant meant to be obliged to pay tlie purcliase money without some con- veyance of the estate, although subject to a mortga.i^e for the purchase money. For the.'sc roasons we think that the tenancy from year to year was not deter- mined by the defendant's entering into this agreement." 1 Little V. Pearson, T Pick. (Mass. ) .301 ; Beauchamp v. Vanderhennel, 3 Conn. 2IJ3. ■^ Carpenter v. United States, 6 Ct. of Claims (U.S.), 157 ;Aff'd 17 \Yall. (U.S.) 489. • ^Little V. Pearson, ante; Wiggin v. Wiggin, N. H. 208; Barton )). IBirney, 11 Pick. (Mass.) 1. . * If a tenant at will does underlet, even in those States where, by statute, a notice to quit is required, in order to determine the tenancy, a notice to the under tenant will be sufficient. Clark ». Wheelock, 99 (Mass.) 14. . 5 Foley r. Wyeth, 2 Allen (Mass.), 135; Hilbourn v. Fogg, 99 (Mass.) 11; Bul- wer V. Bulwer, 2 B. & Ad. 470. " Foley V. Wyeth, ante, where the ten- ancy has not been legally determined, he may maintain trespass against the landlord mIio enti-i ^ ^^■ithout the tenant's assent, as in one i-ifc for entering and cutting off a pump upon the premises. Dickinson v. Goodrich, 8 Cusli. (Mass.) 119. ' Litt. s. 68 ; Cole on E]"ectment, 448 ; Smith's L. & T. 17; 2 Blackstone's Com. 145; Woodfall's L. & T. 180. ^ In Gland's Case, 5 Coke, 116 a, the rule was well expressed, as it seems to exist at the present time. In that case a feme sole was in possession of lands durante viduitate sua, and having se- cured the lands, was married, and the question was, whether the husband or the lord of the manor should have the crop, and it ■^^■as held that the lord should have it, because it was deter- mined by the lessee herself. See, also, S. G. sub. noni.., Oland v. Burdwick, Cro. Eliz. 60; Kolles' Abr., tit. Emble- ments, 10, p. 727. In Bulwer o. Bulwer, 2 B. & Ad. 470, a similar doctrine was held, and the tenant at will, who re- mained in possession after he had deter mined his tenancy by his own act, was held lialjle in trespass for cutting and taking away the crops. In that case the defendant had been the rector of the parish of Sail, and he resigned that living, on May 21st, and the plaintiff was presented June 4, and instituted to it July 7th, and afterwards inducted. The defendant retained possession until the following Michaelmas day, and cut the hay, corn, and other crops, which had been sown previously. The plain- tiff had not taken actual possession, but it was held that the crops inured to 46 Tenancy at Will. breach of some condition therein, or by its own limitation by the hap- pening of a contingency upon which its duration depended, ^ or if " the estate is determined before severance by uncertainty, by the for- feiture of the lease or for a condition broken. So, if the lessor enters for a tort done, or by title paramount, or if the tenancy expires by limitation, the lessor shall have the crops." ^ If a feme-sole tenant at will marries and her husband sows a crop, but before it is harvested they are divorced, yet it is said that the husband shall have the crop, because the tenancy is determined by the judgment of law, rather than by the acts of the parties, ' and the same rule prevails where the tenancy is determined by the act of God, as, by death of the ten- ant or by the act of a stranger, or by operation of law, ^ or in any manner otherwise than by his own act, ^ and he may enter upon the land for the purpose of cutting and carrying them away. ^ But if the him on his induction, and he was held entitled to recover, and he had a verdict for £188. A similar doctrine was held in Moyle v. Ewer, 2 Bulstr. 184, and the same rule is laid down in Digge, Chap. 2, pi. 2. But if the crops are severed before the lessee determines his estate, or if they are secured before his death, they, having vested in him by severance, pass to him or his estate. Gibson's Co- dex, Vol. I., p. 661. See also Shejjpard's. Touchstone, 244; Finlayson's L. & T. p. 259; Debaw v. Colfax, ION. J. L. 128. 1 Oland's Case, 5 Coke, 116 a; 1 Hol- ies' Abr. 762; Oland v. Bardwick, Cro. Eliz. 431. In Bulwer v. Bulwer, ante, Abbott, C. J., said: " The general rule of law iipplicable to cases of this de- scription is, that xcliere a tenant of land has an uncertain interest which is deter- mined hy the act of God, or the act of another, there, he shall have the emble- ment; but that is not so when the ten- ancy is determined by his oion act. Tliat is laid down in a variety of in- stances which will be found in Comyn's Digest, Vol. I., p. 661. As where the lessee surrenders, or a woman who is tenant durante viduitate marries, or the estate determines by forfeiture, condition broken, etc. In all these cases they are not entitled to emblements." See, also. Davis v. Thompson, 13 Me. 209; Shelbourne v. .Jones, 20 id. 70; Davis v. Brooklebauk, 9 N. I-I. 73; Debowv. Col- fax, 1) jST. J. L. 128. The tenant is only entitled to such crops as- were sown before the estate was determined. If , e crops were sown after his estate was il termined by notice or otherwise, he \- not entitled to the crop or the ex- ;■ Ti='i of manuring and preparing the gi'onnd. Stewart v. Doughty, 9 John. (N. Y.) 108; Prior v. Tickett, 21 Ala. 741. 2 In Oland's Case it was said that " if a lease be made to one until he doth waste, and he sows the land and after- wards doth waste, he shall not have the emblements." See, also, 1 Holies' Abr. 726. In some of the States, and espe- eially is this so in New Jersey, Dela- ware and Pennsylvania, by the custom of the country, a tenant even under a lease for a definite term, is by the cus- tom of the country entitled to the away going crops. That is, to all crops sown the autumn previous to the termination of his tenancy. Van Dover v. Everett, 5 N. J. L. 460; Templeman v. Biddle, 1 Harr. (Del. ) .522 ; Stuttz v. Dickey, 5 Binn. (Penn.) 28.5; Clark-!). Harvey, 54 Penn. St. 142, but noj, crops planted or sown in the spring, Demi v. Bassler, 1 Penn. 224; Templeman v. Biddle, ante. See past EMBLEsiENfTS. " Oland V. Burdwick, Cro. Eliz. 461. 4 Ibid. See also, Gould v. Webster, 1 Aik. (Vt.) 409 ; Bulwer v. Bulwer, 2 B. & Aid. 471. ^ Bulwer v. Bulwer, ante : Davis v. Eyton, 7 Bing. 154. It is laid down by Littleton, sec. 68, that " a lessee at will is entitled to emblements unless he de- termines his own estate, and though it is otherwise with a tenant for years loho knows the end of his term," yet Lord Coke says, " This is not only proper to a lessee at will that, when the lessor de- termines his will, the lessee shall have thecornsowu, etc., 6ut to every particu- lar tenant that hath an estate incertaine, for that is the reason. which Littleton expresseth in these words, Pur ceo que il nad ascun ccrtaine ou sure estate." s Kingsbury v. Collins, 4 Bing. 202 ; Hay ling v. Obey, 8 Exchq. 531, and for the purpose of carrying away his goods Kinds of Tenajstct. 47 tenancy relates to agricultural lands he cannot take away the manure made upon the land, ^ even though it is piled in heaps in the farm yard, and was made by his own cattle, from his own fodder. ^ But the rule is otherwise where the manure is made upon premises not de- voted to farming purposes, ' as in livery stables, or in any way not connected with agriculture. * How determined. Sec. 18. Either party may put an end to a tenancy at wiu at any time he pleases, and instanter, ^ and without notice, ^ unless, as is the case in several States, the statute requires that notice should be given by the party determining the estate, either of a certain number of days or reasonable notice, ' and in the case of a strict tenancy at will, it is held in England that ejectment will not lie until there has been a demand of possession * or the estate has been determined by implicv or other personal property. Folsom v. Moore, 19 Me. 252. In Maine, by Statute, a tenant at will is entitled to emblements and reasonable time to re- move his family, and personal property, which is fixed at thirty days after notice to quit, after which forcible entry and detainer will lie. Davis v. Thompson, 13 Maine, 208. See also Davis v. Brocklebank, 9 K. H. 73. In New Jer- sey, in Debow v. Colfax, 10 N. J. L. 128, it is held that, if a tenant has an uncer- tain estate in lands which may continue until the seed which he sows may grow and ripen for harvest, he may enter and reap the crops although his tenancy has before that time been determined by the act of God or of the law, but not if the estate was determined by his own act. 1 Perry v. Carr, 44 K. H. 118; Daniels V. Pond, 21 Pick. (Mass.) 307. 2 Lassell v. Bead, 6 Me. 222 ; Plumer V. Plumer, 30 N. H. 558 ; Middlebrook V. Corwin, 15 Wend. (N. Y. ) 169. 3 Needham v. Allison, 24 N. H. 355. * Daniels v. Pond, ante. 6 Smith's L. & T. 17 ; Co. Litt. 55 a ; Cole on Ejectment, 448, 552. " Mizner v. Munroe, 10 Gray (Mass.), 292. In an English case that is entitled to great consideration, Ball v. Cullimore, 2 Or. M. & R. 121., which was an ac- tion of trespass by a grantee of the land- lord for an entry made by a tenant at will, upon premises that had for a long time been in his possession as tenant at will under an unperformed contract to purchase. The landlord, the contract not having been performed by the defendant, made a conveyance of them, with liv- ery of seizin to the plaintiff. No no- tice was given to the defendant, and he subsequently entered upon the premises, and the question was whether the con- veyance of itself operated such a termi- nation of the will, that an entry upon the land under it, by the plaintiff, when the defendant was casually off the prem- ises, gave him lawful possession there- of. The court held that it did. "Any mode," said Loed Abingbb, C. B., " by which the will was determined, would entitle the father (the landlord in this case) to maintain ejectment. * * The general rule of law that any act done upon the land by the lessor in as- sertion of Ill's title to possession deter- mines the will, is a sufficient ground for us to say that this feofment and livery of seizin did determine it." "Any act of that kind," said Parke, B., " de- termines the will, witether the tenant knows it or not." At the common law, no notice of the termination of this spe- cies of tenancy is required, but, by im- plication of law, it might be instantly determined by either party by any act that clearly evinces a termination of the will, but in all such cases he is en- titled to a reasonable time to remove his family and personal effects, and, as to what is a reasonable time is a question of law dependent upon the circum- stances of each case. Ellis v. Paige, 1 Pick. (Mass. ) 49. In New Hampshire, a similar doctrine is held, Davis v. Brack- lebank, 9 N. H. 73, and in Maine, by statute, the tenant is given thirty days for this purpose. Davis v. Thompson, 13 Me. 209. ' Mizner v. Munroe, 10 Gray (Mass.), 292, and as to what is reasonable no- tice is a question dependent upon the pe- culiar circumstances of each case. El- lis V. Paige, 1 Pick. (Mass.) 49. 8 Cole on Ejectment, 58, 453 ; Wood- fall's L. & T. 186. 48 Tenan-ct at Wi^.t,. cation of law by some act of a decisive character, done by the landlord, and that is the rule in this country,- as a landlord cannot determine the estate except by some decisive act that irresistibly leads to the con- clusion that it is no longer held by his assent. ^ At the common law, this species of tenancy may be determined without notice by implica- tion of law, and in any event it is safe to say that a tenancy at will may be effectually determined by a demand of possession, or by the expres-i declaration of the parties, - and this is held to be the case in those States where the statute requires notice of the determination by either party to be given to the other. ^ So, too, the tenancy may be termi- nated by implication of law. As by a conveyance of the premises by .the landlord,^ the making of a new demise to commence presently,^ by the death of either party, ^ by the tenant's disclaimer of the land- lord's title even by parol, '' by his authority, ^ or entering into an agree- ment with the landlord for the purchase of the premises, ^ or by a com- mission of waste by him ujson the j)remises. ^'' So, the estate is deter- 1 Ball V. Callimore, 2 Cr. M. & R. 120; Kising t!. Stannard, 17 Mass. 282 ; How- ell V. Howell, 7 Irmerl. (N.C.) L. 496. ^ Woodfall's L. & T. 18S ; Bartow v. Cox, 11 Q. B. 123. See note 4, ante. 3 Mizner v. Munroe, ante. ■■• And this is the effect of a convey- ance whetlier tlie tenant had notice of it or not. Ball v. CuUimore, ante; and even though it was made for the pur- pose of getting rid of the tenant, Cur- tis 0. Galvin, 1 Allen (Mas?.), 21.j, unless the lease runs until the laudlord sells the premises, in which case, unless the conveyance is bona fide, it will not de- termine the tenancy, Ela v. Banks, 37 Wis. 89. ^ Disdale r. Ives, 2 Lev. 88; Mizner u. Munroe, 10 Gray (Mass.) %)'.). In Kelly V. Waite, 12 Met. (Mass.), 300, and also in Howard r. Morris, .5 Cush. (Mass.) .")!).;, it was held that an alienation of the premises, or a re-letting of them by the landlord, either in fee or for years, op,;rated ipso facto as a determination of the will, although the tenant had no notice thereof, but, that the tenant could not be made a trespasser for acts subsequently done by him upon the premises before he had notice of the de- termination of the tenancy by tliose acts. See, also, Davies v. Thomas, 6 Exchq. 854 ; Ball v. CuUimore, 2 C. M. & R. 12t) ; Goody v. Carter, 9 Q. B. 863 ; Cole on Ejectment, 452. « Stanway v. Rock, 4 M. & Gr. 30 ; Atty. Genl. v. Lord Faley, 2 Dick. 663 ; Croekerell r. Owerell, Holt, 417 ; James V. Dean, 11 Vis. 391 ; Rising v. Stan- nard, 17 Mass. 284 ; Ellis v. Paige, 1 Pick. (Mass.) 43 ; Cody v. Quarterman, 12 Ga. .386; Robie v. Smith, 21 Me. 114; Camp V. Camp, 5 Conn. 291 ; Paige ». Wight, 14 Allen (Mass.), 182 ; Co. Litt. 57 h. But the English courts are now inclined to hold that the death of tha landlord does not per se dissolve the tenancy, but that the question whether it shall continue or not depends upon the action of the heirs or those entitled to the reversion, Morton v. Woods, L. R. 4 Q. B. 300. ^ DeLancey v. Ganong, 9 IS". Y. 9 ; Montgomery!). Craig, 5 Dana (Ky.),101. " Rising V. Stannard, 17 Mass. 284 ; Warren v. Fearnside, 1 Wils. 176 ; Co. Litt. 55 6. ^ Daniels c. Davison, 10 Ves. 249. ^^ Cole on Ejectment, 449 ; Co. Litt. 55 l>. But this must be understood as ap- plying only in case of voluntary waste, for merely j^erinissive waste, for which no action lies against him, the tenancy is not determined, Countess of Shrews- bury's Case, 5 Coke, 13 h. LoiidCoke, in Co. Litt. 57 a, says: " For peimissive waste by a tenant at will, the lessor has no remedy at all, tor the statute of Gloucester extends not to tenant at Mill." From this, and what is said by Littleton, sec. 71, that " tlie lessee at will is not bound to sustain or repair the houses as tenant for term if years is tyed," it might be inferred that an action for permissive waste would lie against tenant for years, and Sergt. Williams in his note to Pomfred v. Rieroft, 1 Saund. 323 6. inclines to the same opin- ion; but Gibson v. Wells, 1 N. R. 290; Heme v. Beubow, 4 Taunt. 704; .lones v. Hill, 7 id. 392, hold the contrary. There are, upon the other hand, some old cases Kinds of Tenancy. 49 mined if the tenant demises, leases or assigns the premises over ; ^ but such demise or assignment does not determine the will to the prejudice of the landlord. That is, the landlord may treat it as a determination of the tenancy or not at his election, ^ and in any event it is not a de- termination of the tenancy as to the landlord unless he has notice of the facts, ' and until such notice is given, the landlord may distrain for the rent against the tenant. * So, any act done by the tenant in- consistent with an estate at will, determines his tenancy. ° Any act of ownership exercised iipon the land by the landlord which is inconsist- ent with an estate at will, ojjerates as a determination of it, " and this is so without any reference to the landlord's intention in doing them. " The intent of an entry," says Loed Denman, C. J., ' " is undoubt- edly in many cases important, but in the case of a tenancy at will, whatever be the intent of the landlord, if he do any act ii'pon the land for lohich he looidd otherwise be liable to an action of trespass at the suit of the tenant, such act is a determination of the will, for so only can it be a lawful and not a wrongful act." In pursuance of this prin- ciple it has been held that if the landlord enters upon the premises without the tenant's consent and cuts down trees, ° or takes and carries holding that a tenant for years who has demised to tenants at will, may have an action against such tenants at will for permissive waste, because they (the ten- ant for years) are answerable over in waste to their lessors, Panton v. Isham, 1 Salk. 10 ; Cudlip v. Eundle, Garth. 263. For a full statement of the rules appli- cable in these cases, see chap, on Waste, post. 1 Melling v. Leake, 16 C. B. N. S. 652; Pinhorn v. Souster,8 Exchq. 763. ^ Cole on Ejectment, 453 ; Pinhorn v. Souster, ante, and all the cases in which it is lield that a demise by the tenant de- termines the will, are to be taken, sub- ject to this qiialifioation. Thus in Birch 1-. Wright, 1 T. E. 378, Bullee, J., says: "If a tenant at will leases, it de- termines the will;" or, again, " if a ten- ant at will grant over his estate, though the grant be void, it determines his will." See, also, Jones v. tjlark. Hard. 47 ; Co. Litt. 57 a. But ttese, as well as all other cases, are subject to the qualifica- tion that the landlord, may elect to treat the acts of the t^ant as a determination of the tenancy or not, unless the tenant has notified him of the facts, or that he has determined the estate. "Surely," said Maktin, B., in Pinhorn b. Souster, ante, in reply to a claim that a demise by the tenant determines the estate, "the determination of the tenancy must be at the election of the landlord," and in the final judgment in that case, the court held that a demise by the tenant does not ipso facto dissolve the tenancy, nor unless the landlord elects to treat it as having that effect, or the tenant gives notice to the landlord of the demise, may still be treated as tenant. See, also. Little v. Pallister, 4 Me. 209, to same effect. In Massachusetts, by stat\ite, a tenant at will is liable for rent until he has given the landlord no- tice of the determination of the tenancy by him. Batchelder v. Batchelder, 2 Allen (Mass.), IDo. " Carpenter v. Colins, Telv. 73 ; Pin- horn V. Souster, ante. * Pinhorn v. Souster, ante. 6 ■\Vallis !■. Delmar, 29 L. .1. Ex. 276; Moss V. Gallimore, 1 Doug. 269; Hinch- man v. Isles, 1 Vent. 247 ; Fallen v. Brewdr, 7 C. B. N. S. 371 ; Countess cf Shrewsbury's Case, 5 Coke, 13 b. ^ LoKD Aeijtgeu, C. B., in Ball v. Cullimore, 2 Cr. M. & E. 123, or that indicates clearly to the tenant that he resumes, or intends to resume, posses- sion of the estate, as by sending for the keys of the building, Patten v" Brewer, 7 C. B. N. S. 371, or that he does not de- sire the tenancy to continue. Dinsdale B. Ives, 2 Sev. 88, and resumes pusses- sion of and dominion over it. Davis b. Turner, 7 M. & W. 224; Eising v. Stan- nard, 17 Mass. 282. 7 In Turner v. Bennett, 9 M. & W. 643. ^ Eising V. Stannard, 17 Mass. 282. 50 TENAifCT AT Will. away soil or stones, these acts, ipso facto, determine the tenancy, unless they are specially reserved from the demise. '^ But a mere naked entry upon the premises, and declaring the tenancy ended, does not have that effect unless the tenant is present and hears, or has notice of, the words used, ^ because the landlord has done no act inconsistent with the continuance of the tenancy. When the act is such as is in- consistent with the tenancy and is done on the land, it is immaterial wliether the tenant is present or not, as it is presumed that he was there and knows it ; ° but if the act is not inconsistent with the ten- ancy, ^ or if it was done off the land, the landlord must give the tenant notice of the determination of the tenancy. ^ A demand made for possession, or notice of the determination of the tenancy given to an under tenant of the lessee at will, " or from the wife of an under tenant, or it would seem, of any person in charge of the premises for such under tenant, is sufficient, and determines the estate against the tenant himself. " No formal demand of possession is necessary. Anything said or written to the tenant, even though accompanied with a condi- tion, that informs him that the landlord terminates the tenancy, will be equivalent to a demand. Thus, in one case ° the landlord's agent wrote the tenant " unless you j)ay what you owe me, I shall take im- mediate measures to recover the property," was held sufficient both as a determination of the will and as a demand of possession to enable the lessor to maintain ejectment. ^ Anything which amounts to a demand of jjossession, although not expressed in precise and formal language, is sufficient to indicate the determination of the landlord's will. And if the demand is coupled with a condition, it at once im- poses upon the tenant the duty to act, and to comply with the condition, or lose his estate without further action on the part of the landlord. '" The words " you must leave,"- addressed by the owner of the fee to the tenant, have been held sufficient. ^^ It has previously been stated that (he estate is determined by the death of either party; but this is not the rule when the premises are owned by two or more as joint tenants. In such case the death of one of the lessors, ^^ or if there are two or more lessees, the death of one of them, does not determine the ten- ancy. " The marriage of a feme-sole tenant at will does not determine the tenancy, " nor is a lease at will made by her when sole determined 1 Bennett o. Turner, 7 M. & W. 226 ; ' Price v. Price, 9 Bing. 356. also 9 id. 643; Co. Litt. 55 6. » A demand of possession without no- 2 Cook V. Cook, 28 Ala. 660. tioe to quit is sufficient. Ruby v. ' Ball V. Cullimore, ante ; Carpenter Maisey, 8 B. & C. 767. I). Colins, Yelv. 73 ; Pinliorn B. Souster, i' Price u. Price, ante. Exchq. 763 ; Cole on Ejectment, 452. ^i Locke ». Matthews, 13 C. B. K. S. ^ Cook V. Cook, ante. 753. " Co. Litt. 55 b. 12 Henstead's Case, 5 Coke. 10 6. 6 Clark V. Wlieelock, 99 Mass. 14. " Ibid. ' Blair v. Street, 2 Ad. & El. 329. " Ibid. Kinds of Tenancy. §1 thereby, ' nor does a lease made by husband and v,iie determine by the husband's death, nor by the wife's death if the husband is tenant by courtesy, or otherwise take the estate. ^ The bankruptcy of the land- lord and the vesting of his estate in the assignee dissolves the tenancy from the time the tenant hr,s notice thereof. " The rights of tenants at will to crops, etc., have been previously stated, ^ but it may be added that if rent is payable monthly, quarterly or yearly, and the landlord puts an end to the tenancy before the rent becomes due, he loses the rent for the month, quarter or year, that had not then become due. ^ Notice to quit. Sec. 19. The rule is well established, both in England and in this country, that a tenant at will is not entitled to notice to quit. " There are a class of cases holding that a tenant at will is entitled to notice to quit, ' but it will he found upon an examination of most of, the cases, particularly those in the Term Reports, and that from Burrows, that the tenancy was really from year to year, and that an annual rentw&s reserved, while most of the others are referable to some statute that gave rise to the peculiar doctrine.^ In Massachusetts, Maine, and many of the States, notice is required to be given either by the landlord or the tenant, in order to put an end to the tenancy, or some act must be done equivalent thereto, so that in determining whether notice to quit is required in a given case, reference must be had to the Statute. 1 Henstead's Case, ante. consent of the lessor, a part of the ^ Co. Litt. 55 ft,- 1 EoUes' Abr. 361; Es- qtiarry outside the limits fixed in the tates (z), 5; Henstead's Case, 5 Coke, lease, and the lessor during all that time 10 h. accepted rent for the same, according ' Dayies D. Thomas, 6 Exchq. 854. to the provisions of the lease. It was held ■* See ante, pp. 45, 46. by the court the tenancy had not, under " Anonymous, Keilw. 65 pi. 6; Car- the circumstances, ripened into a ten- penter ». Colins, Yelv. 73; Title v. Gro- ancy from year, to year, and that no vett, 2 Ld. Eayd. 1008; Layton v. Field, notice to quit was necessary. 3 Salk. 222; Parker v. Harris, 4 Shad. ' Ellis v. Page, 1 Pick. 43; Parker v. 79; Keyhly v. Bulkley, 1 Sid. 338; Constable, 3 Wils. 25; Jackson v. Leighton D. Theed, 2 Salk. 413. See, also, Wheeler, 6 John. (N. Y.) 271; Jackson Cole on Ejectment, 448; Comyn's Di- v. Bryan, id. 322; Viner's Ahr. Est. B. gest, tit. Estates (H.), 9; Co. Litt, 55 a. 6. 3; Layton u. Field, 3 Salk. 222; Rising note 374; 2 Blackstone's Com. 146. v. Stannard, 17 Mass. 282; Eight v. " Hollingsworth ». Stennett, 2 Esp. Darby , 1 T. R. 159 ; Shore i). Porter, 3 id. 717;"Tilt V. Stratton, 4 Bing. 446; Right 13; Eigge v. Bell, 5 T. E. 471; Timmins !). Baird, 13 East, 210; Knight u. Quig- k. Eawlinson, 3 Burr. 1603; Martin v. ley, 2 Camp. 505; Eichu. Bolton, 46 Vt. Watts, 7 T. E. 83. 84 ; Chamberlain v. Donohue, 45 Vt. 50. * Tomes v. Chamberlain, 5 M. & W. In Sheldon, ». Davey, ,42 Vt. 637, the 14; Jones v. Jones, 10 B. & C. "718; defendant leased a slate quarry for a Smith & Soden's, Landlord and Tenant, term of years, paying as rent the price 269; Creech «. Crockett, 5 Gush. (Mass.) per square, as stipulated in the lease. 133; Miznerc.Munroe, 10 Gray (Mass. ), Subsequently he took possession of, and 290. worked for several years, without the 52 Master and Sektant. CHAPTER IV. MASTER AND SEKVAITT. Sec. 20. Occupancy of master's premises by servants — relation thereby created. Occupancy of master's premises by servant — relation thereby created. Sec. 20. A person who occupies premises as the servant or agent oi another for the more convenient performance of his duties, acquires no estate therein ; is neither a tenant at will nor by sufferance, even though he is permitted to carry on an independent business therein, ■■ and less wages are paid to him on that account. ^ " In such cases, and indeed in all cases where the possession is given for a special purpose, the transaction is treated as a license, and not as a lease, * and does not confer any estate in the property' to which it relates and is deter- mined whenever the special purpose is accomplished.* The occupancv of a servant of premises of the master for the more convenient perform- ance of his duties, or as a mere remuneration for services, is in law the occupation of the master, and not of the servant,^ and the relation of master and servant does not exist. ^ The rule may be said to be that, when a servant occupies a dwelling-house belonging to the master, or in the master's possession, as an accessory to the performance of his duties 1 Wliite V. Bayley, 10 C. B. N. .S. 227. 161 ; Eex v. Snape, 6 Ad. & El. 278 ; In McGee v. Gibson, 1 B. Men. (Ky.) Itex d. Sliipdam, 3 D. & E. 384; Eex v. 105, wliere a rent was reserved from his Kelstern, 5 M. & S. 130. wages, tlie servant was treated as a ten- ^ In Wood v. Mauley, 11 Ad. & El. 34, ant at will, but in an English case, property upon the plaintiff's land was Hunt V. Colsen, 3 Moor. Sc. '700, where sold to the defendant, and a part f f tho a person who was employed as gate conditions of the sale were that, the tender for the Highgate Archway Com- buyer was to be allowed to enter and pany, and lived in the toll house, and take it. The court held that this oper- one shilling a week was reserved from ated as a lieeiise, and that tbs license liis wages as rent, and the company, was a part of the contract of sale, and having ceased to collect tolls at that could not be countermanded. Taylor place, dismissed him from their employ u. Caldwell, 3 B. & S. S2(i; Jones v. and notified him to leave the house, Eeynolds, 4 Ad. & El. SO.i; Hancock v. Avhich he agreed to do, it was held that Austin, 14 C. B. N. S. 634; Watkins v. these facts did not constitute him a ten- Gravesend, &c. Union, 37 L. J. M. C. ant. 33 ; Ward v. Dav, i li. & H. 337. 2 Allen V. England, 3F. & F. 49; Ber- * Coleman v. Foster, 1 H. & N. .37. tie V. Beaumont, 16 East, 83; Eex v. /Eex v. Chestnut, ante; Bertie v. Stock. 2 Taunt. 339 ; Mayhew v. Suttle, Beaumont, ante ; Eex v. Kelstern, ante. 4 E. & B. 347 ; Eex v. Cheshunt 1 B. « Stayhew v. Suttle, 4 E. & B. 347: & Ad. 473 ; Eex v. Bandwell, 2 B. & C. Doe v. Derry, 9 C. & P. 494. Kinds of Tenancy. 53 as such servant, and as a part of tlie consideration for the rendition of such services, as wliere A employs B to labor for him for one year, at 120 a month, and gives him the use of a dwelling during the term, B's occupancy of the dwelling is that of a servant, and not as a tenant ; and if he quits A's service before the expiration of the term, or if he is discharged therefrom by A, his right to the possession of the dwelling ceases, and he must surrender it uj:) to A, or A may enter and forcibly eject him therefrom. The master, in such cases, has never parted with the possession of his premises, the servant's possession being regarded as the possession of the master ; hence the master is not a trespasser if he enters forcibly and expels him with a sti-ong hand. ^ And when a servant is discharged, the master's right in this respect does not de- pend upon the question whether the servant is rightfully or wrong- fully discharged, but exists in the one case as well as in the other, the master incurring the peril of paying damages for a breach of the con- tract if the discharge is wrongful ; but the right to expel the servant from the house exists, whether he had good cause therefor or not. " In the case referred to in the last note, the defendant (Haywood) was a farmer owning two farms several miles distant from each other, one of which was called the upper and the other the lower farm. On the 16th March, 1839, Haywood and Miller entered into a written contract, by which Miller agreed that he and his wife would labor for Haywood one year, " he (Miller) to' labor on farm, etc., and she (Miller's wife) to discharge the duties of housekeeper, etc., term of labor to commence on the 1st of April, 1839." The contract further provided that Haywood should pay Miller for the services thus to be rendered, $160. There was a dwelling-house on the lower farm, into which Miller and his wife moved on the 1st of April, 1839, taking with them their household furniture, and commenced their labor. Haywood aided in the removal. The court below allowed parol evidence to be given on the part of Miller, that the farm intended by the written con- tract, and on which he and his wife were to labor, was the lower farm. In the course of the summer of 1839, Haywood desired Miller to perform some labor on the upper farm, which the latter declined. Dif- ferences arose between the parties, and Miller became irritated and threatened to injure some of Haywood's cattle. Haywood, becoming dissatisfied, gave Miller notice to leave his service, which Miller declin- ing, Haywood entered the house and put Miller's furniture out of it. The court charged the jury that neither Miller's refusal to work on 1 Bertie d. Beaumont, 16 East, 34; East, 46; Haywood i). Miller, 3 Hill (N. Regina u. Rees, 7 C. & P. 568; Rex «. Y.), 90; Kerrains u. People, 60 N. T. Stock, 2 Taunt. 329; Regina -o. Pon- 221. sonby, 3 Ad. & El. (N. S.) 14; Rex v. ^ Haywood i;. Miller, 3 Hill W. Y.). Iken, 2 Ad. & El. 147; Kex v. Seacroft, 9^. 2 M. & S. 472; Rex -o. Tynemouth, 12 54 Master and Servant. the upper farm, nor liis threats of injury to the defendants' propeity, constituted a violation of the written contract ; that the lower farm being' the one intended by the contract, it created a tenancy for the year, and Haywood had no right to interfere with the possession of the house, or remove the goods. The plaintiff had a verdict for $200. Upon appeal it was held by the court that the contract was not in the nature of a lease. Whether the lower farm was intended as the place of labor or not, the relation between the parties being merely that of master and servant, the court said : " True, it is assumed by the contract that the defendant below should furnish a house ; and so does eveiy master agree to furnish a house, or house-room, which is the same thing, for his domestic servants. It does not follow that, when he becomes dissatisfied and gives his servant warning to depart, and the latter refuses, that the master may not turn the servant away and remove his goods. To be sure the master does this under the peril of paying damages for a breach of the contract with his servant, if he can- not show good grounds for dismissing him. But he is not a trespasser, whether he have good cause or not. Here the labor was to be on a salary of so much for the year. Suppose the plaintiff below had re- fused to work and held over the year, could the defendant have dis- trained for rent, or sued for use and occupation ? Or could the plaintiff have had ejectment for the ouster within the year? Clearly neither, and that shows there was no more a tenancy created than there would be under any other retainer for a year's service." A tenancy does not e.xist at all in such cases, nor does a tenancy at will spring up at once upon a termination of the service. In order to turn the servant's possession into a tenancy at will, the occupancy must be for such a period as to warrant an inference of a consent to a holding different from that under which the servant originally entered. The fact that a few days have elapsed since the service was terminated does not warrant such an inference, but any considerable delay would have such a result. ^ It is the duty of the employer to resume the con- trol of his building within a reasonable tirae^ or consent to the ser- vant's occupancy will be presumed, and he will lose his right to enter and expel him by force. But as to what is a reasonable time, whether a day or a week, is a question to be determined by the circumstances of each case. ^ In the case last referred to the employer consented that the servant might remain until his wife recovei-ed from an illness with which she was suffering when the service ended, and it was held that this did not amount to such a consent as created a tenancy at will. In Kerrains v. People, ante, the service entered in the latter part of June, and the master did not expel the servant until the fifth of 1 Chuuch, C. J., in Kerrains «. Peo- = Doyle v. Gibbs, 6 Lans. (N. Y.) 180. pie, 60 :N". Y. 225 Kinds of Texanct. 55 the following July, and it was held that the delay was not unreasonable, and did not change the character of the occupancy. The right of the master to enter forcibly, and the right of the servant to resist such entry, depends upon the nature and character of the occupany — whether it is that of a servant or of a tenant. If he holds as servant, the master may enter within a reasonable time after the period of service is ended ; but if his occupancy is that of a tenant, the master cannot enter with a strong hand. In determining this question, the mere fact that the master owned the house, and that the right of occupancy ceased when the term of service expired, is not decisive, ^ nor is the fact that he does or does not pay rent therefor. Thus, in one case, ^ the claimant was a master ropemaker in a royal dock-yard, and, as such, had a house in the dock-yard for his residence. He had the exclusive use of the house, without paying rent therefor, as a part of his remuneration, no part of the house being used for public purposes, and it appeared that if he had not had the use of the house, he would have had an allowance in addition to his salary for the rent of a house. It was held that the oc- cupancy was that of a tenant, and not as a servant. The real test seems to be whether the occuijancy is for the benefit of the master, and as an accessory or aid to the performance of his duties as a servant. The occupancy must in some way be in aid of or necessary to, the per- formance of the service. ' " If," says Chuech, C. J., in Kerrains v. The ' Kerrains v. People, ante. witU two men and commenced removing 2 Hughes V. Chatham, 5 Man. & Gr. Kerrains' furniture. The latter was 54. absent at the time, but was sent for by * In Kerrains v. People, ante, the re- his wife; he, returning, saw what was spondent had been for several years in going on, went to the wood-house, the employ of Isaac Son, who was ojjer- picked up an axe and went into the ating a paper-mill at Chatham, Co- house and ordered Son and the men out. lumbia county. He had lived in a dwel- Son refused to go, presented a pistol; ling-house belonging to the mill prop- and altercation occurred, during which erty. In January, 1871, they made a Kerrains struck Son with the ax, inflict- new agreement; this, as stated by Son ing a serious injury, on the trial, was that the prisoner was The court charged, among other to work for him for a year, if they could things, in substance, that the prisoner agree ; Son to pay thirteen shillings per occupied the house as servant, not as day, and to furnish Kerrains with a tenant; that Son had the right of pos- house; the latter to work at whatever session, and to remove the prisoner with the former had for him to do, the same his effects, and to employ all the neces- as he had for years before. As testified sary force for that purpose, to by the prisoner, he was to work for The ruling of the court was sustained Son for one year at thirteen shillings by the Court of Appeals, and Chukch, per day, he to have the same house and C. J., in commenting upon the tests by garden he had always occupied, with a which to -determine the character of the provision that he was not to be required servant's occupancy, said: " Each party to "haul the bleach." Kerrains worked relied upon the terms of the contract, for Son until the latter part of June, with, only the additional facts that the 1871, when Son requested him to "haul house was a part of the mill property, the bleach;" this he refused, and Son and had been occupied for several years discharged him, paid him up, and told previously by the prisoner while en- him to leave the premises or he would gaged as a laborer in the mill. There bring a force to throw his things out. was no request to submit the facts to Kerrains refused to leave. On the fifth the Jury to determine whether the house of July, 1871, Son went to the house was occupied to enable the prisoner the 56 Master and Servant. People, ante, "the occupation is connected loith the service, or if it is required, ex2)ressly or imjyliedly, hy the employer for the necessary or better performance of the service, then it is for his benefit, and he con- tinues in possession." ■' The question is, tohether it is subservient and necessary to the ser- vice. The mere fact that the reLition of master and servant exists, and that the servant occupies one of the master's rooms, without pay- ing rent therefor, as apart of his compensation, is not of itself suffi- cient to establish a holding as a servant, but the occupancy must also be subsidiary, and necessary to the service. It must be dependent upon and necessa^rihj connected -icith the service, for if it is indejjendent or unconnected with the service, and not in aid thereof, although the house belongs to the master and no rent is paid therefor, or even though the house is hired by the master and he pays the rent therefor, the occu- pancy is that of a tenant, and the master cannot eject him at will. ^ If the occupancy is connected with the service, and in part payment of it, there is no independent occupation, and the occupancy is that of the mastei". ° Generally the character of the ocouj^ancy when there is no better to perform the service in which lie was engaged; or, in other words, whether it was not occupied as an ap- pendage to the mill, and really for the benefit of the owner ; nor was there any evidence of an allowance for rent, but it was left to the court, upon the con- tract and facts before stated, to be deter- mined as a question of law, and, in my judgment, the court decided correctly, that the defendant occupied as a servant, and not as a tenant. The inference from these facts is reasonable, if not ir- resistible, in the absence for any pro- vision for an allowance for rent, that the house was intended to be occupied by an employee for the benefit of the owner in carrying on the mill. The case thus presented is analogous to that of a person emjaloying a coachman or gardener, and allowing or requiring him to reside in a house provided for that purpose on the premises; or a fai'mer who hires a laboi'er for wages, to work his farm, and live in a house upon the same. lu these cases the clia,racter of the holding is clearly indicated by the mere statement of facts. It is not im- possible that other facts may exist to strengthen or weaken the inference that the prisoner occupied as a servant, and not as a tenant, but from the facts proved there was no error in holding that he occupied as a servant. Both parties regarded it as a question of law upon substantially undisputed facts, although there are cases where the character of the holding is so uncertain. from conflicting evidence or inferences which may be drawn, as to render it proper to submit the question to a jury. " 1 People V. Annis, 45 Barb. (N. Y. ) 304; Regiiia v. Spurrell, L. R., 1 Q. B. 72; Haywood u. Miller, ante; Kerrains D. People, ante. In Hughes v. Chatham, the facts in which are given ante, Tindal, C. J., gave the rule for determining the char- acter of the occupancy thus, " There is," said he,," no inconsistency in the relation of luaster and servant with tha' of landlord and tenant. A master may pay his servant by conferring on him an interest in real property, either in fee for years or at will, or for any other estate or interest, and if he do so the servant then becomes entitled to the legal inci- dents of the estate, as much as if it were purchased for anv other considera- tion." *-»»"**** "And, as there is nothing in the facts stated to show that the claimant was required to occu])y the house for the performance of his services, or did occupy in order to their ijerformance, or that it was conducive to that pur- pose more than any house which he might have paid for in any other way than by his services, and as the case expressly finds that he had the house as part remuneration for his services, we cannot say that the conclusion at which the revising barrister has arrived, is wrong." 2 The King v. Kelstern, 5 M. & S. 138. 8 Rex v. Minister, 3 M. & S. 2'76; The Tenancy at Will. 57 dispute as to the facts, is a question of law to be determined by the court, but when the evidence is conflicting, or the inferences from the facts are uncertain, the question is for the jury. ^ King V. Stubbs, 2 T. E. 395; The King V. Kelsteni, ante; The King v. Ohes- hunt, 1 B. & Aid. 473. ^ The King v. Chesliuut, ante. In Eegina v. Spurrell, L. E., 1 Q. B. 72, the appellant, John Spurrell, was tenant of a farm of 812 acres, together with a farm-house and premises, and a cot- tage adjoining, and forming part of the premises, but fifty yards or more from the farm-house, at oue entire rent, such cottage being a separate and distinct tenement. The farm was co-extensive with the parish of Pudding Norton, and Johti Spurrell resided with his family and servants in the farm-liause, which, excepting the cottage, was the only human habitation in the parish. The apiJcUant, William Walker, was farm- ing bailiff to Spurrell, and looked after the men. He was a weekly servant, and received 14s. a week wages, and oc- cupied the cottage (which was furnished with his own furniture), rent free, in part payment of his services. But for the cottage, his wages would have been higher. No poor rates were paid for the parish of Pudding Norton, but Spur- rell i)aid to the treasurer of the Walsing- ham union, wliich comprises the parish, the county rate in respect of the farm, premises and cottage. The parish of Pudding Norton is an immemorial parish and rectory. The church is in ruins; the present rector was appointed in 1864, and receives the tithes. On behalf of the appellants it was contended that William Walker was not a " substantial householder " within the meaning of the 43d Eliz., c. 2, s. 1. The court of quarter sessions gave the fol- lowing judgment: "We find that under the circum- stances of 111 is case both appellants were substantial householders within the meaning of the 4.3d Eliz., c. 2, s. 1, and we confirm the order subject to a case," etc. The question for the court was, whether William Walker was a " sub- stantial householder" within the 43d Eliz., c. 2, s. 1. CocKBUiiB", C. J., delivering the opinion of the court, said : "I think a man cannot be a householder within the true construction of the statute who has not an independent occupation. I do not think a man who occupies as servant, in which case the occupation is that of the master, can be said to be a householder in the proper sense of that term. But when we come to the ques- tion whether, itpon the facts found by the sessions, we can say there was here the relation of landlord and tenant be- tween the parties, or whether the occu- pation was simply the occupation of a servant, I think the facts are not suffi- ciently found, the most essential ele- ment in the consideration of that ques- tion being omitted, namely, whether this occupation was an occupation for the purpose of the service or not — whether it was necessary to the service or not. If the occupation of the ser- vant be necessary to the service, then I think his occitpation is the occupation of the master, although the remunera- tion which the servant receives is the less on account of his having the advan- tage of premises or a house of the mas- ter for the purpose of his habitatioia. On the other hand, if the occupation be not necessary to the service, then the fact that the advantage of the occupa^ tion is part of the remuneration for the service, will not i-ender that occupation less an occupation qua tenant, than it would have been if the man had paid rent. It may be that it happens to be convenient both to the master and to the servant, that the servant requiring some place of habitation shall, by agree- ment with the master, instead of re- ceiving so much for his wages, out of which wages he would have to find him- self a separate habitation, inhabit some premises of the master as part of the re- muneration for his services ; but it is only an equivalent for wages. He would be receiving in the one instance the whole amount of his wages ; out of those wages he would have to find him- self a habitation, for which he would have to pay rent ; in the other he in- habits premises of his master, and in- stead of paying the master the rent, the master deducts it from the wages. Although, therefore, the relation of master and servant happens to exist be- tween the parties by a subordinate ar- rangement, and the servant occupies premises of the master rent free, as part of the wages that he would otherwise receive if he paid the rent, it does not follow, from the relation of master and servant happening to exist between the parties, that tlie occupation may not be an occupation of qua tenant, independ- ent of the master. As I said before, the essential element in the determina- tion of the question is, whether or not 58 Mastee and Seevajs't. Officers or servants of the government, whether municipal, state or national, are considered as tenants, if they are permitted to occupy houses or premises as part of their remuneration for their services, but if they are required to occupy them with a view to the more efficient performance of their duties, the occupation has relation to the office, and they are not tenants, but their right of occupancy ends with the termination of their official term. the servant simply occupies as part re- terms on wliicli the occupation of these muueratiou for his services, or whether particular premises takes place. It is a the occupation is subservient to and most essential matter that the sessions necessary to the service. That is a have either not inquired into, or, hav- question of fact that might very easily ing inquired into, have not tliouglit it be ascertained by obtaining, from the essential to state ; but it is essential we parties concerned, evidence as to the should have that before us," TaifAifCT FEOM Yeae to Yeae. 59 CHAPTER V. TENAHCT TEOM TEAK TO TEAS. 3eo. 21. Bistinction between, and tenancy at -will. Sbo. 22. How created. Sec. 23. Entry under agreement for a lease; eifect of . Sec. 24. What covenants will or will not be inplied. Sec. 25. Void lease. Payment of rent under the effect of. Sec. 26. Holding over and paying rent. Sec. 27. Determination of tenancy from year to year. When determinable. Sec. 28. Notice to quit. Where there is no express agreement. Sec. 29. Where there is an express agreement. Sec. 30. Period with reference to which notice must be given. Sec. 31. Admission by tenant. Sec. 32. Where tenant keeps possession after expiration of lease. Sec. 33. Where tenant enters under a void or parol lease. Sec. 34 Where tenant enters on different parts of demised premises at differ ent times. Sec. 35. Where tenant enters between two quarter days. Sec. 36. When notice to quit is indispensable, and when. not. Sec. 37. Form of notice. Sec. 38. By whom notice may be given. Sec. 39. Agents. Sec. 40. To whom given. Sec 41. Mode of service. Sec. 42. Waiver of notice to quit. Sec. 43. Second notice to quit. Sec. 44. Acceptance of rent. Holding over. Sec. 45. What amounts to a disclaimer. By verbal disclaimer. Bistinction between, and tenancy at -will. Sec. 21. A tenancy from year to year differs from a tenancy at will in that the tenant has a lease for one year certain, with a growing in- terest every year thereafter, springing out of the original contract, and as parcel of it, ^ and in the notice required to be given by the landlord 1 Cattley v. Arnold, 1 J. & H. 651. A" tinuous tenancy, but is regarded as com- tenancy from year to year is not a con- mencing each year. If six months' no- 60 Tenancy feom Yeab to Yeae. or tenant, in order to put an end to the tenancy.'' It is, strictly speaking, the offspring of a tenancy at will, and had its origin in the strong desire of the courts to protect tenants at will against being deprived of the crops sown, by the arbitrary termination of their estates, or, in other words, from the determination of the courts to uphold the just and equitable policy of allowing a tenant " who sows, to reap." ^ tice to quit is not given, or notice for Bucli a period as is required by statute, tlie tenancy continues, liowever, until sucli notice for its termination is given, or there is a legal surrender of the prem- ises. And this right enures to the benefit of the tenant' s cred iters. Read v. Eidout, 5 Tarmt. 519. When a new year commences, the tenant's right to the premises for that year becomes fixed and certain. Skaggs v. Elkus, 45 Cal. 154. But, whether he holds under the terms of the former demise or not, de- pends upon the circumstance "whether a new agreement has been entered into or seasonable notice has been given him that if he remains he does so upon cer- tain different terms. Hunt v. Bailey, 39 Mo. 257. The intention of the tenant. In holding over, is not material, as the right of election, whether the tenant shall be treated as a trespasser or as a tenant, rests exclusively with the land- lord, Hemphill v. Flynn, 2 Penn. St. 144 ; Schuyler v. Smith, 51 N. Y. 309 ; , Warner v. Brown, 8 East, 167; but a con- trary doctrine has been held in some English cases, Jones v. Shears, 4 Ad. & El. 832 ; Lord u. Crago, 6 C. B. 90, and seeming to make the question as to whether a tenancy from year to year exists, where the tenant holds over, dependent upon the intention of the tenant, and consequently a question for the jury; but the doctrine of these cases is repugnant to the principles upon which this species of tdnancy rests, and which control it, and leaves it within the power of the tenant to terminate the tenancy at his option, without no- tice of his intention; and, as stated pre- viously, it has been repudiated in this country, Schuyler v. Smith, ante ; Hemp- hill V. Flynn, ante, and is not the rule m England. 1 Cole on Ejectment, 29, 441 ; Smar- bridge, 7 Q. B. 957 ;■ Thompson v. Ma- berley, 2 Camp. 573. " Mr. Smith's note to Keech v. Hall, 2 Smith's Leading Cases, 76. "This feeling," he says, " manifested itself during the earliest ages of our law, in the doctrine of emblements, which en- titles a tenant at will to them after the determination of his tenancy by the landlord. Litt. Sec. 68." In Martin d. Watts, 7 T. E. 85, Lord Kenyok says : " So long ago as the time of the year books, it was held that a general occu- pation, was an occupation from year to year, and that the tenant could not be turned out without a reasonable notice to quit," to wit, a half year's notice. Shore v. Porter, 3 T. E. 13. In the latter case Loed Kbnyon" said : " The tenancy from year to year, succeeded to the old tenancy at will, which was at- tended by many inconveniences, and in order to avoid them, the courts very early raised an implied contract for a year, and added, that the tenant could not be removed at the end of the year, without receiving six months' previous notice." Leavitt v. Leavitt, 47 N. H. 329 ; Timmins v. Eawlinson, 3 Burr. 1609; Ellis v. Paige, 2 Pick. (Mass.) 71 n. All general lettings are regarded as crea- ting only a tenancy at will, and only ripen into a tenancy from year to year, when rent is paid with reference to a yearly holding, or the contract or cir- cumstances are such as to raise such a tenancy. Eich v. Bolton, 46 Vt. 84 ; Eichardson v. Langridge, 4 Taunt. 128 ; Cattley ». Arnold, 1 John. & H. 651. In Braithwayta b. Hitchcock, 10 M. & W. 497, Paijke, B. says : " Although the law is clearly settled, that, where there has been an agreement for a lease, and an occupation without payment of rent, the occupier is a mere tenant at will ; yet, it has been held that if he subse- quently pays rent under that agreement, he thereby becomes tenant from year to year." See also Cox c. Bent, 5 Bing. 185, to the same effect. Also Hull o. Wood, 14 M. & W. 682 ; Jones v. Willis, 8 Jones (N.C), 4.30; Williams v. Deriar, 31 Mo. 13, and an agreement to pay rent has the same effect as its actual pay- ment. There are a class of cases in which it is apparently held that a gen- eral holding from year to year without reference to the circumstance of annual rent or other incident pointing to such a tenancy, constituted a tenancy from year to year, but it will be found that in all these cases there was either an ex- press reservation of annual rent, or an actual payment of rent with reference Tenancy feom Ybae to Yeak. 61 At the first view, leases from year to year appear to confer several distinct estates, but in fact, they give only one time of continuance. The law considers the lease with a view to the time which has elapsed, as arising from an estate for all the time that has elapsed, including the balance of the year, and with a view to the time to come, as a lease from year to year. The reason for this is, that as all the time that the land may be held under a running lease is originally given, and in effect passed by the same instrument, the whole time is consolidated, and ev»ry year, as it commences, forms a part of the term. ^ The term is treated as recommencing each year, and may be set up in the plead- ings as having commenced upon the first day of the current year, althougli the tenant has in fact occupied for several years previously, ^ and, except where the terms of the holding have been changed by the agreement of the parties, express or implied, the holding for each year is treated as being upon the same terms as those agreed upon for the first year's occupancy. The tenant is substantially a tenant at will, except that, as previously stated, he cannot be turned out summarily, or without a regular no- tice to quit of the duration named,' and if such notice is not given, he may continue in possession from year to year, for any number of years, until his tenancy is surrendered, or extinguished by the Statute of Limitations, or by the cesser of the landlord's title, * and it is not de- termined by the death of either party, ^ except in a case where the es- tate of the lessor terminates at his death;" in which case, unless the lease was made under some valid power that binds the reversioner, the tenant at once becomes a tenant at sufferance, and may be ejected by those entitled to the estate, immediately and without notice. ' Each year of the tenancy is treated as a prolongation of the original term, and is not a lease for two years and afterwards at will, but is a contiii- to a yearly holding, or an express an- reth, 15 Ves. 241. In Hull v. "Wood, 14 nual demise, Martin v. Watts, 7 T. R. M. & W. 682, it was held that an unex- 85 ; Timmins v. Eawllnson, 3 Burr, pired term of a tenancy from year to 1609 ; Den ». McKay, 2 N. J. L. 420 ; year passed to the administrator, and Jackson v. Bryan, 1 John. (N. T.) 322 ; that this estate was not defeated be-' Leavitt v. Leavitt, ante, or the question cause the widow of the tenant remained arose in relation to, or turned upon, the in possession and paid rent to the land- right to emblements. Ellis v. Paige, lord. "The lessor of the plaintiif," ante. See as to necessity of six cal- says Pabke, B., " has proved a tenancy endar months' notice to quit, Hall v. from year to year in William Hull and Myers, 43 Md. ; Hanchett v. Whitney, letters of administration granted to him- 1 Vt. 315. self. * * The term (for a tenancy from 1 3 Preston's Conveyancing, 76. year to year is a term) therefore vests in 2 Cattley v. Arnold, 1 J. trees, at a yearly rent, it will be treated as a lease from year to year so long as is necessary to accom- plish the purpose. ^ So, if a wheat field, a vineyard, an orchard, an orange grove, &c., be leased at a usual and ordinary rent, and no limita- tions are imposed as to time, it will be deemed a tenancy for a year, and so on from year to year, in order that the tenant may reap the harvest and gather the fruits and products of the soil when they the 18th of September, 18th of Decem- ber, 18th of March, and 18th of June: " the defendant having made default in payment of the instalments of the mort- gage money and rent, the lessors dis- trained for four quarters' rent; after- wards, they gave a week's notice to quit and brought ejectment. It was con- tended on behalf of the defendant that he was, under the circumstances, tenant from year to year, and that a six months' notice was requisite; the learned judge (Mr. Justice Coltman) however, decided, that the defendant continued tenant at will, and that the notice was sufficient. The Court of Queen's Bench was clearly of opinion that he was right, and refused a rule for a new trial. It has already been shown in the notes to Keech v. Hall, that there are certain cases in which a mortgagor in possession be- comes tenant at will to the mortgagee. [A vendor who remains in possession after having conveyed, is not tenant at will to Ihe vendee (Tew i'. Jones, 13 M. & W. 13), because he is not in possession necessarily by the consent of the ven- dee; but it may perhaps be laid down, that wherever a person is in possession of land, in which he has no freehold estate, nor tenancy for any certain term, and which he nevertheless holds by the consent of the true owner, that person is tenant at will, and as such is liable to pay for his occupation, if beneficial (Ibbs V. Kichardson, 9 A. <&. E. 849; Howard v. Shaw, 8 M. & W. 119), unless there be a stipulation that he shall occupy rent free. See per Aldeksoit, B., in Howard v. Shaw, and Winterbottom v. Ingham, 7 Q. B. 611, in which case it was held that a party remaining in pos- session under a contract for purchase' which ultimately fails for want of title, is not liable to pay for such occupation, though it be found to be beneficial, up to the time of the determination of the contract; — secus if he remain after such determination, Howard v. Shaw.] On account of the peculiar origin of a tenancy from year to year, and its being still in contemplation of law a tenancy at will, it seems to hare been thought by three judges, in Doe v. Wells, 10 A. & E. 427, that it would be possible to put an end to it by tlie parol consent of both parties, such parol consent not op- erating as a disclaimer, which cannot be by mere words, nor as a surrender, which would be opposed to the Statute of Frauds, but as a determination of the will of both parties. But until de- termined, the tenancy from year to yeaV is a term which will pass to the personal represe!ntative. Doe d. Hull v. Wood, 14 M. & W. 682. So tenant from year to year, deniising from year to year, or for a term of years, has a reversion which enables him to distrain. Curtis v. Wheeler, Moo. & M. 493, and see Oxley V. James, 13 M. & W. 209, where tenant from year to year having demised for thirty-four years to the plaintiff, who sub-let for eighteen years and a quarter to the defendant, against whom he de- clared in covenant for non-repair, pur- suant to the terms of the sub-lease. It was held that the plaintiff, if he could not in pleading describe his interest as an absolute term for thirty-four years (which however semble he could after its expiration), might clearly allege it to be a tenancy for thirty-four years " pro- vided the tenancy from year to year should so long continue." 'Ellis V. Paige, 1 Pick. (Mass.) 43; Hanchett u. Whitney, 2 Aik. (Vt.) 240; Fawke v. Beck, 1 Speers. (S. C.) 291; Hall V. Hall, 8 G. cfe J. (Md. ) 386; Frantz 1). Wood, 2 Hill (S. C), .367. 2 King V. Wilcomb, 7 Barb. (N". T. ) 263; Miller v. Baker, 1 Met. (Mass.) 27. 68 Tenancy feom Yea.k to Yeak. mature, upon tlie principle that the vent is presumed to he paid for those products, and not for the barren occupation of the land itself. " If," says Mr. Adams iu his excellent works upon Ejectment, ^ " the produce of the land requires two years to come to perfection, as, if it be licorice, madder, cfec, a general holding will, it seems, ensure as a tenancy from two years to two years, and cannot be determined by a notice at the end of the second or third year." Accordingto Pothieu, the same rule prevails in the French law. He says, ^ "if the parties have omitted to express the duration of the term, the lease will never- theless be valid. If it is a demise of an inheritance of which the fruits are gathered every year, such as a meadow, a vineyard, &o., the lease is deemed to have been made for a year. When it is a lease of an in- heritance, the fi'uits of which are gathered at intervals of several years, the lease is deemed to continue for all the time that is requisite to enable the tenant to gather in the fruits. For instance, if, after having fished my fish-pond, which has been accustomed to be fished every three years, I gi-ant it to farm to another at a certain price, without expressing the term of hiring, I am deemed to have demised it for the term of three years." ^ When -lands are leased at an a7i7mal rent " for ever," so long as the rent is regularly paid, the tenancy is merely from year to year, * and this is also the rule when an agreement under which the tenant enters provides that the lessor is not to determine the lease so long as the tenant pays the rent and performs the conditions of the agreement. It is merely a lease from year .to year, and may be deter- mined by the lessor by six months' notice to quit, given during the first half of any year; otherwise it would be a lease for life, which can only be by deed, or a lease from year to year, determinable only at the election of the lessee, which, in the language of Loed ELLENBOEOtrGH, " is entirely repugnant to the nature of a tenancy from year to year," ^ and the rule is the same, whether the lease is made by or to a corpora- tion, or by or to an individual. ° 1 Adams on Ejectment, 138. that an individual does. If it malies a 2 Pothier's Liua-i^e, 28. void or voidable lease for a tarm of 3 See also to same effect, King d. Wil- years, and the tenant enters under it coinb, ante. and pays yearly rent or rent with refer- * Doe 11. Gardiner. 12 C. B. .319; Sealey ence to a yearly holding, a tenancy from ». Randolph, 4Rawle (Penn.), 123; Peo- year to year, subject to the conditions pie i;. Rickert, 8 Cow. (N". Y.)220; Dan- of the lease so far as applicable, is forth %. Sargent, 14 Mass. 491; Vroo- created. Rent implies a demise; and man v. McKaig, 4 Md. 4ot ; Brewer v. from its paj*ient an inference arises, Knapp, 1 Pick. (Mass.) 332; Thomas v. that everything essential to the demise Ringle, 9 S. &. R. (Penn.) 87. has been done, and whether the lease ^ Warner v. Brown, 8 East, 166. See may be said to operate as a demise or as also to same effect, Doe u. Crago, 6 C; a bare permission, it binds the lessor B. 90; Pennington ». Taniere, 12 Q. B. whether he be an individual or cor- 998. ' poration; the party occupying and pay- ^ Pennington v. Taniere, ante ; Wood ing rent under it acquires rights from V. Tate, 2 N. R. 247. A corporation the corporation, becomes their tenant stands in the same relation to tenants from year to year, and can iDe ejected Tenancy fbom Year to Ybae. £9 A lease gi-anted for seven, fourteen, or twenty-one years, as the lessee shall think proper, is a lease for seven years certain ; then if the lessee commences another term of seven years, it is a lease for fourteen years, and if at the end of that time he commences another term it is a lease for twenty-one years, ^ and is determinable at the oj)tion of the lessee only. ^ So it has been held that a lease for ten years with a pro- vision that upon the performance of certain conditions it shall be re- newed for ten years more, is, upon the performance of such conditions, a lease for twenty years. " In the absentee of words limiting or defin- ing the nature of a tenancy, the principal test of a tenancy from year to year is whether there is a reservation of annual rent, or payment of, or an agreement to pay rent for such an aliquot part of a yeai-, as monthly, quarterly, oi- half-yearly, so that a presumption can be raised that the pai-ties intended to create such a tenancy. * A mere permission to oc- cupy, for an indefinite period, no rent being reserved, does not create this species of tenancy ; ^ but if weekly or monthly i-ent even is re- served, it is a tenancy from year to year,^ it being presumed that it is a monthly rent wdth reference to a yearly holding. '' But, even though an anpual rent is reserved, and the term is indefinite, yet, if the term is determinable at the election of the lessee at any time, or if it is de- terminable at his election before a certain time, it is not a tenancy from year to year. ^ only by the same means as -would he available to an individual landlord. Bev- erley V. Gas Light Co., 6 Ad. & El. 829. And a corporation may become a tenant from year to year, and liable for rent or use and occupation the same as an individual. Lowe v. L. & N. W. E. E. Co., 18 Q. B. 686. 1 Ferguson v. Cornish, 3 T. E. 463. To same effect see Goodright v. Eich- ardson, 3 id. 462. 2 Dunn V. Spurrier, 7 Ves. Jr. 231 ; Doe V. Dixon. 9 East, 15. 3 Eanlett ».' Cook, 44 N". H. 512. * Hull V. Wood, 14 M. & W. 682; Eichardson v. Langridge, 4 Taunt. 128. A general letting, without limitation as to the time, though for a monthly rent, creates an estate from year to year, Eed?Iey v. Stetwell, 25 Mo. 570 ; Braith- wayte 'v. Hitchcock, 10 M. & W. 494; Eich V. Bolton, Vt. ^ It simply creates a tenancy at will. Hull 1!. Wood, ante; Williams v. De- rlar, 31 Mo. 13. In New Hampshire, under the statute, it is held that a ver- bal agreement that a person might live on a farm and cari-y it on, and that he and the plaintiff should constitute only one family during their lives, and that they should pay the debts due from the estate, and an entry and possession un- der the agreement, constitutes a tenancy at will from year to year, and a notice to quit of less than three inonths as pro- vided by statute, reducing the notice re- quired by the common law, is insuffi- cient. Leavitt v. Leavitt, 47 N. H. 329. But if rent is reserved in any form, that is referrible to annual rent, it is sufficient. Hanchett v. Whitney, 2 Aik. (Vt.) 249. In Maine and Massachusetts tenancies from year to year do not exist, as, in all cases of indefinite hiring no- tice to quit is necessary, Withers v. Lar- rabee, 48 Me. 470; Ellis v. Page, ante, 8 Eidgeley v. Stilwell, 25 Mo. 570. " In a Pennsylvania case. ' In Lloyd d. Cozens, Ashm. (Penn.) 131, a lease was made on June 1st, 1827,, reserving rent payable quarterly, to hold the same from year to year upon con- dition that, if the rent was not paid in ten days after quarter-day, the lease should be luiU and void, it was held that the lease was from year to year notwithstanding the condition. *" Stedman i;. Mcintosh, 4 Ired. (jST.C.) L. 291, " It is," said Lokd Eixenbor- OUGH in Warner v. Brown, 8 East, 167, " entirely repugnant to a tenancy from year to year, that the option of determin- ing it, should rest solely with the ten- ant." TO Tenancy feom Yeae to Year. It is not essential that there should be an agreement to pay in money, but, if the rent is fixed at a certain sum for the year, although the lease is upon condition that the tenant may occupy at such yearly rent until he has re-imbursed himself for repairs made upon the prem- ises, yet, it has been held that a tenancy from year to year is thereby created, because the two elements, annual rent and indefiniteness of term concur. ^ Even though there has been no lease or agreement at all, if im annual rent has been paid for several years, a tenancy from year to year is thereby raised;^ but there must be a payment of rent as rent ; if the party enters under an agreement to purchase, and pays down a certain sum, which it is agreed shall be considered as a year's rent, in case he fails to perform, and failing to j)erform he holds over into another year, he is not a tenant from year to year, because there can be no presumption raised fi'om these facts, that the amount of the advance sum paid by him, was paid as rent, or that it was fixed with any reference to the actual rental value of the premises, and consequently that the person holding over, held over at that rental, ^ and, even I Thomas v. Wriglit,9 S. ; Clun i>. Clarke, Peake's Addl. das. 239 ; Jackson v. Tenancy h'kom Ybae to Yeae. 71 though such a presumption could be raised, from the circumstances, yet in this, as all other cases of a tenant holding over by the permis- sion of the landlord, it may be rebutted by showing that the holding was not in the character of tenant, or that it was for some other pur- pose. ^ Entry under agreement for a lease ; effect of. Sec. 23. Where a person is let into possession under an agreement for a lease, or under a lease void under the Statute of Frauds, he is a mere tenant at will ; hut upon payment of rent hy him he at once he- com,es a tenant from year to year upon the terms of the intended lease, so far as they are applicable to and not inconsistent with a yearly ten- ancy. ^ Williamson, 3 B. & C. 413; but it is not evidence of any particular tenancy, but the presumption arising from it is of a tenancy from year to year. Prit- chard v, Dodd, ante ; Williamson v. Paxton, 18 Gratt. (Va.) 175, but this presumption may be repelled by proof of a holding in a different character or for a different purpose. Williamson «. Paxton, ante ; Harvey v. Francis, 2 M. & Rob. 57 ; Phillips d. Mosely, 1 C. & P. 282 ; even when paid qua rent, Strahan v. Smith, 4 Bing. 91. But from payment of rent under a lease for an indefinite period, a tenancy from year to year is implied, as if the revereioner I'eceives a certain sum as rent under a lease granted by one having no power to bind him, a tenancy from year to year springs therefrom. Tuclveru. Morse i B. & Ad. 365 ; Jordiau v. Wood, 1 H. Bl. 97 ; Martin v. Watts, 1 T. E. 83. 1 Williamson v. Paxton, ante; Lord V. Crago, 12 .Jur. 705 ; Clemmett v. Bradbee, 1 B. C. Eep. 65. " Westmorland i-. Smith, 1 M. & K. 137. The rule as established by numer- ous authorities is, that if a party enters into possession under an agreement for a future lease, and in expectation of it, and pays rent, be becomes a tenant from year to year. Aldershaw v. Breach. 6 Esp. 1C6 ; Sullivan v. Jones, 3 C. & P. 579 ; Hamerton v. Stead, 3 B. & C. 478; Broomfield v. Smith, 6 East, 530 ; Knight V. Bennett, 3 Bing. 361 ; Cox v. Bent. 5 Bing. 185 ; Chapman v. Towner, 6 M. & W. 100 ; Doe v. SmitSi, 1 Myl. & K. 137 ; Bolton v. Toralin, 5 Ad. &E1. 856 ; Doe v. Foster, 3 C. B. 215; Bannister v. Usborne, Peake's Addl. Cas. 76, and according to the latter ease a constructive possession by the tenant is sufficient, as, if he puts up a to let upon the premises. Upon the point that entry and payment of rent as pre- viously stated constitute a tenancy from year to year, see, in addition to the cases already cited, Thompson v. Aniey, 12 Ad. & El. 476 ; Berry v. Lindley, 3 M. & G. 498; Eigge v. Bell, 5 T. R. 471 ; Bennett v. Ireland, E. B. & E. 326 ; Eichardson v. Gifford, 1 Ad. & El. 52 ; Braithwayte v. Hitchcock, 10 M. & W. 494 ; Manning v. Lovejoy, Ey. & M. 355. Thus in Thompson v. Amey, ante, A agreed to lease a certain farm to B, at a certain yearly rental, and also upon condition that B would cultivate, pay rent, &c., and B entered into possession and paid rent under the agreement, but no lease was ever made. The tenant liaving violated the conditions of the intended lease, as expressed in the agree- ment as to the cultivation of the land, the landlord brouglit ejechnent, and the court held that the defendant having entered under the agreement for a lease which was to contain a covenant against taking successive crops of corn, and a condition for re-entry in case of breach was subject to sucii condition, and that ejectment lay for its breach because the agreement was such that either party might have procured a spe- cific performance thereof in equity. — Patteksow, J., said, " It is said that a covenant respecting a rotation of crops cannot be. engrafted on a yearly ten- ancy ; biit I see no reason why it should not. The tenant in possession under SMch circumstances is bound to culti- vate the land, as if he were goingto con- tinue in possession as long as the lease itself would have lasted. It is argued that the tenancy arises by operation of law upon the payment of rent, and that the law implies no particular mode of cropping, nor any conditions of re-entry. But the terms upon which the tenant holds are in truth a conclusion of law from the facts of the case, and the terms 72 Tenancy feom Ybae to Ybae. A stipulation for two years' notice to quit, is held to be inapislioable to such a tenancy ; ^ consequently, if an agreement for a lease under which a tenant enters and occupies for several years, paying rent, con- tains a stipulation that the tenancy shall continue until after two years' notice, it will not be implied that such stipulation was one of the terms under which the tenant held, and all stipulations, incompatible with a ten- o'' the articles of agreement," and a similar doctrine has been lield in tliis country in numerous cases, where a tenant entered under a void lease. Tag- gard B. Roosevelt, 2 E. D. S. (N.T.C.P) 100 ; People v. P.ickert, 8 Cow. (N Y.) 226 ; Strous? v. Crosby, 21 Conn. 398 ; Schuyler ti." Legett, 2 Cow. (N. Y.) 660. A tenancy from year to year is implied where a tenant enters into possession under a parol or other lease void by the Statute of Frauds, and the rights of the parties may he ascertained by a reference to the lease. Martin v. Smith, 43 L. J. Excliq. 42; Porter d. Blielery, 17 Barb. (X. Y.) 149; Barlow v. Wainwright, 22 Vt. 88 ; Thurber v. Dwyer, 10 R. I. 355; Kigg v. Bell, 5 T. R. 472 ; Collins V. Weller, 7 id. 478; Gaston v. Smith, 33 N. Y. 245 ; Shepherd v. Cummings, 1 Caldw. (Tenn.) 354 ; Lounsbury v. Snyder, 31 N. Y. 514 ; Thomas c. Nel- son, 5 id. lis ; Berry j). Lindley, 3 M. & G. 498; Clayton B.'Blakeley, 8 T. R. 3. But, in order to raise sucli an inference, the agreement of all the parties must be shown, and if there are three or more parties, and tlie agreement of two only is shown, such a tenancy cannot be im- plied as against the other party, Good- title V. Herbert, 4 T. R. GSO. In Dodge o. Bowers, 2 M. & ^Y. 3(15 A, B and C, V, being an unmarried woman, entered into an agreement, dated 25th December,1834, to take a house of the plaintiff for seven years, at a ccriaiii annual rent, payable quarterly ; under which they entered. In September, 1835. C married; in De- cember A became bankrupt. In an ac- tion of debt by tlie plaintiff against A, B, C and C's husband, for two years' rent, claimed to be due under tlie demise contained m the above agreement, tlie de- fendants by their plea denied the demise. There was also a count for use and oc- cupation, to which they pleaded pay- ment of all the rent due before C's mar- riage. The defendants proved payment by A."s assignees of the quarter's rent at Micliaelmas, 1835, and an admission by the plaintiff of the receipt of the two previous quarters' rent; but it is not shown when or by whom these latter pay- ments were m ide : — Held, that this was not evidence from wliich a new yearly tenancy, on the terms of the agreement, could be inferred, so as to charge all the defendants, inasmuch as it was not shown that the payments were made before C's marriage, or witliher assent after her marriage. An entry under such a lease creates a tenancy from year to year regu- lated by the parol demise in all respects except as to the duration of the term. 2d. In Braithwayte v. Hitclicock, ante, in an action of debt for rent, stating a de- mise of premises by the plaintiff to W. H., for one year, and so on, from year to year, if they should- respectively please, at a yearly rent of £141), payable quarterly, and an assignment by W. H. to the defendant, the plaintiff proved an agreement (signed by himself only) for a lease of the premises by him to W. H., for seven years, at £140 a year ; that no lease had been actually exe- cuted, but that W. H. had entered into possession shortly after tlie date of the agreement, and had paid two quarters' rent, at the rate of £140 a year: — It was held that this was sufficient evidence of a tenancy from year to year, as stated in the declaration, and in wliicli W. H. had an assignable interest. Braithwayte V. Hitchcock, 10 M. & W. 494. "Where a person held premises under an agree- ment in writing, from quarter to quarter, and the agreement provided that the tenant should quit posses- sion upon receiving six months' no- tice in writing, and, in the event of his losing Ills license to sell ale, c%c., througli misconduct at any time during the term, should then fortliwith quit possession, on being requested to do so by his landlord : — It was held that he had neitlier a tenancy from year to year nor a term certain in tlie premises, so as to entitle the landlord in ejectment to com- pel him to give security for costs under the statute. Carter v. Roe, 10 M. & W. 670. Where there has been an agreement for a lease and an occupation without payment of rent, the occupier is a mere tenant at will. If he siibsequently pays rent under that agreement, he thereby becomes tenant from year to year. But in order to establish a tenancy from year to year in such case, the payment of rent means a payment of rent with reference to a yearly holding. Bi-aith- wayte u. Hitchcock. 10 M. '&. W. 494. See Risely r. Ryle, 11 M. & W. 16. 1 Tooker d. Smith, 1 H. & K. 732. Tenancy from Year to Year. 73 ancy from year to year are alwa3's rejected, and those only applied that are consistent therewith. ^ It is held that an agreement as to the duration of the term is not binding, as, if the agreement is for a lease for three years, it may be jDut an end to at any time prior thereto by giving six months' notice to quit at the end of either year, but, if the tenant continues to occupy for the whole time, his tenancy expires hy its own liniitation icith the expiration of the term agreed upon, and ejectment may be maintained at -the expiration of such term without notice to quit, unless a new term has been commenced and rent paia in pursuance of it, so as to destroy the effect of the expiration of the term by limitation. ^ The principle upon which this rule is predicated is, that the tenant's legal interest ceases, when his right in equity, if assigned, would have ceased. ^ Thus in a case ^ where the defendant entered into an agreement for a lease with the plaintiff by a letter of Sept. 5th, 1823, by which he was to have it for five years and a half from Michaelmas, 1823, and he entered and paid rent, it was held that a ten- ancy from year to year was thereby ci'eated which could only be deter- mined by a half year's notice during any one of the years, but that the defendant was bound to go out at the end of the term stated in the let- ter, -without notice. Maule, J., very forcibly laid down the rule and ex- plained it, as follows : " It is admitted," said he, " on all hands, that the defendant, iipon his entry, became tenant from year to year. Parties may stipulate that there shall be a tenancy from year to year determin- able at a particular time. If a party enters under an invalid agreement, or under an agreement not amounting to a demise, he may still hold subject to the terms of that agreement so far as they are not at variance with the species of tenancy which the law under the circumstances cre- ates. The effect of what passed between the parties, appears to me to be this : the defendant became tenant to the jilaintiff from year to year, from Michaelmas, 1823, for so long a time as they should respectively please, determinable at the end of any year at a half year's notice, the defendant to go out at the end of five years and a half without notice." ^ What covenants ■will or ■will not be implied. Sec. 24. A covenant to build, or to do such substantial reijairs as are not usually done by a tenant from year to year, will not be implied or held as applicable to the relation, even though the agreement stipulates 1 Tress v. Savage, 4 E. & B. 36; Strat- Campbei.!,, C. J., said, " We Uiiiik the ton V. Pettitt, 16 C. B. 420 ; Arden v. tenancy created from year to year must Sullivan, 14 Q. B. 832. be understood fo continue only during ^ Davenisli b. Moffatt, 15 Q. B. 257 ; the three years (which in this case -ivas Tress xi. Savage, 4 E. & B. 36 ; Doe i). the time named in the lease -vvliich was Stratton, 4 Bing. 446. void because not under seal), liable to * Bromfleld i). Smith, 6 East, 530. be determined during the three years by * Berry ». Lindley, 3 M. & G. 498. a notice to quit, and expiriivj at the ' In Davenisli v. Moffatt, ante, Lokd end of three years hy efflux of time." 74 TUN^AXCY FROM YeAE TO YeAR. for such covenants in the lease, '^ but the rule is otherwise as to a stipu- lation to keep the premises in good and tenantable repairs. Thus, in an English case the defendant '^ went into possession of premises under an agreement, by the terms of which he was to have possession for the term of three years and a quarter, he to keep the premises in ten- antable repair during the tenancy. The agreement was neither stamped as a lease, nor signed by both parties, but the court held that the defendant was bound to repair during his occupancy, though the agreement was void as to the duration of the term under the statute of frauds. " He did not," said Paeke, J., " legally agree for a terra of three years, but, in point of law, he was tenant at will for the first year, subject to the terms of the agreement on his own ])art, and after- wards tenant from year to year subject still to that agreement, which bound him to keep the premises in good repair so long as he should oc- cupy." And so, generally, when a tenajjt goes into possession under an agreement for a lease, or under a void lease, he will be, after paj^- ment of rent under it, treated as subject to the terms and conditions of the agreement or lease so far as they are applicable to a tenancy from year to year, but no farther. If any of the conditions are incon- sistent Avith such a tenancy, they will be rejected. Thus, where a shop was taken under an agreement for a lease that contained a stipu- lation that the tenant should " keep open the shop and use his best endeavors to promote the trade of it during the tenancy ; " * a condi- tion that he shall be paid for improvements, ^ or that the landlord may re-enter for non-payment of rent, or breach of any covenants, are all applicable to the tenancy. ^ So that the tenant may re"tain and sow certain land demised at the seed time next after the end of the term, and have the privilege of gathering and threshing it on the premises,^ that the tenant shall leave all the manure at the end of his term '' against successive crops ' for the payment of rent in advance,^ and, in- 1 Bowes !). Croll, fi E. & B. 264. montUy tenancy a month's notice t"i 2 Eichardson v. Gifford, 1 Ad. &, El. quit, expiring at tlie end of one of the 52. periods of holding is sufficient. The 3 Sanders «. Karnell, 1 F. & F. .356. rule relative to notices seems to be as •• Bracklington o. Saunders, 13 W. R. follows : Where there is a lease for a 46. certain period the term determines with- ^ Thomas v. Parker, 1 H. & N". 669. out notice. Cobb v. Stokes, 8 East, 358; » Hyatt V. Griffith, 7 Q. B. 505. Right v. Darby,' 1 T. R. 159. In uncer- " Roberts v. Barker, 1 Or. & M. 808. tain tenancies reasonable notice was ^ Tlrorason ii. Aniey, 12 Ad. & El. necessary, which reasonable notice had 476. from the time of Henry VIII., accord- " Lee 11. Smith, 9 Exchq. 662. In ing to LoRn Ellenbohodchi, been six Steffens v. Earl, 40 N. J. L. 128, it is months. Doe v. Spenee, 6 East, 120. held that in tenancies where no time is In cases of tenancies for periods run- mentioned, and no annual rent is re- ning less than a year, the rule enun- servcd, the character of the tenure as oiated by the text writers is that the no- to time will bo controlled by the inter- tice must be regulated by the letting, and vals between the payments, monthly or must be equivalent to the period. Archb. wetikly payments implying monthly or Land. & Ten., § 87. This rule must weekly tenancies ; and that in case of a have originated in custom and not in Tenancy from Year to Yeak, 75 deed, any covenant that is not inconsistent with tlie character of such a tenancy. ■^ But all covenants inconsistent therewith, or for the doing of that which is not usually done by such tenants, as to paint once in three years, ^ or to put the premises in repair before he goes into possession, ^ will be rejected as inconsistent. * Void lease. Payment of rent under the effect of. Sec. 25. The same rules and principles apply in the case of a ten- ant entering into possession of premises for a term of years under a void lease, as apply in the case of an entry under an agreement for a lease. A person entering under such a lease, void for any cause, who pays or agrees to pay any part of the yearly rent reserved therein, be- comes a tenant from year to year, subject to all the covenants and conditions of the lease applicable to such a tenancy, except as to its duration,^ and at the end of the void term, the tenancy ceases with- any decision of the courts. See Huffell I). Armistead, 7 C. & P. .56 ; Towne v. Campbell, 3 C. B. 921. In Doe v. Ha- zell, 1 Esp. 94, which was a case of ejectment, the defendant had taken the house by the month and a month's no- tice to quit had been given. It was agreed that the notice had reference in all cases to the letting, and that a month's notice was sufficient to entitle the plaintiff to recover. In Peacock v. Euft'an, 6 Esp. 4, the court remarked that a week's notice to quit was cer- tainly sufficient where the holding was weekly. In Doe v. Scott, 6 Bing. 362, the same rule was recognized, and being incorporated in the text books of author- ity may be considered as settled, both in England and in this country, excepting where the matter of notice has been the subject of the statutory regulation. Prindle v. Anderson, 19 Wend. (N. T. ) 391 ; Seem v. McLees, 24 111. 192 ; Walker v. Sharpe, 14 Allen (Mass.), 43. In the principal case it is also held, that while a notice must be to quit at the end of one of the recurring periods of holding, one to quit on the day corre- sponding with the date of letting and entry is sufficient. So in Waters v. Young, 11 E. I. 1 ; 23 Am. Eep. 409, where the date of letting by the month was December 18, notice to vacate on or before January 17 was held bad. It should have been "on or before Janu- ary 18." See, as to this point, Wilcox V. Wood, 9 Wend. (N. Y.) 345 ; Sheets r. Sheldon's Lessee, 2 AVall. (U.S.) 177; Pugli V. Duke of Leeds, Oowp. 714 ; Doe !). Lnmbly, 2 Esp. 635 ; Kemp v. Derrelt, 3 Camp. 510 ; Eoe v. Ward, 1 H. Black, 97 ; Doe v. Weller, 7 Term E. 478 ; Mills v. Gofi, 14 M. & W. 72 ; Doe V. Bayley, 5 C. & P. 67. 1 Thomas ». Parker, 1 H. & N". 669 ; Bridges v. Potts, 17 C. B. N. S. 314 ; Berry d. Lindley, 3 M. & Gr. 514. 2 Pinero v. Judson, 6 Bing. 210-11. 3 Ibid. 4 Bowes V. Croll, 6 E. & B. 264. 5 Strong V. Crosby, 21 Conn. 398 ; Thurber v. Dwyer, 10 E. I. 355. In Schuyler v. Leggetl, 4 Cow. (N.Y.) 60, a parol demise was made for seven years which was void under the Statute of Frauds, but the tenant having entered into possession and paid rent under it, it was held that it inured as a tenaiicy from year to year, and that it regulated the terms of tlie tenancy in all other i-e- spects except the term of the tenancy, such as the amount of rent to be paid, the time of the year when the tenant must quit, &c. See also People v. Eick- ert, 8 Cow. (N. Y. ) 226. In New York a tenancy at will is treated as a tenancy from year to year, so far as is necessary for the purpose of a notice to eject. Bradley ». Covel, 4 Cow. (N. Y.) 349. In Massachusetts, and in several of the States, it is held that all tenancies under parol are void leases, are mere ten ancles at will. Ellis i'. Paige, 1 Pick. (Mass.) 43 ; Withers v. Larabee, 48 Me. 570. I». Tennessee they are treated either as creating a tenancy at will or from year to year, according to the circumstances. Duke V. Harper, 6 Yerg. (Tenn.) 280, and in Pennsylvania a tenancy at will is treated as a tenacy from year to year, and the same notice to quit is required in either ease. Clark v. Smith, 25 Penn. St. 137. Holding that an entry under void lease and x^aymeut, itc, of rent 76 Tenancy fkom Yeak to Yeae. out any notice to quit, by efflux of time, ^ or it may be previously ended by notice to quit at the end of any year, or by an entry of the landlord for a forfeiture. ^ Holding over and paying rent. Sec. 26. If, when premises are let for a year, or from year to year, the tenant holds over, the landlord may elect to treat him as a tenant from yeai- to jeai-, or when the renting is for a shorter period, and the tenant holds over, he will be deemed to hold upon the terms upon which he entered, and the landlord may recover rent of him according to the terms of the original contract or lease, ^ or the landlord may at his election treat him as a trespasser and may bring ejectment against him without any previous notice, unless the holding over has been for such a time that it may be presumed that he assented thereto. * But this is only a presumption of law, which stands until the con- trary is shown, * and it may be shown that the landlord accepted the creates tenancy from year to year upon the terms ol' the lease, see Tress n. Savage, 4 E. & B. 30 ; Jlartin v. Watts, 7 T.^E. 83 ; Rigge v. Bell, 5 id. 471 ; Uavenishi). Moffatt, 15 Q. B. 257; Doe v. CoUings, 7 C. B. !.):!!) ; Pennington v. Taniere, 12 Q. B. 0!)S ; Lee v. Smith, 9 Exchq. 662 ; Richardson v. GifEord, 1 Ad. & El. 52; Bealeu. Sanders, 3 Bing. K. C. 850; Clayton v. Blakely, 8 T. R. 3. 1 Tress v. Savage ; Doe v. Stratton, 4 Bing. 440 ; Davenish v. MofEatt, 15 Q. B. 257. ■^ Thomas v. Parker, 1 H. & N". 669 ; Hayne v. Cumming, 16 C. B. N". S. 421. ^ iSToel V. McCravy, 7 Coldw. (Tenn.) 623 ; Hall v. My^rs, 43 Md. 446; Bur- bank 13. Dyer, .54 Ind. 392 ; Parker v. Hollis, 50 Ala. 411 ; Usher v. Moss, 50 Miss. 208 ; Gardner v. Commissioners, &c., 21 Minn. 33; Hoof v. Ladd, 1 Cr. (U. S. C. C. ) 167 ; Bacon v. Brown, 9 Conn. 334 ; Erantz v. Wood, 2 Hill (S. C), 367 ; Haskins v. Pope, 10 Ala. 493; Quinette v. Carpenter, 35 Mo. 502; Laguerenno v. Dougherty, 35 Penn. St. 45 ; Hyatt r. Griffiths, 17 Q. B. 505 : Hollingsworth v. Sennett, 2 Esp. 717 ; Thomas v. Amey, 12 Ad. & El. 746 ; Digby v. Atkinson, 4 Camp. 275 ; Finch V. Miller, 5 C. B. 428 ; Pierce v. Shaw, 2 M. & R. 418 ; Schuyler v. Smith, 51 N. Y. 309. A tenant who had leased premises for a year took them for a second on the exjairation of the first year. It was held, that if the second lease was void, from want of authority of the lessee, an officer of a corporation, and if the tenant should be regarded as holding over under the terms and con- ditions of the former lease he became a tenant from year to vear, and must give six months' notice to determine his tenancy ; and that if he should be re- garded as having entered under thu void lease possession imder it, and pay- ment and acceptance of rent would create a tenancy from quarter to quar- ter, not to be determined without three nienths' notice. A lessee for years whose tenn depends on a certainty, who holds over after the termination of the lease merely to remove his goods and chattels, none the less becomes a ten- ant from year to year by such holding over. A tenant for years whose term depends on a certainty, has no right to remain a reasonable time after his tenn expires for the purpose of removing his chattels. To entitle a landlord to re- gard a tenant under a demise for a year or more, as a tenant from year to year upon his holding over after the expira- tion of his term, it is not necessary that the holding over should be of such a char- . acter as to raise a presumption that the tenant intends to continue his occu- pancy. Witt V. Mayor, &c.., of New York, 6 Rob. (N. Y.) 441. * Smith );. Littlefield, 51 N. Y. 5.S9 ; Blain v. Everett, 36 Md. 73 ; Hemphill 11. Flynn, 2 Penn. St. 144; Jackson v. Salmon, 4 Wend. (N. Y.) .327; Brown o. Keller, 32 111. 151 ; Crommelin v. Theiss, 31 Ala. 412 ; Schuyler d. Smith, 51 N. Y. 309. 5 (t)uinette v. Carpenter, 35 Mo. 502 ; Frantz v. Wood, ante ; Darrill r.. Ste- vens, 4 McCord (S. C), 59 ; De Young V. Buchanan, 10 G. & J. 149; Dellar v. Roberts, 13 S. & R. (Penn.) 60; Brewer V. Knapp, 1 Pick. (Mass.) 332; Moore )i. Beasley, ' 3 Ohio, 294 ; Mayor of Thetford u. Tyler, 8 Q. B. 95. Tenancy from Year to Year. 77 rent under a mistake and in ignorance of the facts, ^ or that the hold, ing was in a character and for a purpose inconsistent with a tenancy. ^ An implied tenancy from year to year will be presumed to have com- menced on the same day of the year as the original tenancy; but this is sometimes a question for the jury upon a consideration of all the facts. ' Although a parol lease for more than one year is invalid under the Statute of Frauds in most of the States, yet, if a person enters into possession under a parol lease for four years, and holds over into a second year, he becomes a tenant from year to year upon the terms of the parol lease, and so continues as long as he remains in possession without any new or other agreement, and an occupancy, by having a portion of his property upon the premises, is sufficient to establish his liability, although there is no personal occupancy. Thus, where the de- fendant went into possession under a parol lease ^ of a brick-yard and dwelling house for one year, with the privilege of four years, at his option, and continued in possession for two years, it was held that, al- though the lease was void as to the four years, yet, by the entry of the defendant, and his holding over after the first year, it became a lease from year to year, subject to all the terms and conditions of the verbal lease, except as to the term. Pie went into possession in June, 1857, and in April, 1869, substantially told the plaintiff that he intended t® leave at the end of that year, and at the end of .the year he abandoned the house and removed most of the brick, but he left a portion of them in n shed which he had erected upon the premises to protect the brick from the effects of the weather, and did not remove them until some time afterwards. The lease was never surrendered, nor did the plaintiff ever give his assent to the brick and shed being left there.- The court held that the fact that the brick and shed were left upon the premises by the defendant, after the expiration of the second year, ojjerated as such a continuance of his occupancy as to enable the landlord to treat him as a tenant for another year. "^ The question as to whether the holding is upon the terms of the former lease, depends upon the cir- cumstance, whether a new agreement has been entered into, or the tenant has received notice that, if he remains, he must do so upon 1 Lord V. Crago, 6 C. B. 90 ; Oak- 8 Cow. (N. Y. ) 226 ; Eeader w. Sayre, 6 ley, V. Monck, 3 H. & C. 706 ; Clemett Huu (N.Y.S.C), 564; Conway b. Stark- V. Bradbee, 1 B. C. Rep. 65. ' weather, 1 Den. (N.Y.) 113, and, where ^Williamson v. Paxton, 18 Gratt. the tenant holds over, see, holding tliat (Va.) 475. For other incidents to ten- the terms of the former lease control, ancy by holding over, see ante, p Stopplekamp v. Manyeat, 42 Cal. 316 ; 3 Walker v. Go&6, 6 H. & K. 594 ; Thiebaud v. Vevay, 42 Ind. 212 ; Hall Oakley v. Monck, 3 H. & C. 714. v. Myers, 43 Md. 446 ; Bright v. Mc- * Dorr i). Barney, 12 Hun (N.Y.S.C), Ouat, 30 Ind. 521. But, it may be 259. shown that the holding is really upon ^ See also to same effect, Schuyler different terms, either wholly or in part, B. Lesgelt, 2 Cow. (N. Y. ) 66 ; Louns- Hunt v. Bailey, 39 Mo. 257; Despard b. Iniry B. Snyder, 31 N.Y. 514 ; Schuyler Walbridge, 15 N.Y. 374; Mark b. Bent, V. Smith, 51 id. 3C9 ; People v. Rickert, 5 Hun (N. Y. S. C), 28. 78 Tenancy from Teak to Teak. certain other terms.^ But upon principle, it would seem that, after a tenancy from year to year has actually set in, the terms of the tenancy cannot be changed by a mere notice, or by any notice except such as would be operative as a notice to quit, unless such terms are accepted. Determination of tenancy from year to year. When determinable. Sec. 31. A tenancy from year to year may be determined by either party at the end of the first or any subsequent year ; ^ unless, in creating the tenancy, the parties use expressions showing that they contemplate a tenancy for two years at least. ^ A tenancy " for one year certain, and so on from year to year," cannot be determined before the end of the second year. * Notice to quit. Where there is no express agreement. Sec. 32. "Where no express stipulation is made between the parties as to the length of notice required to be given, it seems that this may be regulated by custom ; " but there must be strong evidence of such custom, " and the tenant takes the onus of establishing it, ' which must be shown by facts, rather than by the opinions of witnesses, * and, if the custom is not general, it must be shown to exist in the particular locality to which it is sought to apply it, and proof of a custom in an adjoining town, is not sufficient. ' If no such custom exists,' it is a general presumption of law that if an estate from year to year is created, and nothing is said about de- termining it, the notice intended is half a year's notice, expiring at the end of some current year of the tenancy.^" 1 Hunt V. Bailey, 39 Mo. 257 ; Des- Smith's L. & T. 319 ; Kurray v. Arm- pard V. Walbridge, ante ; Mack v. Bent, strong, 11 Miss. 209 ,• Hamitt v. Law- anle. rence, 2 J. K. Mar. (Ky. ) .366 ; Darrell v. 2 Doe 0. Smaridge, 1 Q. B. 957; Johnson, 17 Pick. (Mass.) 263; Bedford Thompson v. Maberly, 2 Camp. 573. v. MoEtlierron, 2 S. & E. (Penn. ) 49 ; ^ Doe !), Smaridge, Q. B. 959. See "\Vhitney v. Gordon, 1 Gush. (Mass.) Denn v. Cartwright, 4 East, 29 ; Doe 266 ; Allen v. Jaquish, 21 Wend. V. Malnby, Q. B. 473 ; Chadborn v. (N. Y. ) 261 ; Clapp v. Paine, 18 Me. Green, 9 Ad. & El. 658. 264; Goddard v. E. E. Co., 2 Etch. *Doe». Green, 9 Ad. &E1. 658; Eeg. (S. C.) 346; Goade v. Howell, 4 B. Chawton, 1 Q. B. 247. See Jones «. M. & W. 198; "Walker v. Constable, 3 Nixon, 1 H. & C. 48. Wils. 25 ; Braner v. Wilkinson, Co. ^ Eoe !). Wilkinson, cited in note 228 to Litt. 279 b, note; Flower v. Darby, 1 Co. Lit. 270 b. See Eoe v. Charnock, T. E. 159 ; Pitcher u. Donovan, 1 Taunt. Peake, N.P.C. 4 ; also judgment in Doe 555 ; Shore v. Porter, 3 T. K. 13 ; Mar- V. Snowdon, 2 W. Bl. at p. 1225. tii\ v. Coutts, 7 id. 85. In many of the I" Eoe V. Charnock, Peake 5 ; Calde- States the common-law requirement as cott V. Smythers, 7 C. & P. 808 ; Ty- to the length of notice required lias been ler V. Seed, Skin. 649 ; Brown v. Wil- materially changed by statute,being fixed kinson, Co. Litt. 270 b. note. in some at thirty days. Larlun v. Avery, ' Caldecott b. Smythies, 7 C. & P. 108. 23 Conn. 304, three months, &c., but in ' Henderson v. Charnock, ante. all of them the rule remains the same as 8 Brown v. Wilkinson, ante. to the time when the tenancy can be so 1" Judgment of Erle, C. J., in Bridges ended, to wit, at the, end of the current V. Potts, 17 C. B., N. S. 332 ; Hall ». year. Prescottc. Elm, 7 Cush. (Mass.) Myers, 43 Md. 581 ; Hunchett v. Whit- 346. In others the right to notice is mu- ney, 1 Vt. 315. Cole on Ejectment 33 ; tual, and either the landlord or tenant Tenancy feom Yeak to Teae. 79 There is some uncertainty as to the length of the notice required to determine a quarterly, monthly, or weekly tenancy. It does not ap- pear to have ever been decided, that in the case of an ordinary monthly or weekly tenancy, a month's or week's notice to quit must be given. A tenant who enters upon a fresh week may be bound to con- tinue until the expiration of that week, or to pay the week's rent ; but that is a very different thing from giving a week's notice to quit. ^ A weekly tenancy cannot, generally, however, be determined without some ^ notice and the safest course is to give a notice corresponding to the letting, i. e., a week's notice in a weekly letting, and a month's notice in a monthly letting. ' Where there is an express agreement, Sec. 33. The parties to thetenancymay alter the notice necessary to determine it ; thus, they may agree that a three months' notice, or even a week's notice, shall be sufficient, ' and they may also stipulate that the notice shall expire at any period of the year. * Where there is no ex- press or implied stipulation, the notice agreed upon between the jaar- ties must be given so as to expire at the end of ^ome current year of the tenancy. Thus, an agreement by a tenant from year to year to ■ quit at a quarter's notice, means a quarter's notice expiring at the end of some year of the tenancy, ^ and the same rule applies to implied as to express tenancies. ' Pei^iod vrith reference tc ■which notice must be given. Sec. 34. The implied condition as to the notice expiring at the end of some year of the tenancy renders it important that the time of com- mencement of the tenancy should be correctly ascertained. The ques- desiring to end the tenancy, must give the v. Dayton, 4 Hun. (N. T. S. C.) 451 ; requisite notice. Morehead ». Watkins, People «. Shackno, 48 Barb. (N. T.) 55. 5 B. Mon. (Ky.) 228 ; Grant ». White, In Michigan monthly tenants are en- 42 Mo. 285. In New Jersey a half- titled to a month's notice. Huyser v. year's notice is required in all cases of Chase, 13 Mich. 98. uncertain tenancy whether from year to * Judgment of Ekle, C. J., inBridges year or at will. Den v. Drake, 14 N. J. v. Potts, L. J., C. P. 343. L. 523. In all the States, except where ^ See Bridges v. Potts, 17 C. B., K.S. otherwise provided by statute, the com- 333 ; Doe v. Grafton, 18 Q. B. 496 ; Col- mon-law rule prevails. lett v. Curling, 10 Q. B. 785. 1 Per Pakke, B., in Hoflell v. Armit- ^ Doe v. Donovan, 1 Taunt. 555 ; 2 stead, 7 C. & P. 58. But see Doe v. Camp. 78 ; Kemp v. Derrett, 3 Camp. Hazell, 1 Esp. 94 ; Doe v. Eaffan, 6 510. See Bridges v. Potts, 17 C. B., Esp. 4 N. S. 333. 2 Jones 0. Mills, 10 C. B., N. S. 788, 'Collins ». Weller, 7 T. R. 478; Wawn 796. V. Horn, 3 M. & W. 333; Beale v. Saun- 8 See per Williams, J., in Jones v. ders, 3 Bing. N. C. 580; Cater v. Soui- Mills, 10 C. B., ]Sr. S., 798. In Illinois, erville, 6 B. & P. 126; Potter v. Archer, by statute of 1861, a tenancy from month IB. & P. 531; Bowes v. Croll, 6 E. & to month can only be terminated, by a B. 255; Bishop v. Howard, 2 B. & C. month's notice. Seem v. McLees, 24 100 ; Spicer ». Lea, 11 East, 312 ; Plumer 111. 192. In Massachusetts no such no- v. Nainby, 10 Q. B. 473 ; Thomas v. tice is required. Shorey «. Farrell, 114 Packer, 1 H, & N. 669. Mass. 441 ; nor in New York, Gibbons 80 Tenancy from Teak to Yeak. tion at what period a tenancy began is a matter for the decision of a jury upon a consideration of all the facts. ^ If the tenant alleges that a notice to quit given to him does not correspond with the time at which his tenancy commenced, it is incumbent on him to prove the true time of commencement. ^ When the lease provides for thirty days' notice, or any other period, whether more or less than that required by law, it must be given, ^ but, while less notice than that stipulated for is insufBcient, yet, the tenant cannot complain because more is given. * In the first case cited in the last note, it was held that, where it was provided that six months' notice should be given, that a notice for six lunar months was good. Admission by tenant. Sec. 35. When a tenant, on being applied to respecting the com- mencement of his holding, informs the person making the inquiry that it begins on a certain day, and notice to quit on that day is given at a sub- sequent time, the tenant will not be allowed to set up a holding from a different day. It makes no difference whether the information so given proceeds from mistak(, or design. ^ The mere notice to quit, at a cer- tain time, given by the landlord, is not, in itself, evidence of a holding from that time ; ° but if it is served personally on the tenant, and he makes no objection at the time, this is primd facie evidence from which , a jury may find that the tenancy commenced at the period specified in the notice. ' The tenant, however, is not precluded from afterwards insisting on the insufficiency of the notice. ' Where tenant keeps possession after expiration of lease. Sec. 36. Where a tenant continues in possession after the expiration of his lease without having entered into any new contract, he holds upon the former terms as to the time of quitting. " If he assigns his interest, the tenancy of the assignee will also be held to commence on the same day as the original lease.*" Where tenant enters under a void or parol lease. Sec. 37. A void lease or agreement, under which a tenant has en- tered and paid rent, will regulate the terms on which the tenancy sub- 1 "Walker v. Gode, 6 H. & IST. 594. ' Doe v. Forster, 13 East, 405 ; 2 Doe xi. Wriglitman, 4 Esp. Thomas v. Thomas, 2 Camp. 647 ; Doe 8 Seo previous note. v. Biggs, 2 Taunt. 109. * Rogers v. Kingston-npon-Hull Dock ^ Oakapple v. Copous, 4 T. R. 361. Co., 34 L. J. Ch. 165; Peacock v. Eaf- s See judgment in Doe v. Bell, 5 T. E. fan, 6 Esp. 4; Davenish v. Moffatt, 15 472 ; Roe d. Ward, 1 H. Bl. 98 ; Doe ». Q. B. 257; Richardson v. GifCord, 1 Weller, 7 T. R. 478. See Doe w. Dohell, Ad. & El. 52. 1 Q, -B. 806 ; Humphreys v. Franks, 18 5 Doe V. Larahley, 2 Esp. 635. C. B. 323. sper LoED Ellbnboeough, C. J., i» Doe ». Samuel, 5 Esp. 173. But see in Doe v. Forster, 13 East, 406. Doe v. Lines, 11 Q. B.' 402. ^ Tbm-ancy feom Yeak to Year. 81 sists, as to the time of the year when a tenant is to quit. ^ So parol evidence is admissible to show to what the lease applies, or what premises are embraced in it, where there is no sufficient descrip- tion in the lease itself ; and this applies as well in the case of a valid, as of a void lease. Thus, in a case where a person sold a quantity of hay to the defendant, and receiving payment made out a receipted bill therefor as follows : " P. bought of H.," &c., and added thereto, " left at stable on O street, where P. takes possession. Rent to begin October 1, 1870, for one year at $150," it was held that this was a lease, and that oral evidence was admissible to show that the demised premises consisted of a lot of land on which was a stable and a small house which had been occupied by the groom of the vendor of the hay, and that the defendant took possession of the whole premises un- der the lease.- Where a parol lease is made of premises, and the lessee enters under it, but during his enth-e occupancy repudiates the lease, yet, having enjoyed the use of the premises, the landlord may, at his option, seek his remedy upon the lease, or he may sue for use and occupation, ' and in the latter case the amount agreed upon in the parol lease as rent, will control as to the Amount of recovery. Generally, in most of the States, a lease for a year may be made by parol, and in some of the States, a parol lease for three years, is good. In order to ascertain whether a parol lease for a certain term is A'alid or not, reference should be had to the Statute of Frauds. If the void lease or agreement contains no express stipulation on this sub- ject, the tenancy from year to year will be determinable by notice to quit expiring at the time of the original entry of the tenant. * ■Where tenant enters on different parts of demised premises at different times. Sec. 38. In cases where the incoming tenant enters upon different parts of the demised premises at different times, it is sufficient to give half-a-year's notice to quit before the substantial time of entry ; ^ i. e. the time of entry on the principal part of the premises. In these cases the question of what is the principal and what the accessory, must de- pend upon the relative value and importance of the premises let to- gether, and is a matter for the decision of a jury. ° Where tenant enters betvreen two quarter days. Sec. 39. Where a tenant from year to year, having entered in the 1 Elgge K. Bell, 5 T. E. 471. boeough, C. J., in Doe v. "Watkins, 7 2 Eastman v. Perkins, 111 Mass. 30. East, 555 ; Doe b. Snowden, 2 W. Bl. ' Scott ». Hawsman, 2 McLean (U.S.), 1224 ; Doe b. Spence, 6 East, 120, 122 ; 180. Doe -0. Hughes, 7 M. & W. 139; Doe ». * See judgment of Coltman, J., in Rhodes, 11 M. & W. 600. Berrey b. Lindley, 3 M. & 6r. 498. ^ Doe x>. Howard, 11 East, 498, 501. ' See Judgment of Loud Ellbn- 6 82 Tenancy feom Yeae to Tear. middle of a quarter, pays rent to the next quarter-day, and thencefortli from quarter to quarter, Ms tenancy is held to commence on the quar- ter-day after his entry. ^ Where he has not paid rent for the fraction of a quarter, the period of his entry is taken to be the time of com- mencement of Jus tenancy. ^ TVhen notice to quit is indispensable, and vrhen not. Sec. 40. A notice to quit is indispensable in all cases where a ten- ancy from year to year exists, unless expressly waived by a writing un- der the hands of the parties, and the fact that the estate comes into the possession of an infant as reversioner, does not obviate the neces- sity of giving the usual notice, " and the fact that the tenant fiaid rent to an infant during his minority, or that he went into possession under a lease given by an infant, does not enable the infant, upon attaining his majority, to maintain ejectment unless the usual notice has first been given.* The husband of a /ismc cc>?;er;, must give the usual notice to quit, before he can maintain ejectment against such a tenant, even though the tenant went into possession under a lease executed by the wife alone, and without the husband's assent, ^ and an heir, executor, or administrator, after the death of the lessor or lessee, must, in order to terminate the tenancy, give sxich notice as the lessor or lessee would have been required to give, ^ and so must the assignor of the reversion ^ or of the term. ' A notice to quit, however, need not be given to ter- minate a tenancy, the duration of which is limited in the lease itself, as, if a lease is given for one, two, or any number of years, the parties are both apprised of the determination of the estate, and it expires by efflux of time, ' nor where the tenancy is to determine upon the happening of a certain event, as, where a tenant agrees to quit, if the premises are sold during the term, notice only of the fact of a bona fide sale is necessary, ^^ or if a lease is given so long as the landlord lives,^' or " during the continuance of the partnership between A and B," •'^ or so long as the tenant remains in the employ of B. ; " in all these 1 Doe B. Johnson, 6 Esp. 10 ; Doe v. ther the tenancy is really from week to Stapleton, 3 C. & P. 275. week, &c., or whether there is an ex- ^ Doe V. Matthews, 11 C. B. 675. press or implied contract between the ' Baker B. White, 2 T. E. 159. parties that notice shall be given. " Miller b. Maden, 2 Esp. 530. Flower v. Darby, 1 T. K. 162. * Leicester v. Biggs, 1 Taunt. 367. ^ Leeson v. Sayer, 3 Camp. 8 ; Cobb « Baker v. Wliite, ante; Tasker b. r. Stokes, 8 East, 358 ; Hendrick b. Can- Burr, 1 "W. Bl. 596 ; Hull v. Wood, 14 non, 5 Tex. 248 ; Messenger v. Ani> M. & W. 682 ; Mackay v. Mackreth, 15 strong, 1 T. E. 54; Strickland v. Max- Ves. 241. well, 2 Cr. & M. 539; Godsell v. Inglis, ' Burrows v. Graden, 1 D. & L. 213 ; 3 Taunt. 54. Birch V. Wright, 1 T. E. 378. i» Millan v. Kephart, 18 Gratt. (Va.) 1. 8 Castleton v. Samuel, 5 Esp. 173; Ar- See also Bithell v. Blencowe, 3 M. & G. mitage, ante. If the rule was other- 119. wise, the tenancy would generally con- " Bromfield v. Smith, 6 East, 530. tinue for a double period. But the ^ Colnaghi v. Black, 8 C. & P. 464. question as to whether notice is neces- is Hughes v. Corbett, 9 id. 494; Butler sary or not, depends upon the fact who- v. Rice, 24 N. Y. S. C. 406. Tenaxct feom Year to Yeak. 83 cases, the estate terminates upon the happening of the event specified. So, even where a tenant enters under an agreement for a lease for a certain time, and no lease is ever executed, his term expires at the end of the term for which the lease was agreed to be given, ' but if the agreement is for a lease for a certain definite term, as, for twenty-one years, determinable at the end of seven or fourteen years by notice to quit, unless such notice is given the estate continues for the full term, ^ but a notice once given is good, although the tenant has been permitted to remain for a year after it was given, ^ unless the landlord accepts rent for the period of occupancy specified in the notice.* As previously stated, when the tenant goes in under a lease for a definite term, as for a week, month, quarter, or a year, his estate ceases without notice, when the term is ended,' but if he holds over with the landlord's -as- sent, which may be implied from his silence, he becomes a tenant from year to year, and the usual notice becomes necessary to terminate the new tenancy. ^ Notice is not necessary, in the absence of any local custom, or of a statute, in the case of a weekly, monthly or quartcrh- tenancy, as in such cases the tenancy is regarded as for a week, month or quarter, rather than as a tenancy from week to week, &c. ' Notice is not necessary when a mortgagor holds possession after the mort- gagee is entitled thereto ; in such case the mortgagee or those claim- ing under him, may enter without either notice or demand of pos- session, ^ and in the absence of any statute to that effect, such is the case in the case of a tenancy at will ° or by sufferance. ^^ A mere in- 1 Stoclarell V. Marks, 17 Me. 455 ; Mills, 10 C. B. N. S. 788. If a custom Tress v. Savage, 4 E. & B. 36; Tilt v. to give notice in the case of such ten- Stratton, 3 C. & P. 164 ; Berrey v. ancies prevails, it must be followed. Liiidley, 3 M. & G. 498 ; Jackson v. Henderson v. Charwick, Peake, 6 ; Ty- McLeod, 12 John. (jST. T. ) 182 ; Young ler v. Seed, Skin. 649. In Huffell 'v. V. Smith, 28 Mo. 65; Moshier?). Reding, Armistead, 7 C. & P. 56, it was held 12 Me. 478 ; Donnell v. Johnson, 17 that a weekly tenant, whose tenancy Pick. (Mass.) 263. commenced on Saturday, might leaiie 2 Brown v. Trumper, 26 Beav. 11 ; without notice on the succeeding Satur- Chapman v. Towner, 6 M. & W. 100. day, but generally, if a weekly^ tenant ^ Boggs V. Black, 1 Binn. (Penn. ) 333. holds over into a fresh week, he is liable * Collins V. Oarty, 6 Cush. (Mass.) for the rent for such week. When a 415 ; Doe v. Batten, Camp. 243. notice in the case of such tenancies is ° Preble v. Hay, 32 Me. 456 ; Lithgow necessary, it must be of the duration of V. Moody, 35 id. 314 ; Logan v. Herron, the term, and expire on the last day 8 S. & E. (Penn.) 459 ; Hamit v. Law- thereof. Jones v. Mills, ante; Perry v. rence, 2 A. K. Mar (Ky.j 366; Clapp v. Hazell, 1 Esp. 94; Finlayson v. Bayley, Paine, 18 Me. 264; Allen v. Jaquish, 21 5 C. & P. 67. Wend. (JNT. T. ) 628. As to weekly ten- » Garrod v. Olley, 12 Ad. & El. 481 ; ancies, see Huffell v. Armistead, 7 C. & Robyj). Maisey, 8B. & 0. 767; Wilkinson P. 56; Wilson v. Abbott, 3 B. & C. 88 ; v. Goodier, 10 Q. B. 557; Fishery. Giles, Towne v. Campbell, 3 C. B. 920. 5 Binu. 421 ; Snell v. Tom, 4 Q. B. 615. 6 Moshier v. Eeding, 12 Me. 478. ' Gallaway v. Herbert, 4 T. E. 680 ; ' WUson V. Abbott, ante ; Huffell v. Jacobs v. Phillips, 10 Q. B. 130 ; Brane Armistead, ante, Where the tenancy v. Eawlins, 10 East, 261. See chap, on is really from week to week, cfec. , Tenants at Will, ante, it is certainly much safer to give i" Leeson v. Sayer, 3 Camp. 8 ; Moore reasonable notice, which never need to v. Lawder, 1 Stark. 380. See Chap, on exceed the period of tenancy. Jones v. Tenants by Sufferance. 84 Tenancy feom Yeak to Year. truder is not entitled to notice, ^ nor one who claims to hold by title paramount. " Form of notice. Sec. 41. Where any doubt exists as to the period at which the cur- rent year of the tenancy expires, the notice to quit m.ay be expressed in general terms, requiring the tenant to quit at the end of the current year of his tenancy, which shall expire next after the end of one half- year from the date of the notice. ^ It is not essential that a notice to quit should be in writing, * or that it should state to whom possession is to be delivered up. ^ It must, however, be expressed with reason- able certainty, not giving an option to the tenant to quit or to do something else. ° A notice to quit on one of two days is good, if served six months before the day on which the tenancy commenced. ' An error in the description of the premises will not invalidate the no- tice if the person to whom it is given has not been misled by it, ^ and a mistake in the Christian name of the tenant will not be fatal if the notice is kept by him without objection. ' A notice to quit a part only of premises leased together, is void. ^^ By and to ■whom notice may be given. Sec. 42. The notice may in all cases be given by either landlord or tenant, or the person legally entitled to the reversion or the term. The notion, thrown out by Lord Mansfield, of a tenancy from year 1 Ejiight V. Quigley, 2 Camp. 205. me [him] , on the day of next, ^ Putland V. Hilder, 2 B. & Aid. 782. or at the expiration of the year of your ^ Doe c. Butler, 2 Esp. 589 ; Doe v. tenancy thereof, which shall expire Steel, 3 Camp. 117 ; Doe v. Smith, 5 next after the end of one half-year from Ad. & El. 350 ; Doe v. Timothy, 2 C. & the date of this notice. Dated the K. 351 ; Hanchett v. Whitney, 1 Vt. 815. day of , 18—. E. F. * Doe V. Crick, 5 Esp. 196 ; Bird v. [JR. S., agent for the said E. F.} Defonvlelle, 2 C. & K. 415 ; Roe v. Hanchett v. Whitney, ante. Pierce, 2 Camp. 96. a ^- * ■* • i 5 Doe V. Foster, 3 C. B. 215. , f, "^fl^^ *° 1"\*' ^'^^l ^5'' P^' "\ ^''- <=See Doe v. Goldwin, 2 Q. B. 146. lialf of, the tenant, may be m the folow- But see Eoberts v. Hay ward, 3 C. & P. J°f f onn , the words between brackets ^32 bemg used when the notice is by an ' Doe V. Wrightman, 4 Esp. 6. ^°'^^^ ■~ « Doe V. Cox, 4 Esp. 185 ; Doe v. t,„ ^j,,. j, -r, Wilkinson, 12 A. & E. 743. lo Mi. E. J*. 8 Doe V. Spiller, 6 Esp. 70. I hereby [an agent for and on behalf 1" Doe V. Archer, 14 East, 245. A no- of Mr. C. D., your tenant] give you no- tice to quit, given by, or on behalf of, the tice that on the day of next I landlord, may be in the following form, shall [he will] quit and deliver up pos- the words between brackets being session of the premises situate at , used when the notice is by an agent :— in the county of , which I [he] now hold [holds] of you as tenant thereof. To Mr. C. D. Dated the day of , 18—. C. D. I hereby [as agent for and on behalf [K. S., agent for the said CD.] of Mr. E. F., your landlord] give you notice to quit and deliver up possession The form is not essential, but in sub- of the premises, situate at , in the stance, a notice should contain all that county of , which you now hold of is embraced in the forms given. Tenancy fjbom Ybak to Ybae. 85 to year, in which the lessor binds himself not to give notice to quit, has been long exploded,^ but it may be stipulated, that, upon a par- ticular event, the lessee may quit without notice. ^ But, if tlie tenant stipulates that he will leave at any time when required to do so by the landlord, only a tenancy at will exists, although the lease expressly purports to be from year to year. * Where a ten- ant stipulates that he will quit upon proper notice, in case the land- lord shall sell the premises, the landlord is not bound to give the usual legal notice required in the case of tenancies from year to year, as it will be presumed that the parties, by the words " proper notice," in- tended to waive the legal notice, and any notice that distinctly informs the tenant of the sale is " proper notice," without reference to its form or duration. Reasonable notice as to duration is aU that can be required in such a case, and as to what is reasonable notice, must de- pend upon the circumstances of the case, as, the nature, character, and purpose of the occupancy.* The notice should be given to the person who is legally entitled to the reversion or the term.^ The no- tice required, may be given by either party, or by their agent, or b}^ any person for the time being legally entitled to the rever- sion, or the term,^ but where it is given by an agent, or by any other person than the parties themselves, their authority should be es- tablished.' An executor, heir, administrator, devisee or assignee of either party may give the notice,' and, after notice is given, by a per- son lawfully empowered to give it, any subsequent owner may avail himself of it. ^ A notice given by one of several executors or adminis- trators, is good,^" but one joint tenant,^"^ or tenant in common,^^ cannot, by a notice given in his own name, give a notice that will be operative, except as to his own share," but, if the notice is professedly given for himself and his co-tenants, it effectually ends the tenancy." A re- ceiver appointed by a court of chancery, or by an individual " with 1 Per Lawrence, J., in Warner v. he will quit upon notice in a certain Browne, 8 East, 167. event, the notice will not be good unless 2 Bethell v. Blenoowe, 3 M. & Gr. 119. it states that such event has happened. 3 Harrison v. Middleton, 11 Gratt. Sloan v. Cantwell, 5 Caldw. (Tenn.) (Va.)527. 571. * In Millan B. Kephart, 18 Gratt. ^ Cole on Ejectment, 35. (Va.) 1, there was a lease under which ^ Cole on Ejectment, 42. the tenant entered, containing a stipula- ' Fisher v. Cuthell, 5 East, 491 ; Mann tion as stated in the text. The lease v. Walters, 10 B. & C. 626. iiadbeen destroyed before action brought. * Cole on Ejectment, 42. The plaintiff sold the premises and no- ^ Higgs v. Terry, 4 Ad. & El. 274 ; titled the tenant of the sale. The court Egremont v. For wood, 3 Q. B. 627. held that it was for the jury to say i" Cole on Ejectment, 43. what the intention of the parties was, ^^ Whayman v. Chaplin, 3 Taunt. 120. and that for the purpose of ascertaining ^^ Robertson v. Gardiner, 12 C. B. 323 ; such intent, tlie whole contract, and Cutting v. Derby, 2 W. Bl. 1075. not this provision merely, should he ^^ See last two notes, considered, and that parol evidence as " Alford v. Vickery, C. & M. 280 ; to what the contract was, might be Aslin v. Summersett, 1 B. & Ad. 137. ; given. Where the tenant stipulates that Cole on Ejectment, 44. 86 Tenancy from Year to Yeae. general authority," may give the notice, ' but a mere receiver of rents, ^ or one appointed for a special purpose, or with only a limited authority, has no such power. " Where notice is given by an agent, it should be given in the name of the principal, or expressly on his be- half. * Agents. Sec. 43. A notice to quit, given by the landlord, must be such as the tenant may safely act on at the time of receiving it ; ' that is one which is in fact, and which the tenant has reason to believe to be,then binding on the landlord.^ A notice to quit, given without authority Will not be made valid by the subsequent adoption or ratification of the landlord. ' It is not essential to the validity of a notice to quit given by a general agent, that his agency should appear on the face of the document. There is, however, a distinction in this respect be- tween a general agent and one having a sjjecial or limited authority, ^ and in the case of the latter, it would appear, that a notice is bad, if it does not state that it is given by authority or in the name of the prin- cipal. " A cestui que trust, who has been permitted for many years by the trustees Doe v. Goldwin, 2 Q. B. 143; 10 sack V. Read, 12 East, 57. L. J., Q. B. 275. See Judgment in . 2 Pearse v. Boulter, 2 P. & F. 133 ; Jones v. Phipps, L. R. 3 Q.B. 572. Rhodes v. Robinson, ", Bing. TST. C. 677 ; " Jones v. Phipps, li. E., 3 Q. B. 567. Easier v. Lemoyne, 6 0. B. N. S. 550. n Wilkinson v. CoUey, 5 Burr. 2694 ; ^ Maim V. Walters, ante. Doe o. Read, 12 East, 57. * Buron v. Denmaii, 2 Exchq. 188. 12 jy^Q ^_ Summersett, 1 B. & Ad. 135; 5 Doe ». Goldwin, 2 Q. B. 143 ; Doe Doe v. Hulme, 2 Man. & Ry. 434; Doe v. B. Walters, 10 B. & 0. 626. Hughes, 7 M. & W. 139, 141. " Judgment in Jones v. Phipps, L. ^^ Dog ^_ Norwood, g Q. B. 6!i7. R. 3 Q. B. 572. " Pleasant v. Benson, 14 East, 234 ; ' Doe V. Goldwin, ante. Schilling v. Holmes, 2'i Cal. 227. Tenancy feom Yeak to Yeak. 87 Mode of service Sec. 45. It in not necessary that the notice should be directed to the tenant, if it can be proved to have been delivered to him in proper time. ^ It may be either served upon him personally, or upon his at- torney ; ^ or it may be left with his wife ' or servant at his d\\'elling- house, ^ but in this case an explanation of the nature of the notice should be given at the time when it is served. ^ The service of a no- tice upon the demised premises on one of two tenants, holding under a joint demise, is presumptive evidence that the notice reached the other. " A notice put under the door of the tenant's house will be valid if it can be proved to have come to the tenant's hands half a year be- fore the expiration of the current year of the tenancy. ' Where a cor- poration is the tenant, the notice to quit may be served on one of its officers. * If the notice proceeds from the tenant, it should be given to his im- mediate landlord or to the attorney or agent of such landlord author- ized to receive such notices, and not to a mere collector of rents. ' When a notice is sent by post to the landlord or his agent, it seems that the day on which the letter is delivered will be considered as the time at which the notice is given. ^° It is sufficient if the notice sent by post can be proved to have reached the office of the person on whom it is served at any time during the last day on which service can be made, although after business hours.^"^ At the time of service of a notice to quit, a memorandum of the fact of such service should be endorsed upon a duplicate of the notice. ^^ ■Waiver of notice to quit. Sec. 46. If, after the expiration of a notice to quit, the parties by their acts unmistakably acknowledge a subsisting tenancy between them, the notice will be deemed to be waived.'^ Second notice to quit Sec. 47. A second notice to quit is considered as such an acknowl- edgment," unless, under the circumstances of the case, the person to whom it was given would not understand it as waiving the former no- tice.^' iDoe V. Wrightman, 4 Esp. 5. ^° See Eeg. v. Slawstone, 18 Q. B. 388; ^ See Doe v. Ongley, 10 C. B. 25. Eeg. «. Eecoi-der of Eichmond, E. B, 3 Pulteney u. Sheltoii, 5 Ves. 260, note & E. 253. (a.) " See Papillon s. Brunton, 5 H. & N. * Jones V. Marsh, 4 T. E. 464. 518, 522. "5 See Doe c. Lucas 5 Esp. 153; Smith 12 gee Doe v. Turford, 3 B. & Ad. 890; V. Clark, 9 Dowi. 202. Doe v. Somerton, 7 Q. B. 58. 6 Doe c. Watklns, 7 East, 551. See 13 gee Doe v. Palmer, 16 East, 53,^ 59... Doe V. Crick, 5 Esp. 196. " Per Lord EUenborough, in D.oe>-M. ' Alfred v. Vickery, Car. & M. 280. Palmer, 16 East, 56. See Doe v. Hall, 5 M. & Gr. 795. ^^ See judgment in Doe v. Humphreys-,, 8 Doe V. Woodman, 8 East, 228. 2 East, 240 ; Doe v. Steele, aCawp,. lit, ' " Pearse v. Boulter, 2 F. & F. 133. 88 Tenanct feom Yeae to Yeae. Acceptance of rent. Holding over. Sec. 48. A landlord may waive a notice to quit by accepting either personally, ^ or by an agent specially authorized to receive it, ^ I'ent, due for the occupation of premises after the expiration of the notice, * or by distraining for rent accruing thereafter.^ A mere demand of rent, due after the expiration of the notice,^ or a holding over or acci- dental detention of the key by the tenant after that event, does not necessarily operate as a waiver of the notice.^ When a valid notice to quit is given by landlord or tenant, the party to whom it is given is entitled to count upon it, and it cannot be withdrawn without the consent of both parties.'' If such consent is given, there is a new agreement between the parties, and a new ten- ancy is created which exists only under that new agreement; conse- quently a guarantor of the rent under the original tenancy is not liable for rent which became due after the time when the notice would have expired. ' An agi-eement by the landlord, at the request of the tenant, to suspend the exercises of his rights under the notice to quit, will not operate as a waiver of the notice, or as license to the tenant to be on the premises otherwise than subject to the landlord's right of acting on such notice if necessary.^ By verbal disclaimer. 'What amounts to a disclaimer. Sec. 49. If a tenant from year to year, verbally or in writing, un- equivocally denies the title of his landlord, and renounces his charac- ter of tenant, either by setting up title in another, or by claiming title in himself,-"' the tenancy may be determined by the landlord without any notice to quit.^-' It seems that whether a particular expression does or does not amount to a disclaimer, is a question for the decision of a jury.^" An omission to acknowledge the landlord'as such, by re- questing further information, will not be enough ; nor will a mere re- fusal to pay rent. A refusal to deliver possession, or a declaration by 1 Goodright ». Cordwent, 6 T. K. 219. « Wlaiteacre ». Symonds, 10 East, 16. 2 See Doe v. Calvert, 2 Camp. 387. i" Per Tiiidal, C. J., in Doe v. Cooper, Goodright v. 'Cordwent, ante. 1 M. & Gr. 1.39. See Jones v. Mills, 10 3 See Doe v. Batten, Cowp. 243 ; Col- C. B., N. S. 788; Doe v. Cawdor, 1 Cr., lins V. Canty, 6 Cush. (Mass.) 415. M. & R. 398; Hunt v. AUgood, 10 C. B., ^ Zouch I). Willingale, 1 H. tBl. 311. N. S. 253. The landlord cannot distrain from such " Doe ». Whittick, Gow. 195; judg- rent, unless a new tenancy has been ment inDoeti. Pasquali, Peake, N.P.C", created; ante, pp. Ill, 131. 197; Doe v. Frowd, 4 Bing. 557; Doe v. s Blight V. Dennet, 13 C. B. 178 Grubb, 10 B. & C. 816; Doe v. RoUings, sjenner v. Clegg, 1 Moo. & Rob. 4 C. B. 188 ; Doe ». Thompson, 5 A. & A. 213, 215; Gray v. Bompas, 11 C. B., 532 ; Doe v. Evans, 9 M. cfe W. 48; Doe N". S. 520. See Jones v. Shears, 4 A. v. Gower, 17 Q. B. 589 ; Bolton v. & E. 832. Landens, 27 Cal. 104 ; Tattle v. Rey- ' See Doe v. Milward, 3 M. & W. nolds, 1 Vt. 80 ; Brown v. Keller, 32 328. 111. 151; Jackson v. French, 3 Wend. 8 Tayleur v. Wildin, L. E., 3 Ex. 303, (N. T.) 337. 305 ; Blyth ». Dennett, 13 C. B. 178. 12 gee Doe v. Long, 9 C. & P. 773. Tenancy feom Yeae to Yeae. 80 the tenant that he will continue to hold possession, cannot have that effect, at a time when the landlord has no right to claim it. ^ A notice to quit, is regarded as unnecessary in a case where the ten- ant denies the landlord's title, because in such a case he is treated as denying the tenancy. ^ As to whether tlie tenant has done or said that which amounts to a disclaimer, is a mixed question of law and fact. When the facts are admitted, it is purely a question of law, and the essential point is, whether what was said or done, amounts to a de- nial of the existence of any tenancy between him and the landlord. If it does, no notice is necessary. ^ What was said or done, must amount to a renunciation of the tenancy, either by setting up title in himself, or claiming to hold under another. ^ The fact that the tenant did not intend to repudiate the tenancy, will not protect him, if such was the legal effect of what he said or did. '' Thus, in an English case, ^ it was held that a refusal to pay rent to a person legally entitled thereto unless such person proved his right to the rent, amounted to a dis- claimer. But such would not be the case if a person claimed the re- version under a will which was being contested. ' 1 See Judgment in Doe v. Stanion, 1 * Gray v. Staneon, 1 M. & W. 695 ; M. & W. 703. Jones v. Mill, ante. 2 Calvert v. Frowd, 4 Bing. .560 ; Jef- * Curzon v. Evans, 6 M. & W. 295. trus V. AVhittick, Gow. 195 ; Phillips v. But see Bennett v. Long, ante, where in Rollings, 4 C. B. 188. In such a case, a case where several joined in leasing by denying the landlord's title, the ten- the land, and the rent was to be paid to ant is estopped from setting up a ten- an agent, and afterwards one of the les- ancy. Cole on Ejectment, 41. sors who was really the sole owner, de- ^ Jones V. Mills, ante; Lewis v. Caw- manded the rent, and the ten ant refused dor, 1 C. M. & R. 398; Williams v. Pas- to pay him, saying, "You are not my qualli, Peake, 259 ; Hunt v. AUgood, 10 landlord," the court left it for the jury C. B. N". S. 203 ; Williams v. Cooper, 1 to say whether by this he intended to M. & G. l.jo ; Tottle v. Reynolds, 1 Vt. deny the tenancy, or simply that the rent 80; Brown v. Keller, 32 111. 151; Bolton was to be paid to the agent. V. Landers, 27 Cal. 104 ; Bennett v. e Calvert v. Frowd, 4 Bing. 557 ; Phil- Long, 9 C. & P. 773. lips J). Rollings, ante. 'Id. 90 Tenancy foe Less than a Ybak. CHAPTER VI. tenancy foe less than a yeae. Sec. 50. Weekly, Monthly, Quarterly, and Semi-Annual Tenancies. Sec. 51. Letting and Hiring of Furnished Houses and Lodgings. Sec. 52. Lodgings let for immoral purposes. Sec. 53. Liabilities of hirers of furnished houses, apartments, &c. Sec. 54. Letting for storage or deposit. Sec. 55. Duration of term notice to quit, &c. ■Weekly, Monthly, Quarterly, and Semi-Annual Tenancies. Section 50. As we have seen from wliat has been stated in the pre- c:eding chapter, if an annual rent is reserved the tenancy is from year year, although there is a stipulation that only a quarter's notice for its •leterminatiou shall be given, and the same is true though it is stipu- lated that any notice as a day's, week's, or year's notice shall suffice, because such stipulations are not inconsistent with the nature of the tenancy ; but if there is a stipulation for thirteen months' or two years' notice, the tenancy cannot be said to be from year to year, because the length of notice agreed upon is inconsistent with the tenancy, and the tenancy becomes one from two years to two years.^ Where no definite time is agreed upon, and the rent is fixed at so much a week, month, quarter, or half year, tlie tenancy is weekly, monthly, quarterly or half yearly, according to the circumstances and the custom, if any, in the locality where the premises are located,-^ and i;i the absence of any stipulation to the contrary, tliey may at least be terminated by a reasonable notice to quit. As to what is a reasonable notice, is to be ascertained from the custom of the place, if there is any, or if not, then by the circumstances of the case. It seems to be settled, however, that a notice of a week in the case of a weekly ten- ancy, or of a month in the case of a quarterly tenancy, are, in any event, unless otherwise provided in the contract of letting, sufficient." '^ Wilkinson v. Hall, :lBing. N. C. 508. weeks without any new contract. He - In Huffell V. Armistead, 7 C. & P. went into occupation about the middle .■j(;. this question arose under the follow- of the day on Monday, and left on the iiig circumstances: The defendant hired Monday month, about the same time, furnished apartments in the plaintiff's without giving any notice to quit. The house for a week at a certain sum, and plaintiff claimed that he went into pos- conlluucd to occupy them for three session the Saturday before. Kothing Tenancy tob Less than a Yeab. 91 Letting and Hiring of Furnished Houses and Lodgings. Sec. 51. Contracts of letting and hiring fnrnislied houses or apart- ments are of a mixed nature, partaking partly of the nature of a de- mise of lands, and partly of the letting and hiring of personal chattels, hut in law the rent is deemed to issue out of the realty, and not in part from the furniture. ^ But, if a house is let as ready furnished, and it turns out to be only partially furnished, or if the landlord agrees to send in certain necessary furniture, and neglects to do it within a reasonable time, the agreement respecting the furniture being a condition prece- dent to the payment of rent, the landlord must show performance of such condition befoie he can distrain for the rent, ^ and the agreement to supply the furniture being an inseparable part of the contract for an interest in land, will not furnish the basis of an action in favor of the tenant for its breach, unless in writing, as required by the Statute of Frauds. ' A different rule prevails as to the liability of a landlord, or rather as to the implied obligations, between the letting of an unfurnished and a was said about any notice to quit when tlie lodgings were taken. The plaintiff, a few days before the defendant left, addressed to him a letter, requesting him to give him a week's iiotice previous to his leaving. The defendant tendered the plaintiff four weeks' rent. The plaintiff claimed five weeks' rent. Paeke, B., instructed the jury as fol- lows: " The only question is," said he, "whether the tenancy commenced on the Saturday or the Monday. If it com- menced on the Monday, I think the de- fendant, who entered on that day, was at liberty to quit on the same day in another week. I cannot say a week has been exceeded by holding six days and two fractions of a day. Upon the ques- tion of a notice to quit, the law is clearly settled that a yearly tenancy cannot be determined without a half year's notice. But that rule cannot be applied to a weekly taking, for the effect of it would be to show that a half week's notice was necessary to put an end to such a ten- ancy. I am not aware that it has ever been decided that in the case of an or- dinary monthly or weekly tenancy that a month's or week's notice miist be given. A tenant' who enters upon a fresh week may be bound to continue until the expiration of that week, or to pay the week's rent, but this is a very different thing from giving a week's no- tice to quit." In Parry v. Hazell 1 Esp. 94, the tenant took a house by the month, and he had a month's notice to quit, which the court held was sufficient. In Peacock v. Kuffin, 6 Esp. 4, an action of ejectment was brought for a shed in Covent Garden. A week's no- tice to quit had been given, but the de- fendant, having shown that the plain- tiff agreed to give him fovir weeks' no- tice, he was non-suited, but LoKX> El- LBNBOKOUGH said, "A week's notice is certainly sufficient where the holding is M'eekly, but the rule of law as to the legality of Jiotice is still controllable by the agreement of the parties." As to what is a sufficient proof of usage see Wood V. Wood, 1 C. & P. 59. There is no English case in which it has ever been held that a notice, in the case of short tenancies, must be given equal in length with the term, but it lias been held that some notice must be given, Jones V. Mills, 10 C. B., N. S. "788, and the safest course to pursue is to give a week's notice in case of a weekly ten- ancy, &c. See opinion of Williams, J., in Jones v. Mills, ant.e. In Illinois, by statute thirty days' notice is required, Seem v. McLees, 24 111. 192, and such also is the rule in Michigan, Huyser v. Chase, 13 Mich. 98, while in Massachu- setts and in New York, it is held that no such notice is necessary, but simply reasonable notice. Shorey v. Farrell, 114 Mass. 441; People d. Shacko, 48 Barb. (N. Y.) 581; Gibbons v. Dayton, 4 Hun. (K Y. S. C.) 451. 1 Nunan ir. Huderton, 2 B. & P. 224; Emmett's Case, Dyer 212 h.; Spencer's Case, 5 Coke 16; Cadogan v. Kennett, Camp. 432. 2 Mecheleu ». Wallace, 7 Ad. & El. 54 Ji. 8 -[(1. 92 Tenancy for Less than a Ybae. furnished house. In the former case, there is no implied contract or covenant that the house is tenantable, ^ or fit for the purpose for which it was let, ^ while in the latter the landlord is treated as impliedly hold- ing it out and contracting that it is fit for immediate habitation and use by the tenant ; and if the furniture is not fit for use, or if it is in- cumbered with a nuisance of such a character as practically to deprive the tenant of its beneficial use, the tenant may abandon the tenancy and recover damages of the landlord for the breach of his contract. ^ In the case last referred to, a furnished house was let to the defendant by the plaintiff for five or six weeks. The defendant went into pos- session, but found the house and furniture so infested with bugs, as to interfere seriously with the comfortable enjoyment of the premises. The defendant complained to the landlord about the nuisance, and he sent a person to take means for the extermination of the vermin, but without success, and before the end of the first week the defendant moved out of the house and sent the key to the plaintiff, with a week's rent. In an action to recover for five weeks' rent, it was held that no recovery could be had. " A man who lets a ready furnished house." said LoED Abinger, C. B., " surely does so under the implied condi- tion or obligation that the house is in a fit state to be inhabited. Sup- pose," he added, " instead of the particular nuisance which existed in this case, the tenant discovered the fact (unknown perhaps to the land- lord) that lodgers had previously quitted the house in consequence of having ascertained that a jjerson had previously died in it of jjlague or scarlet fever, would not the law imply that he ought not to be com- pelled to stay in it?"^ When rooms or apartments in a house or other building are rented, the landlord impliedly demises all the necessary and proper accom- paniments, to their beneficial and comfortable enjoyment. Thus if a person take lodgings on the first and second floors of a house, he has a right to the use of the door bell, ^le knocker, the skylight of the stair- case and the water closet, and every other convenience connected with the building, essential to the comfortable enjoyment of the leased por- tion, unless it be otherwise stipulated at the time of the taking of the lodgings ; therefore, if the landlord deprives the tenant of the u^e of either, an action lies against him therefor. ^ 1 "Witty 13. Matthews, 52 IST. T. 512; sor, 12 id. 68, but the <3jcto of tlie case Sutton v. Temple, 12 M. & "W. 52; as to unfurnislied liouses was wholly re- Cowell V. Lumley, 39 Cal. 151. pndiated. 2 Sutton D. Temple, ante; Bussman «. <* In Underwood ». Burrows, 7 C. & Gauster, 72 Penu. St. 285. . P. 26, the plaintiff rented two rooms of 8 Smith c. Marrable, 11 M. & "W. 5. the defendant on the second floor, and * The doctrine of this case, so far as it at the time of the rentino; he pointed relates to the case of ready furnished out a water closet on the" first floor as houses, was approved in Sutton v. Tem- the one to be used with the lodgings. pie, 12 M. & W. 52, and Hart v. "Wind- There was also a knocker and door bell Tenaistct foe Less thaw a Ybae. 93 The landlord letting rooms and apartments, and retaining the gen- eral possession of the house, is bound to exercise reasonable care for the protection of the persons and property of his tenants or lodgers, to see that the outer doors are properly locked at night, and that no suspicious or doubtful characters, unknown to the lodger, are allowed to congregate in the house at unseasonable hours of the night. So, too, he is bound to exercise ordinary care in the selection of servants within the house, and to take all reasonable care to provide against robbery and fire. But he is bound only to the exercise of such reason- able care as an ordinarily prudent housekeeper would exercise, and does not stand as an insurer against possible loss or injury from any of these causes ; nor does he assume such liabilities as are imposed on an innkeeper ; and after having exercised proper care in the selection of his servants, he is not responsible for the larceny of the tenant's goods in consequence -of an outer door being accidentally, or even carelessly, left open by one of the servants, ^ nor is he responsible for property stolen from the tenant by another lodger, by a servant or a stranger, unless actual negligence on his part in reference to the ad- mission of the lodger, or the hiring of the servant, is fully established.' Lodgings let for immoral purposes. Sec. 52. If rooms or buildings are Jcnowingly let for immoral pur- poses, no 3'ecovery for their rent can be recovered, as in such a case the parties are treated as being in pari delicto. ^ Thus, if a lodging- house keeper knowingly lets lodgings to a prostitute to enable her to prosecute her vocation in consorting with men, no recovery can be had for the rent,' or if, after having admitted her, he ascertains the fact that she is using her lodgings for that purpose, and permits her to re- main.* But, the mere fact that the woman is a prostitute, if she merely lodges there and receives her visitors elsewhere, does not prevent a re- on the door, a skylight to light the had a right to have them remain, stairway, and a handrail along tlie whether anything was said about them stairs. Subsequently, the defendant or not. The defendant insisted that as took out the water closet, darltened the nothing was said about the plaintiff skylight, covered the handrail with tar, having the use of knocker, &c.,hehadii(7 took the knocker off the door, and on right thereto. Loed Abingek said several cases the bell wire was cut. The " There would be a positive right for plaintiff brought an action on the case him to use it, unless it were expressly against the defendant for the injury. It excepted." The plaintiff had a verdict did not appear that anything was said for £50, which was sustained, about the handrail, the skylight, the ^ Dansey v. Eichardson, 3 El. & Bl. knocker or the bell, at the time the con- 144; Holder v. Soulby, 8 C. B., N. S. tract of renting. The defendant offered 254. to show that nothing was said about ^ Smith v. White, L. R. 1 Eq. Cas. these things, but Loed Abingee, C. B., 626 ; Eawlston v. Brady, 20 Ga. 449. rejected the evidence, saying that they ' Jennings v. Throgmorton, Ry. & spoke for themselves. That is, they Moo. 251. were there when the rooms were * Girandy v. Richardson, 1 Esp. 13; rented, and were accessories to the Jennings v. Throgmorton, ante, enjoyment of the rooms and the tenant 94 Texaxct foe Less than a Year. covery, and such is also the rule even though she receivcis and consorts with men at her lodgings, if the landlord does not know the fact.^ The same rule applies to lodgings or buildings hnowingly let for any im- moral or unlawful purpose.^ Liabilities of hirers of furnished houses, apartments, &c. Sec. 53. Contracts for the hiring of furnished houses or apartments, being for an interest in or concerning lands under the Statute of Frauds, cannot be enforced unless in writing, or the hirer actually enters into possession, nor will any action lie for a breach of the contract. But if the tenant enters into possession he may be comjoelled to pay the rent in an action, for use and occujaation, and his goods may be distrained by the landlord.^ He is subject to the same rules of liability as to the use of the house and furniture as an ordinary hirer of realty, and of personal chattels for use. He is not responsible for ordinary wear and tear resulting from its reasonable use, but in other respects he is bound to deliver up the property clean and in as good condition as he received it. If he received linen, plate, crockery, and other household utensils clean and fit for use, and agreed to leave them as he found them, he is bound to return them to the lessor in that condition.* But as to lodgers, where the landlord retains general possession, this rule does not prevail, and they are only responsible for wilful injuries to the projDerty, or such as resulted from their negligence. Letting for storage or deposit. Sec. 54. A person letting a room, vault, store or other place of dc- jiosit in a warehouse or other building, stands in a position analogous to that of a i)erson who lets apartments for lodgings. By the civil law a man who lets out a store or place of deposit for coi'n, wine, oil, or merchandise of a perishable nature, is treated as impliedly warranting his store-house to be fit for the purpose for which it was known to be required. If the hirer has inspected it, and approved it prior to the contract, the storekeeper is held not responsible for patent defects which the hirer might have ascertained by the exercise of ordinary vigilance, but for all latent defects causing injury to the goods he is responsible. He is bound to keep the roof tight, and if the goods are in a basement or cellar, to keep it properly drained and free from water, and if he remains in tlie general possession of the building it is his duty to see that the outer gates, doors, and the windows are properly fastened at proper hours of the night, and that suspicious per- sons are not permitted upon the premises, or to lurk around the place, 1 Appleton V. Campbell, 2 C. & P. 347. ^ Newman v, Auderton, 5 B & P. 2 Smith V. White, ante; Bowry«. Ben- 227. nett, 1 Camp. 348. « Stanley ». Aynur, 12 M. & W. 827. Tenancy poe Less than a Ybae. !15 and, in a word, to keep a proper watch upon the building, and to take all proper'precautions to secure the building from attacks without, and from dangers within, such as fire and damp and all other hurtful things to the property deposited there. ^ Contracts of this character must be largely construed in reference to the circumstances of each case, and the nature and character of the property, as well as the knowledge of the depositor of the condition of the premises. Duration of time, notice to quit, &o. Sec. 56. Lodgings and furnished apartments are rarely the subject of a yearly hiring, consequently there is no presumption from a general hiring, that it is a hiring for a year, as in the case of the hiring of un- furnished houses or of lands.^ The duration of the tenancy is usually measured by the periods fixed for the payment of the rent, and is ;i weekly, semi-monthly, monthly, quarterly, or half yearly tenancy, ac- cording to the periods in which the rent is to be paid. If the rent is payable weekly, monthly or quarterly, it is regarded as a weekly, monthly or quarterly tenancy, and the same rule 23revails whether the time for the pajnnent of the rent is fixed at longer or shoi'ter periods. By the French law, ' if the tenancy is for a single week, month or quar- ter, no notice to quit is necessary, as the duration of the tenancy is fixed, and is determined at the expiration of such respective periods by the efflux of time, and such is the rule at the common law. ^ But by the French law, if the tenancy is from week to week, month to month, quarter to quarter, or from half year to half year, a notice to quit of the same duration as the tenancy must be given, and if the lodger quits without giving such notice, he is liable for the rent for the whole term which he had entered upon. By the common law, as we have seen, ' no such rule prevails, and no more than reasonable notice is required. If, however, there is a custom or usage in this respect, or if the tenant has failed to give a reasonable notice of his intention to quit, or to comply with an usage in that respect, or if he has commenced a new week, month or quarter, he remains liable to the landlord for the rent, for the balance of such week, month or quarter, even though the land- lord has posted a notice of " To Let " in the windows of the room, or has lighted or used fires therein.' 1 Pandect eel. Poth. lib. 19, tit. 2, sec. 459; Donnell v. Johnson, 17 Pick. 3, art. 3, 71. (Mass.) 263; Aliens. Jaquish, 21 Wend. 2 Wilson V. Abbott, 4 D. & E. 694. (N. T. ) 628. s Pothieb's Lou age. No. 30. * See ante, p. 90. ^ Mosherc. Elding, 12 Me. 478; Hamltt 60^:^451 „_ Hodges, 1 C. & P. 419: V. Lawrence, 2 A. K. Mar. (Ky.) ,866; EedpathK. Eoberts, 3 Esp. 225. Logan v. Herron, 8 S. & E. (Penn.) 96 TENAlfCT FOB LlFE. CHAPTER VII. TBNAN"CT FOR LIFE. Sec. 56. How created — qualities of. Sec. 57. Eights of tenant for life. Sec. .58. Liabilities of life tenant. Ho'w created — qualities of Seo. 56. An estate or tenancy for life may be created by deed, de- mise or devise, and either with or without rent. This species of es- tate or tenancy differs in many essential respects from a lease for years, the principal of which is, that it confers a freehold upon the tenant, while a lease for years is a mere chattel interest, although there are other marked distinctions. It cannot be created by parol, ^ nor, except by an instrument operating under the statute of uses, can it at the common law be made to commence in future, because of the fact that it must be accompanied with, or perfected by, livery of seizin. ^ In contemplation of law, it is equal to a seven years' purchase of the fee,' and may be set off on execution as real estate. * Without words of inheritance, it cannot be enlarged into a fee, either by a warranty in fee or by a covenant for quiet enjoyment to the grantee and his heirs,^ nor by reference to a will which creates a fee without words of inherit- ance. ° In all cases where there are no words of inheritance in the in- strument conveying the estate, a life interest only is created, and the grantee becomes merely a tenant for life. ^ Thus, a deed to A, " his executors, administrators, and assigns," omitting the word "AeiVs," conveys simply a life estate. * So a conveyance to " A and his gener- ation, to endure as long as the waters of the Delaware shall run," con- veys only a life interest ; " and an instrument conveying an interest in real estate " so long as he may desire to use it as a drug store," con- 1 Stewart v. Clark, 13 Met. (Mass.) 79; ^ Wheeler v. Gorham, 2 Root (Conn.), 8 East 166; Garrett B. Clark, 5 Oregon, 328. 464. 6 Roberts v. Forsythe, 3 Dev. (N. C.) 2 Piatt on Leases, 678; Webster d. L. 26. Gilman, 1 Story (U. S. ), 499 ; Barwick's « Lytte v. Lytte, 10 Watt. (Penn. ), 259. Case, 5 Coke, 93 b ; Bucklin's Case, 2 ' Hall c. Goodwin, 2 N. & McCord Coke, 55 h; 2 Blaokstone's Com. 144, (S. C), 383. 314; Shep. Touch. 272. 8 Clearwater v. Eose, 1 Blackf. (Ind.) "Garland v. Crow, 2 Bailey (S. C), 137. 24. 9 Foster v. Joioe, 3 Wash. (Va.) 498. Tenancy foe Life. 97 fers a life estate, ' there being no limitation in point of time, it becomes, ah initio^ a grant of an estate for life as though no such event had been in contemplation. The intention of the parties from the words used in the deed or lease, must control, and parol evidence is never ad- missible to c;hange it, nor in the absence of words of inh(jritance will a conveyance be construed as conveying a longer estate than for life, un- less the words used are such as to conclusively show that the intention was to create a fee. ^ The intention of the grantor or lessor, both as to the estate conveyed and the life ujaon which it is dependent, must be collected from the instrument itself, and will controL Thus, where A. demises to B for the term of his natural life, the demise is prima facie for the life of B ; but where A demised to B, his executors and administrators, for the term of his natural life, and the lease contained a covenant by A for the quiet enjoyment of the premises by B, his ex- ecutors, &c., during the natural life of A, it was held that the word " his" in the demising clause, must be referred to A, the grantor, and not to B, though his name was the last antecedent.^ But where the lease does not mention for whose life, and there are no words of explanation or qualification, the lessee^s life will be intended, on the principle that the grant must be construed most strongly against the lessor. * " A lease for life or lives may be granted to one person, or to several, and where to several, the term may be made to endure for their joint lives, or for the lives or life of the survivors and survivor ; or the lessees may be made to take beneficially in- succession ; or the estate may be held for the life or lives of a stranger or strangers alone, or as joint cestui que vie with the lessee or lessees. , In fact the modifications of holding are almost endless." '' Where it is intended that a lease to two or more persons shall deter- mine on the death of either, the grant should be for their joint lives, but if the interest is to continue with the survivor, it is suflicient to grant it to them generally for their lives without inserting words of survivorship, which however are harmless ; ^ and on the death of tlie entire estate will survive to the other. ' But if a lease be granted for a certain term, as for one hundred years, " if A and B shall so long 1 Thomas v. Thomas, 17 N. J. L. 356. ous; hut then comes the covenant, that A grant to B of the manor of Dale, con- Adams shall quietly enjoy during Pritch- veys simply a life estate (Co. Litt. 42 a, ard's life, which alone would satisfy me 18.3 a), because there are no words of that a lease for Pritchard's life was inheritance ; hut, where an intention to contemptated in the demising clause, convey the fee can he collected from the The whole d 'mising clause taken to- terms of the deed, it will be so construed, gether, suggests that construction." Pritchard v. Dodd, 5 B. & Ad. 689. "Smith b. Jersey, 7 Pric(!, 453 ; Co. 2 Pritchard v. Dodd, ante. Litt. 42 a. ^Pritchard c. Dodd, ante. In this ^ Piatt on Leases, 679. case Pattisost, J., said, "The word ° Co. Litt. 63 fc. 'his' in the demising clause is ambigu- 'Brud well's Case, 5 Coke, 9 a. 7 98 TsNAifCY FOK Life. live," the estate is determined upon the death of either;^ so if it be made " so long as C and D shall remain Justices of the Peace, upon the failure of either of them to continue justices, the estate is determined.^ The estate cannot be made dependent upon the life of a person not then born, but, if it be made to A during the natural lives of C and D and of E''s granddaughter^ not then born, it -ivill be good during the lives of C and D only, although a granddaughter to E is subsequently born. ® Where an estate is demised to two persons so long as either of them shall live, if the tenants partition the estate, each taking a moiety thereof, upon the death of one, his moiety reverts to the lessor, as the ])artition defeats the survivorship ; * but the rule is otherwise where the lease is for years, with a proviso determining the lease upon the death of both within the term. In that case, if partition is made, and one of the tenants dies, his share goes to his executors or administrators during the life of the other tenant. ^ Estates for life may be made dependent upon future contingencies before the life for which they are granted expires. As a lease to a woman so long as she remains sole, or to a luisband and wife during coverture, or to a person so long as he inhabits, or pays a certain rent, " or until he has received a certain sum out of the profits of the estate, or until he receives a certain posi- tion, ' or so long as he desires to use it for a certain purpose, ' and the reason is, that the duration of the estate dejsends upon the condition, " and the estate is as perfect an estate for life until the event upon which it is conditioned happens, as though it had been granted abso- lutely. ■"• The husband does not take an estate by curtesy out of lands held by his wife for life. ", Rights of tenant for life. Sec. 57. A'tenant for life, whether under a deed, lease, or devise, takes iBrudwell's Case, ante. « In Mickio x>. Wood, 5 Eand (Va.) ^Xbid. 574, the defendant's intestate demised ^Pemberton v. Edwards, 1 M. r. Y. Superior Ct.), 585; 21 Vt. a sub-lease. Davis v. Morris, 35 Barb. 52 ; 11 Barb. (N. Y.)592 ; Pike d. Eyre, (N.Y.) 227. So when a right of re- 9 C. B. 909; Oxley v. James, 13 M. entry for a breach of any condition is re- & W. 209. served, the person taking under the " In Collamer v. Kelley, 12 Iowa, 317, sub-lease is held in New York to be a it was held that an instrument under sub-lessee an d not an assignee, and the which a lessee transfers the estate, but party giving the sub-lease can re-enter reserves an increased rent, and with a for a breach of condition, although there covenant for the delivery of possession is no reversion remaining in him. Peo- to himself, was a sub-lease. See also die v. Robertson, 39 Barb. (N.Y.) 9 ; Martin v. O'Connor, 43 Barb. (JST.Y.) Linden ti. Hepburn, 3 Sandf. (N.Y. Su- 514. So in Post !). Kearney, 2 N.Y. 394, perior Ct. ) 6G8. In a Pennsylvania case the assignee of a lessee demised the it was held that when a lessee transfers premises for the residue of the term, re- the whole term, ri'sermnr/ the rent to him- serving the delivery of possession at the self, such transfer is an under-lease as end of the term, and the intermediate between the parties, so far, at least, as possession in case the buildings were de- to give the lessee an action of debt stroycd by fire, and it was held that sxich against the under-lessee or his assignee, demisewasasub-leaseandnot an assign- for rent. Adams v. Beach, 1 Phila. ment; so where a lessee sub-let for the (Penn.) ; 99 andsuch is the rule in Eng- By Tenants foe Yeaes. 131 In an excellent English work ^ tlie author says, " By an under-lease a new and partial estate only is vested in the under-lessee a reversion being left in the lessor, the duration of which is immaterial, for it may be a year, or day, or an hour. If rent is reserved in the under-lease, it need not contain a power of distress, for such jiower is incident to every de- mise at common law. ^ But as no privity exists between the under- lessee and the original lessor the covenants entered into between the latter and original lessee, though they be covenants which run with the land, as to pay rent, repair, &c., cannot affect either by way of right or liability, the under-lessee personally.^ The land, how- ever, is not discharged by the under-lease from the claims of the original lessor, who, notwithstanding the sub-demise, may proceed to distress or eviction, if the rent be in arrears, or a forfeiture is incur- red by his lessee.* An assignment, on the other hand, transfers the whole interest of the lessee to the assignee, for, if the lessee retain the smallest reversionary interest, the instrument, though professing to be an assignment, will not operate otherwise than as an under-lease,'' nor provided the whole interest be conveyed, will the essence of the deed as an assignment be destroyed ; by its reserving a rent to the assignor, and a power of re-entry for non-piayment," or by its assum- land. In Price v. Corrio, 5 Eiiig. 24 ; Poultney b. Holmes, 1 Str. 4C5 ; Smith Mapleback, 1 T. It. 445, and numerous other Englisli cases wiiicli -will be re- ferred to under the head of assignment, it operates as a lease arid not as an as- signment, at least, for some purposes. This doctrine, however, is by no means admitted, and there is a long line of op- posing cases that will be referred to under the h'ead of assignments. The weight of authority supports the rule that, in order to create a lease instead of an as- signment, there must be a reservation of a reversion in the lessor, and that no form of instrument can dispense with tliis requisite. A mere reservation of rent, nor a reservation of a right of re-entry for a breach of any of the conditions of the lease, will not change the legal re- lation of the parties. The cases cited from the New York reports, Post v. Kearney, 2 N. T. 394, and Martin v. O'Connor, 43 Barb. 522 are in conflict with the doctrine of Bedford v. Ter- Imne, 30 N. Y. 4.54, and are directly (lueslioned and practically overruled by AVoodhull r. Rosenthal, 61 N.'Y. 382, JMid the doctrine previously stated, that \vhere tlie wliole term is made over by the |p?soe, although in tlie deed by which lliat is done the rent and power of the entry for iion-j)aymeiit are reserved to him, and not to tlie original lessor, this is an assignment and not an under- lease, and that tlie introduction of new covenants into the instrum'ent does not change the legal effect of giving up the reversion. See Bacon's Abr. Title Leases (I.), 3. ' 1 Piatt on Leases, p 101 et seq. 2 Lit. §213; Co. Litt. 141 b ; Curtis v. Wlieeler ; 1 Moo. & Malk. 493. 3 Halford v. Hatch, 1 Doug. 133 ; Bremner ». Hill, 2 Anstr. 413; xVnony- mous. Mo. 93, pi. 230 ; Earl of Derby v. Taylor, 1 East, 502 ; Sparks v. Smith, 2 Tern. 275 ; Pilkiugton v. Shaller, 2 id. 374; Wyatt v. Byron, 1 M. G. & Sc. 623. ^ Arnsly v. Woodard, 6 B. & C. 519. 5 Earl of Derby v, Taylor, 1 East, 502. '' Freeman v. Bateman, 2 B. . Jones, 9 Ad. , dean or other sole corporation, both the christian and sur- name should be given. ^ ^ Argenti v. San Francisco, 16 Cal. 255. 2 Mayor, &c. v. Elamire, 8 East, 487; 1 Kyd ou Corporations, 234; People v. Itunkle, 9 John. (N^. Y.) 147; St. Louis Hospital V. Williams, 19 Mo. 609; Pen- dleton V. Bank of Kentucky, 1 Mon. (Ky.) 177; Inhabitants k. String, 9 N. J. L. 323; People v. Love, 19 Cal. 676; Douglass V. Branch Bank, 19 Ala. 659; Medway, &c. Go. v. Adams, 10 Mass. 36ii; VVoolrich i). Forrest, 1 Penn. St. 115; Pierce i-. Sonierworth, 10 X. H. 369; Bowen v. State Bank, 5 Ark. 234; African Society v. Varick, 13 John. (N. T.) ;te; President, &c. v. Myers, 6 S. & K. (Penn.) 12; Milford, &c. Co. v. Brush, 10 Ohio, 111; Preachers' Aid Society, 45 Me. .552; Romeo v. Chapman, 2 Mich. 179; Insane Asylum v. Higgins, 15 111. 1.S5; Trustees c. Peaselee, 15 N. H. 317; Vr.iisant V. Eoberts, 3 Md. 119; Porter V. Blakeley, 1 Rudt. (Conn.) 440; Bod- man r. American Tract Society, 9 Allen (Mass.), 447; Chapin i'. School Dist., 45 Me. 552 ; Brittain i). Newland, 2 D. & B. (N. c.) 363. In Oxford's Case, 10 Coke, 53 b, it was held that the misno- mer of a corporation in an act of par- liament,- wJicii the express intention ap- pear.;, shall not avoid the act, and gen- erally it may be said that the name of a corporation in grants or conveyances, need not be idem syllabus seu verbis, but that it is enough if it is idem re et sensa. See Burgess of Lynne, 10 Coke, 121 a, where numerous instances are given in which at a very early day this rule was applied. If the description in a statute or a will be certain, it is suffi- cient, although the name is not observed. Oxford's Case, ante; Ayroy's Case, 11 Coke, 21 b. In a will, if it sufficiently appears to bo the intent of the testator to leave his land to a particular corpora- tion it is sufficient. Thus, a devise to the mayor, jurais and commonalty of liye, by the name of The. Worshipful the Mayor, Jiu-ats and Council of the ancient town of Rye, was held good. Atty. Genl. v. The Mayor of Rye, 7 Taunt. 546 ; Vin. Abr. Corporations (G.); 4 Bacon's Abr. Corporations (C), 2; Comyn's Digest, Capacity (B. ), 5. If the name is expressed in synonymous terms, it is enough. Thus a lease made by the name of Minister Pauperi's Domus Die, when the true name is Minister Die Pauperis, it is good be- cause the same design is specified by both names. Pitt v. James, Hob. 124. An immaterial addition to the name does not destroy the lease or grant. In Dr. Ayrag's Case, 11 Coke, 18 6, it was held that if a person be otherwise de- scribed with certainty in a grant, the misprision of his baptismal name is im- material.' As, if in grant by The Master, &c. of the Mystery of Cooks, they are named " of the craft or mystery." Croft V. Howel, Plowd. 537 b. So if the presi- dent and scholars of Corpus Christi Col- lege in Oxford make a lease by their name, with the addition ' ' in the County of Oxford," the lease is good. Dumper V. Syms, Cro. Eliz. 816. So a lease made by " The Dean and Chapter eccle- siac cathedralis Christi de Oxonia," by the name of " Dean and Chapter ec- clesiac, &c. academiil de Oxon," is good. Lord North's Case, Moore, 361. See also Doe b. Miller, 1 B. & Aid. 699; JMarriatt v. Paschal's Case, 1 Leon, 159. As to immaterial variances, see Willis V. Jermaine's Case, 2 Leon, 97 ; Che- ney's Case, 1 id. 159; Croydon Hospital V. Farley, 6 Taunt. 467 ; Master, &c. of Sussex, &c. College v. Davenport, 1 Wils. 284 ; Mayor, &e. of Carlisle v. Blamire, 8 East, 5S7. There is a dis- tinction between a misnomer in a grant and a misnomer in a writer declaration, but it is not expedient to pursue this matter further. As to the distinction intimated, see Tipling v. Pexal, 2 Bulst. 233; Mayor of Stafford v. Bolton, 1 B. & P. 40; Heading v. Mayor of London, Cro. Car. 574. 8 4 Bacon's Abr. Tit. Leases (G.), 3 ; 2 Inst. 666. By Inpants, 148 CHAPTER XIII. BY INFANTS. Sec. 101. Generally. Sec. 102. Lease must be personal aet of the infant. Sec. 103. Leases to infants. Sec. 104. Wlien infancy does not avoid lease or deed. Sec. 105. Eight of disaffirmance, and how exercised. Sec. 106. How leases may be affirmed. Generally. Section 101. Leases made by infants are not void, but voidable only, whether they contain a reservation of rent or not, or, in fact, "whether they are advantageous or disadvantageous to him,^ and the lessee, being an adult, cannot avoid the lease upon the ground of the lessee's in- fancy.^ In some of the English cases the doctrine has been advanced, that a lease made by an infant that is advantageous to him is not void- able even, but is absolutely binding upon him and cannot be disaflBrmed by him upon attaining majority,' and this doctrine is also advanced by 1 Abbott D. Parsons, 3 Burr. 1808; Lane ». Cowper, Mo. 105; Slator b. Brady, 14 Ir. C. L. 61 ; Ketsey's Case, Cro. Jac. 820 ; Ashfleld v. Ashfield, Plowd. 418 ; Slator u. Trimble, 14 Ir. 0. L. 342; Dixon u. Merritt, 21 Minn. 196 ; Scranton o. Stewart, 52 Ind. 69 ; Illinois L. & L. Co. ». Bonner, 75 111. 315. 2 Abbott ji. Parsons, 3 Burr. 1806; Haw v. Ogle, 4 Taunt. 10; Forester's Case, 1 Sid. 42; Farneham v. Atkins, 1 Sid. 446; Davies v. Mannington, 2 Sid. 109; Abbott v. Parsons, ante; Shannon B. Bradsti-eet, 1 Scho. & Lef. 58. In Smith V. Bowin, 1 Mod. 25, the plaintiff brought an action to recover for grass which he had sold to the defendant and for six pounds due him for other mat- ters, and which the defendant agreed to pay him for at a certain price, and also to pay him six pounds that he owed him. The defendant cut the 'grass, but he set up in defence to the action that the plaintiff was an infant, and so not bound by the contract, and, because the contract was not reciprocal, insisted that he ought not to be bound. Kblynge said : "If an infant let you a house, shall he not have an action against you for the rent?" and Twisden said: " I have known an action upon the case brought by an infant upon a promise to pay so much money in consideration that he permit tjie defendant to enjoy such ahouse. It was long insisted upon, that this was not a good consideration, because not reciprocal; for the infant might avoid his promise if an action were grounded upon him against him ; but it was adjudged to be a good con- sideration, and that the action was maintainable," and in the principal case the plaintiff had judgment. See 2 Danier's Abr. 170; Beeson jj. Carlton, 13 Ind. 354. 3 Baker ii. White, 2 T. E. 159; Drury 1). Drury, 5 Bro. P. C. 570; Kelsey's Case, Cro. Jac. 320. 144 By Intants. very able text writers,' but this does not seem to be the English doc- trine, and its validity is denied by high authority ^ and is not sustained by the better class of authorities," and Me. Platt says :* " But not- withstanding Me. Justice Bullbe's remarks ^ it seems to be the pre- vailing opinion of the profession that an infant is never precludea from disputing a lease upon attaining the age of twenty-one.^ An opinion," he adds, " that is fortified by the fact of the lessee's inability to avoid the lease in any case on account of the infancy of the lessor and the inadmissibility of the infant's plea of now est factum. Not- withstanding a passage to the contrary in Coke,' it appears that aiji in, fant's lease for life or lives, made by feofment and personal livery of seizin, whether containing a reservation of rent or not, or beneficial or disadvantageous to him, is voidable only." * But, whatever may be the rule in England, there seems to be no question that, in this country- an infant may, upon attaining the age of majority, disaffirm any con- veyance of his own lands, whether by deed or lease, and whether bene- ficial or otherwise, and th.at he cannot during his infancy make any conveyance that will be binding upon him when he becomes of age.' The rule established by our courts is that a deed, lease, or other con- veyance made by an infant that takes effect upon delivery is not void, but merely voidable, without reference to the question of benefit '" and 1 Woodfall's L. & T. (9 English Edn.) p. 41. See also Addison on Contracts, 83. 2 2 Preston on Conveyancing, 248 ; 1 Platt on Leases, 31. Co. Lit. 380 6 ; 2 Inst. 673; Abbott v. Parsons, 3 Burr. 1801. 5 Abbott t. Parsons, ante. * 1 Platt on Leases, 31. ^ Referring to the latter' s remarks in White V. Maddon, 2 T. R. 161. ^ And he cites 2 Preston on Convey- ancing, 249. ' Co. Litt. 273' a ; but see Lit. § 547 ; Co. Litt. 45 b, 303 a. * Lane v. Cowper, Mo. 105 ; Abbott u. Parsons, 3 Burr. 1801. 9 Dearborn v. Eastman, 4 N. H. 441 ; Roof V. Stafford, 7 Co^v. (jST. Y.) 179; Gillett V. Stanley, 1 Hill (N. T.), 121; Boal V. Mix, 17 Wend. (N. Y.) 119; Harrod v. Myers. 21 Ark. 592; Roberts V. Wiggin, 1 N. H. 73; Irvine v. Irvine. 9 Wall. (U. S.) 617; Bozemanu. Brown- ing, 31 Ark. .364; CummingS v. Powell, 8 Tex. So. The consent of an infant heir cannot be made the ground of any order which may prejudice his rights. Thus, tlie consent of an infant heir that an outstanding mortgage on a farm de- vised by the testator to his wife might be paid out of the personal estate, or that the widow should have the use of a certain sum of money during her pleasure, is not binding, nor does it re- lieve the executor from accounting for the money. Scott v. Monell, 1 Redf. (N. Y.) Surrogate, 431. See also Rogers V. Conger, 7 John. (JST. Y.) 557. Nor are they bound by acts of their guardian that are illegal, not even if he acted under a special act of the Legislature, if it had no power to authorize him toMo the act. DeWitt v. Loclcwood, 3 Blatch. (U. S. C. C.) 56; Tillinghast v. Hol- brook, 7 E. I. 230. 1° Chapman v. Chapman, 13 Ind. 396 ; Jenkins v. Jenkins, 12 Iowa, 195; Wal- lace V. Lewis, 4 Har. (Del.) 75; Love v. Gest, 5 Har. & J. (Md.) 106; Kendall v. Lawrence, 22 Pick. (Mass. ). 540; Boole. Mix, 17 Wend. (N. Y.) 119; Wliitney v. Dutch, 14 Mass. 462; Ferguson v. Bell, 17 Mo. 347; Cummings v. Powell, 8 Tex. 80; Bigelow v. Kinney, 3 Vt. 353; Wheaton v. East, 5 Yerg. (Tenn.) 41; Cook D. Toombs, ,36 Miss. 685; Phillips V. Green, 5 T. B. Mon. (Ky.) 344; Oliver*. Handlett, 13 Mass, 457; Jack- son V. Ladd, 6 John. (N.Y.) 257; Jack- son V. Whittock, 1 John. Cas. (N". Y.) 213 ; and Abbott v. Parsons, 3 Burr. 1801, and Slator v. Brady. 14 In. C. L. Ex. 61, and Slator v. Trimble, 14 id, Q. B. are to the same effect. The rule as held by our courts is, that all deeds or in- struments under seal executed by an in- fant, are voidable only, except those By Infants. 145 mortgages,^ and even bonds for a title to lands come within the rule.'' The words "takes effect" are a material part of the definition, because unless the instrument conveys a present interest it is void ' and ex- cludes a letter of attorney, or a deed or lease that delegates a mere power or naked authority.* But the deed of an infant /feme covert, is held to be void,^ but this rule would probably be ignoi'ed in those States where the disabilities of feme coverts as to lands held by them to their own use have been removed.^ Lease must be personal act of the infant. Sec. 102. The mere receipt of rent by an executor of an infant does not bind him. An infant cannot appoint an agent, and therefore his next friend, although his natural guardian, cannot bind him.' In order to be good, the lease of an infant must be his own personal act, and a lease made by an agent is not binding upon him,* because an infant's appointment of an agent or attorney is wholly void.° " If," said Paeke, which delegate a naked authority, _^nd that they are void. That is, that all in- struments which do not take effect by delivery of his hand are void, and such as take effect by delivery, are simply voidable. Roof u. Stafford, 7 Cow. (N.Y.) 179; Conrac v. Birdsall, 1 Johns. Cas. (N. T. ) 127 ; Roberts v. Wiggin, 1 N. H. 73; Whitney D. Dutch, 14 Mass. 462; Lawrence v. McArter, 10 Ohio, 37 ; 4 Bacon's Abr. Tit. Leases (B. ); Baylis f. Dinely, 3 M. & S. 477; 2 Preston on Con- veyancing, 248 ; Abbott v. Parsons, 3 Burr. 1801. 1 Palmer v. Miller, 25 Barb. (N. T. ) 399; Roberts v. Wiggin, 1 N. H. 73; StSte V. Plaisted, 45 N. H. 413. 2 Mustard v. Wahlford, 15 Gratt. ( Va. ) 329; Weaver ». Jones, 24 Ala. 420; Par- sons V. Hill, 8 Mo. 135. 3 Abbott ». Parsons, 3 Burr. 1801 ■Gillett ». Stanley, 1 Hill (N. Y.), 121 Bool V. Mix, 17 Wend. (N. T.) 119 Worcester Bank v. Eaton, 15 Mass. 371 Phillips V. Green, 5 T. B. Mon. (Ky.) 344. * Lawrence v. M'Arter, 10 Ohio, 87; Colcock ». Ferguson, 3 Dessau (S. C), 482. * Mackey v. Proctor, 12 B. Mon. (Ky.) 433; Chandler v. McKinney, 6 Mich. 217; Magee v. Welsh, 18 Col. 155; Cronise v. Clark, 4 Md. Ch. 403; Schra- der V. Decker, 9 Penn. St. 14. And it seems that an infant husband who .ioins with his wife in the conveyance of her lands, may disaffirm the deed when he becomes of age. Barker v. Wilson, 4 Heisk. (Tenn.) 268. " See Scott v. Buchanan, 11 Humph. (Tenn.) 468; Francis v. Wiggell, 1 Modd. 261; Sanford v. McLean, 3 Paige Ch. (N. Y.) 117; Bool v. Mix, 17 Wend. (N. Y.) 119; Doe b. Eyre, 3 C. B. 5.57. In Miles v. Lingerman, 24 Ind. 885, the court proceeded upon the ground that her deed was merely voidable when she joined with her husband in making it, and where an infant feme covert joined Willi her husband in a deed to a railroad company of land belonging to her, and ten years afterwards, and after improve- ments had been made upon the land, and it had been conveyed to a third per- son, it was held that she might disaffirm the deed, and that in order to do so, she was not obliged to tender back the pur- chase-money received therefor. See post. In Arkansas it is held that the provisions of the statute that a married woman may convey her real estate by deed executed by herself and husband, does not prevent her from disability to convey real estate when under age; and a deed executed under those circum- stances may be cancelled upon applica- tion by her to the Court of Chancery so far as it affects her interests, but is good to convey the husband's interest, such as the right of rents and profits and the tenancy by curtesy in case he survives her. Harrod v. Myers, 21 Ark. 592. ' Keeler v. Fasselt, 21 Vt. 5,39. 8 Thomas a. Roberts, 16 M. & W. 778; Trueblood v. Trueblood, 8 Ind. 195. 3 Bennett k. Davis, 6 Cow. (N. Y. ) 393; Roof v. Stafford, 7 id. 179; Whit- ney J). Dutch, 14 Mass. 457; Fonda v. Van Horne, 15 Wend. (N". Y.) 631; Waples V. Hastings, 3 Harr. (Del.) 403; Bool V. Mix, 17 Wend. (N. Y.) 12. 10 146 Bv IXFANTS. B., in the case in note 8, " an infant appoints a person to make a lease for him it does not bind the infant, neither does his ratification bind him. * * The lease of an infant, to be good, must be his own per- sonal act." Leases to infants. Sec. 103. Leases made to an infant are not void, but merely voidable,^ and if upon attaining majority he disafiirms the lease, he is not liable for rent,^ but if, ujDon attaining majority, he continues to occupy the prem- ises, and does not signify his dissent to the law, within a reasonable time, he becomes liable for all the rent remaining unpaid up to the time of action brought, including that which accrued during his majority, and debt will lie against him therefor,^ and he becomes liable to per- form all the other obligations attached to the estate.* An infant, even in the case of a lease that is disadvantageous to him, cannot protect himself under the plea of infancy if he has taken possession and not dis- claimed upon attaining his majority, unless he is still a minor. He cannot retain the estate and keep the owner from dealing with it as Ids own, without being liable to bear all the burdens attached to it.^ Possibly such would be the rule if the lease can be said to come under the head of necessaries, ^ but this latter point may be doubtful, and possibly no state of circumstances could exist which would be said to 1 Baxter. Bush, 29 Vt. 465; Griffitln). Schwenderman, 27 Mo. 412. 2 Ketsey's Case, Cro. Jao,. 320. ^ Ketsey's Case, ante; Henry v. Root, ?>■?, N. Y. 526. In Bacon's Abr. (F.) 586, the author says: "If an infant takes a lease for years, rendering rent, if he en- ter upon tlie lauds he shall be charged ivith an action of debt during his mi- nority, because the purchase is intended for his benefit; but he may waive the term and not enter, and if more rent be reserved than the land is vcorth, he may avoid it." But this is not the rule as now held, and there is no doubt but that infancy would be a complete bar to an action of debt or covenant for rent, whether the lease was beneficial to the infant or not, unless after becoming of age, he ratified the lease. See cases cited in previous note, also Ketsey's Case, ante. * Holmes v. Blogg, 8 Taunt. 35. 5 Pabkk, B., in Railway Co. v. M'Miohael, 5 Exchq. 128. « Lowe D. Griffith, 1 Scott, 458. The Supreme Court of Connecticut, in a case before it, Munson v. Washband, 31 Conn. 303, took a very sensible view of the question as to what may be regarded as necessaries. In that case the wife, who was an infant, employed the plain- tiff to bring an action for lier against the defendant for a breach of promise of marriage, which was finally compro- mised by their marriage. The plaintiff brought his action against the defendant for counsel fees, costs, &c. , in that suit, and the action was resisted upon the ground that the wife was an infant when she employed the plaintiff, ancj, his services not being necessaries, within the rule, no recovery could be had. But the court repudiated the idea that the liability of an infant for necessaries only extends to board, lodging, clothing, &c., and said : "In cases where, under pecu- liar circumstances a civil suit is the only means by which an infant can procure the absolute necessaries which he re- quires, it would be a reproach to the law to deny him the power to make the necessary contracts for its commence- ment and prosecution." So it would seem reasonable to hold in certain cases, that a lease of lands which supply a home or the necessaries of life for an infant, might be treated as coming under the head of necessaries when the fruits of the lease are the infant's main re- liance for support. By Infants. 147 bring it under that head, so as to make him liable upon the lease dur- ing his minority.^ When infancy does not avoid lease or deed. Sec. 104. An infant is bound by leases made by him in a corporate capacity, ^ or when the lease or deed does not affect his interest, but from an authority which he is trusted to exercise for another, as a lease made by him as trustee, executor, or in any other representative capa- city, ° or when the act is one which the law would have compelled him to do, * or where he, having it in his power to do so, refuses to re- store the benefits he derived from his contract.^ Right of disafBrmance, and hovr e:xercised. Sec. 105. As previously stated, an infant may disaffirrii his deed, lease or bond for title after he becomes of age, but he cannot do it before, ' 1 In Tupper b. Caldwell, 12 Met. (Mass.) 559. ^ Case of Duchy of Lancaster, Byer 207 h ; Bac. Abr. tit. Agr. pi. 80 ; Wood- fall's L. & T. 41. ^ LoKD Mansfield in Abbot v. Par- son's, 3 Burr. 1802. " A power," says the court in Sheldon v. Newton, 3 Ohio St. 494 " may be as irrevocably executed by an infant, as by an adult." In Prouty V. Edgar, 6 Iowa, 353, a minor held lands in trust for a person who had given bonds for its conveyance, and the infant conveyed tlie premises accord- ingly. It was held by the court that he could not set up infancy to defeat the deed, because, although an infant, he might have been compelled to convey, and therefore his conveyance without legal comj)ulsion was good. * Abbot V. Parsons, ante ; Pigot v. Kussell, Cro. Eliz. 124 ; Kilcrease, v. Shelby, 23 Miss. 161 ; Barrington v. Clarke, 2 Penn. 115 ; Jones v. Brewer, 1 Pick. (Mass.) 314. 5 Weed V. Beebe, 21 Vt. 495 ; Young b. McKee, 13 Mich. 552 ; Tliompson v. Linscott, 2 Me. 186; Dana v. Coombs, 6 id. 89 ; Bobbins v. Eaton, 10 N. H. 561; Jones v. Phoenix Bank, 8 N. Y. 228. e Slator v. Trimble, 14 Ib. C. L. 342 ; Woodf all's L. & T. 41 ; Fawcett's L. & T. 4; 3 Bacon's Abr. tit. Infancy (A) ; Pitcher c. Lycock, 7 Ind. 398 ; Tucker v. Moreland, 10 Pet. (U. S.) 58; Peterson v. Laik, 24 Mo. 541; McGan v. Marshal, 7 Humph. (Tenn.) 121 ; Jack- son V. Carpenter, 11 John. (N. Y. ) 539 ; Cressingert). Welch, 15 Ohio, 156; Hoyle ». Stowe, 2 Dev. & B. (N. C.) L. 320. In Shlpman v. Horton, 17 Conn. 482, Williams, C. J., says, "In case of a deed of land by an infant, it seems to be settled that the conveyance cannot be avoided until the infant becomes of age." But the rule is difficult as to per- sonal property, and he may disaffirm, either before or after he becomes of age. Shipman v. Horton, ante; Heath V. West, 26 N. H. 191 ; Carr v. Clough, 26 id. 280; Walker v. EUis, 12 111. 470. A contrary rule as to disaffirmance of personal contracts was held in Roof ti. Stafeord, 7 Cow. (N.Y.) 179, but it was reversed on appeal. See 9 Cow. (N.Y.) 626. Paeke, B., intimated in Eailway Co. V. McMichael, 5 Exchq. 124, that,an infant might possibly give notice of dis- affirmance before lie became of age, that would' be operative, but the ques- tion was not before the court, and no decision exists to that effect. Mk. Tat- LOK, in his work on Landlord & Ten- ant, lays down the doctrine that "he may disavow or annul them, either be- fore his majority, or within a reasonable time after it" (p. 60, sec. 93), but his statement is not sustained by any of the cases referred to by him, and the rule seems to be well established that' an infant cannot make a deed or other conveyance of land, or any in- terest therein, void or valid by any act of his while under age. McCormic v. Leggett, 8 Jones (N.C. ) L. 425. In Dun- ton V. Brown, 31 Mich. 182, the court held that neither an infant nor his guar- dian have authority, while the infancy continues, to determine whether a void- able contract of the infant shall be af- firmed or annulled, but that it is wholly a matter for the infant himself to de- aide when he becomes of age. 148 By Infants. but if he dies before he becomes of age, his heirs or executors may dis- affirm it.-' , The deed or lease of an infant conveying real estate may be avoided by an entry, suit or action, a subsequent conveyance, an effort to re- store parties to their original condition, or any act unequivocally mani- festing the intention. The institution of an action of ejectment, to recover the possession of the land, is an act fully possessing this char- acter. ^ An entry is not in all cases necessary, particularly when the lands are not occupied, ' but where the land is occupied under the prior lease or deed, he cannot avoid the conveyance without an entry upon the land or other act of equal notoriety,^ or by his grantee under the sub- ' 4 Cruise, 74, § 67 ; Person v. Chase, 37 Vt. 647 ; Bozeman v. Browning, 31 Ark. 364. In Nelson?). Eaton, 1 Eedf. (N. Y. Surrogate) 498, it was held that the con- tract of an infant may be avoided by those only, besides himself, who are privy in blood or estate." It being un- derstood of course that the latter can only avoid it after tlie infant's decease, an(J as to the expression privies in es- tatti, it must be confined wholly to those who inherit from him, or take under a title from his executor, and it cannot relate to a co-tenant, as privies in estate, as joint tenants, or privies in law, as lords by escheat, cannot take the bene- fit of the infancy of another, Whitting- ham's Case, 8 Coke, 43 h. It is only those who xtand in his place, who can set up infancy to avoid his deed, and they cannot do this imder a plea non est factum, but must plead his infancy spcr cially, and that plea avoids by relation back to the delivery. Lord Mans- FiEi>D in Abbott v. Parson, 3 Burr. 1805; Privies in blood, as used in this connection, relates only to privies in a land inheritable, and privies in estate are joint tenants, husband and wife, donor and donee, lessor and lessee, &c., and privies in law are those upon whom, without blood or privity of estate, the law casts the land or makes his entry lawful. Of these, privies in blood may take advantage of infancy. Privies in estate can only do so except possibly in some special cases, and privies in law can never do so, Whittingham's Case, ante. In Person v. Chase, 37 "Vt. 647, as to personal property, it was held that a gift by the infant could be revoked or avoided by his administrator. See also Tillinghast v. Holbrook, 7 R. I. 230, where it -was held that the administra- tor of an infant might avoid the act of the infant in parting with a note to the maker, upon payment of it to him. See also Vaughan v. Parr, 20 Ark. 600, where it was held that an administrator might disaffirm a sale made by the in- fant before her death. An objection to a marriage settlement upon the ground that the parties were infants, can only he made by the parties themselves, Jones V. Butler, 30 Barb. (K.T.) 641. The plea of the infancy of his testator by his executor to a note made by the testator, is good. Hussey v. Jewett, 9 Mass. 100; Martin r. Mayo, 10 id. 137. They may affirm or disaffirm the testa- tor's contracts, deeds, leases, &c. Jef- ford V. Ringgold, 6 Ala. -544. ^ Drake v. Ramsay, 5 Ohio, 251. He may disavow, in various ways, bis inten- tion of carrying into effect a contract made during infancy. He may enter upon lands leased, sold, or conveyed by him when under age, or may, when he comes of age, convey the same lands to another. McGill v. Woodward, 3 Brev. (S.C. ) 401 ; by entry, Worcester d. Eaton, 13 Mass. 371, or by conveying to an- other. Hoyle V. Sfowe, 2 Dev. & Bat. (N". C.) .320; Tucker v. Moreland, 10 Pet. (U.S.) 58 ; Jackson v. Todd, 6 John. (N.Y.) 657 ; Pitcher v. Lycock, 7 Ind. 398; Peterson v. Laik, 24 Mo. 541 ; Whiter. Flora, 2 Overt. (Tenn.) 426; Jackson B. Carpenter, 11 John. (N. Y. ) 539; Cressingeri). Welch, 15 Ohio, 156; Hoyle 1). Stowe, 2 Dev. & B. (N. C.) L. 320. But a conveyance made by an in- fant which the law would have com- pelled him to make cannot be disaf- firmed after lie becomes of age, and it he conveys the land to another after he comes of age, the second deed will con- fer no title, Elliott v. Horn, 10 Ala. 348. 5 Jackson v. Carpenter, 11 John. N. Y.) 575 ; Bool v. Mix, 17 Wend. N. Y. ) 119 ; Jackson v. Burchin, 14 John. (N. Y.) 124. * Dominick v. Michael, 4 Sandf. {N". Y. Superior Ct. ) 474 ; Roberts v. Wig- By Infants 149 sequent lease or deed.^ In Indiana a written notice of disaffirmance has been held sufficient.^ How lease may be afiirmed. Sec. 106. There is a well recognized distinction between the nature of acts which are necessary to avoid an infant's deed or lease, and those which, are sufficient to confirm them. They cannot be avoided except by some act equally solemn with the instruments themselves. But acts insufficient to avoid may amount to a confirmation. Thus, he may confirm a lease made during his infancy by accepting rent thereon after he becomes of age, ' or by taking a lease of the same lands for a firm of which he is a member, * or by mortgaging the property to the lessee or any other person, and referring to the lease therein, ^ or, indeed, any distinct and positive act, or lan- guage that clearly recognizes the lease as a valid and binding instrument will give the validity to the lease. Thus, where upon at- taining majority he said to his lessee, " God give you joy of your lease," it was held a sufficient affirmance thereof, ^ and any verbal con- fii'mation will be sufficient as an affirmance, ' but, no act done by an infant before he becomes of age can operate either to affirm or avoid a deed or lease made by him. * The rule may be said to be, that an infant's deed can be ratified only after his coming of age, by some act for that express purpose, or by such a course of conduct as neces- sarily excludes a contrary supposition." It has been held that if a per- gin, IN. H. 73. There must be an entry, as an afBrmance, but it would seem ejectment, demand of possession, or that the act must be such as woiild the like, or at least notice that he dis- operate as a fraud upon the other affinns the lease. Slator b. Brady, 14 Ir. party, unless it was intended as a confir- C. L. 61. mation. Eainsford v. Eainsford, 1 • 1 Prout ». Wiley, 28 Mich. 164. Spears Ch. (S.C.) 385, and his act must ^ Scrant(yi v. Stewart, 52 Ind. 69. have been done with full knowledge See Slator u. Brady, ante. that it would be void except for such ^ Smith !). Low, 1 Atk. 489 ; Ashfield confirmation. Curtis x,. Patton, 11 S. n. Ashfield, W. Jo. 157; Hamilton b. & K. (Pemj.) 305 ; Baker v. Kennett, Cardross, '8 Bro. P. V,. 359 ; Huth jj. 54 Mo. 82 ; Gallatin v. Cunningham, Carondolet Co. 56 Mo. 202 ; Thomas 8 Cow. (N. Y.) 361; Norris b. Vance, B. Pullis, 54 id. 211. 3 Rich. (S. C. ) 164 ; Hinley b. Mar- 4 Irvine B. Irvine, 9 Wall. (U. S.) 617. garitz, 3 Penn. St. 428. Thus when ^ Story B. Johnson, 2 Yo. & Call. 587. an administi-ator sold lands belonging to ^ 4 Leon, 4pl. 13; IPlatt on Leases, 32. an infant, but the deed was not made ' Houzer b. Reynolds, 1 Hayw. (N.C.) until she became of age, and slie was 143. present when the deed was executed, * Phillips B. Green, 3. A. K. Marsh, but took no part in the transaction, and (Ky. ) 7; Tucker v. Moreland, 10 Pet. did not sign the deed, nor in fact know (U.S.) 58. ■ that the administrator had not authority ^ Williams b. Mabee, 7 N. J. Eq. 500; to bind her thereby, it was held that she Brady b. McKenney, 23 Me. 517 ; Em- was not thereby estopped from setting up riions B. Murray, 16 K. H. 385; Levering her title to the land, and that her acta B. Heighe, 2 Md. Ch. 81 ; Kline ». Beebe, could not be said to amount to a ratifi- 6 Conn. 494; Wheaton b. East, 5 Yeng. cation. Davidson b. Young, 38 111. 145. (Tenn.) 41 ; Wimberly b. Jones, 1 Ga. Where an infant borrowed money and Dec. 91 ; Hartman b. Kendall, 4 Ind. gave a mortgage upon his land for se- 403. Slight acts may or may not operate curity, and, after attaining majority, 150 Br Infants. soil while under age sells lands and conveys them by deed, a demand made by him upon the gi-antee, for the purchase-money, after he at- tains majority, is an affirmance of his deed, and he cannot afterwards disaffirm it. ^ So where he purchases real estate during his infancy, and gives a mortgage for the whole, or a part of the purchase-money, if, after becoming of age he retains possession of the land, or conveys it to another, this amounts to a ratification of the mortgage,^ as an in- fant will not be permitted to keep the property, and at the same time, repudiate the contract of purchase. ^ But if the infant has parted with the property, the retention of the fruits of it after he becomes oj age will not amount to an affirmance of the contract.''' So keeping possession of lands or goods after attaining majority, will be treated as an affirmance of the deed, lease, or contract,^ as he will not be permitted to retain the property, and repudiate the contract under which he holds it.'^ But where an infant has made a lease of lands for a long term, and received a gross sum for the rent, he is not obliged to tender to the lessee a proportionate part of the rent for the unexpired term, as a condition precedent to his right to maintain an action at law to re- cover possession of the land, if he has not the money then in his pos- session. The rule does not apply when he has parted with the money or property before he attains majority.' Lapse of time may furnish evidence of acquiescence, and thus con- firm the title,, but of itself does not take away the right to avoid, until made a will by which he directed that In an action against her for a breach of all his just debts should be paid, it was her covenant to pay the mortgage, she lield that this was sufficient to enable set up her infancy at the time when the the court to infer an affirmance of the covenant was entered into in defence, mortgage, Morchants' F. Ins. Co. v. and the court held that the covenant was Grant, 2 Edw. Ch. (iS". T.) 544. voidable, and that neither the reten- 1 Bank of Louisiana v. Dilery, 2 La. tion of the fruits of her sale, nor her An. 648. appearance in the foreclo.sure suit, 2 Boston IJank v. Chamberlain, 15 cou,ld be regarded as acts tending to rat- llass. 220; Lynde v. Budd, 2 Paige Ch. ify her obligation. See, however, (N.Y.) 191 ; Hubbard v. Cummings, 1 Flynn v. Powers, 54 Barb. (N.Y.) 550, Me. 11; Young 1). McKee, 13 Mich. 5.52; where it was held, under similar cir- Weed V. Beebe, 21 Vt. 495 ; Curtis v. cumstances, that a neglect of an infant McDougal, 2B Ohio St. 66; Wood v. who had attained majority, who was Gosling, 1 N. Y. Leg. Obs. 74; Kobbins made a party to foreclosure proceedings, V. Eaton, 10 N. H. 561 ; Dana v. Coombs, to set up Ms infancy in defence, when 6 Me. 89. the plea would have been efficacious, 'Kitchen v. Lee, 11 Paige. Ch. (N. operated as an affirmance of the convey- T. ) 107; Cecil v. Salisbury, 2 Vern. 324 ; ance under %vhich he assumed payment Kline v. Beebe, 6 Conn. 494. of the mortgage. * In Walsh v. Powers, 43 N. Y. 23 ; 3 ^ Henry v. Root, 33 N. Y. 526 ; Stern Am. Eep. ("i4. the defendant, while an v. Freeman, 4 Met. (Ky. )309; Lynde ». infant, purchased certain mortgaged Budd, 2 Paige Ch. (N. Y. ) 191 ; Bryden real estate, and in the deed to her coven- v. Bryden, 9 Met. (Mass. ) 519. anted to pay the mortgage. She sold the " Stout v. Merrill, 35 Iowa 47 ; Boze'- Ijroperty at an advanced price. Several man v. Browning, .31 Ark. 364. years after she became of age the mort- " Ditt v. Bowen, 54 Ind. 204 ; Bedln- ga':;c was foreclosed, and she was made a ger v. Wharton, 27 Gratt. ( Va. ) 857 ; party therein, and a judgment for a defi- Walsh v. Powers, 43 N. Y. 23; Miles ». ciency was obtained against her grantor. Llngerman, 24 Ind. 385. By Infants. 151 tlie Statute of Limitations takes effect,-' and his lieirs, legal representa- tives, or those who have his estate, are entitled to the benefit of the same rule in this respect as the infant himself. ^ There are a class of oases in which it has been held that an infant must disaffirm within a reasonable time after attaining majority, but it will be found that this rule applies only in the case of personal estate, or in those cases where the infant, after attaining majority, has stood by and seen the grantee or lessee making valuable improvements upon the property without intimating a jDurpose to disaffirm, " or that the term " reasonable time " is construed as embracing the whole period before the Statute of Limitations applies,^ and mere acquiescence, or a bare rec- ognition of it, on his part, without any intermediate or continued ben- efit, such as the possession of the property, or receiving rent for any period short of that limited by statute for acquiring possession, will not preclude him, ^ nor will an admission of the fact that he made the deed or lease, after he becomes of age, amount to a recognition of it as a valid instrument so as to constitute an affirmance, ^ nor will a declaration of affirmance signed by a person who claims to act as his solicitor prima facie bind him. It must be shown that the person so signing the declaration was in fact his solicitor, and had authority to bind him in that respect.' In Iowa it was held that an infant who induces a person to buy lands of him upon representations made by him that he is of age, cannot, upon attaining majority, disaffirm the sale, ' but this doctrine is not generally held, nor is it consistent with principle. 1 In Drake v. Eamsay, 5 Ohio, 251, a * Vauglian «. Parr, 20 Ark. 600 ; female infant executed a conveyance of Thompson v. Strickland, 52 Miss. 574. a lot of land, afterward married, and Where, after coming of age, with a she and her husband brought an action knowledge of the facts, an infant of ejectment to recover possession. It manifests a clear intention to affinn a was held that since the Statute of Limi- deed or lease, and for years stands by tations did not yet operate, the plaintiffs and sees the same greatly enhanced in possessed the right to disaffirm her deed value by improvements made thereon by unless they had extinguished that privi- others, he is thereby estopped from dis- lege by something amounting to a con- avowing his affirmance. Highley ». lirmation ; and that this effect might Barrow, 49 Me. 103. Where, however, follow, either an exj)ress recognition of the person is ignorant of his rights, he the validity of the deed, or from any act cannot be estopped from setting up liis done under a knowledge of their rights, title, although he has seen the grantee which demonstrated a willingness to be or lessee making large improvements hound by the contract ; or by continu- upon the premises. Spencer v. Carr, ing, after acquiring such knowledge, to 45 N. Y. 406. enjoy any benefit, profit, or privilege, * Jones v. Butler, 30 Barb. (N. Y. ) under the contract, after the infant had 641 ; Urban v. Grimes, 2 Grant's Cas. attained full age. Wallace v. Latham, (Penn. ) 96 ; Huth v. Carondelet K. R. 52 Miss. 291; Bozeman v. Browning, 31 Co., 54 Mo. 202. Ark. 864. This rule, however, is subject '' Voorhies v. Voorhies, 24 Barb. (N. to the qualification that the infant has Y. ) 124. done nothing in the meantime amount- « Jackson v. Burchin, 14 John. (N.Y.) ing to an equitable estoppel. Prout v. 124. Wiley, 28 Mich. 164 ; Thomas v. PuUis, ' Carroll u. Potter, 23 Mich. 377. 54 Mo. 212. 8 Prouty v. Edgar, 6 Iowa, 353. 2 Illinois L. & L. Co. v. Bonner, 75 lU. 315. 152 By Infants. The party defrauded, in such a case, has his remedy in an action for the fraud, if any exists, otherwise his misfortune is the penalty of neglect- ing to ascertain the facts. ^ In the case of a lease to an infant he cannot, upon attaining the age of majority, unreasonably delay in affirming or disaffirming it,'' and as to what is a reasonable time, is essentially a question for the jury. And where, by the deed or lease of another of lands to which the in- fant has no title, he is given the privilege of taking the premises or not, at his election ; upon becoming of age, he is bound to make his election within a reasonable time. Thus, in a case where the plaintiff's father had leased premises to the defendant during his (the lessor's) life at a yearly rent, the lease containing a provision that the lessor's son might take the house for himself when he became of age, if he chose to do so a delay of nearly a year in signifying his intention to take the house was held unreasonable. ^ " We do not mean to say," said the court " that he was bound to elect the day after he came of age, but he should have done so in a reasonable time ; otherwise one party would be at liberty to avoid the agreement at any time, while the other would be bound by it. If a year be not too much, why not a year and a half.^ If witliin a week or a fortnight, that would be reasonable. But, without drawing the precise line, what shall be reasonable time, it is enough to say that the notice in this case was not given in reasonable time." Questions of this character will seldom arise in the case of leases at a yearly rent, because the assent or dissent of the lessor, will be signified either by receiving or refusing rent. Where an infant occupies premises as lessee, he may affirm or dis- affirm the lease upon arriving at full age ; but he is bound to do the one or the other within a reasonable time, and the rule adopted in the case last referred to, would apply in such a case. " If," savs Bacon,^ " an infant takes a lease for years of lands, rendering rent which is in arrears for several years, then the infant comes of age, and still continues the occupation of the land ; this makes the lease good and unavoidable, and, by consequence makes him chargeable with all the arrears in- curred during his minority; for though at full age he might have de- parted from his bargain, and thereby have avoided payment of the 1 Coiirac V. Birdsall, 1 John. Cas. court of equity will not refuse to allow (X. Y ) 127; Calcock v. Ferguson, 3 an infant to avail himself of his infancy Dessau (S. C), 482. In Eoo v. Foster, to set aside a deed or covenant, on the 12 C. B. (N. S.) 272, a replication " on ground that his so doing is a fraud, ?tn- equitable grounds" to a plea of in- less the granted or covenantee has been fancy, that the defenAant fraudulently misled hy some actual misrepresenta- contracted the debt by means of false tion. or concealment. and fraudulent representations that he ^ Holmes v- Blogg, 8 Taunt. 35. was of full age, was bad, and disclosed ' Bromfield v. Smith, 2 T E. 436. no answer in equity. In Seabrook v. * Bacon's Abr. tit. Infancy (I.) 8. Gregg, 2 S. C. 68, It was held that a By Ikfants. 153 arrears which the lessor suffered to accrue during his majority yet, his continuance in possession after his full age, ratifies and affirms the contract ah initio, and so gives a remedy for the arrears of rent in- curred from the time of the contract made." ■' iKittley v. Elliott, Eolle's Abr. 731; S. ». McMcliael, 5 Exchq. 114 ; Kelly v. C. Cro. Jao. 320; Co. Litt. 2, 172, 308 ; 3 Coote, 5 Ir. C. L, 469; Holmes v. Blogg, Comyn's Dig. 167 ; N. Western K. E. Co. 8 Taunt. 35. 154 By Guardians. Sec. 107. Sec. 108. Sec. 109. Sec. 110. Sec. 111. Sec. 112. Sec. 113. CHAPTER XIV. BY GUAEDIAJSrS. Kinds of guardianship. Guardian by nature — powers of. By guard ians by nurture. By guardian s in socage. By a testamentary guardian. By guardian by appointment. Intruder treated as guardian. Kinds of guardianship. Section 107. There are several species or kinds of guardians, known to and recognized by the law, whose rights, powers and duties vary, ac- cording to the class to which they belong. These are : 1st, guardians by nature ; 2nd, by nurture ; 3d, by socage ; 4th, testamentary guar- dians ; 5th, by appointment, or confirmation of a competent tribunal. Guardian by nature — po-wers of. Sec. 108. The father of a child is its natural guardian until it arrives at the age of twenty-one years, and unless the father appoints a testa^ mentaiy guardian, upon his death, the mother becomes guardian by nature until it becomes of suitable age to choose a guardian for itself, ^ and the mother of a bastard child is its natural guardian until it becomes of full age. ^ This species of guardianship extends no further than to the custody and control of the infant's person. ' They have no binding control over his property, and cannot make a valid lease of his 1 Fields V. Low, 2 Boot (Conn.), 320; (Penn.) 55 Matter of Celina, 7 La An. Jarrett v. State, 2 GiU & J. (Md. ) 27; 162; and if he marries the mother, and Curtis V. Curtis, 5 Gray (Mass.), 535; recognizes the child as his own, he, by Osborn v. Allen, 26 iST. J. L. 388. virtue of the marriage, becomes entitled 2 Wright V. Wright, 2 Mass. 109 ; to its custody and control, Adams d. Kobalinao. Ai'mstrong, 15 Barb. (N.T.) Adams, .36 Ga. 236; and in some of the 247; Com. v. Fee, 6 S. & K. (Penn. ) 255; States, provision is made by statute, by Matter of Dodge, 1 Clarks Ch. (N. T. ) which the putative father is given the 1S4; Hudson v. Hills, 8 N. H. 417; Car- custody of the child, Wright v. Burnett, penter v. Whitman, 15 John. (N. Y.) 7111. 587. 208; Peoples. Landt, 2 id. .375; upon the » j>ex v. Thorpe, 5 Mod. 221; Eex v. death of the mother, the putative father, Inhabitants, 3 B. & Ad. 714; Kendall ». if there be one, becomes entitled to its Miller, 9 Cal. 591. custody, Com. v. Anderson, 1 Ashm. By Guakdians. 155 lands ■" unless it may be that possibly a lease at will would be good, ° and a court of equity will in some cases confirm a lease made by him for a long time, if the wards, upon attaining majority, have been guilty of such laches or acts as would make it inequitable for them to repudi- ate it. * By guardians by nurture. * Sec. 109. The father, or in case of his death without having appointed a testamentary guardian, the mother is guardian by nurture, of minor children, whether male or female, until they are fourteen years of age, and is confined within the same limits, and possesses the same powers, as exist in the case of guardianship by nature, and, while it does not give the guardian control over the infant's property to the extent that they may dispose of it, yet it has been held that they may make a. lease at will, of the infant's lands,^ but the lease is void as to the infant when he becomes of age, ^ and the infant is not stopped from a recovery of the rent of the premises before he came of age, by its receipt by the father, " and this is the case whether the father acts as guardian by nature or by nurture. By guardians in socage. Sec. 110. " Guardianship in Socage," says Me. Platt, in his work on Leases,'' is a consequence of tenure occurring only when a minor is entitled to a legal estate hy descent, in lands holden by socage,* and ^ May V, Caldin, 2 Mass. 55 ; Ander- acts as guardian, to be for the benefit of sou V. Darby, 1 N. & M. (S. C.) 369; the infants; there is no fraud or collu- Rep V. Cobb, 9 Yerg. (Tenn.) 463; Ma- sion proved on the part of the lessee; and gruder v. Peter, 4 G. & J. (Md.) 323; the husband of the lessor and the father Keeler b. Fassett, 21 Vt. 539. of the children died in bad circumstan- ^ Pigot V. Garnish, Cro. Eliz. 678, 734. ces, unable to repair the premises, which 8 In Smith v. Low, 1 Atk. 489; the were houses and a mill; therefore, the mother acting as guardian of her minor consideration of the lessee's repairing children, entered into a building lease them is a beneficial one for the infants; for forty-one years, her eldest child, and that is shown to be done: here is the being about nineteen years old, join- great point, the acceptance of rent for so ing with her in the lease, and they long a continuance, the youngest child covenanted that the lessee should have having been of age ten years, and notice quiet enjoyment, and that the rest of of the lease must be presumed. In this the children, when of age, should con- country it has been held that, even firm the lease. The children all arrived while a sale of premises by the father of of age, and for about ten years after the a minor, the tatner being tenant by cur- youngest attained majority, they ac- tesy, is not binding upon the minor, yet cepted the rents under the lease without he may ratify it upon attaining major- intimating any objections thereto. They ity, and it is binding upon the father in then brought ejectment against the les- any event. Hall v. Jones, 21 Md. 489. Fee, who at once filed a bill in equity to * Pigot j). Garnish, Cro. Eliz. 078. have the lease established. The lease, ^ Popham J. in Pigot v. Garnish, under the circumstances -detailed, was ante. established, Loed Hardwick saying: ^Jackson v. Combs, 7 Cow. (N. Y.), " It appears to be for a valuable consid- 36 Affd. 2 Wend. (N. Y.) 153; Fonda v. eratioii. rent reserved, and covenants Home, 15 Wend. 631. for tlie lessee to leave it in good repair, ' Platt on Leases, 373. and it is mentioned by the mother who * Quadriug v. Downs, 2 Mod. 170. 156 By Guardians. devolves, by the common law, upon the next of kin to whom the in. heritanoe cannot descend."^ The relation conveys more than a bare authority; it is also coupled with an interest in the land, and gives to the guardian, until the minor arrives at the age of fourteen,^ unless previously removed by the death of the father, who has appointed a testamentary guardian, full control over the land ^ and they may lease, avow, of bring trespass in their own name.* As previously stated, this guardianship so far ceases when the infant attains the age of fourteen, as to enable the infant to enter and take the land to himself ; yet, if no other guardianship succeeds it, it continues until another guardian is appointed, or the minor becomes of full age. ^ Where there is no guar- dian in socage, the father is guardian by nature until the minor be- comes of age, but he has no control over the real or personal estates of the child," and he cannot be guardian in socage at the common law, as such guardian must be one who cannot inherit from his ward. ' The guardian 171 socage has the entire custody of, and control over, the land, and is entitled to have the rents and profits for the benefit of the heirs.' But his authority only continues while his guardianship exists ; consequently, a lease made by him for a term extending beyond the period when the infant attains the age of fourteen, is voidable by the infant when he arrives at that age.' The death of the infant deter- mines the lease and so does the removal or death of the guardian in socage,^" and a court of Chancery having control over the infant and the guardian in socage may set aside a lease made by him, if it appears to be improvident, collusive, or fraudulent." By a testamentary guardian. Sec. 111. Under the Statute of 12 Car. 2c. 24, guardianship in chiv' i2Blackstone'sCom.,88Lit. sl23;Co. 153; Genetu. Tallmadge, IJohn. (N. T.) Litt. 87 6. 3; Fonda v. Van Home, 15 Wend. (N. 2 Riggs V. Bell, 5 T. K 471. Y. ) 631. 3 Rex B. Oakley, 10 East, 494; Rex ». 'Graham ». Houghtating, 30 N. J. L. Sherrington, 3 B. & Ad. 714 ; Rex v. 552; Jackson v. Combs, ante. But by Manners, 3 Ad. & El. 597. By Stat. 12, statute in N. Y. the father may now be Car. 2, chap. 24, the father might ap- guardian in socage; Holmes v. Seeley, point a testamentary guardian by -will, 17 Wend. (K. Y.) 71. and upon the father's death, the guar- s Bryneu. VanHoesen, ante; Beecher dian so appointed by him supersedes the 13. Grouse, 19 Wend. (N. Y.) 306; Osborn guardian in socage. v. Garden, Plowd. 293; Willis v. White- * Truss J). Old, 6 Rand. ( Va. ) 556 ; Bryue wood, 1 Leon, 322 ; Hob. 105 ; Brisden v. V. VanHoesen, 5 John. (N. Y.)l56; Shop- Hussey, Roll. Abr. Garde (Q) pi. 4. land !). Rydler, Cro. Jac. 55; Dugar v. ' Osborn d. Garden, Plowd. 293; Bedell Norton, 1 Freem. 102; Shaw v. Shaw, v. Gonstable, Vaughn, 182; Wade v. Vern & Scriv. 607; Bedells. Gonstable, Baker, 1 Ld. Raym. 130; Rex v. Sutton, Vaugh. 182; Wade v. Baker, 1 Ld. Raym. 3 Ad. & El. 597. 130 ; Rex v. Oakley, 10 East, 491 ; Hill ». " Balder ». Blackborn, Browl. 79. Saunders, 4 B. & C. 536; Rex v. Sutton, 3 " People v. Wilcox, 22 Barb. (N. Y. ) Ad. & El., 597. 178; Matter of Andrews, 1 John. Ch. ''Bryneii. Van Hoesen, ante. (UT. Y.) 99. "Combs V. Jackson, 2 Wend. (N. Y.) By Guardians. 157 airy was abolished, and nearly all tenures were converted into tenures in socage, and empowered the father of any child under the age of twenty-one years, and not married at the time of his death, to appoint by deed or will, executed in the presence of two or more persons, a guardian of such minor child or children, to have the custody and tuition of them until they respectively arrived at the age of twenty- one years. The same act also empowered such guardians to take the custody and control of all the property, real and personal, belonging to his wards, and to manage the same for their use and benefit during their minority, and to bring all such actions relating thereto as by law a guardian in socage might do. This statute enabled the father, who could not himself be guardian in socage, to supersede such guardian's powers, by appointing a guardian for them by deed or will. A testamentary guardian possesses the same powers as a guardian in socage, and may lease the lands of his wards in the same manner and subject to the same limitations as a guardian in socage might. * By guardian by appointment. Sec. 112. By the common law, guardianship by socage ceased when the infant attained the age of fourteen, when, in the absence of a tes- t.imentary guardian, he might elect some person to act as guardian for him during the remainder of his minority,^ and such guardian possessed the same powers, in all respects, as a guardian in socage. ' In most, if not in all the States, this right of election on the part of an infant upon attaining the age of fourteen, is given by statute, and the tribunal having authority under the statute to, appoint guardians, is required to confirm such elections, by appointing the person elected by the infant as guar- dian, unless the person chosen is, for some cause, incapable of acting. It is not, however, practicable to enter into details as to the mode of appointing guardians, as that matter, as well as their powers and duties is largely regulated by statute in the several States. It is sufficient to say that a general guardian possesses no greater control over the lands of his wards than a guardian in socage, and he cannot make a lease of his ward's lands that will be effectual beyond the period during which his guardian- ship exists.* But a guardian appointed by a court of Chancery, occupying virtually the position of a receiver, has no power to lease without the sanction of the court, ^ nor can the court a^ common law authorize a ' 1 Bedell v. Constable, Vaughn, 179 ; Ritchie, 6 Paige Ch. (N". T.) 390; Huff v Parrv v. Hodgson, 2 Wils. 129; Shaw «. Walker, 1 Ind. 193; Field v. Schiefflin, Shaw Vern & Scriv. 606. 7 John. Ch. (N. Y.) 150; Snook v. Sut- 2 Co. Litt. 81b; Blackstone's Com. 462; ton, 10 N". J. L. 133; Graham r>. Chato- 1 Piatt on Leases, 379. que Bank, 5 B. Mon. (Ky.) 45. 3 Bacon on Leases, p.l38. ^ Rex v. Sutton, 3 Ad.'& El. 597; Mac- ^ Ross V. Gill, 1 Wash. ( Va. ) 8 ; Bacon v. pherson on Infancy, 106. Taylor, Kirby (Conn.), 368; Putnam v. 158 By Guardians. lease to be made extending beyond the period of that infancy, which will be binding ujjon him when he attains majority ; and in case such a lease is made, it will be voidable as to the infant when he becomes of age, ^ but, if upon attaining majority he accepts rents accruing under the lease after he becomes of age, he will be estopped from denying the validity of the lease,^ as he must either ratify the lease in toto, or aban- don all rights under it.^ Where, however, an estate is vested in trustees for the use of an infant, a court of equity may authorize them to lease it for a term of years.* In Illinois, by statute, a guardian cannot him- self occupy the lands of his ward, but must lease them upon'-such terms and for such length of time as the county court directs. * If a lease is made by a guardian in the name of his ward, as if the authority was derived from him, it has been held that it will be absolutely void as to the infant, because he cannot appoint an agent, and he cannot affirm it when he comes of age, * although a lease made by a guardian, as such, extending beyond the term of infancy, may be ratified by the ward when he attains majority, yet in such a case, in order to solve all questions in this respect, it is better to have the infant join with his guardian in the lease. ' All guardians, except guardians in socage, are mere tenants at will of the infant's estate, and consequently cannot make a valid lease for a term ; yet, if such a lease is made, the lessee cannot avoid it by setting up want of authority in the guardian to make it. ' Intruder treated as guardian. Sec. 113. When a person intrudes upon the lands of an infant and takes the profits thereof, he is treated as guardian, and is bound to ac- count to the infant for the use of the lands and their rents and profits, and cannot interpose the Statute of Limitations as a bar.^ 1 Bacon on Leases, 133; Bacon's Abr. ^ MuIIer ». Brumer, 69 111. 108. Leases (I. ) 9. In England under the Stat. ^ Bacon on Leases, 138 ; Bacon's Abr. 11 Geo. 4&1W. 4c. 6.5, power was given tit. Leases (I.), 9; Combe's Case, 9 Coke to the court to authorize the making of 1Qh\ Trueblood b. Trueblood, 8Ind. 195; leases of the estate of infants, extending Bennett b. Davis, 6 Cow. (K. Y.) 393; beyond their infancy, and similar author- Thomas ». Roberts, 16 M. & W. 778 ; ity is conferred by statute in some of the Bool v. Mis, 17 Wend. (N. T. ) 120 ; Wa- States of this country. pies v. Hastings, 3 Harr. (Del.) 403; 2 Smith V. Low, 1 Atk. 489. "Whitney v. Dutch, 15 Mass. 457. * Overbach u. Heermance, Hopk. Ch. ' 1 Piatt on Leases, 381. (N". Y.) 337; Kitchen jj. Lee, 11 Paige « Shipworth «. Green, 8 Mod. 312; Ba^ Ch. (K. Y.)107;Lynde».Budd. 2id.l91. con's Abr. tit. Leases (C), 9. ^Hedges v. Bicker, 5 John Ch. (N. ° Goodhue c. Barnwell, Rice Ch. (S. C.) Y.)163. 198. . V / Feme Sole.— Feme Covert. 1J)9 CHAPTEE XV. FEME SOLE FEME COVEET. Sec. 114. By feme sole. Sec. 115. By feme covert. Sec. 116. By husband, and wife. Sec. 117. As to leasehold estates of the wife. Seo. 118. Rights of husband, in chattels real held by the wife or executrix. By feme sole. SecTiON 114. A feme sole may make a valid lease of her lands, and a lease at will made by her while sole is not determined by her marriage, but the husband may put an end to it ad libitum, but in order to do so, he must do some express act to that end, ■^ and the same rule prevails as to a lease at will made to a feme sole; and the will is not determined by her marriage.^ But in the case of the marriage of a feme «o?e lessor, by the common law, the rent is payable to the husband, and ignorance of the marriage will not at law protect a lessee from a suit in the husband's favor, therefor, although the rent has previously been de- manded by and paid to the wife. ^ Btit in most of the States of this countrj^, the common-law rule as to lands owned by the wife, and her rights thereto and therein, has been essentially changed, and she is per- mitted to recover the rents accruing from leases thereof, whether they were made before or after marriage, and in determining her precise rights in this respect, the statute of a given State should be consulted. When a feme sole executrix or administrator marries, the whole right of administration is transferred to the husband, and her sole demise cannot be supported. He must be the granting party in all leases made in right of such executorship or administration, and the ^ In Henstead'sCase, 5Coke, 10 a., the v. Baugh, Cro. Car. 304; Co. Litt. 55 6; court resolved that the marriage of a Hembling's Case, 4 Coke. 64 a. feme sole did not determine a lease at ^ In Blunden v. Baugh, Cro. Car. 304; will made by her, "for, although the the court say, "where a feme lessee at woman, by marrying, submitted herself will takes husband, * * although the to the will of her husband, yet, foras- feme hath put her will in her husband, much as it might be prejudicial to the yet it shall not be said a determination husband to have the lease determined, without the election of the lessor, or it was determined that, without express husband to the contrary," Co. Litt. 55; matter done by the husband after mar- Dyer, 269, pi. 20. / riage, to determine the will, it is not ^ Tracy v. Button, Cro. Jac. 617. determined, 1 Roll's Abr. 861; Blunden 160 Feme Sole. wife's concurrence therein is not essential. ' The husband becomes liable for all her acts in this representative capacity, and they may both be cited to account.^ But by the marriage of a feme sole guardian, the husband acquires no right to possess or control the estate of the ward, and a payment to him on account of such estate is void, unless made with the sanction of the wife. " By the marriage of a feme sole lessee, all her obligations under the lease devolve upon the husband, and he is liable for all arrears of rent, even after her decease, the arrears having accrued before,* but they may be joined as defendants either in an action for the rent, or for a breach of a7iy of the covenants of the lease.^ By feme covert. Sec. 115. A lease made by a feme covert of her own lands, by the common law, is absolutely void, and cannot be confirmed. * By the marriage, the husband is entitled to the use of the wife's estate, and she cannot, by any act of hers, divest him thereof, ' and so strict is this rule, that it is held that after a marriage engagement even, the husband acquires such inchoate rights in her estate, that upon the consummation of the engagement by marriage, he may invoke the aid of a court of equity to set aside conveyances made by her after such engagement without his knowledge, upon the ground that they are in fraud of his marital rights,* but not where the conveyance is made with his knowl- edge," or in obedience to a moral duty, as to provide for the support of her children by a former marriage." Thus it will be seen that by the common law, the husband becomes, by marriage, vested with such an interest in his wife's lands, that he can lease them or dispose of them as he pleases during his life, if he survives her, and during his own, if he becomes tenant by curtesy, and, as a consequence, any con- 1 Levick v. Coppin, 2 "W. Bl. 801; Ar- it must expressly and distinctly appeal nold V. Bidgood, Cro. Jac. 318. that the donor of the power intended to 2 Guardian &c., v. Eoberts, 5 S. & E. exclude the disability of coverture. (Penn.) 512; Woodrufe b. Cox, 2 Eedf. Hearle b. Greenbank, 3 Atk. 695. N. T. Surrogate) 153; Maine d. Guis- 'Den v. . Quimby, 3 N. J. L. 985; chin, 2 id. 165 ; Edmundson ». Eoberts, Boynton v. Finnall, 12 Miss. 193; 2 Miss. 322. Clarke's Appeal, 79 Penn. St. 376. " Holmes v. Field, 12 111. 424. » Freeman v. Hartman, 45 111. 57, * Eoll's Abr. Baron and Feme, (6.) pi. Logan v. Simmons, 3 Ired. (N. C.) Eq. 1; Anonymous, 6 Mod. 239; Fane v. 487; Williamson v. Carle, UN. J. Eq. Minshow, T Eaym. 6; Vane v. Marshall, 543; Crane ». Morris, 6 Pet. (U. S.) 598; ILev. 25. Duncan's Appeal, 49 Penn. St. 67; s Anonymous, 6 Mod. 239. McAfee v. Ferguson, 9 B. Mon. Kv.) «Manby v. Scott, 1 Mod. 124; Jen- 475. nings B. Brogg, Cro. Eliz. 446; St. John " Cheshire v. Payne, 16 B. Mon. (Ky.) V. St. John, 11 Ves. 529. But she may, 618; Fletcher v. Ashley, 6 Gratt. (Va.) in the exercise of an express power, 332 ; Terry v. Hopkins, 1 Hill (S. C. ) grant valid leases without the concur- Ch. 1 ; Cole b. O'Niell, 3 Md. Ch. 174. rence of her husband, Sugden on Pow- i' Wilson b. Daniell, 13 B. Mon. (Ky. ) ers (6 Edu.), 185. But in order to war- 348; Green v. Goodall, 1 Coldw. (Tenn.) rant the exercise of this power by her, • 404; Anonymous, 34 Ala. 43. Fbmb CovEEr. 161 veyance by her for however brief a term, or of however small an interest, is utterly void, ^ as the rents and profits of her estate belong, by the common law, absolutely to him, so long as the coverture exists, ^ and if her estate is sold and converted into money, the money becomes the property of the husband, * and the same is true as to mortgages and notes given to the husband for the purchase-money of her lands sold during coverture. * Where the wife has a dower interest in the estate of a former husband, the same rule prevails as to the rents and profits arising therefrom, or as to the proceeds of its sale. ^ But, as to her real estate remaining unsold at the time of her husband's death, she is remanded to her original rights as a feme sole,^ and the same is also true when the marriage is dissolved by a divorce, a vinculo^ un- less by statute the court is authorized to, and does, by the decree, give the lands to the husband. A feme covert is not bound by estoppel,' nor can a bill for specific performance of a contract made by her to lease her lands, be maintained, as she can make no contract by which a remedy against her personally is given ; ^ nor, although in such cases, 1 Jennings d. Brogg, Cro. Eliz. 446; Lynde v. McGregor, 13 Allen (Mass.), 182. He may lawfully convey the estate wMch he obtains in her lands by mar- riage. Trask b. Patterson, 29 Me. 499; but his interest ceases at her decease unless they had issue from the mar- riage, and in that event he has no claim vipon the estate for improvements made, by him upon it. Maroble v. Jordan, 5 Humph. (Tenn. ) 577; and in case of his death, she may elect whether to defeat a lease made by him of her lands, or to affirm it. Brown i). Lindsay, 2 Hill (S. C.) Ch. 542. 2 Shaw -0. Partridge, 17 Vt. 626; Clapp V. Stoughton, 10 Pick. (Mass. ) 463; Burleigh ». Coffin, 22 N. H. 118; Dald 13. Geiger, 2 Gratt. (Va.) 68; Har- alson ». Bridges, 14 111. 37 ; Chancey v. Strong, 2 Root (Conn.), 369. But the husband may yield his marital rights, as between him and his wife, and per- mit her to collect and have the rents of her estate, and if he has permitted her to do so, he is estopped from recovering the rents paid to her by the tenant, and tipon his decease the estate from which the rent accrued would go to her. Cheney u. Pierce, 38 Vt. 515. 8 Hamlin u. Jones, 20 Wis. 536; Mar- tin !). Martin, 1 N". Y. 473 ; Crosby v. Otis, 32 Me. 256; Ward ». Morrill, 1 D. Chip. (Vt.) 322; Chester v. Greer, 5 Humph. (Tenn.) 26; Ellsworth v. Hinds, 5 Wis. 613;. Mann's Appeal, 50 Penn; St. 375. But where the land is sold for the purpose of a partition, it is generally held that the money received therefor is to be treated in eqtiity as land, and the husband is not entitled to it without her assent. Stoner b. Cam, 16 Penn. St. 387; Mebane b. Yansey, 3 Ired. (N. C.) Eq. 88; Kempe b. Pittard, 32 Miss. 324; Eherts b. Eherts, 55 Penn. St. 110; Wardlaw r. Gray, 2 Hill (S. C.) Ch. 644; Davis b. Davis, 46 Penn. St. 342. But contra, see Jones B. Plummer, 20 Md. 416; Bank of the State V. Mitchell, Eice (S. C. ) Ch. 389. * Hawley v. Burgess, 2^ Conn. 284; Talbot B. Dennis, 1 Ind. 471; McCrary V. Foster, 1 Iowa, 271. 5 Ellsworth V. Hinds, 5 Wis. 613. ^ Daniels b. Richardson, 22 Pick. (Mass.) 565. 'Doe B. Brown, 5 Black (Ind.), 309. ' James b. Landon, Cro. Eliz. 37; Breton v. Evans, Cro. Eliz. 700. 3 Aylett B. Ashton, 1 Myl. & Cr. 105. It is now well settled that &feme covert having a separate estate will be bound to a specific performance of her contract for the leasing or sale of the same, if there is an entire absence of fraud, or or undue influence or advantage. Wag- staff V. Smith, 11 Ves. Jr. 209; Pybus b. Smith, 3 B. & Ch. 340; Parkes b. White, 12 Ves. .Jr. 501; Witte b. Dawkins, 4 Ves. Jr. 129; Whistler b. Newman, 5 Ves. Jr. 692, and in equity, her separate estate may be applied to the payment of a bond executed by her before marriage. Briscoe b. Kennedy, 1 B. & Ch. 118, or to the payment of a bond executed by her jointly with her hus- band. Peacock b. Monk, 2 Ves. 190; ~ Norton b. Turvil, 2 P. Wms. 114, but 11 162 Feiie Sole. « the court acts in reni^ and although she has power, and the court has jurisdiction over the rents and profits, is it believed that the court would give effect to her contracts upion the corpus of her i^roperty,-' but the rule is otherwise if she joins with her husband in a contract ^ as to land that is held by her " to her separate use " by devise or otherwise,' as in equity a feme covert is treated as a feme sole with respect to her separate estate, and may dispose of it without the con- sent or concurrence of her trustee, unless restrained by the instrument under which she holds.* And, though a particular mode of disposition is provided in the instrument under which she holds, it will not pre- clude her from adopting another mode, unless there are negative words restraining, her power of disposition, except in the identical mode provided. Therefore, if she enters into any agreement, clearly indicating her intention to affect by it her separate property, a court of equity, if there be no fraud, or unfair advantage taken of her, will ap- ply her separate property to satisfy such agreement,^ and, if she con- tracts to lease, mortgage, or sell her estate, under the conditions last stated, she will be compelled to specifically perform.^ The statutory changes in reference to the rights and powers of the wife over her es- tate, are such that the statute mast be consulted to ascertain how far these principles apply in a given case, as it would be impracticable to note all of them in this work. A feme covert may take a lease of lands, and the estate vests until her husband dissents thereto,' but she may avoid the lease upon the death of the husband, or after the marriage is dissolved by a divorce a vinculo.^ By husband and ■wifis. Sec. 116. We briefly stated in the preceding section the rights ac- quired by the husband in the real estate of the wife by marriage, and it is unnecessary to repeat them here.° From what was there said, it when she thus applies her separate es- ^ Stead v. Nelson, ante, tate to the pajonent of her husband's '' Co. Litt. 3 a ; Swain ». Dolman, Hob. debts, equity will reimburse her out of 204. In New York under the statute her husband's assets. Clintons. Hooper, giving married women the right to eon- 3 B. & Ch. 201 ; POcock v. Lee, 2 Vern. tract in reference to their own separate 604; Huntingdon?). Huntingdon, 2 id. estate, it is held that she is liable for a 437; Tate u. Austin, 1 P. Wms. 164; leasehold acquired by her separately, Pateriche ». Pawlet, 2 Atk. 384. it being treated as her separate property, ^ Piatt on Leases, 49; Aylett v. Ash- and she is liable for the rent agreed iipon. ton, 1 Myl. & Cr. 105. Westervelt d. Ackley, 62 Jf. Y. 508; '^ Stead V. Nelson, 2 Beav. 245. Prevot v. Lawrence, 51 id. 219; Moxon 5 TuUett t). Armstrong, 1 Beav. 1; o. Scott, 55 id. 247; Frecking ». Rol- Johnsonv. Johnson, 1 lieen, 648; Ac- land, 53 id. 422. ton V. White, 1 Sim. & Stu. 429 ; New- « Co. Litt. Za; Doe x>. Brown, 5 Black lands V. Paynter, 4 Myl. & Cr. 408; Viz- (Ind.), 809; Dyer 13o,- Legg ». Legg, 8 oneau v. Pegram, 2 Leigh(Va. ), 183. Mass. 99. * Jaques «. Methodist, &c. Church, 17 ' The husband takes an estate for the John. (N. Y.J 348. life of the wife, in her lands, if he sur- s Jaques v. Methodist. &c. Church, vives her, and he may lease, sell or as- ante ; Mones v. Huish, 9 Ves. Jr. 369. sign this interest therein, and it may be Feme Goteet. 163 will be understood that, by the common law, and in the absence of any statute to the contrary, the husband may demise the lands of his wife during their joint lives without her consent or concurrence,^ and a lease made by him for a term that extends beyond his own life, is not void as to the wife, but upon his decease she may elect whether to affirm or defeat it,^ and if she accepts rent accruing thereon after her husband's decease, she will thereby be estopped from denying the validity of the lease for the balance of the term,^ and in any event, though she joined levied upon under an execution against liim, Clieeli v. Waldron, 25 Ala. 152; Boyuton v. Finnall, 12 Miss. 193, ex- cept where it is exempted from levy by statute. Coleman v. Sutterfield, 2 Head. (Temi.) 209; Dens. Quimby, 3N. J. L., 9S5. He may, as previously stated, con- vey this freehold estate as he pleases, without her concurrence and against her protest. Trask v. Patterson, 29 Me. 409 ; LyndcK. McCrezon, 13 Allen (Mass.), 182; Jtmctiou R. E. Co. V. Harris, 9 Ind. 184 ; G-onsalis v. Douchauquette, 1 Mo. 666. But he has no right to commit waste upon her lands, therefore he cannot sell the growing trees thereon, except so far as good husbandry permits to reduce a due proportion of the land to cultivation. He can clear no more of it than a pru- dent owner of the fee would, having proper regard to the nature and situation of the land, and the future wants of the reversioners. Strache v. Fehl, 22 Wis. 337. 1 Hill V. Saunders, 2 Bing. 112 ; Eaton V. Whitaker, 18 Conn. 222;Lynde». Mc- Gregor, 13 Allen (Mass.), 182; Wiscot's Case, 2 Coke, 61 6. By the statute 32 H. 8, Chap. 28. husbands seized of lands in the right of the wife, or jointly with the wife, might make a lease thereof, for a termnot exceeding twenty-one years, or three lives, reserving a yearly rent, and is subject to certain restrictions that it is not necessary to enumerate. This stat- ute was repealed by 19 & 20 Vic. chap. 120, sec. 35. 2 Brown v. Lindsay, 2 Hill (S. C.) Ch. 542; Co. Lit. 45;Bro. Leases 24; Ship- witliD. Steed, Cro. Eliz. 769; Jordan d. Wikes, Cro. Jac. 332; Greenwoods. Ty- ber, Cro. Jac. 563. ^ Greenwood v. Tyber, ante. If a lease is made by the husband, or by the husband and wife, for a terra, without any reservation of rent, she may affirm it by bringing waste or accepting fealty Jackson v. Mordant, Cro. Eliz. 112, and if rent is reserved and the lessee enters, and the husband dies before rent be- comes due, and the widow marries again, and her second husband accepts the rent under the lease, and dies, she cannot avoid the lease, for by her second mar- riage she transferred the power of avoid- ing the lease to her second husband, and she is bound by his ratiiication thereof. Dyer 159a ; EoUe's. Abr. 475 ; Eolle's Hep. '321 1, Bac. Abr. tit. Baron and Feme (C. ) 498. But Saegbant Wilijams, in a note to Watton v. Hill, Saunders, 188 6, doubts whether the law is well settled that a wife may affirm a lease made by the husband alone. He says: "It in said to be clearly agreed in all the books, that if the husband alone makes a lease of his wife's lands for years by inden- ture, reserving rent, it is a good lease for the whole term, unless the wife by some act shews her dissent to it; for if she ac- cepts rent which accrues due after his death, the lease is thereby become abso- lute and unavoidable. 1 Bac. Abr. 392, 3 Id. 305; Bro. Acceptance 10; Leases 24, Cro. Jac. 332; Jordan v. Wilkes, Co. Litt. 45 b; Plow. 137. Browning v. Beston, are cited as author- ities in support of it. But it seems, not- withstanding, to be doubtful, whether this is well warranted, though it is un- doubtedly a good lease during the cover- ture ; it is however certain that all the above mentioned authorities do not prove the position, as will be best seen on the following examination of them. Bro. Acceptance, 10, is an abridgment of the year-book 21 H. 7, 88, in which Conesbj says, that if a lease is made by hus- band ar,.d wife of the wife's lands render- ing rent, and the wife accepts rent after her husband's death, she has made the lease good. There is no doubt of this, but the material consideration is, that it does not support what it is cited to prove. So in Bro. Leases, 24, it is laid down, that if a husband seized in right of his wife leases her lands for years, and dies within the term, the lease by his death is void; so that this authority is directly contrary to the position it is cited to sup- port. In Co. Litt. 45 b, it is observed that a man, seized in right of his wife, together loith his wife, may by deed indented make leases for 21 years, or three lives, agreeable to the statute 32 H. 8, all which were voidable at the com- 164 Feme Sole. with the husband in making the lease, and the execution thereof upon her part is void, it will be a good lease during the husband's life, if the wife lives so long, or if they had a child born alive, so that he became tenant by curtesy.^ But, where a lease is void as to her, as when it is not by deed, it cannot bo affirmed by her, upon the death of her husband, by an acceptance of rent, because her assent is necessary at the commencement of the lease. ^ But where, by law, the husband and wife should join in a lease, or where they attempt to execute the in- strument under the provisions of some statute, even though the lease does not follow the statute, it will be good so long as the coverture exists, if the husband has any interest in the estate,' and it has always been held unnecessary in pleading a demise by husband and wife to set it up as being by deed, because in any event it would be good mon law.- It is true indeed that in Plow. 137 it is said by Gawdy, Sergeant ar- guendo, tliat if a man makes a lease for years of his wife's land, and dies, the lease is not void before entry made by the wife; and this dictum is cited by counsel in argument in 1 Roll. Rep. 402, Smalman ». Agburrough. In the case in Cro. Jac. 332, the husband made a lease of his wife's lands for five years in an ejectment for trial of the title, ahd died before the action was brought, and it was adjudged that, inasmuch as the wife had not entered after her husband's death, the lease was not determined or void after her husband's death, but voidable only. On the other hand, it is said in Bro. Cul in vita 1, Acceptance, 1 S. C. that if a lease be made by the husband only, and he dies, and the wife accepts rent, the acceptance does not bind her, for she was not privy. And in Bro. Barre, 2*7, it is said, that if the husband alone leases for life, and dies, the wife cannot an bring action of waste, because she is not privy to the lease; and hence it follows, that the wife by acceptance of rent, where she was not party to the lease, shall not be bound, if it was a lease for years, but may enter; but if it be a lease for life, she is put to her cvi in vita. F. N. B. 446, Tth edit. But there her acceptance of rent, where she was not a party to the lease, is no bar to the writ, and note the diversity. And in Bro. Acceptance, (i, it is observed, that if husband and wife join in a lease of the wife's land rendering rent, and the husband dies, and the wife accepts rent, she is bound; but it is otherwise where the husband alone makes a gift, or lease, reserving rent, and dies, and the wife accepts rent, this will not bind her; note a diversity, quod nullus con- tradixit. However, it may be urged in support of the position in Bacon, that the proviso in the statute 32 H. 8, c. 28. s. 3, seems rather to prove that before the statute the law was as there stated. Perhaps the cases may be reconciled by distinguishing between leases, /or life, and years, that in the former case, as the estate commenced by livery, it can only be avoided by entry ; but that in the latter, the lease is absolute- ly void and determined bj' his death. Up- on the whole, however, it appears that the law is not so clearly agreed as it is said to be in the passage cited out of Bacon's Abridgment." But, whatever may have been the diversity of opinionformerly,itis now universally conceded that the wife may aflflrm such a lease. Brown )). Lind- say, 2 Hill (S. C.) .=542; Woodfall's L. &' T. 47; Doe. v. Weller, 7 T. E. 478; Toler V. Slator. 34 L. J. Q. B. 33 ; L. R. 3 Q. B. 42. ^Bateman v. Allen, Cro. Eliz. 43S, as where the lease is by parol, it cannot be said to be the wife's lease. Greenwood V. Tyber, Cro. Jac. 563; Walsal «. Heath, Cro. Eliz. 656. If she disaffirms the lease after her husband's death, it has been held to make the lease void ab initio, and that she may plead non denii':eret. Thetford v. Thetford, 1 Leon. 192 ; Cited 8 Coke, 28 a. If the husband does not become tenantby thecurtesyhis sole lease of her lands becomes, at her death, void as to her heirs and all other persons claiming under, by or through her, and the husband cannot distrain for rent after her death; though the lease was the joint deed of both. Howe v. Scarratt, 4 H. & N. 28; Hill v. Saunders, 2 Bing, 112. 2 Dyer, 91 b; Walsal v. Heath, Cro. Eliz. 650; Greenwood v. Tyber, Cro. Jac. 564. 3 Wiscot's Case, 2 Coke, 61 b Feme Covert. 165 during the husband's life. ^ But if the lease is by parol, it is not good except for such a term as, under the Statute of Frauds, may be granted by parol, and in case of the husband's death, it is absolutely void as to the wife, and is not and cannot be affirmed by an acceptance of rent by her, after her husband's death, so as to estop her from evicting the tenant, ^ and this rule applies also in favor of all persons claiming under her.' A mere contract by the husband for a lease of his wife's free- hold, cannot be enfoi'ced against her after his decease, even though by statute he has power to make a lease for a term extending beyond his own life. * As to leasehold estates of the iirife. Sec. 117. The chattels real of the wife vests absolutely in the hus- band, and he may dispose of them by grant or demise. ^ He takes them as a gift by the marriage, and not as by purchase. The jus disponendi exists in^im alone, and he may dispose of them absolutely by grant, demise or mortgage, and they may be taken upon execution against him. If he does not dispose of them, and she dies, they become his absolutely, but so long as she lives and he does not dispose of them, he holds them in her right, and cannot, as against her, dispose of them by will, ^ because, the jus disponendi not having been exercised by him, they revert to her upon his death. ' But a conveyance upon con- ditions is a conveyance of the whole, and even though the conditions are broken after the husband's death, the estate does not revert to the ' Bateman B. Allen, Cro. Eliz. 438; Mann's Appeal, 50 Penn. St. 375. This Childs V. Westcot, Cro. Eliz. 482. rule applies equally to the wife's lega! 2 Turney v. Sturges, 3 Dyer, 91 ft; estate in chattels real, in action, of Walsal V. .Heath, Cro. Eliz. 656 ; Perry which she ivas dispossessed when mar- V. Hindle, 2 Taunt. 181 ; Childs v. Wesf> ried. By reducing them to possession cot, Cro. Eliz. 481 ; Bateman v. Allen, during coverture, he possesses the same id. 437; Villers v. Beaiunont, 2 Dyer, interest in them that he has in her 146 6; Bro. Abr. 96; Barre, pi. 27, Shep. chattels real in possession, but if he Touch. 280; Greenwood v. Tyber, Cro. does not reduce them to possession and Jac. 564. dies, they survive to the wife. Co. Litt. 8 Harvey ». Thomas, Cro. Eliz. 216; 351 a. 1 EoUe's Abr. 389. " Harcourt ». WjTnan, 3 Excliq. 817. * Darlington v. Pultney, Camp. 260; 'In Daniels v. Kichardson, 22 Pick. Anonymous, Freem. Ch. 224. (Mkss. ) '565, a feme sole, being seized ^ In Yong V. Eadford, Hob. 3, a mort- of an estate for her life in land, demised gage of the wife's term by her and her it for her life, reserving an annual rent husband upon her death, was held to without any clause of re-entry, and was vest the condition in the husband, the subsequently married. The court held court holding that by the marriage the that the husband did not become seized husband acquired full power to alien of the estate in right of his wife, so as (he tenn, and that if she died first the to make the rents and profits his own; term would survive to him. In Ells- that nothing remained to the lessor but worth V. Hinds, 5 Wis. 613,- the widow the rent, which was a chose in action, having married again, sold her dower and, not being reduced to possessioji by interest in her first .husband's estate, the husband, survived to the wife. See and the court held that the second hus- also Bolder v. Blackborn, Hob. 285; band was entitled to the money realized Hastings u. Douglass, Cro. Car. 344; Co. therefrom, although he had loaned it Litt. 351 a, 46 h; Doctor and Student, upon securities in her name. See also Dia. 1 Ch. 7 Plowd. 418. 1G6 Feme Sole. wife,' because the conveyance is such a disposition or alteiation of the term as vests it in the husband. So if he recovers the term in eject- ment in his own name, it vests in him, and such is the case where he does any act that shows a clear intention to reduce the terra to his own possession, and which eifects such purpose.^ Thus,af he leases the term and dies, the rent must be paid to his executor, and if he leases only a part of it, the wife only takes the residue, because rent is not regarded as an incident of a term for years. ^ So he may make a lease of the term to take effect after Ms decease, and it will be operative and defeat the Avife's reversion, although she survives him. * The ac- ceptance of a feofment to the husband extinguishes a term to him and his wife. ^ Thus in the case last cited a lease was made to a husband and wife for years, and they entered under it. The lessor after- wards conveyed the premises to the husband. After the husband's death the wife claimed the term, but the court held that the term was extinguished, because when the husband accepted the conveyance he must be treated as having su]-rendered the term. But they held that the rule would have been otherwise if the conveyance had been by bargain and sale enrolled, or by fine. If a man makes a lease to a feme sole, for a term, of land in which he has the fee, and afterwards marries her, her term is not merged in his estate, because he has the inheritance in his own right, and the term, in the right of his wife, and, unless he disposes of the term during his life, the law will j^reserve it for the wife, and it will survive to her upon his death. ^ Where the wife is possessed of a contingent interest in a term for years, the husband may dispose of it, bvit if he makes no flisposition thereof, and dies, it belongs to the wife.' But when the contingency is one that 1 Co. Litt. 46 6. Coke. 96 6; Co. Litt. 46 6,- EoUe's Abr. 2 Comy^'s Dig. Baron & Feme (E), 2. 841. 3 Sym's Case, Cro. Eliz. 33. In Lof- * Grnte u. Locroft, Cro. Eliz. 287. tus' Case, Cro. Eliz. 279, Loftus being He may demise and thereby confer an possessed of a term for 18 years, and of immediate interest and possession, or anotlier term in tlie same land in re- he may underlet for a term to corn- version for forty years, died intestate, mence after his death, and thus defeat and took out administration and entered the reversion to his wife, though she and Tnarried, and her second husband survives him, for having an interest, he leased the term for twenty-one years, may dispose of all of it in his life, so as and died, upon the question whether to bind the wife. Anonymous, Poph. 4; the wife or his executor should have the Herbin v. Chard, Poph. 96; so when he rent, Pekiam, .J., said: "For the first has disposed by any act in his life, of term of years the executor shall have it, the interest of the term, and has created for the husband liad given away all that a term in the interest, it is as good as if term, and no interest remained in the he had granted all the term. Herbin «. feme, and the rent by the indenture Chard, ante; Grute v. Locroft, ante; shall go to the executor, but for the res- Bacon's ji.br. tit. Baron & Feme (C), 2; irlue oi the term of twenty-one years Anonymous, Poph. 4, 1 Eolle's Abr. 344. which is derived out of the term for ^ Downing v. Seymour, Cro. Eliz. 911. forty years, the wife shall have it as an- ^ Bracebridge v. Cook, Plowd. 418; nexed to the reversion or term which Grey m. Actor, 1 Salk. 326. the wife had." Manning's Case, 8 ' Co. Litt. 351 a, 46 6. Feme Coveet. 167 cannot happen while the husband lives, he has no interest therein, and even though he conveys it, his conveyance will not defeat the rights of the wife.'' Rights of husband, in chattels real held by the virife or executrix. Sec. 118. It can hardly be said that the husband by marriage takes an absolute interest in chattels real, held by her as executrix, and the rule is, that upon her death they go to the administrator de bonis non of the testator or intestate.'' The law makes no gift to him of chattels real, held by her en autre droits But there would seem to be no question but that, by the common law, where the husband is jjossessed of a term for years, held by his wife as executrix of another, he has po\\er to grant, demise or convey the same. It is well settled that he may administer in right of his wife without her consent, but she cannot administer without his consent, and if he can administer jure uxoris without her consent, it is incident to the power of administration to sell or dispose of a term for years, and he may do whatever his wife could have done as executrix, if sole.* " In case of a feme covert made executrix," says Holt, C. J.,"^ " the husband has a great power ; he may administer and bind her, though she refuses, and may release the debts of the testator." * When a term or other personal estate is given in trust for the wife's separate use, the husband is not entitled to any beneficial use thereof. As to such property, the wife is treated as 21. feme sole, and may control the income therefrom as she pleases, without any interference on the part of the husband. But if a term is settled upoii her before marriage, and she permits her husband to have the rents and profits, she can make no claim therefor against his estate upon his decease.' But as to trusts of terms to the wife generally, he has the same right to dispose of them that he has to dis- pose of those which are conveyed to her directly, and he may apply the rents and profits therefrom to his own use.' But this rule does not jire- 1 In Grey v. Acton, 1 Salk. 362, Holt, to grant it, and the court were unani- C. J., says, "Where the wife hath any mously of opinion that he had. See Dyer, right or duty which by any possibility 183 a, n 57; Ferguson v. Collins, 8 Ark. may happen to accrue during coverture, 241 ; Lindsay jj. Lindsay, 1 Dessau (S.C. ), the husband may, by release, discharge 150. Questions of this character will it ; but where the wife hath a right or seldom arise in our courts, as in many of duty, which by no possibility can accrue the States it is j^rovided by statute that to her during coverture, the husband can- tlie marriage of an executrix or adminis- not release it. tratrix shall terminate her powers. In 2 Co. Litt. 351 a. Alabama, under the Code, a married 3 Ibid. woman is not entitled to act as executrix *Loftus' Case, Cro. Eliz. 279; Leviok without the consent of her husband, but V. Coppin, 3 Wils. 277; Wankford v. it is held that her appointment, without Wankford, 1 Salk. 306. his consent, is good. English m. Mcls^air, 5 "Wankford o. Wankford, ante. 34 Ala. 40. ^ In Levick J). Coppin, the question was ' Comyn's Dig. Chancery, 2 (M.) 9. whether a husband possessed of a term * Bacon's Abr. Tit. ; Baron & Feme for years, in right of his wife, as execu- (C), 2. trix of her former husband, had power 168 Feme Sole. vail as to terms or estate settled upon the wife before marriage, which, by the terms of the settlement, go to her children upon her decease,^ or which in any means evince a clear and plain intention to exclude the husband's marital rights,^ and in the absence of express words to that effect, the husband's marital rights will not be excluded any farther than the language used will warrant,' and if the instrument does not in terms, or by fair construction, secure the property to her " for her separate use,'' the husband's right to the use thereof attaches,* and his interest therein may be seized upon his debts,^ and he may dispose of it by grant or demise. 1 Comyn's Digest Chancery, 2 (M.) 9. Merrill, 15 Ala. 169; Waters v. Tazwell, He cannot release a provision made in 9 Md. 291; Mason v. Deese, 30 Ga. 308. favor of his wife and her children. Gil- ' Carroll ». Kenioh, 15 Miss. 798. more v. Johnson, 29 Ga. 67 * Barrett b. Barrett, 4 Dessau (S. C), ^Koane c. Han. 1 Wash. (Va.) 47; 447. Mitchell u. Gates, 23 Ala. 438; WilUam- ^Eivers v. Thayer. 7 Kich. (S. C.) Eq. son D. Mason, 23 id. 488; Pollara v. 136. By Luitatics, Idiots, Ii^toxicated Persons, &c. 169 CHAJr-TER XVI. BY LUNATICS, IDIOTS, INTOXICATED PERSONS &C. Sbo. 119. Generally. Sbc. 120. By intoxicated persons, or persons under duress. Sec. 121. By persons under duress. Sec. 122. By person under influence of fraud. Generally. Section 119. Prima facie leases made by a lunatic, idiot, or other person non compos mentis, is valid, but it may be avoided, if not by himself, by his privies in blood, or by his representatives.^ Formerly it was held that such persons could not avail themselves of their infirmity in avoidance of a lease or other conveyance made by them, because they could not be permitted to stultify themselves, but that their legal rep- resentatives, or privies in blood, alone possessed the right to set up such matters in avoidance thereof.^ But this rule, never having any foundation in reason, is not now recognized, and a conveyance of any- kind, whether by lease or deed, executed by persons in either of the conditions named, while not absolutely void, is voidable, as well by the lessor or grantor himself ^ as by his privies in blood or legal represent- atives,* and the lessor or grantor, or any person claiming under him, may, in order to avoid his conveyance, show his own lunacy, idiocy, or drunkenness at the time it was made.^ A want of absolute and perfect mental soundness, does not necessarily affect his capacity to make a lease, provided the mind is still capable of comprehending the full im- 1 Beverley's Case, 4 Coke, 124 a ; Yates John. (N. Y. ) 503 ; Seaver v. Phelps, 11 ». Boen, 2 Stra. 1104. Pick. (Mass. ) 304; Thornton v. Appleton, ^Beverley's Case, ante; Addison «. 29 Me. 298; Mitchell ». Kingman, 5 Pick. Dawson, 2 Vern. 678. (Mass.) 431; Talson v. Garner, 15 Mo. 2 Arnold v. Eichmond Iron Works, 1 494; Webster B.Woodford, 3 Day (Conn.) Gray(Mass. ) 434 ; Summers v. Pumphrey, 90. 24 Ind. 2.31; Cotes v. Woodson, 2 Dana *Keebleo. Cummins, 5 Hayw. (Tenn.) (Ky.), 452 ; Allis v. Billing, 6 Met. 43; Parris v. Cobb, 5 Rich. (S. C.) Eq. (Mass. ) 415 ; Maddox v. Simmons, 31 Ga. 450. 512; Crowther v. Eowlandson, 27 Cal. ^Ballew ». Clark, 2 Ired. (IST. C.) L. 376; and this is so whether the mental 23 ; Morris v. Clay, 8 Jones (N. C. ) L. Incapacity arose from drunkenness or 216 ; Bensell v. Chancellor, 5 Wliart. any other cause, and whether the con- (Penn.) 371 ; Ingraham v. Baldwin, 9 tract be by deed or parol. Jenners v. N. Y. 45 ; Cook v. Parker, 5 Phila. Howard, 6 Blackf. (Ind.) 240: Lang v. (Penn.) 265 ; Bliss v. Conn. E. E. Co., Whidden, 2 N. H. 435; Rice » Peet, 15 24 Vt. 424. 170 By Lunatics, Idiots, Intoxicatbb Pbesons, &c. port of the act ; ^ and a contract made by a lunatic even may be binding upon him, unless the other party knew or ought to have known of his mental infirmity, and took some unfair advantage of him.'^ But if there is any imposition shown, as, if the consideration is very inade- quate, either a court of equity or a jury in a court of law, will give weight to slight evidence calculating to establish imposition or circum- vention.'' A deed or lease made by a person non compos, while under guardianship, is absolutely void,** but if not under guardiansbi]), a lease or other conveyance made during a lucid interval, cannot be impeached upon the ground of prior or subsequent insanity.'' As to leases made by the guardian of a person no)>. compos, it may be said that, unless the statute expressly specifies their powers, they are subject to the same rules as guardian for infants.'' As to the power of a com- mittee over sucli persons and their property, the statute authorizing their appointment must be consulted, and in the absence of power given by statute, they have no power to lease.'' By intoxicated persons, or persons under duress. Sec. 120. A deed, lease, or other conveyance, executed by a person in such a state of intoxication as to destroy his capacity to contract, may be avoided by him, and he will be permitted to show his in- toxication either in an action against him, predicated upon such in- struments, or in an action in his favor to avoid them,' and the rule is the same, both at law and in equity, " and that too, whether the grantee iHovey v. Hobson, 55 Me. 250; Den- Thompson, 9Md. 1-15; Watson b. Ander- nett V. Dennett, 44 N. H. 531; Odell c. son, 11 Ala. 43; Hendrix v. Money, 1 Buck, 21 Wend. (N". T.) 142; Miller ». Bush. (Ky.) 306; Dickinson?). Barber, 9 Craig, 36 111. 109; Speers ». Lewell, 4 Mass. 225; but proof of insanity at re- Bvish. (Ky.)239; Eippy u. Gaunt, 5 Ired. mote periods before or after the convey- (N". C. ) Eq. 443. ance was made, is not admissible. Hai- ^Eichardson i). Strong, 13 Ired. (N". den u. Hays, 14 Penn. St. 91. C.) 106; SimsD. McLure, 8 Rich. (S. C.) "See Sec. 91 et seq., p. 154 et seq. ; Eq. 286 ; Lincoln v. Buokmaster, 32 Vt. Thompson v. Boardman, 1 Vt. 370. 652; Skidmore d. Eamline, 2 Bradf. (N". "' Knipe v. Palmer, 2 Wils. 130. T. Surrogate) 122; Bennan v. McDon- 'InPittB. Smith, 3 Camp. 84, Lord El- neil, 9 Exchq. 309; Molton v. Camroux, LENBOKOUGHsaid: " Intoxication is good 2 Exchq. 487. Dane v. Kirkwall, 8 C. & evidence upon a plea of nun est factum P. 679; Elliott v. Ince, 7 De G. M. & G. to a deed of non consseist to a grant, and 475; Brown M. Jaddrell, 1 Moo. &M. 105. of non assumpsit to a promise." See 3 Wilson V. 01dham,12B. Mon. (Ky.) also Butler t). Mulvihill, 1 Bliijh, 160. 55; McFaddeu v. Vincent, 21 Tex. 47; « In Cook w. Clay worth, 18Ves. Jr. 16, Hale V. Bo wen, 11 Ala. 87. Sir W. Grajtt, M. R., said: " Asto that *MohrB. TuUp, 40 Wis. 66; Elston v. extreme state of intoxication that de- Jasper, 45 Tex. 409; Nichols v. Thomas, prives a man of his reason, I apprehend 53 Ind. 42. that even at law, it would invalidate a 5 Hardin v. Hays, 14 Penn. St. 19 ; Wil- deed obtained from him wliile in that kinson v. Pearson, 23 id. 117. But in or- condition." Jenners v. Howard, 6 Blaokf. der to establish insanity at the time when (Ind.) 240. In Gore v. Gibson, 13 M. the contract was made, evidence of the & W. 623, the court were unanimously of state of his mind just liefore, at, and the opinion that intoxication was a good after such time, is advisable. Peasley v. defence to an action upon a lease, deed, Robbins, 3 Met. (Mass.) 164; Grant v. grant or simple contract, provided the Thompson, 4 Conn. 203; Negro Jerry ». person making it was so far deprived of Bt Lunatics, Idiots, Intoxicated Persons, &o. 171 connived at the intoxication or not.^ If connivance at his intoxication is shown on the part of the grantee, the grantor would not be bound, if any undue advantage was shown to have been taken of his condition, although he was not wholly deprived of his senses, as in such a case, the contract would be tainted with fraud.^ In order, however, to operate as a defence to an action at law predicated upon a lease or other con- tract, or to secure the interposition of a court of equity and set it aside, he must show that such a state of intoxication existed as seriously im- l^aired his reasoning faculties, or deprived him of the exercise of his understanding at the time when it was entered into,^ or that his mind had become so impaired by previous intoxication as to render him in- competent to contract, even though at the time he was not intoxicated.^ Thus, in a Pennsylvania case,^ the court held that a person who had been reduced to such a state of debility by intoxication as to be unable to rise or sit up in bed unless supported, or to hold a pen and make a mark, unless the pen and hand were held by another, is no more fit to make a conveyance than a person in an actual state of intoxication ; and by reference to the preceding cases, it will be seen that if the previous intoxication of the lessor, grantor or contractor, has impaired his mental faculties to such an extent that he is not in the exercise of his reasoning powers, his contract is voidable, although he is not physi- cally debilitated. The personal representatives of a party, or any person claiming under, by, or through him, may avail themselves of his intoxication as a defence, or to set it aside.° By persons under duress. Sec. 121. A person who executes a lease or other contract by duress, his senses as not to know wliat he was ever there is r/reat weakness of mind, doing. Butler v. Mulvihill, 1 Bligh, 137. though not amounting to absolute dis- ^G-ore i). Gibson, ante; Drummond-i). qualification, arising from age, sickness. Hopper, 4 Harr. (Del.) 327; Barrett u. or any other cause, in a person executing Buxton, 1 Aik. (Vt.) 167; Foot v. a conveyance and the consideration is Tewksbury, 2 Vt. 97 ; Burroughs ». Rich- grossly inadequate, a court of equity man, 13 N. J. L. 233; Wiggleston v. will, upon seasonable application of his Steers, 1 H. & M. ( Va. ) 70. representatives or heirs, set it aside, and 2 Say u. Barwick, IV. & B. 195 ; But- the same rules prevails where it is shown ler V. Mulvihill, ante; Cooke v. Clay- that the party executing the conveyance worth, 18 Ves. 12; Pitt v. Smith, 3 Camp, is likely to be eaaily influenced. Allore 33. V. Jewett, 94 U. S. 596 ; see also Yard spickettB. Sutter, 5 Cal. 412; Barrett w. Yard, 27 N. .T. Eq. 114. But where V. Buxton, 2 Aik. (Vt. ) 167; Wade v. there is no evidence of fraud or undue Culvert, 2 Mill. (S. C.) 27; Taylor v. influence, the mere fact that a person is Patrick, 1 Bibb. (Ky. ) 168. Burroughs aged and infirm, affords no ground for r. Kiehman, 13 K. J. L. 233; Foot u. interference. Crow v. Peters, 63 Mo. Tewksbury. 2 Vt. 97; Lee v. Ware, 1 429. Hill (S. C), 313; White M. Cox, 3 Hayw. * White v. Cox, Hayw. (Tenn.) 79; (Tenn. ) .32; Broadwater v. Dome, 10 Birdsong «. Birdsong, 2 Head. (Tenn.) Mo. 277; Birdsong v. Birdsong, 2 Head. Mansfield v. Watson, 2 Iowa, 111. (Tenn.) 289; Drummond v. Hopper, 4 ^Wilson v. Bigger, 7 W. & S. (Penn.) Harr. (Del. ) 327. In a recent case heard 111. and decided in the Supreme Court of the i^ Wigglesworth v. Steers, 1 H. & M. United States, the court held that, when- { Va. ) 70. 172 By Lunatics, Idiots, Intoxicated Persons, &c. may avail himself thereof, when freed therefrom, either in defence to an action thereon, or as a ground for setting it aside,^ but the privi- lege is personal, and neither his creditors nor a stranger to the contract, can avail themselves of it, as a ground for setting aside a contract, "which he himself makes no objection to.^ Duress by threats must, in order to be available as a defence to, or a ground for, setting aside a lease, be of such a character as to excite a fear of some grievous wrong, or of great bodily harm or unlawful punishment,^ and such as would be likely to overcome the will of a person of ordinary courage and firmness.'' Threatening to do a legal act, as to sue a person and attach his property, or to arrest him upon the writ, when the same may legally be done, and the party has a probable ground of action against him, does not amount to duress.^ But, where a person threatens to do an unlawful act under the color of legal process, as to imprison the per- sons threatened, and the party threatened is ignorant of his rights, and through fear of such unlawful imjjrisonment executes a lease, or enters into any contract, it is avoidable upon the ground of duress,^ as where a person threatens to arrest a person in an action, in which an arrest cannot lawfully be made, if the threat is of such a character as is suf- ficient to overcome the mind and will of a person of ordinary firmness it is such duress as will avoid a contract made under its influence.' So even though a person is arrested upon a legal warrant, and by a proper officer, yet, if the object of the process was to extort money from the defendant, and to enforce the settlement of a civil claim against his will, it is an abuse of the process, and such duress as will operate as a defence to any conveyance made under its influence, and as will induce a court of equity to set it aside. ^ The rule may be said to be that, to 1 Kelsey v. Haply, 16 Pet. (U. S,) 269, Viner's. Abr. 317 tit. Duress (B.) pi. 1; Knight's Case, 3 Leon. 2.39; Hackett u. 2Bacon's Abr. tit. Duress (A); Osborn?;. King, 6 Allen (Mass. ), 565 ; Foss v. Hil- Bobbins, 36 N. Y. 365. The rule may be dreth, 10 id. TC. summarized as follows : When an arrest 2 Lewis V. Bannister, 16 Gray (Mass.), is made for an improper purpose with- 500; McClintock c. Cummins, 3 McLean out just cause ; or where there is an ar- (U. S. C. C. ), 158. rest for just cause without lawful au- 3 Burr D. Burton, 18 Ark. 214; Hazle- thority, or where there is an arrest rigg D. Donaldson, 2 Met. (Ky. )445. for just cause and with lawful author- ^ Harman v. Harman, 61 Me. 227, 14 ity, for improper purposes, it con- Am. Rep. 556; States. Sluder, 70 N. C. stitutes duress. Strong v. Grannis. 26 55; Bosley v. Shauner, 26 Ark. 280; Barb. C. (N". T.) 122; Watkins ». Baird, Beckwith v. Frisbie, 32 Vt. 559 ; Max- 6 Mass. 511 ; Eichardson v. Duncan 3 IV. well V. Griswold, 10 How. (U. S.) 242; H. 508; Thompson c. Lockwood 15 John. Durr V. Howard, 6 Ark. 561. (N. Y.) 256. So if one arrests another ' Davis V. Susler, 64. Mo. 43; Gresham under pretence that he has a warrant, V. Landens, Ga. Dec. Part 2. 149; Eddy when he has not, or when he has a war- V. Herrin, 17 Me. 338 ; Sheppard ». Wat- rant, but it was illegally issued, or is rous, 3 Cai. N. Y. 166. illegal for a failure to comply with cer- 8 Whitfield?;. Longfellow, 13 Me. 146. tain statutory requirements, any con- 'Foss V. Hildreth, 10 Allen (Mass.), veyance or contract procured by such 76 ; Wade v. Simon, 2 C. B. 548. means is void. Indeed mere fear of im- ' Hackett u. King, 6 Allen (Mass. ), 58; prisonment is sufficient to constitute Breck v. Blanchard, 22 N. H. 303, 9 duress. Fashey v. Ferguson, 5 Hill (K. By Lunatics, Idiots, Intoxicated Peesons, &c. 173 constitute duress, under the influence of fear or restraint by an arrest under a legal process, the arrest must either have been illegal in its in- ception, or must have become so by a subsequent abuse of the process} And it seems that dui-ess may be predicated of conveyances made, or contracts entered into, when a person is illegally restrained of his liberty, even though such conveyance were made or agreements entered into by the advice or through the instrumentality of his counsel, as a means of securing the removal of such illegal restraint. Thus, in an English case,' the plaintiff was confined in a lunatic asylum, and an inquisition under a commission of lunacy being held upon her, and at- tended by her counsel, before any verdict was given, an agreement was signed by her counsel and the counsel for the promoters of the com- mission, that the plaintiff should be released from confinement, .that certain arrangements should be made as to property which she claimed ; that the title deeds relating thereto, which had been taken from her when she was confined, and now were in the hands of the promoters, should be given up and placed in the hands of one of the defendants, and that the commission should be superseded. All of which was done. The plaintiff then brought detinue against the defendant therefor, to whom, under the agreement, the title deeds had been delivered, for the deeds. An issue was made, and the court held that the plaintiff was not bound to prove her title to the deeds, the only question being whether the agreement prevented her from insisting on her title ; also, that it was rightly left to the jury to say, on evidence of the state of plaintiff's mind and health at the time the agreement was made, whether the consent of her counsel was obtained by constraint and without her free will ; and the jury having so found, that the plaintiff was entitled to the verdict ; and that the legality of the restraint (as- suming it to have been legal), and the consent of counsel, furnished no conclusive proof that the agreement was not void by duress. Loed Dbnman, C. J., said : " That her counsel exercised a sound discretion, and did the best for their client's interest, we do not for a moment T. ), 154; Whitfield v. Longfellow, 13 Me. C. P. ), Vl. In Fay v. Outley it was held 146; Eddy v. Harrin, 17 Me. 388. Chetty that, where a creditor procures a requi- on Contracts, 168, Co. Inst. 483, Co. Litt. sition for the arrest of a debtor, whom 253 6., Bacon's Abr. tit. Duress, Comyn's he has procured to be indicted in an- Dig. tit. Pleader (W. )20. So where an ar- other State for a criminal offence, and rest is lawful and regular in form, yet, he abuses the process by holding it over if it was procured by perjury, it is such the debtor as a means of making him duress as vitiates any contract made un- pay or secure the debt, intending then to der its inliuence. Strong u. Grannis, let him escape, all contracts growing ante. out of this abuse of the process are 1 Richardson v. Duncan, 3 N. H. 508; utterly void. See also Gardner v. Wll- Stouft'er V. Latshaw, 2 Watts. (Penn.) hams, Dudley (Ga.), 424; Whitfield b. 167; Meek v. Atkinson, 1 Bailey S, C.) Longfellow, 13 Me. 1461, Breckc. Blanch- 84; Watkins v. Baird, 6 Mass. 511 ; Shep- ard, 22 N". H. 803. pard V. Watrous, 8 Ca,i. (K. Y.) 166; 2 Cummings v. Iver, 11 Q. B. 112. Richards v. Vanderpool, 1 Daly (S. Y. 174 By Lunatics, Idiots, Intoxicated Persons, &c. doubt. But they are not invested with any supei'ior power, with the power and duty of guardianship over the lunatic. Their right to act for her is derived from herself alone. As long as she was at liberty, she might authorize them to appear in her behalf and disprove the im- puted insanity ; but as she was incompetent (by the hypothesis) from making any contract, she was incompetent to appoint any one to deal for her in relation to her liberty or her property. If, on the other hand, her counsel acted for her, believing her of sound mind, from the same fear of inconvenience and disease, as likely to arise from her coniine- ment, which affected the mind of their principal, their proceeding ought to be considered as enforced by the same dm'ess." By person under influence of fraud. Sec. 122. A lease or other conveyance that is entered into through fraud on the part of the lessor or lessee may be avoided upon that ground, upon the principle that fraud vitiates all contracts. But mere misrepresentations, which are false, do not necessarily amount to fraud, as they may have been innocently made. In order to have that effect, there must have been an intent to deceive, in reference to a material matter,-' or if not wilfully made, it must have related to a matter abput which it was the duty of the party making it to have known the truth,^ and in the latter case, even though the misrepresentation was in- nocently made, if it related to a material matter, the party injured may recover the damages he sustains therefrom in a court of law,* or may resort to a court of equity to have the lease or conveyance set aside.'' Fraud may consist in the suppression of the facts, and when it is the duty of a party to state the facts, and he omits to do so, it furnishes a good ground for an action at law for damages, or for the intervention of a court of equity to set the lease or deed aside.^ But, ordinarily, a court of equity will not interfere in a case of fraud, where there is a clear, plain and adequate remedy at law,'' nor where the fraud alleged is the result of false i-easoning from facts truly stated,' or relates to a mere matter of judgment,' nor where the alleged fraud was perpetrated after the contract was made,^ or did not influence the 1 Taylor v. Leith, 26 Ohio St. 428 ; Hoitt ». Holcomb, 23 N". H. 535 ; Eelf v. Stitt 1). Little, 63 N". T. 426 ; Dunn v. Eberley, 23 Iowa, 467 ; TurnbuU v. White, 63 Mo. 181 ; Dulanoy v. Rogers, Gadsden, 2 Strobh. (S. C. ) Eq. 14 ; Mar- 64 id. 201 ; Morehouse B. Teager, 41 N. tin v. Blyth, 4 J. J. Mar. (Ky.) 491. y. Superior Ct. 135. « Greggs v. Woodruff, 14 Ark. 9 ; 2 Foard v. McComb, 12 Bush. (Ky.) Smith v. Richards, 13 Pet. (IT. S.) 26; 723 ; Craig c. Ward, -1 Abb. (N. T.) App. State v. Halloway, 8 Blackf. (Ind.) 45 ; Dec. 454. Torrey ». Buck, 2 N". J. Eq. 366. 8 Goodwin v. Robinson, 30 Ark. 535 ; « Miller ». Scammon, 52 K. H. 609. Frenzel c. Miller, 37 Ind. 1 : Elder ». ' Bowman v. Bates, 2 Bibb. (Ky.) Allison, 45 Ga. 13. , 47. 4 Griffin ». Sketoe, 30 Ga. 300; Marghy s Halls u. Thompson, 9 Miss. 443. ■0. Haner, 7 John. (N. T. ) 341 ; » Fulton ». Loftus, 63 N. C. 893. By Lunatics, Idiots, Intoxicated Peesons, &c. 175 party seeking relief,^ or the party was not injured thereby,- or where he Jiad equal opiDortunities with ' the other party for ascertaining the truth,^ or where he has been guilty of unreasonable delay in apjilying for relief.^ In all cases, the party alleging, must prove the fraud, as it will never be inferred from facts which may be consistent with honest intentions.^ When the fraud appears upon the face of a lease or deed, it may be invalidated in a court of law," but where the fraud consists in matter dehors the lease, it is voidable only in equity.' The subject of fraud, and the rights and remedies of the landlord or tenant therefor, will be treated fully, post 1 Stephens v. Grman, 10 Fla. 9 ; Boyce ^ Stute v. Kinkh, 3 Ala. 352 ; Harris v. 1). Watson, 20 Ga. 517. Ransom, 24 Miss. 504; Pratt v. Phill- 2 Jewett V. Davis, 10 Allen (Mass.), 68 ; brooli, 33 Me. 17. Davidson v. Moss, Miss. 673 ^ Arnold v. Grimes, 2 Greene (Iowa), 3 Grantland v. Wigtt, 7 Munf. (Va.) 77 ; Obert v. Hammell, 18 N. J. L. 179. 73. *Munn V. 'Worrell, 16 Barb. (N. T.) 'Arnold v. Grimes, ante ; HoUey c. 221; Cox D.Montgomery, 36111. 396; Mc- Younge, 27 Ala. 203; Reservoir Co. Lean v. Barton, Harv. (Micb.) 279; Mc- v. Chase, 14 Conn. 123 ; Pocock v Hen- Dowell V. Goldsmith, 2 Md. Cb. 370; dricks, 8 G. & J. (Md.) 441; Anderson ». Kern v. Burnham, 28 Ala. 428 ; Gifford Hill, 20 Miss. 879 ; White v. Jones, 4 V. Tbom, 9 ]Sr. J. Eq. 702, CaU. (Va.) 253. 176 By Executoes ok Abministeatoes. CHAPTEE XVII. BT EXECUTOES OE ADMINISTEATOES. Sec. 123. Common law, powers of. Sec. 124. Leases by executors voidable in equity, though good at law. Sec. 125. When executor is an infant. Common lavr, poijvers of. Sec. 123. At the common law, executors and administrators may- dispose absolutely of terms for years vested in them in right of their testators or intestates, and may lease the same for any fewer number of years, and the rents reserved on such leases are assets in their hands, and go in course of administration ; ^ and executors deriving their authority from their testator may make valid leases of any prem- ises that devolve i;pon them as such, by the will under which their power is derived, even before the y/ill has been proved ; ^ but an ad- ministrator, deriving all his powers from an appointment by a compe- tent tribunal, cannot grant a lease until letters of administration have been granted to him. ^ A lease by one of several executors * or ad- 14 Bacon's Abr. Tit. Leases (I.), 7; executor or administrator, or one who Sir Moyle Finch's Case, 6 Colce, 67 h; assumes to act in the latter capacity, Keating v. Keating, Slayd & G. temp, takes a renewal in his own name of a Sugd. C. 133. In So. Carolina by an lease to the testator or intestate, al- early statute (1791), leasehold estates go though the lease does not provide for a to the executor and are distributable by renewal, he is nevertheless bound to ac- him under the provisions of that act. count to the estate, for the value of the Payne v. Harris, 3 Strobh. (S. C. ) Eq. new lease. , Zilkin v. Carhart, 3 Bradf. 39. An administrator or executor of a (N". T. Surrogate) 376; Engel v. Bur- lessee, who does not quit and surrender icker, 34 Mo. 93; — An executor or ad- the demised premises immediately after ministrator is authorized to make rea- his appointment, or upon a notice to sonable repairs upon a leasehold estate, quit, imtil a judgment for the possession Ames v. Daivany, 1 Bradf. (N. Y. Sur- thereof has been obtained against him, rogate) 321. but keeps the property of his intestate ^ Bendall v. Summerset, 2 W. Bl. 692 ; therefor several weeks, and sells it by Eolle's Abr. Executors (A.); Hudson v. auction upon the premises, and claims of Hudson, 1 Atk. 460. an under-tenant of a portion of the ^ Wankford d. Wankford, 1 Salk. 301; premises, rent which accrued after his Toller's Exrs. 95; Hudson v. Hudson, intestate's death, miist be held to have ante; 1 Piatt on Leases, 307; Fawcett's entered and taken possession of the L. & T. 30; Bank v. Dudley, 2 Pet. premises, and is personally liable to the (tJ. S.) 493; 1 Williams' Exrs. 3.54. lessor for rent thereof, until his estate * Chandler ». Ryder, 102 Mass. 268; therein was terminated by the notice to Doe v. Hayes, 7 Tannt. 222; Bunner v. quit, to the extent of the real value of Storm, 1 Sandf. Ch. (N. Y. ) 387; An- the use of the premises. Inches v. onymous, Dyer, 23 b; Simpson v. Gutter- Dickinson, 2 Allen (Mass.), 71. If an idge, 1 Madd. 609; Pennel v. Ferm, Cro. By Execlttoes or Administeatoes. 177 iniuistrators ' is good, as they are all regarded as an individnal person, and have a joint and entire interest in the property. ^ In New York and some other States this power is specially conferred by statute, and relates to the execution of a conveyance, as well as to a sale, by one ; ^ and if part of the executors refuse to act, the others may execute the power, ^ and the fact that the power is given to them in the plural number does not defeat the right of one or more to execute it, ^ and in all cases where the power is given to therfi virtute officii, a surviving executor may lease or sell according to the power given, and if one re- nounces the trust, the acting executor under the statute of Henry 8, chap. 4, may do so ; ^ and the same is true where one neglects to act, and such neglect may be shown like any other matter in pais, and :i renunciation need not be i)roved. ' In the case of an executor if a term is bequeathed to him, his right to underlet for any period is not abridged by a limited power of leasing, given him by the will. * At the common law, if a female executrix marries, her sole demise cannot Eliz. 347; Hayes ri. Sturges, 7 Taunt. 217; Eolle's Abr. Executors, (O.) ; Da- vone V. Fannhig, 2 Johns. Cli. (oST. y. ) 2.52 ; Osden v. Smith, 2 Paige Cli. (X. y.) 19.5. ^ ,)acomb v. Hanvood, 2 Ves. Sr. 267. - .Jacoinbi). Harwood, ante ; Comyn's I)i';'. tit. Administrators (B.), 12. In \\\ >nymous, Dyer, 2)5 h. i\. 146, it is said I lial, a release, surrender of a term, con- t'3ssi:m of jndgment, or attorinnent of one e.Kccutor is binding upon all, and t)i:i; serins to be tlie case as to all law- f i[ ac's done by one ; but for his io?"ts, as for waste committed by one, the ollijrs are not bound, nor are the others biuiid by an act of the other n'hich could not lav;fnlly be done by all. Kelset !". Nicholson," Cro. Eliz. 478, Inst. 327; Argol's Case, Palm. 405. See also Bou- dereau v. Montgomery, 4 Wash. (U. S. (;. C.) 185; Wintermute D. Reduigton, 1 iMsh. Pat. Gas. (U. S. C. C.) 339. Where two executors are authorized by the will to sell the real estate, unless the will specially provides for a joint execution of the power, it survives to fine, upon tlie death of the other. Peter 1). Beverley, 10 Pet. (U. S.) 532; Bank v. Beverley, 1 How. (U. S. ) ];J4. So one ex- ecutor may assign the intestate's inter- est in a patent, Wiutermute v. Eeding- ton. ante; or release or dispose of any of the assets of the estate, Boudereau 1). Montgomery, ante. One executor may lease to another, and the rent may bo distrained for. Cowper v. Fletcher, ;!4 L. J. C. B. 187; Black's Estate, 1 Tucker (N. T. Surrogate), 95 ; 9 Cow. (N. Y.)34: 12 2 Barb. Ch. (N. Y.) 151; 3 id. 71. In Kincade v. Conley, 64 N. C. 387, where too administrators were charged with negligence in investing funds in Confederate securities when the act was done by one of thera, it was held that both were liabl(^ vmless the other dissented. See also Bart v. Bart, 41 N. Y. 76, as to the rule where one takes and withholds from the other all the property of the estate. Executors, as such, are not liable for torts. Plimp- ton n. Eiehards, 50 Me. 115. '^ Bunuer v. Storm, ante. ■1 Eoseboom v. Mosher, 2 Den. (JT. T. ) 61; Sharp v. Pratt, 15 Wend. [S. Y.\ 610; Jackson B. Given, 16 John. (N. Y.) 167. ^ Powell on Devises, 302 ; Zebach v. Smith, 8 Brew. (Penn.) 72; Co. Litt. 113 a.; Hargrave's Notes 2. — " Chew V. Evans, 1 Penn. Leg. Gaz. 168; Zebach v. Smith, ante; Bartlett ?;. Sutherland, 24 Miss. 395; Bain v. Mat- tison, 54 N. Y. 663. ' Wood V. Sparks, 1 D. & B. (IST. C.) 389; Eoseboom v. Mosher, ante; Sharp V. Pratt, ante; Eobertson d. Gaines, 10 Humph. (Tenn.) 367; Jackson v. Bur- tis, 14 John. (N. Y. ) 391 ; Anderson i;. Turner, 3 A. K. Mar. (Ky. ) 131 ; Taylor V. Galloway, 1 Ohio, 232; Houck o. Houck, 5 Penn. St. 273; Bartlett v. Sutherland, ante; Taylor v. Adams, 2 8. >.t R. (Penn. ) 534 ; Franklin v. Osgood, 14 John. (N. Y.) 527; Jenkins v. Stauf- fer, 3 Yates (Penn.), Ifi3. * Hayes d. Sturgess, 7 Taunt. 217. 178 By Execittoes or AdAiinisteators. be siijjportud. The husband must be the granting party in all lenses made in right of such representative capacity, ^ and it is immaterial whether she joins with him in the deed or not. " In this country, the rights, powers, and duties of executors and administrators is largely regulated by statute ; and in ascertaining whether or not they can lease the lands belonging to the estate of their testator or intestate, both the will and the statute should be examined. In some of the States, whore the common-law rule prevails, the administrator takes neither estate, title nor interest in the real estate of his intestate, " while in others, by statute, he holds the estate, until the estate is finally settled, for the benefit of the creditors and payment of debts, and a final distribution is made, ^ and the same rules apply to an executor, unless the will /•«- pressly places the real estate in his control. ^ The statutoiy possession of an administr.ator or executor of the lands of the deceased is not a personal chattel, nor a subject of sale, but is given solely to enable him to lease the premises during the period of administration, if necessary, and receive the rents and profits thereof during the settlement of the estate. * In some of the States power to lease is given by statute, and .applies to all lands owned by the intestate, and the particular mode of leasing is prescribed ; and in such cases the lessee must see to it that all the statutory provisions in this respect are complied with, or the 1 Arnold v. Bidgood, Cro. Jac. 318; Levick v. Coppin, 2 W. Bl. 801. ^ Levick )). Coppin, ante; Jenk. Cent. 70, Case 56; Chambers on Leases, 35 ; 1 Piatt on Leases, 368-9: Woodf all's L. * T. 51, .52. ■' Phelps T,. Finnkerhnuser, 39 111. 401; Vanerr. lishfv. lOlIninph. (Tenn.)211; S.:c.in.£ (. Steams, 1 Pick. (Mass.) 157; Cojnparot v. Randall, 4 Ind. 55: Le Foot V. Delafield, 3 Edw. Ch. (N. Y.) "y2. In Michigan, the authority to take possession, &c., giyon liy statute, was re- pealed in 1871. Campan v. Oampan, -!5 Mich. 127. At the common law an executor or administrator has nothing whatever to do with anything except the personal assets of his testator or in- testate, and except where provision is otherwise made by statute he has no other or greater anthority. An execu- tor virlute officii takes by force of the probate of the will, and this does not embrace naked pofl^ers iTspecling real estate, nor special 1 rusts or powers coupled with an interest. As to all such special powers he is decuuil to be a mere trustee, and as trustee under such powers and trusts he neither be- comes executor, nor as executor does he succeed to such trusts. Tlie Jving c. Jenkins, 1 Dowl. &■ By). 41; therefore he may proceed to execute the trusts without proving the will. He is, to that extent, trustee, and derives his pow- ers from the will alone. Judah v. Gib- bons, 5 Wend. (N. T.) 225; Conklin v. Egerton, 21 id. 480; Eoome ». Phillips 27 N. T. 357; consequently, a person who is ajipoiuted administrator evm ta- tamento does not succeed to the special powers conferred by the will, -viliere such special power is a special trust i-r confidence reposed by the testator in the person named in the will. Re stands upon his connnon-law p wcis, and such as the statute gives in addition thereto. Dunning u. Ocean Bank, dl N. Y. 4i)7. * Edwards v. Evans, 16 Wis. 181; Cox V. Ingleston, 30 Vt. 258; Kline f. JMoulton, 11 Mich. 370; Lockwocd r. Lockwood, 2 Eoot (Conn.). 41.9; Crock- er V. Smith, ;]2 Me. 244; Meeksi'. lialm, 20Cal. 620; Lane i. Thomp.'t'n. 4:; N. H. ;32(i; Bowers v. Williams, S4 Mii^s. .■i24; Easterliug v. Blythe, 7 Tc.\. 21, ; Williams r. Kawlins, 10 Ga. 4!il; L':'.';:u c. Caldwell, 23 Mo. 273. ''2. Williams' Executors, ]235; Ma- berlov v. Maberley, 6 C. & P. 170. « Kline v. Moulton, 11 Mich. 370. Bv Executors oe Administrators. 179 lease may be avoided by the heirs, ^ while in others it is held that this pott'er only relates to lands that have been subdued, and does not in- chule waste lands,- and in otliers the power can only be exercised by order of a particular court. ^ A mere power to sell lands, given either by statute or wills, does not include a power to lease them. * But where an executor or administrator assume to lease lands whicli they strictly have no right to lease, they are bound to account to the person or persons legally entitled to the lands therefor, and if they occH]iy the lands themselves, they must account to such persons for the rents not exceeding the profits of the lands. ^ An administrator with the Avill annexed cannot execute a power conferred upon an executor either to sell or lease real estate, " and this was held to be the case in New York under a statute giving to such administrators the same powers as the executor had ; it being held that the statute related only to the j)ersonalty, ' iut this doctrine was subsequently disapproved, and the statute held to relate to jjowers in reference to realty as well as to ]>ersonalty.' The reason why an administrator with the will annexed does not possess the power relating to the realty conferred upon the executor, is, that the executor takes as devisee, and not as executor, and this relation to the will, cannot, in the absence of a statute to that end, be conferred upon an administrator. ' In California it is held, under the statute, that the administrator cum, testamento annexo, possesses the same power as the executor had,^° so in Virginia,^' North ^ Chighizoler 1). Le. Baron, 21 Ala. to qualify. Ingle ». Joues,. 9 Wall. 406. (U.S.) 486. In Kentucky it is held ^ Murphy v. Thomas, 41 Miss. 429. that he may sell as directed by the will, ' Piatt V. Dawes, 10 Ind. 60. although the power of the executor is ' Eubottom V. Morrow, 24 Ind. 202. discretionary. Gulley v. Prother, 7 In Seymour v. Bell, 3 Day (Conn. ), 388, Bush. (Ky.)' 167. In I^Tew York the ad- power was given the executors m sell ministrator does not take the powers of and dispose of the lands in such way the executor when a personal confidence and manner as they should judge most or trust in the discretion of the executor beneficial to the devisees. The court is plainly expressed or implied. Bainji. held that this provision amounted to a Mattison, 54 N. T. 663; Dunning r. power to sell only, and gave them no Ocean Bank, 61 N. T. 497. authority to lease them. See also Floyd ' Conklin «. Egerton, 21 Wend. (N. u. Herring, 64 N". C. 409; Wamble v. Y.)4,30. George, 64 id. 7.59; Myer's Appeal, 9 * Matter of Anderson, 5 N". T. Leg. Phila. (Penn. ) 310. Obs. 332. i^ Smith M. King, 22 Ala. •5.5S; Good- ' Dominick w. Michael, ante; McDon- rich !). Thompson, 4 Day (Conn.), 21.5; aid u. King, 1 N. J. L. 4.32; Lucas c. Fisher v. Fisher, 1 Bradf. (N". Y. Surro- Doe, 4 Ala. 679; Harper v. Smith, 9 Ga. gate) 3.55; Blount r. Johnston, C. & X. 461; Perry u. Gill, 2 Humph. (Tenn ) (N. C.) 551; Cailile's Appeal, 38 Penn. 218; Montgomery d. Milliken, 13 Mifs. St 259. 151 ; Owens v. Cowan, 7 B. Mon. ( Ky. ) •> Dominick v. Michael, 4 Sandf. (N". 152; Brown v. Hobson, 3 A. K. Mar. Y. Superior Ct.) -374; Jlatter of Place, 7 (Ky.) 380; Brush v. Young, 28 K. .J. L. X. Y. Leg. Obs. 217; Gilchrist o. Kea, 237. 9 Paige Ch. (IS". Y. ) 66; V.T.rdenian v. ^' Kidwell ». Brummagin, 32 Cal. llosfi, 36 Tex. 111. Unless it is clear that 436. the testator intended them to pass to " Brown «. Armistead, 6 Eand. (Va.) him in case his executors died or refused 594. ISO By ExEcrxoKS oe Admixisteatoes. Carolina/ Pennsylvania,^ and in all the States when the statute gives such adininistratoi's the powers of the executor, unless the power is ex- l)ressly or necessarily connected with a personal trust.' Mr. Woodfall, in his excellent treatise,* says : " Previous to a party taking a lease from an executor or administrator, with will annexed, he ought to ascertain whether the property has been specifically bequeathed by the •\rill, and if so, whether the executor has assented to such bequest; for if so, his right to gr.ant the lease is gone, and the legal interest of the ])ri.i]ierty is vested in the trustee, and consequently as the executor has notliing to grant, the lease will be void, and the legatee may maintain eji'otrnent.^ But until such assent, the term remains in the executor, witli power to er- formance against such administrator, upon the ground that the acts of the administratrix were both a legal and equitable disappropi-iation from the assets of the intestate, and that the administrator de bonis who had entered into the receipt of the rents reserved by the lease, had no right to do so, and yet claim exemption from liability upon the covenants, and for the acts of the administratrix, and that the land, in his hands, was bound by her covenants, if it was so bound while in hers. When executor is au infant. Sec. 125. Where the executor is an infant, administration is usually iDrohan d. Drohaii, 1 Ball & B. 185; 107; See Hatcliett ». McN"amara, aiayd.& Keating v. Keating, Lloyd. & Goo. Ca. Goo. temp. Pluukett C. 283. temp. Sugd. 613. s Keating «. Keating, ante. 2 Margrave v. Archbold, 1 Dow. P.O. ''Evans v. Jackson, 8 Sim. 217. "Hatcljett J). McNaraara, ante. 1 i2 Br Executors ob Admixistkatobs. grunted until the infant becomes of age, and a lease made by the ad- ministrator for a term exceeding the duration of infaiu-}-, will be good until the infant executor becomes of age, ^ and it has been suggested that it would be good until he enters to defeat it. ^ 1 Finch's Case, 6 Coke. 03 a. 718; Sir Moyle Finch's Case, 6 id. - Prince's Case. 5 Coke, Cro. Eliz. 67 I). By Moetgagoe and Moetgageb, 183 CHAPTER XVIII, BY MOETGAGOE AND MOETGAGBE. Skc. 126. Relation of the mortgagor and mortgagee to each other. Sec. 127. By mortgagor. Sec. 128. When tenant not entitled to crops. Sec. 129. Mortgagor and mortgagee should join in lease. Sec. 130. Lease by mortgagee. Sec. 131. Effect of a covenant to permit the mortgagor to take rents, &c. Sec. 132. Liabilities of a mortgagee in possession. Relation of the mortgagor and mortgagee to each other. Section 126. Thei-e is nmoli confusion in tlie ciNcs as to the precise relation of n niortn'^o-oi- nnd mortgagee to tlic c'stiito, l>ut this confusion results mainly from a difference in the form of the mortgages under which the decisions have arisen, and, in some instances, from the pecu- liar provisions of statutes relating to the matter. The mortgagor has sometimes been treated as a tenant at will to the mortgagee, or as a mere tenant at sufferance, but, until condition broken and foreclosure, a mortgagor is treated, both at law and in equity, as the legal owner of the estate, tlie mortgage being only a security, and the mortgagee having only a lien upon the land, as a security for his debt.^ But in some of the States it is held that a mortgage in fee, passes both the legal and equitable estate, defeasible by the performance of the condition according to its legal effect.^ The preponderance of au- thority, however, is in favor of the doctrine that the title remains in the mortgagor, at least until after condition broken (and in many of 1 Elfe V. Cole, 26 6a. IQT ; Casborne beneiits of his security, the legal estate V. Scarf e, 1 Atk. 603; Jackson ». Lodge, passes, but that for other purposes the 36 Cal. 28; Thayer v. Cramer, 1 McCord mortgage is in general held to operate (S. C.) Ch. 39.5; McMillan u. Richards, only as a mere security for the debt. ' 9 Cal. 365 ; United States v. Athens Ar- See also to same effect, Clark v. Eay- inory, 35 Ga. o-U; Fay v. Cheney, 14 burn, 1 Kan. 2S1. In many of the Pick. (Mass.) .399; CaruthersB. Humph- States, as between the mortgagor and rey. 12 Mich. 270; Bryan v. Butts, 27 mortgagee, it is held that the title Barb. (N. Y. ) .503; Hall v. Savili, 3 passes, but not as to third persons. Iowa, 37. But in some of the States Terry v. Eosell, 32 Ark. 478. the legal title is held to pass for some ^ Blaney v. Bearce, 2 Me. 132; Briggs purposes. Thus, in Glass v. Ellison, 9 v. Pish, 2 D. Chip. (Vt.) 100 ; Carter v. N". H. 69, it was held that, for the pro- Taylor, 3 Head (Tenn.), 30; Erskine" v. tection of the interests of the mortgar- Townsend, 2 Mass. 495. gee, and in order to give him the full 184 By Mobtgagoe and Moetgageb. the States, until aftei* foreclosure),' and in England, while the mort- gagor is in possession, or in receiiJt of the rents and profits, he is treated as a fi'eeholdcr, and as such, is entitled to vote in the election of members of parliament,'^ and is entitled to retain poss^-ssion until tlie mortgagee enters or brings ejectment,' and is not liable t(^ tlie mort- gagee for the rents, or profits of the premises.* The right of the mort- gagor to retain possession of the premises, and, cousequcntl}' Iiis riglit to lease the same after mortgage, is generally upheld, but must depend largely upon tlie language of the mortgage, and upon the statutes re- lating thereto, in the several States. But, witliout stopping to disc uss the relation of the parties to the estate, further, it may be s;iid tlia't the tenant can acquire no greater rights than the mortgagor liiniself had, but may defend his title under the lease to the same e.vtent that the moj'tgagor could, and may even redeem the estate, to jirutect his term.'' ^ AVliitmore v. Sliivf^rick, 3 Nev. 288 ; Jackson v. Lodge, :!(j Cat. 28; McMillan V. Kichards, Tal. 365; Goodeiiow v. Eavcv, 10 Cal. 4(il ; Bog?s v. Hargrave, Id. r,bi); F<^yai1v v. Sawyer, 17 f'^L 580; Button B. Wnisiiauer, 21 Cal. (>()<); Blud- wortli V. Lake, o-', Cal. 26.5 ; Davis v. Aiidersoi), 1 Ga. 176; Rayland v. Jus- tices, &c.. 10 <-.n. (15; Elfe ». Cole, 26 Ga. 197; United .Slates v. Athens Ar- mory, 85 Ga. 344: iSe.aJs v. Cashier. 2 Ga. 'Dec. 76: Hall r. Savill, ;1 Iowa, 37; Chick p. "Willetts, 2 Kan. 1584; Caruthers ('. P.iiinirhrcv, 12 Mich. 270; Bryan e. Butts, 27 Barb. (N. Y.) .503; Thayer v. Cramer. 1 McCord (S. C.) Ch. 395. In Alabama, a mortgage is regarded as possessin.g a dual nature, bearing one character in a court of law and another in a court of equity, but the legal estate is tj'eated as rein.aining in the mortga- gor until condition broken, when it at once vests in the inortgagee, leaving only an equity of redemption in the mortgagor. Welsh v. Phillijis, 54 Ala. 3(10. In Arkansas the legal c^state, as between the morti,-agor atid mortgagee, is treated as being in the latter, but a.s to tliiid persons, it is in the niovlijagor. Terry v. I'esell, :i2 Ark. 478; Collins i. Torry, 7 John. IN. Y.) 27S; Blanchard I', Brooks, 12 Pick. (Mass.) 47. In Kan- sa.s, Life Assoeialion v. Cook, 20 Kan. 19: Michigan, Wagar i\ Stone. ;!6 Mich. 364: Nebraska, Harley r. Estes, 6 Neb. 3S6: California, Jacl^son p. Lodge, ante; Georgia, l!a\land c. Justices. 10 Ga. 65; Nevada. Wliilmaii r. Sliiverick, 3 Nev. 288; and indeed in most of the States, a mortgage is held to be a mere security, vesting no esbale in the mortgagee un- til after foreclosure, Myers v. White, 1 Eawle (Penn.) :;i5:i; State v. Laval, 4 McCord (S. C), ;e6; Cheever p. i:. 11. Co., .39 Vt. .363: while in lihodo Island. Connecticut, New Hamj shire, Miinie- sota, Indiana, Korlli Carolina, iiissis- sippi, Missouri and SLassachiisetts, the common-law rule with some limitations prevails. It is a mere incident of the debt, and falls with it. Morris v. Ba.eon. 123 M.ass. .58; Benton r. Bailey, 50 Vt. 137. In New York, by statvUe, an aclion of c-jectment by a mortgagee is abol- ished, and, in tbii absence (t miy con- tract for pcFseffiiai, the nu rlgager is entitled thereto, and to the rents and profits of tlie estate. unloES, upion a proper showing as to the inadeenaey of the security, and the irresponsiliiliiy of the mortgagor, the coertsMill appoint a receiver of the reals, Aslor i-. Turner, 11 Paige Ch. (N. Y. ) 4:-56; Sea, Ins. Co. V. Stebbins, S id. 5(15: but after sale, a tenaiU who went in undei- Ibe mort- gagor, and >r Hie. pm- Cfiliiir/^, is boinid to attorn to the pur- chaser. Lovett r. Church, 0. How. Pr. (N. Y. I 2L6. - Will. 4, c. 45, § 23. ■^ Rex r. Edington, 1 East, :'X); Keech V. Hall, 1 Dong. 21 : Bn-e v. Ilolliecli, 2 id. (55; Reading of Judge Tiow Ijridge, K Mass. .551; Clark p. llayburn, 1 Kan. 281. * llenard r. Bruwn, 7 Xeb. 410. The mortgagor's right to lease and take the rents, continues until it is divested by some positive interference of the nn)rt- gagee. Dunn p. Tillery, 70 N. C. -!07; Chadbourn p. Henderson, 5;; Tenn.46!l; tiibstm 0. Earley, 16 Mass. 28, >. ° Eogi'rs p. Moore, 11 Conn. 553. As to tenant's right to redeem, suj, .'.\e:'ill B. Taylor, 8 N. Y. 44. By Moetgagok and Mortgagee. 185 By mortgagor. Sec. 127. A lease made for a term of years, of premises which are subsequently mortgaged by the lessor, is valid and binding against the mortgagee and all persons claiming under him, ^ but at the common law the mortgagee may, ^ after condition broken and a right of entry 1 Rogers v. Humphreys, 4 Ad. & El. 299 ; Moss v. Gallimore, ante; Burden ■0. Thayer, 3 Met. (Mass.) 79; Babcock v. Kennedy, 1 Vt. 457; Coker v. Pearsall, 6 Ala. 342; Baldwin b. Walker, 21 Conn. 168; Mtchburgh Mfg. Co. v. Melvin, 15 Mass. 268; 2 Cruise's Digest, 111; Smith ■0. Taylor, 9 Ala. 633. 2 Marx e. Marx, 51 Ala. 222. At the common law a mortgage, made after the lease is executed, is treated as a grant of the reversion, so that, after condition broken, the mortgagee may, by notice to the tenant, entitle himself to the rent and all the remedies for the collection thereof that were possessed by the mort- gagor. Moore i\ Titman, 44 111. 307 ; Baldwin x>. Walker, 21 Conn. 168 ; Rus- sell jj. Allen, 2 Allen (Mass.), 42 ; Bab- cock 1). Kennedy, 1 Vt. 457; and it has been held in Massachusetts, that this applies as ivell to rent already accrued as to that which accrues after the mort- gage, Mirlck V. Hoppin, 118 Mass. 582 ; and ill Indiana it has been held that, where the tenant has given a note for advance rent, it may be defeated by no- tice from the mortgagee, but we appre- hend that this will depend entirely upon the question whether the note, at the time when notice was given, was in the hands of a bona fide holder for value. In the former case, the note cannot be said to operate as a payment of the rent, Aldrife v. Ribeyre, 52 Ind. 182, while in the latter case, it does, and, as the ten- ant may pay his rent in advance, the mortgagee cannot defeat the note in the hands of an innocent holder, either by notice, or in any manner provided the note was given, or the payment made, in good faith and without reference to de- feating the claim of the mortgagee. The leading case upon this point that is fol- lowed in this country is Keech u. Hall, 1 Doug. 279, in which the doctrine stated in the text was held, except as to tlie clause relating to the right of the second mortgagee, whicli is sustained by the case first cited. In that case, an action of ejectment was brought by a mortgagee against a person who went into posses- sion under a lease after the mortgage was made. The lease was at rack-rent. The mortgagee had no nol ice of the lease, nor the lessee of the mortgage. The de- fendant offered to attorn to the mort- gagee \ efore suit brought. There was no notice to quit. It was held that tlie plaintiff was entitled to recover, Lord Maksfield saying: " The question f(jr the court to decide is, whether by the agreement understood between moi'tga- gors and mortgagees, which is that the latter shall receive interest and the for- mer keep possession, the mortgagee has given the mortgagor implied authority to let from year to year at a rack-rent ; or whether he may not treat the defend- ant as a trespasser, disseizor or wronir- doer. * * Where the lease is not a Waw.- ficial lease, it is for the interest of tiic mortgagee to continue the tenant ; anil where it is, the tenant may put himsell: in the place of the mortgagor, and either redeem himself or get a friend t'l do it. The idea that the question may be more proper for a court of eiiuity goes upon a mistake. It emphatically belongs to a court of law, in opposition to a court of equity ; for a lessee at a rack-rent is a purchaser for a valuable consideration, and in every case, be- tween purchasers for a valuable consid- eration, a court of equity must follow, not lead the law. On full consideration we are all clearly of opinion, tliat there is no inference of fraud or consent against the mortgagee, to prevent him from con- sidering the lessee as a wrongdoer. It is rightly admitted that if the mortgagee had encouraged the tenant to lay out money, he could not maintain this ac- tion; but here the question turns upon the agreement between the mortgagor and mortgagee: when the mortgagor is left in possession, the true inference to be drawn is an agreement that he shall possess the premises at will in the strict- est sense, and therefore no notice is ever given him to quit, and he is not even entitled to reap the crop, as other ten- ants at will are, because all is liable to the debt ; on payment of which the mortgagee's title ceases. The mortgagor has no power, express or implied, to let leases not subject to every circumstance of the mortgage. If, by implication, the mortgagor had such a power, it must go to a great extent to leases where a fine is taken on a renewal for lives. The tenant stands exactly in the situation of the mr)rlc;agor. The pos- session of the mortgagor cannot be con- sidered as holding out a false appear- ance. It does not induce a belief that 186 Br MOETGAGOB AND MoETGAGBB. attaches in his favor, so that he can maintain ejectment against the mortgagor, intercept the rents accruing from a tenant, under a lease, of the transaction that the. mortgagor shall continue in possession. Whoever wants to be secure, when he takes a lease, should inquire after and examine the title-deeds. In practice, indeed (es- pecially in the case of great estates), that is not often done, because tlie ten- ant relies on the honor of his landlord ; but, whenever one of two iiuiocent per- sons must be a loser, the rule is, qui prior Fst lempure potior est jure. If one must suffer it is he who has not used due dil- igence in looking into the title. It was said at the bar, that if the plaintiff, in a case lilje this, can recover, he will also be entitled to the mesne profits from the tenant, in an action of trespass, which would be a manifest hardship and injus- tice, as the tenant would then pay the )'ent twice. I give no opinion on that ])oint ; but there may be a distinction, for the mortgagor may be considered as receiving the rents in order to pay the interest, by an implied authority from tlie mortgagee, till he determines his will. As to the lessee's right to reap the cro]) which he may have sown previous to the determination of the will of the mortgagee, that point does not arise, in this case, the ejectment being for a warehouse; but however that may be, it could be no bar to the mortgagee's re- covering in ejectment. It would only give the lessee a right of ingress and egress to take the crop ; as to which, with regard to tenants at will, the text of Littleton is clear. ^Ve are all clearly of opinion that the plaintiff is entitled to judgment. This doctrine has been held in the numerous cases since Thun- der 0. Belcher, ante ; Smarth v. AYil- ■ liams, 1 Salk. 24.5 ; Doe v. Giles, 5 Bing. 421 ; Lull v. Matthews, 19 Vt. :i22 ; Morey v. McGuire, 4 id. 327 ; Doe i>. Maisey, 8 B. & C. 767 ; Doe v. Giles, •i Bing. 421. In Latimer v. Moore, 4 McLean (U.S.), 110, it was held that a person in possession must account to the mortgagee for the rents and profits, but this is not the rule held by. the courts, nor indeed would it be an equitable or just rule, at least except as to rents ac- cruing subsequent to a notice to that end from the mortgagee. The rule is, that, so long as the mortgagor remains in' possession, or until actual entry by the mortgagee, the mortgagor may re- ceive the rents and profits to his own use, and is not liable to account there- for to the mortgagee. Mayo v. Fletcher, 14 Pick. (Mass.) 525; Crosby d. Hanlow, 21 Me. 499. At least, unless the security is insufficient, and then only by an order of a court of equity, and only extends to the deficiency, Astor v. Turner, 11 Paige Ch. (N.T.) 436, nor will a receiver of the rents be appointed until the mort- gage debt becomes due. Bank of Og- densburgh v. Arnold, 5 id. 38. But, when the mortgagee is entitled to pos- session, he may intercept the rents by notice to the tenant, and from that time the tenant must pay them to him. Babcock v. Kennedy, 1 Vt. 457 ; Man- sory V. U. S. Bank, 4 Ala. 735 ; Branch Bank v. Pry, 23 Ala. 730 ; Clarke v. Abbott, 1 Md. Ch. 474. And the mort- gagee is then in possession, and may be compelled to account to the mortgagor for the rents and profits so received by him either by way of reduction of the mortgage debt in proceedings to fore- close, or by a bill to redeem brought by the mortgagor. Onderdonk v. Gray, 19 N. J. Eq. 65 ; Eobinson v. Eobinson, 1 N. H. 161; Kellogg v. Rockwell, 19 Conn. 440 ; Harrison v. Wyse, 24 Conn. 1 ; Reitanbaugh v. Ludwick, 31 Penn. St. 131 ; Thoip V. Feltz, 6 B. Mon. (Ky.) 6. But this liability only contiimes so long as the right of redemption exists. " A tenant under a lease made prior to the mortgage," says Mk. Platx in his ex- cellent work upon leases, vol. 1, p. 163, " cannot be turned out of possession by the mortgagee otherwise than by virtue of a proviso for re-entry on non-payment of rent, or non-performance of coven- ants, the mortgagee, as assignee of the reversion, having no other rights than those exercisable by the mortgagor. Moss V. Gallimore, 1 Doug. 279 ; Birch V. Wright. 1 T. E. 378; Rogers v. Hum- phreys, 4 Ad. & El. 299. But to secure himself the benefits of the rents and , covenants, the mortgagee should give the tenant notice of the mortgage, and re- qulie payment of the rent, and he adds, "and he is entitled as well to rent which has fallen due since the mortgage and remains unpaid to the mortgagor, as to rent accruing due after the notice," and he cites the cases last given and 4 Anne, Chap. 16, Sec. 10 ; Pope v. Biggs, 9 B. & C. 245 ; Ex parte Hankey v. McBrind- ley, 1 M. & M. 24; but until, notice pay- ment to mortgagor is a full defence." Pope V. Briggs, ante. To the cases cited by him may be added, Johnson v. Jones, 9 Ad. & El. 809; Waddilove w. Barnett, 2 Bing., N. C. 538, and where the mortgage was made before the lease, the mortgagee cannot claim the arrears, By Mortgagok and Mortgagee. 187 made before the mortgage, by giving notice to the tenant of his mort- gage and claim to the rents under it ; and, in a late case in Alabama, it Alcliorne «. G-ouuue, 2 Bing. 54; aad in tlie case last named, the lessee having paid such arrears to the mortgagee, to prevent his distraining his goods, which he otherwise threatened to do, the les- sor distrained, and in replevin brought by the lessee to recover the goods dis- trained, it was held that the distress was lawful, and that payment of the rent to the mortgagee did not afford any de- fence thereto. The statute 4 Anne, chap. 16, and 11 Geo. 2, c. 19, only apply to leases made before the mortgage, and are in aid of the mortgagee or reversioner to enable them to distrain without a for- mal attornment. Those statutes have no applicatUmwhere the lease was made after the mortgage, and the right of the mortgagee to recover the rents of the tenant of the mortgagor, does not exist. As to rents accruing upon leases made before the mortgage, the right is predi- cated upon the fact that the mortgage is treated as an assignment of the rever- sion and of the lease. As to rents ac- cruing under leases made after the mortgage, no such right exists and no recovery can be had by the mortgagor except he ratifies the tenancy and adopts the tenant of the mortgagor as hix tenant, and then only from the time when he so adopted the tenant. The contrary doc- trine originated in the remarks of the court in Pope v. Biggs, 9 B. & C. 24.0, where it was held that notice by the mort- gagee to the tenant of the mortgagor, — the tenancy having commenced subse- quently to the mortgage — to pay the rent to him and payment thereof by the mort- gagor, would be a defence to an action brought by the mortgagor, as well as to ri'nts accruing before, as after notice. But the doctrine of this case has been frequently impugned. In Rogers v. Humphreys, 4 Ad. & El., Lord Dest- MAN intimated a doctrine in opposition to it. "If," said he, "there be a lease, and such lease is prior to the mortgage, the mortgagee has the same rights against the lessee, and those claiming under him, that the mortgagor had, and no other than he had, and his remedy must be ore the lease as assignee of the reversion, as long as the lease is in ex- istence, and the tenant acl^nowledges his title. Ilut if the lease be subsequent to the mortgage, then the mortgagee may treat the lessee and all those who may be in pos- session as wrongdoers, and may bring an ejectment, but he cannot distrain, or bring any action for the rent they have con- tracted to pay, as there is no relation of landlord and tenant between them, unless they choose to pay the rent to the mort- gagee and he accepts it." A similar rule was adopted in Partington v. Wood- cock, 6 Ad. & El. 090 ; also in Huglies V. Buckuell, SO. & P. 586; Evans v. Elliot, 9 Ad. & El. 342 ; Higginbotham V. Barton, 11 Ad. & El. 307 ; Johnson v. Jones, 9 id. 809 ; Burrow.s o. G-radiii, 1 Dowl. & L. 218 ; Wheeler v. Bans- combe, 5 Q. B. 373. There would seem to be no doubt but that a lease made subsequently to the mortgage is void as against the mortgagee. See also Keech V. Hall, 1 Dougl. 21 ; Birch o. Wright, 1 T. E. 378, 380 ; Thunder v. Belcher, 3 East, 449 ; Ex parte Wills, 2 Cox, 233. But in Evans v. Elliot, ante, adverting to an argument that the mortgagee might always treat both the mortgagor and all who claimed under him, as trespassers, and that, for that reason, the mortgagor's lessee could not become the tenant of the mortgagee under the old lease. Lord Den"MAN said, that, though he believed that his learned brothers were disposed to assent to the proposition, he wished to guard liimself against being understood to adopt it as universal ; for he con- sidered that a jnortgagee might Sij bind himself by his own conduct as to be pre- cluded from treating the mortgagor's lessee as a trespasser; and declared him- self by no means prepared to admit that a Jury would not be warranted in infer- ring a recognition of the tenant's right to hold from the mere circumstance of the mortgagee's knowingly permitting the mortgagor to continue the apparent owner of the premises, as before the mortgage, and to lease them out, exactly as if his property in them continued. There is no doubt, however, that if the mortgagee require the rent to be paid to him, audit be paid accordingly, the re- lation of landlord and tenant may arise between the parties. Pouseley v. Black- man, Cro. Jac. 659 ; Cro. Car. 304; Higginbotham v. Barton, 11 Ad. ife El. 307 ; Eogers v. Humphreys, 4 Ad. & El. 299; or, at all events, the mortgagee may be entitled to sue the tenant for use and occupation. Higginbotham v. Bar- ton, ante; Eawson v. Eicke, 7 Ad. & El. 451. And where the attorney of a mortgagee, who was also attorney of the mortgagor, applied to the tenant in pos- session under the mortgagor for payment of his rent, in order to satisfy the in- terest on the mortgage, with a threat of distress in case of non-payment, it was held that the mortgagee could not main- 188 By Moetgagoe axd Mortgagee. was held that this right might be exercised by the second mortgagee unless they have been jjreviously intercepted by the first. But the ain au ejectment against the tenant as a respasser, laying the demise at a period anterior to the application. Whitakeri). Hales, 7 Bing. 322; though the mere re- ceipt by the mortgagee fi'om the mort- gagor of interest on the mortgage will not preclude the mortgagee from eject- ing the mortgagor's tenant, declaring on a demise prior to the receipt. Rogers o. Cadwallader, 2 B. & Ad. 473. In the case last cileil, Littledale, J., hinted a doubt as to the propriety of the judg- ment in Doe dem. Whitaker v. Hales, ante ; but Loud Den.max subsequently declared, Evans v. Elliot, 9 Ad. & El. Ai'2. ?>55, tliat, notwithstanding that doubt, tbe case appeared to him to be well decided. If, after notice and demand, the tenant continue in possession, a jury may fairly infer a new tenancy from year to year between him and the mortgagee, at ihe old rent. Brown r>. Storey, 1 M. & a. 117; Hughes v. Buclmell, 8 C. & P. 3(56. But if the judge, not being re- quired at the trial to leave it to the jury to say whether the tenant assented to the new tenancy, omit to do so, the omission cannot support a motion for a ncv,- trial on the ground of misdirection. Brown v. Storey, ante. After such no- tice and demand, the tenant is justified in paying to the mortgagee as well such rent as may have fallen due since the mortgage, and remain unpaid to the mortgagor, as that which may thereafter become due. This was decided in the case of Pope r. Biggs, sup. p. 165, the court considering the mortgagee's de- mand to be equivalent to an eviction of the tenant by title paramount, which, of course, would be an answer to the mort- gagor's claim. So, in Higginbotham v. Barton, 11 Ad. & El. 307, Lokd Den- MAN" said that the mortgagee was en- titled to the profits of the land, and that the tenant was right in paying him those profits, whether strictly called rent or not. That, as he might eject the lessee, and afterwards let to him, it seemed ab- surd to require him to go through the form of an ejectment in order to put the lessee into the very position in which he would stand by paying his rent to the mortgagee. See also similar remarks made by Parke, J., in Pope r. Biggs, 9 B. & C. 250-1. Though the tenant cannot dispute his landlord's (the mortgagor's) title to demise, he may show that such title was defeasible, and that it has been defeated. Pope v. Biggs, ante. In the case of Johnson u. Jones, 8 Ad. & El. 809, the plajnti# in replevin, to m avowry for rent due in respect of prem- ises held by the plaintiff as tenant to the defendant, pleaded, that, before the de- fendant had anything in the premises, one Ann Griflith, being seized in fee, mortgaged them in fee to J. Clement ; that default was made in payment; that the equity of redemption descended to David G-riffith, who leased them to the defendant for twenty-one years, who made the demise to the plaintiff men- tioned in the avowry ; that after the rent became due from the plaintiff as tenant to the defendant, the heir of the mort- gagee, to whom the premises had de- scended, demanded payment thereof from the plaintiff, and threatened, in case of non-payment, to put the law in force, wherefore the plaintiff did then neces- sarily and unavoidably pay the said mortgagee the said sum of 14i. so in arrear, " and so the plaintiff says that no part of the said sum of lil. of the said rent' was, or is, in arrear, as in avowry," &c. This plea was demurred to, on the ground that it attempted to deny the title of the defendant; that it showed no power in the mortgagee to compel payment, and that it amounted to riens in arrere. But it was held that the plea was not one of nil liahuit. nor of eviction, but of payment ; that the plaintiff did not deny his holding as ten- ant to the defendant ; but showed that the lease was made subject to a prior charge, namely, the mortgage, which he was compelled to pay ; and that the facts stated in the plea showed an authority in law justifying payment to a third party. And see Sapsford v. Fletcher, 4 T. E. 511 ; Taylor v. Zamira, 6 Taunt. 524. But where the lease was made he- fore the mortgage, it is held in Massa- chusetts, that the mortgagee, when his right to the possession of the premises attaches, may, by notice to the tenant, intercept and claim all the rents since the mortgage remaining unpaid, and that parol evidence is not admissible to show that it was agreed that the mort- gagor should have them. Eussell v. Allan (Mass.), 42. And the same rule prevails in several States. Babeoek v. Kennedy,! Vt. 457; Mansory ». U. S. Bank, 4 Ala. 735; Clark d. Abbott, X Md. Ch. 474. In Crosby d. Hanlow, 21 Me. 499, where an agent had been ap- pointed by the mortgagor to collect and receive the rents, it was held that the mortgagee, by notice to the agent, could thus intercept all the rents accruing svibsequent to the notice, In Vermont, By Mobtgagoe and Moetgagee. 189 mortgagor is now generally treated as retaining both the legal and the equitable title, and the mortgagee as only holding under his mortgage, a lien upon the land for the payment of the debt it is given to secure.' in Walker v. King, 44 Vt. 601, it was held that a mortgagee who has never taken possession under his mortgage, but has permitted the assignee of the mortgagor to remain in possession, has no greater claim against him for rents and profits, than he would have against the mortgagor, and it is well settled that he has no claim upon the mortgagor therefor, either at law or in equity. Ex parte Wilson, a V. & B. 252 ; Hill ii. Bexley, 20 Beav. 127; Walmsley v. Milen, 7 C. B. N". S. 115; Moss v. Gal- limore, 1 Soug. 283 ; Trent v. Hunt, 9 Exchq. 14; ,Joly !'. Arbuthnot, 28 L. J. Ch. 547; Cole on Ejectment, 38, 473. lu Georgia, the mortgagor is entitled to all the rents and profits of the land until he is sold out and dispossessed by fore- closure proceedings. Vason v. Ball, 56 G-a. 268; In Kentucky, unless the rents and profits are specially pledged, the same rule prevails and the mortgagee cannot claim them as a legal incident of the estate.' But a court of equity may, after the debt becomes due, if the prop- erty is inadequate to secure the debt, in an action to foreclose the mortgage, ap- point a receiver of the rents. But if there is no deficiency, they go to the mortgagor. Douglass m. Cline, 12 Bush. (Ky.) 0'J8. In Mississippi, the mortgagor retains the legal title and rv/ht of pos- session until condition broken, and the mortgagee cannot interfere therewith, nor can the mortgagee take the reiits and profits unless so agreed. Myers r. Estell, 48 Miss. 373 ; Black v. Payne, 52 Miss. 271. In J^"orth Carolina, the mortgagor is treated as having an equitable free- hold. State V. Eagland, 75 X. C. 12. In Tennessee, the mortgagecto the ex- tent of the mortgage-debt is pro tanto a sale, giving him all the rights of a bona fide purchaser. 2 Tenn. Ch. -531. So ■in Iowa, Hewitt v. Rankin, 41 Iowa, 35. In Vermont, after condition broken, he may enter and take possession with- out previous notice, if he can do so peacefully. Fuller v. Eddy, 49 Vt. 11. So in Maine, he may enter and harvest the crops unless the mortgagor is occu- pying by agreement, as tenant. Gilman V. Wills, 66 Me. 271. In Pennsylvania, the mortgagee is treated as having the title and right of possession to hold un- til payment, and may enter and hold the lands and receive the rents and profits until the mortgage-debt is paid. Tryon 0. Musson, 77 Penn. St. 250. These con- flicting doctrines are all of them, how- ever, only applicable to ordinary mort- gages, and the parties may, by special provision, entirely change the respective rights of the parties under the mortgage. ^ Carpenter i>. Bowen, 42 Miss. 28 ; Trimm v. Marsh, 54 N. Y. 599 ; Flet- cher V. Holmes, .32 Ind. 497 ; Buchanan V. Munroe, 22 Tex. 537 ; Williams v. Beard, 1 S. C. 309; .Johnson u. Houston, 47 Mo. 227 ; White v. Eittemeyer, 30 Iowa, 268; Fletcher v. Holmes, 32 Ind. 497; Elfew. Cole, 28 Ga. 197 ; Mack v. Witzler, 39 Cal.247; Priests. Wheelock, 58 111. il4. Although in form a con- veyance in fee upon condition, yet, in effect, even after condition broken, it is •a mere security for a debt, and the title reverts without a reconveyance, when- ever the debt is paid. Pease v. Pilirt Knob Iron Co., 49 Mo. 124, and, before foreclosure, is not subject to levy, and sale. Buckley u. Daley, 45 Miss. 338. And until condition broken he is entitled to possession, unless otherwise provided in the mortgage, and is in by right and by virtue of his title, and not as a ten- ant at sufferance. Hooper v. Wilson, 12 Vt. 695; Crippin v. Morrison, 13 Mich. 23 ; Kidd v. Temple, 22 Cal. 255. And if a mortgagee takes a lease of the mort- gagor of the same lands, he will be treated as holding under the lease, until he has made his election to hold under the mortgage. Wood b. Felton, 9 Pick. (Mass. ) 171. And after condition broken he may hold under his mortgage without first surrendering possession under the lease. Shields v. Lozear, 34 N. J. L. 490. The mortgagor's interest is an estate of inheritance in no wise affected by the mortgage before entry and foreclosure. White V. Eittemeyer, 3D Iowa, 268. See Miner v. Beekman, 11 Abb. Pr. N". S. (N". Y.) 147; Norcross v. Norcross, 105 Mass. 265 ; O'Dougherty v. Pelt, 65 Barb. (N. Y.) 220. And even after the debt is due, he is not entitled to the rents and profits unless the security is Insufiicient. Myers V. Estell, 48 Miss. 373. As to the nature of mortgagor's estate, see Kline v. Mc- Guerkin, 24 N". J. Eq. 411 ; Hill v. Hewitt, 35 Iowa, 563 ; Trimm v. Marsh, 54 N. Y. 599; Annapolis, &c. E. E. Co. v. Gantt, 39 Md. 115. The mortgage is but a security, and the freehold still remains in the mortgagor. Jackson v. Willard, 4 .John. {N. Y.) 41. He is seized and is the legal owner. Orr v. Hadley, 36 N". H. 575 ; Hitchcock v. Harrington, 6 .John. (N. Y.) 290 ; Eunyan v. Mense- reau, 11 .John. (N. Y. ) 534. The mort- 190 By Moetgagoe and Mortgagee. Where a lease is made after the mortgage becomes a lien upon the estate, the mortgagor cannot, unless the tenant chooses to attorn to him, and does so, treat him as his tenant under the lease from tlie mortgagor, and recover the rent of him ; because there is, in such a case, no legal privity, ^ and no reversionary interest therein vests in the mortgagee by virtue of the mortgage; ^ and, there being no privity of contract, he cannot proceed against the lessee either by action or distress for the rent, as such.^ But, as the tenant of the morgagoi' can take no better title than his lessor had,* and, as after condition broken gagee, before condition brol^en at least, has no estate in the land distinct from the debt,_ Aymar v. Bill, 5 John. Ch. 570. When out of possession he can- not be treated as the proprietor of the estate. Norwich ». Hubbard, 22 Conn. 587. It is only a security, and tlie mort- gagor has the same rights to the estate that he ever bad, except against the mortgagor. Wilkins b. French, 20 Me. Ill ; Orr d. Hadley, 30 N. H. 575. And as against him, until lie has legally en- tered for condition broken. Kennett v. Plummer, 28 Mo. 142. Under foreclosure proceedings, or as a judgment of a court of law, or by the consent of the mortga- gor. Hooper v. Wilson, 12 Vt. 695 ; Crip- pen V. Morrison, 13 Mich. 23 ; Pierce v. Brown, 24 Vt. 195 ; Hill d. Roberston, 24 Miss. 368 ; Pratt «. Skoliield, 45 Me. 386. LoKD Mansfield, in The King v. St. Michael's, 2 Doug. 631, very clearly defines the relations of the mort- gagor and mortgagee to the lands. He says: "A mortgagor in possession gains a settlement, because the mortgagee, not- withstanding the form, has but a chat- tel, and the mortgage is only security. It is an affront to common sense to say that the mortgagor is not the real own- er." In an earlier case, Martin d. Wes- ton, 2 Burr. 978, he thus defines the in- terest covered by a mortgage: — "A mortgage," says he, "is a charge upon the land. And whatever would give the money, will carry the estate in the land along with it, to any purpose. The estate in the land is the same thing as the money due iipon it. It will be liable to debts ; it will go to the executors ; it will pass by will not made and executed with the solemni- ties required by the statute of frauds. The assignment of the debt or forgiving It will draw the land after it as a conse- quence. Nay, it would do it, though tlie debt ivas forgiven only by parol." In Eaton v. Jaques, 2 Doug. 455, a term for years was assigned by way of mort- gage with a clause of redemption, and it was held hy the court that the lessor could not sue the mortgagee as assignee of all the estate, right, title, interest, &c., of the mortgagor eoen after the murtgage had been forfeited, unless the mortgagee had taken actual possession. See also, to same effect, Walker r. Reeves, 2 Doug. 461 n 1. In The King 11. Eddington, 1 East, 288, it was held that the object of a mortgage is merely to secure a debt, and that the legal estate still remains in the mortgagor, and it was held also that the husband of a woman who had an estate in a tei-m for ninety- nine years, but wliich had been tiy her and heriirsthusbandmortgagedto secure a loan, gained asettlenient by a residence upon the estate for forty days, under a statute which enabled a person owning a freehold-estate in a parish, who resid- ed upon it for the period of forty days, to acquire a settlement therein, and the court adopted a rule, as stated by Loud Mansfield in The King 1). St. Michael's, supra. See opinion of Grose, J. The legal estate of the mortgager is not di- vested by condition broken or eutiy therefor by the mortgagee, l)ut he re- tains such an estate therein that it may be levied upon and sold under execution. Trimm b. Marsh, 54 N. Y. 599 ; Gorham v. Arnold, 22 Mich. 247. But contra, see Buckley ». Daly, 45 Miss. 338. In Kennett v. Plummer, 58 Mo. 142, it was held that until after condition broken and entry by the mortgagee, the mort- gagor continues owner, and may lease the estate, and in every respect deal with it as owner. ^ McKircher ». Hawley, 16 John. (N. Y.) 289; Partington v. AVoodcock, 6 N. & M. 672 ; Watts v. Coffin, 11 John. (N. Y.) 495 ; Rogers v. Humph- reys, 4 Ad. & El. 299. Also see nolo 2, p. IS.-,. ^ Partington d. Woodcock, 6 N. & M. 672. 3 Peters v. Elkins, 14 Ohio, 344 ; Mc- Kircher I). Hawley, 16 John. (N. Y.) 2Si). * Rogers v. Moore, 11 Conn. 553. By Moetgagoe and Mortgagee. 191 in some States ■' and after condition broken and the right of the mort- gagee to possession is perfected under foreclosure or other legal pro- ceedings in other States the mortgagor becomes a mere tenant at suf- eranoe to the mortgagee, it follows that the tenant ocoujjies the same position,^ and the mortgagee may immediately dispossess him without previous notice to quit,^ unless the mortgagor chooses to treat him 1 Pierce v. Brown, 24 Vt. 165 ; McKinn V. Mason, :i Md. Ch. 186; Pratt v. Skol- fieia, 45 Me. 386; Hill v. Robertson, 24 Miss. 368. ^'^fucker v. Keeler, 4 Vt. 161; Hooper V. Wilson, 11 id. 695; Crippen ». Morri- son, 13 Mich. 23; Kidd v. Temple, 22 Gal. 255. ^Keecln;. Hall, 1 Doug. 21; Thunder ». Belcher, 3 East, 449. These cases proceed upon the ground that, in the absence of any agreement to the contrary in the mortgage, the mortgagee at once becomes entitled to possession as against the mort- gagor, and that the mortgagor instantly, upon the delivery of the deed, becomes a mere tenant at sufferance, and conse- quently cannot make a tenant under him as against any one except himself, and those having no better rights to the possession, and this doctrine has in effect been held in several of the States. Shute V. G-rimes, 7 Blackf. (Ind.) 1; Brown u. Stewart, 1 Md. Ch. 87 ; Fay v. Cheney, 14 Pick. (Mass.) 390; Furbish v. Goodwin, 29 N. H. 321; Walcap v. McKinney, 10 Mo. 229; Colman v. Packard, 16 Mass. 39; McKinn v. Mason, 3 Md. Ch. 186. He can make no lease or contract respecting the mortgaged prem- ises that shall be effectual to bind the mortgagee. Sweetzer v. Lowell, 33 Me. 446; Cotton v. Smith, 11 Pick. (Mass.) 311; .Judd V. Woodrufe, 2 Kent (Conn:). - 298 ; and either the mortgagor or a tenant under him under a lease subsequent to the mortgage, may be treated by the mortgagee as a tenant at will, fir as a trespasser. Pettingill v. Evans, 5 N". H. 54. But, if the mortgagor reserves the •right to remain in possession until after default made, tlie mortgagee cannot treat him as a tenant and recover for use and occupation. Mayo v. Shattuck, 14 Pick. (Mass.) 525; McKinn u. Mason, 3 Md. Ch. 186. But the doctrine that the mort- gagee is entitled to immediate possession of the i^remises, upon the delivery of the mortgage, was predicated upon tlie theory that the mortgage conveyed the legal estate in the premises to the mort- gagee, and that the mortgagor only had an equitable estate therein ; but this doc- trine is now generally ignored in most of the States, and the mortgagor is held to retain both the legal and equitable estate until after condition broken. Car- penter c. Bowen, 42 Miss. 28; Fletcher V. Holmes, 32 Ind. 497; Pease v. Pital Knob Iron Co., 49 Mo. 124; Mack r.. Wetzler, 39 Cal. 2-17; Priest «. Wheelock. 58 111. 114; Wilkins v. French, 2U Me. Ill; Ellison i'. Daniels, 11 N. H. 274: Hitchcock V. Harrington, 6 John. (N".Y. 1 295; Hooper o. Wilson, 12 Vt. 695. And in those States where this doctrine is held, as well as in those in M-liich by statute the mortgagor is given the right of possession until after foreclosure and sale, or after the expiration of the de- cree, where a term of redemption is given, Shaw v. Hoadley, 8 Blackf. (Ind.j 165; Tucker v. Keeler, 4 Vt. 161, the; mortgagor may make a lease of the premises that will be valid and binding against the mortgagee, at least until con- dition broken. Crippen v. Morrison. 13 Mich. 'IS; Laduc v. Detroit, &c., It. R. Co., 13 id. .380; Hooper v. Wilson, 12 Vt. 695; Elf v. Cole, 26 Ga. 197; Kidd v. Temple, 22 Cal. 255. And in those.States where the mortgagor's right of entry does not attach until after the expiration of the term of redemption, until the decree obtained in foreclosure proceed- ings has expired. Hooper v. Wilson, ante; Kidd v. Temple, ante. If the tenant or the mortgagor remains in pos- session after the decree has expired, lii^ is not liable for rent, unless there is an express or implied promise to pay it, but is a mere tenant at sufferance. Tucker V. Keeler, 4 Vt. 161. Great confusion exists in the decisions of the courts of this country, as well as of the English courts, as to what the real relations of the mortgagor and mortgagee are to the lands covered by the mortgage, but this matter in many of the States is regula- ted by statute, and the question in a given case can only be determined by reference to the statute of the State in which the land lies, and by the language of the mortgage itself. One thing, how- ever, is certain, that the tenant of the mortgagor, holding under a lease made subsequent to the mortgage, may retain possession as against the mortgagee, or any person claiming under or through him, so long as the mortgagor has any right of possession left to him in the premises, and the rights of the tenant in this respect are to be tested by the rights of the mortgagor. 192 Br MOETGAGOK AND MORTGAGEE. as a teannt at will under him, and the tenant assents to such relation,^ or unless the mortgagee was privy to the making of the lease by the mortgagor and assented thereto, expressly or impliedly,^ or has recog- nized him as his tenant in such a manner that he is' estopped from denying the validity of the tenancy.' The lessee of a mortgagor under iSweetzer v. Lowell, 33 Me. 446; Colton V. Smith, 11 Pick. (Mass.) 311; Ppttingill V. Evans, 5 N. H. 54. ^Belclier v. Collins, cited by Lokd Mansfield, in Keech v. Hall, 1 Doug. 21. ' If a mortgagee has received rent from the tenant of the mortgagor as rent, he cannot afterwards repudiate the tenancy, but such receipt of rent by him will be a good defence to an action of ejectment. Bawmani). Lewis, 13 M. & W. 241; Whit- taker v. Hales, 7 Bing. 322. This question arose under the following circumstances : In that case, the attorney for the mort- gagee, who was also attorney for the mortgagor, applied to the occupier of the landybr rent to pay the interest of the mortgage with, and threatened to distrain if the rent was not paid. It also appeared that he had received the rent from tlie defendant four or five times. He paid the money to the mort- gagee to the extent of his interest. The court held that this was an acknowl- edgment by the mortgagee that the defendant was jiot a trespasser, and therefore that he could not have been upon the day of the demise. The plain- tiff was accordingly nonsuited, aud tliis ruling was sustained upon hearing by the court in banco. The principle estab- lislied by this case seems to be that there cannot be a trespass where there has been a permitted and recognized occu- pation. Foley V. Wilson, 11 East, 56. Where the mortgagee, knowing that a person is in possession of the mortgaged premises as tenant to the mortgagor, de- mands and receives from him out of the rents due to the mortgagor the interest upon his mortgage, or where he receives money from him " eo nomine as interest, the tenant being required to pay it to liim instead of rent to the mortgagor." TlNDAL, C. J., in Whittaker v. Hales, ante, lliere is no doubt that he is estopped from treating the tenant as a trespasser. But, although the mortga- gee has permitted the mortgagor to re- main in possession, and has regularly received from him the interest accruing upon the mortgage, this fact does not establish the relation of landlord and tenant between tlie mortgagor and mort- gagee, or estop the mortgagee from main- taining ejectment or trespass against a tenant of the mortgagor, or against the mortgagor himself. Rogers v. Cadwal- lader, 2 B. & Ad. 473. The case of Par- tridge V. Bere, 5 B. & Aid. 604, is some- times cited as opposed to this doctrine; but there is no conflict between the doc- trine of this and the case last cited. In tliat case an action was brought by the mortgagee against the defendant for diverting a water-course. It was ob- jected that the relation of landlord and tenant did not exist between a mortga- gor and mortgagee. It was also shown that the mortgagor had regularly paid the interest, but this latter point does not seem to have been regarded by tlie court. It was held by the court that the mortgagor was in possession as tenant by sufferance, and consequently that he was a tenant in the strictest sense. But, notwitlistauding the loose talk of judges and of law-writers, to the effect that the mortgagee is tenant to the mortgagor, or is his agent, it is clear that the mortga- gor in possession is not a tenant at all. He is in possession as of right, and under a legal and equitable title, until after default made, and such is now the doc- trine lield by the English courts. Hick- man d. Machin, 7H.&N'. 722. Tfthe mort- gagor is entitled to possession, as he is, after condition broken, at least, accord- ing to the doctrine of our courts, except when provision is otlierwise made by statute, as stated in a previous note, page 191, there would seem to be no question but that from the time when the mortgagee's right of entry accrues he may undoubtedly treat tlie mortgagor as a trespasser or as a tenant at his election. PettingiU v. Evans, 5' N. H. 54; but, before entry by the mortgagee, the law will not imply a promise on the part of the mortgagor to pay rent. Mayo v. Shattuck, 14 Pick. (Mass.) 525. iSTor until such election is made, can the mortgagor be treated as a tenant. Mc- Kinn v. Mason, 3 Md. Ch. 186 ; and unless entry is made by the mortgagee, or action brought to recover possession within the periods provided by law, his right will be barred. Lord v. Morris, 18 Cal. 482; Haskell v. Bailey, 22 Conn. 569. But this rule does not apply if the mortgagee is in possession, although he has not brought foreclosure proceedings to perfect his right within the statutory By MoEt(iA(iOK ANI) MoRTGAGISE. 193 a lease made before the mortgage was executed, by remaining in posses- sion after condition brolien, and notice from the mortgagee to pay the rent to him, is treated as having assented to continue in, as tenant of the mortgagee, if not under the old lease, at least as tenant to him upon the the same terms} But by giving notice to the tenant to pay the rent to him, the mortgagee cannot compel the tenant to remain in possession as his tenant upon the terms of the old lease. The tenant may undoubtedly, upon the receipt of such notice, unless the lease has been assigned to the mortgagee, or under the circumstances he is to be treated as assignee, give up possession within a reasonable time, and by so doing cannot be liable either to the mortgagor or mortgagee for a breach of his covenants. After such notice and demand, the obliga- tion of the tenant to pay the rent to his lessor, ceases, unless the claim set up by the mortgagee is unfounded, and payment of the rent by him to the mortgagee, is an answer to an action brought by the mortgagor, as assignee of the reversion.^ The mortgagee cannot maintain trespass or ejectment against him, because his right is prior to that of the mortgagee, and if he has taken the premises under a lease for a long term, and in good faith paid the lessor for the full term in a gross sum, the mort- gagee only takes the reversion, and cannot enter until his term ex- pires.' But, a tenant under a lease made after the mortgage, although he has paid the lessor in advance for the full term, is nevertheless liable to the mortgagee for all rents that accrue after his right of entry at- taches, and notice has been given that the rent must be paid to him,.'' Thus in the case last cited, the tenant took a lease of mortgaged prem- ises for a term of years, and made an advance to the lessor, to be ex- pended in improvements upon the estate, which was done. The mort- gagee subsequently, before his term had expired, and before the rents had liquidated the advance, brought ejectment against the tenant and obtained a judgment against him. It was held that the mortgagee was not liable to him for the improvements made upon the premises, although he had reason to believe that, under the terms of the mort- gage, the mortgagor had a right to execute such a lease. Where a tenant, whether under a lease made before or after the mortgage, is sued by the mortgagor for the rent, he cannot defend by setting up a notice from the mortgagee to pay the rent to him, he must, in order to period. Hall v. Fuller, 7 Vt. 106, aild Mass. Life Ins. Co. v. Wilson, 10 Met. in equity, unless the statute clearly (Mass.) 126; Myers v. Wiite, 1 Eowle applies to this class of securities, will (Penn.),355. foreclosure proceedings be barred by the 'Jones u. Thomas, 8 Blaclrf. (Ind. ) statute. Michigan Ins. Co. ». Brown, 428; Wilderi). Houghton, 1 Pick. (Mass.) 11 Mich. 265; Unibn, &c. Co. o. Mur- 87; Carvis u. McClavy. 5 N. H. 530; phy & Co., 22 Cal. 620. Hanshaw v. Willis, 9 Humph. (Tenn.) 1 Brown v. Story, 1 M. & G. 114. 568. ^Smiths. Taylor, 9 Ala. 633; Weidner * Haven v. Boston, &c. E. K. Co., 8 e. Foster, 2 P. & W. (Penn.) 23. The Allen (Mass.), 369. 13 194 By Mortgagor and Mortgagee. defend, have paid the rent in compliance with the notice} Mei'e notice by the mortgagee is not suiBcient to determine the contract.^ The rule is, that a tenant under a lease made by a mortgagor either before or after the mortgage, may, without prejudice, pay rent to the mortga- gor, until he receives notice from the mortgagee to pay to bim.^ In England it is held that after such notice, where the lease was made prior to the mortgage, the mortgagee may distrain not only for the rent accruing subsequent to the notice, but also for all arrears that ac- crued before ; that is, that the notice divests the mortgagor of all in- terest in any of the rent remaining unpaid when notice is given.*' But in our courts it is not believed that the moi'tgagee can claim any rents, except such as accrue subsequently to the notice,*^ and in any event it would seem that he could recover no arrears, except such as accrued subsequent to the time when his right of entry attached. The English cases holding the doctrine previously stated, proceed upon the ground that, under the peculiar form of mortgages employed, the mortgagor is instantly, upon the delivery of the mortgage, entitled to possession ; ^ and where by the terms of the mortgage such are the rights of the mortgagee, it is possible that he might by notice, intercept the rent in arrears at the time when it was given, as well as that accruing subsequently thereto,' although a different doctrine is intimated by Patteson, B.,° in the ease referred to. He says, " I cannot comprehend how a right of action for rents already dtie, should be vested in the mortgagor before the notice, and the notice should undo that vested right of action, and set up in lieu of it, a right of action in the mortgagee. It has been so held,' but that case is beyond my comprehension," and in a previous paragraph he says, " I think it a grave question, whether the latter is not a fallacy." ^^ In all cases, the question as to whether such right on the part of the mortgagor exists or not, will depend upon the terms of the mortgage, and the provisions of the statute in the State in which the land is situated. A mortgagee, who has never been in actual possession, iWitton D. Dimn, 17 Q. B. 294; Field v. Swan, 10 Met. (Mass.) 112. Wheeler xi. Branscombe, 5 Q. B. .373; But see Russell?). Allen, 12 Allen (Mass.), Hickman n. Machin, 7 H. & N. 716. 42. ^Watson, B., in Hickman v. Machin, ^ Opinion of Bramwell, B., in Trent ante. v. Hunt, 9 Exchq. 21. 3 Trent rs. Hunt, 9 Exchq. 14; Smith v. ' Hutchinson v. Bearing, 20 Ala. 790; Taylor, 9 Ala. 633; Weidner d. Foster, 2 Latimer u. Moore, 4 McLean (U. S.j, P. & W. (Penn.) 23; Life Ins. Co. v. 110. Wilson, 10 Met. (Mass.) 126; Carvis v. " Wilton v. Dunn, 17 Q. B. 300. McClavy, 5 N. H. 530; Jones B.Thomas, » In Waddilove ». Bamett, 2 N. C. 8 Blackf. (Ind.) 428; Field «. Swan, 10 538. Met. (Mass.) 112. w Referring to the doctrine of Waddi- * Moss V. Gallimore, 1 Doug. 279; love «. Bamett, ante, and to that portion Burrows ». Graddin, 1 D. &. L. 213; of Mr. Smith's note to Moss jj. Gallimore, Rogers t). Humphrey, 4 Ad. & El. 299. 1 Sm. Leading Gas. 2d Ed. 317, in ^ Hatch D. Dwight, 17 Mass. 289 ; which he reiterates the doctrine of that Wilder 13. Houghton, 1 Tick. (Mass.) 87; case. By Mobtgagor and Mortgagee. 195 cannot maintain trespass against the lessee of the mortgagor, nor can he waive the tort, and maintain an action for the use and occupation of the land,^ but if, after notice from the mortgagee, the tenant remains in possession, from this fact, — unless possibly there are facts to rebut it — the law implies a promise on the tenant's jsart to pay him for tlie use of the premises ; ''■ and under some circumstances it has been held that, although not entitled to recover them as rent, he can, nevertheless, recover the rents, issues, and profits.^ When tenant not entitled to crops. Sec. 128. A lessee who goes into possession under a lease subsequent to the mortgage, is not, as against the mortgagee, after his right of entry has attached, entitled to the growing crops, and the mortgagee or any other person who becomes entitled thereto, either under a sale, or imder a decree of foreclosure, may maintain trespass against the lessee for taking and carrying them away.* Mortgagor and mortgagee should join in lease. Sec. 129. From what has already been said, it will be seen that in order to protect a tenant under a lease for a term that is made sub- sequent to a mortgage of the premises, both the mortgagor and mort- gagee should join in the lease,^ and the covenants of the lessee should be made with the mortgagee, with a view to running with the land, and the proviso for re-entry should be reserved to the mortgagee, and not to the mortgagor, with such other provisions as to quiet enjoy- ment and payment of rent, as are essential to protect the lessee in his term, from the conflicting claims of either.^ 1 Turner v. Steam Coal Co., 5 Exchq. ises to a tenant, who retains the actual 932; Mayo t). Shattuck, 14 Pick. (Mass.) possession thereof under a claim of right, 53>3; Watts v. Coffin, 11 John. (N. Y. ) hy virtue of certain provisions of . the 4l).i. Bvit see Wheeler j). Bates, 21 K. H. mortgage, after fomaal possession has 4(iil, \\-here it is held that the mortgagee been delivered to the mortgagee upon may treat any person found in posses- the execution recovered in his suit, and siou of the mortgaged premises as a it is afterwards adjudged, in a writ of V. rong-doer or disseizor, at his elec- entry brought to try the title, that the tioii. mortgagee is entitled to possession as " Standen c. Christmas, 10 Q. B. 135; against such tenant, he may recover Waddilove v. Barnett, 2 Bing. N". C. 538. damages for rents and profits from the The mortgagee who enters for condition time when the formal possession was broken, and orders the tenant to pay the delivered to him, and is not limited to rent to him, is entitled thereto as against the time of the commencement of his the mortgagor, although his entry is' action. But see Witton v. Dunn, 17 Q. not effectual for the purpose of fore- B. 294, where this right is questioned, closure. Stone v. Patterson, 19 Pick. ■'Lane d. King, 8 Wend. (N. Y. ) 5S4: (Mass.) 476. Walmsley b. Milne, 7 C. B. N. S. 115. 3 Hill x>. .Jordan, 30 Me. 337; Life Ins. ^ Prankslinksi b. Bull, 34L. J. Ch. 153; Co. ». Wilson, 10 Met. (Mass.) 126. In Hughes b. Bucknett, 8 C. &P. 560; Car- Haven «. Adams, 8 Allen (Mass.), 363, it penter B. Parker, 3 C. B. N". S. 206; was held that if, during the pendency of Burney u. Adams, 2 C. & J. 232. an action to foreclose a mortgage of land, * Webb d. Russell, 3 T. E. 393 ; Eussel the mortgagor leases and delivers posses- b. Stokes, 1 H. Bl. 562 ; Saunders b. sion of a portion of the mortgaged prem- Merryweather, 3 H. & C. 902. 196 By Moetgagoe and Moktgagee. Lease by Mortgagee. Sec. 130. A mortgagee cannot make a lease of the premises that will not be liable to be defeated by the mortgagor until he has perfected his right by foreclosure proceedings.^ But, if he enters for condition broken, as he may do, unless restricted by statute or by the terms of the mortgage, a lease made by him would be good until the mortgagor redeems the premises from the mortgage-debt, or that part of it which was due at the time of entry.^ But until entry or suit brought to recover possession for condition broken, he can make no lease that will give his lessee the right to exclude the owner of the equity of redemp- tion, or a tenant under him from the premises.' The mortgagee of a leasehold estate, for years, may secure a renewal thereof, whether the lease expired before renewal or not, but the renewal will inure to the benefit of the mortgagor, subject to the mortgagee's expenses in the matter.* The mortgagee cannot, therefore, make a lease for years, of propertjf in mortgage, that will be operative against the mortgagor, until after he has forfeited his rights by foreclosure proceedings, un- less, perhaps, to avoid an apparent loss, and merely of necessity.^ If a mortgagee accepts a tenant of the mortgagor as his tenant, such ten- ant becomes merely a tenant from year to year to the mortgagee, sub- ject to such of the terms of the lease as are applicable to such tenancy.* But, it seems that payment of the rent does not relate back to the date or service of notice of the mortgage so as to make the new ten- ancy commence from that time,' but for the purposes of a notice to quit, the new tenancy will be taken to have commenced from the same date as the original term.' Where a tenant attorns expressly as from a pre- A'ious specified day, a distress may be made for rent calculated from that day.' When a new tenancy is created by an attornment to the mortgagee, the latter is thenceforth the landlord, and may sue or dis- train for the rent, or bring an action for use and occupation," but, until after the usual notice to quit is given, he cannot maintain eject- ment." Effect of a covenant to permit the mortgagor to take rents, &c. Sec. 131. If a mortgagee covenants that the mortgagor shall take 1 Stone V. Patterson, 19 Pick. (Mass.) enish v. Moffatt, 15 Q. B. 257 ; Tlioin- 476; Hughes v. Bucknall, 8 C. & P. 566; son v. Amey, 12 Ad. & El. 476. Carpenter ». Parker, 3 C. B. (N. S.) " Evans ». Elliott, 9 Ad. & El. 342. 282; Prior v. Ongley, 10 C. B. 25. ' Collins v. Weller, 7 T. K. 478. ^ Sllloway V. Brown, 12 Allen (Mass.), ' Gladman v. Plumer, 15 L. J. Q. B. .30. 80. ' Moore B. Titraan, 44 111. 367. 'Brown v. Storey, 1 M. & G. 117 ; . * Powell on Mortgages, 188 ; Hunger- Rogers v. Humphrey, 4 Ad. & El. 299. ford V. Clay, 9 Mod. 1; Franklin v. Ball, w Lord Downe ». Thompson, 9 Q. B. 34 L. J. Ch. 153. 1037. 5 Carpenter v. Parker, 3 C. B. ^. S. ii Pole v. Davis, 1 F. & F. 284 ; Cole 232 ; Hughes «. Bucknell, 8 C. & P. on Ejectment, 474, 477 ; Lord Downe ». 566; Prior v. Ongley, 10 C. B. 25 ; Dav- Thompson, ante. By Moetgagor and Mortgagee. 1S7 the profits till default in payment, or that the mortgagor and his heirs shall take the profits ; in the one case the mortgagor, and in the other his heir after his death, shall be tenant at will ; ^ but in case of the death of the mortgagor, the tenancy at will seems to be determined, till there is a receipt of interest from the heir, which seems to make him also then tenant at will to the mortgagee.^ If the mortgagee covenant that he will not take the profits till default in payment, and the mortgagor retains possession, he shall not be tenant at will, but only on sufferance ; for it was not agreed that he should take, but that the mortgagee should not take.^ So if a mortgage be made with a proviso that the mortgagee, his heirs and assigns, " shall not inter- meddle with the actual possession of the premises, or perception of the rents," until default of payment : the mortgagor is a tenant on sufferance, and not a tenant at will, as he would have been on a cov- enant that he should take the profits till default of payment.'' A mort- gage indenture after a power of sale pn non-payment of the mortgage money contained a covenant by the mortgagee that there should be no sale or notice of a sale, nor means taken for obtaining possession until a year after notice thereof to the mortgagor : the mortgagee also cov- enanted for quiet enjoyment by the mortgagor or his tenant at will, on payment of a yearly rent ; it was beld, that under this deed the mort- gagor was tenant at will only to the mortgagee, and that no tenancy from year to year was thereby created.^ An estate was mortgaged in fee, with the usual proviso for redemption, on payment, in June, 1834, and it was also provided that the mortgagee should not call in the principal money until December, 1840, if the interest were i-egnlarly paid ; and there was a covenant that the mortgagor should hold, occupy and enjoy the estate until default in payment of the principal or in- terest as aforesaid : it was held, that this ojDerated as a lease to the mortgagor until December, 1840.^ A tenant for years of a house de- mised it by way of mortgage to hold from thenceforth, subject to the proviso after named ; and he also sold and transferred the fixtures and some chattels to the mortgagee, also subject to the proviso after named ; the deed contained a proviso for reconveyance on payment of the money on a certain day, and also a proviso that, on non-payment, the mortgagee might enter upon and receive the rents, and sell the premises, and also the fixtures and chattels ; it was held, that the mort- gagee's right to take possession did not attach until the day on wliich 1 Com. Dig. Estates (H. 1) ; Archer v. ^ Dixie v. Davies, 7 Excli. 89. Dalby, Cro. Jac. 660. " Wilkinson v. Hall, 3 Bing. N. C. 2 Bac. Abr. tit. Mortgage (A. ). 508 ; Lyster v. Goldwin, 2 Q. B. 143 : s Com. Dig. tit. Estates (H. 2). Eoylance v. Liglitfoot, 8 M. & W. 553 ; * Powseley v. BUckman, Cro. Jac. 659. Parsley v. Day, 2 Q. B. 147. 198 By Moetgagoe and Mortgagee. the money was to be paid, and that therefore he could not maintain an action of trespass previously.^ But where a person demiued premises, to hold from thenceforth for a term, provided that if the lessee paid a certain sum and interest a year after, then that the demise should be void, provided also, that upon default the lessee might sell ; and there was a covenant by the lessor for payment of principal and interest, and that at any time after default it should be lawful for the lessee to enter, and from thenceforth to hold the premises and take the rents ; it was held, that the lessee might take possession immediately and be- fore default.'' Liabilities of a mortgagee in possession. Sec. 132. A mortgagee in jjossession is not obliged to lay out money any further than to keep the estate in necessary repair ; but on a bill to redeem he will be made to account for all loss and damage occa- sioned by his gross negligence in, respect of bad cultivation and non- repair.^ He will also be charged, not only for all rents received, but iilso for all rents which but for his wilful neglect or default he might have received.^ A mortgagee in possession has been held not charge- able as for wilful default in declining to defend an action of replevin brought by the owner of goods distrained on the premises by such mortgagee.^ If he has expended any sum in supporting the right of the mortgagor to the estate, where his title has been impeached, the mortgagee may certainly add that to the principal of his debt ; and it shall carry interest. Where a mortgagee has been put to expense in defending the title to the estate, the defence being for the benefit of all parties interested, he is entitled to charge such expenses against the estate ; but if his title to the mortgage only is disputed, the costs of his defence should not be borne by the estate as against parties inter- ested in the equity of redemption, unless they can be shown to have concurred or assisted in the litigation.^ If the estate lays at such a dis- tance that the mortgagee must employ an agent to collect the rents, what he pays to the agent shall be allowed ; but not where he does or may receive the rents himself. It is the settled practice in the Court of Chancery not to take an account against a mortgagee in possession with annual rests, where, at the .time of his entering into possession, there is an arrear of interest.' A mortgagee of leaseholds may take possession, even where there is no ai'rear of interest due, under cir- cumstances which may not render him liable to account with annual 1 Wheeler b. Montefioi-e, 2 Q. B. 13.3 ; * Fisher, §§ 873, 894, 895 ; Brandon v. but see Parsley v. Day, supra. Brandon, 10 W. R. 287. 2 Rogers b. Grazebrook, 8 Q. B. 895. ^ Cocks v. Gray, 1 Giff. 77. 3 Wragg V. Denham, 2 Y. & C. 117 ; " Parker v. Watkins, 1 Johns. 133. Fisher, §§ 901—909. ' Nelson d. Booth, 3 De G. & J. 119. By Moktgagok and Moktgagbe. 199 rests ; as where he enters in order to prevent a forfeiture for non-pay- ment of ground-rent or for non-insurance.^ The Court of Chancei-y will not suffer, in a deed of mortgage, any stipulation to prevail, that the estate should become an absolute purchase in the mortgagee upon any event whatsoever. ^ A court of common law has no power to compel a reconveyance of a mortgaged estate after payment of the mortgage-debt, interest and costs.^ 1 Patch V. Wild, 30 Beav. 99. § 126 ; Powell on Mortgages, 116 a, '•^ Bonhain v. Newcomb, 1 Vern. 8, note (H.). 232 ; Tooines v. Conset, 3 Atk. 261 ; ^ Gorefy ». Gorely, 1 H. & N. 144. Vernon ». Bethell, 2 Eden, 110; Fisher, 200 Leases by Agents. CHAPTEE XIX. LEASES BT AGENTS. Sec. 133. By an agent. Sec. 134. How should be executed. Sec. 135. Agent or attorney cannot delegate his power. Sec. 136. Eeal estate agents. Sec. 137. Authority must be strictly pursued. Sec. 138. Agent to take leases. Sec. 139. Misrepresentation by agent. By an agent. Section 133. A lease made by an agent, who acts under a power of attorney authorizing him to do so, either exjjressly or by necessary implication, effectually binds the principal,^ and an agreement for a lease, made by him within the scope of his power, would be specifically enforced against the principal.^ If the lease or agreement is to be or is under seal, and is to be executed by the agent, the instrument empower- ing him should also be under seal.^ But authority to make a parol lease, or to make an agreement for a lease under seal that is to be executed by the princij^al, need not even be in writing.* If the agent exceeds his authority, the lease will be invalid as against the principal, but the agent himself becomes personally liable thereon.^ But even 1 Hamilton v. Clanricarde, 1 Bro. P. Frank, 4T. B. Mon. (Ky.) 35; but where C. 341; Eidgeway v. Wharton, 3 De G. a seal is not essential to the validity of M. & G-. 6*77; Cornfoot v. Fowke, 6 M. the contract or instrument, it maybe re- & AV. 358; Fuller v. Wilson, 3 Q. B. 58; jected as surplusage, and the instrument reversed 3 id. 68. See also id. 1009. will be treated as a simple contract. 2 Brillhart v. McConnell, 25 111. 476. Long v. Hartwell, 34 N. J. L. 116. ' 3 Bacon's Abr. Tit. Leases, 408 Harrison i). Jackson, 7 T. R. 207 Steightz V. Eggington, Holt N. P. 141 Harshaw v. McKesson, 65 N. C. 688 Cooper V. Eankin, 5 Binn. (Penn.) 612 Blood V. Goodrich, 9 Wend. (N. Y.) "" * Brown ». Eaton, 21 Minn. 409; Coles u. Trecothick, 9 Ves. 250; Dyas v. Cruise, 2 Jan. & Lat. 461; Clinan ». Cooke, 1 Sch. & Lef. 22; Champlin v. Parish, 11 Paige Ch. (N. T.) 406; 1 Sugden's Vendors, 186. Rose %. Ware, 30 Ga. 278; Cain v. ^Hamilton v. Clanricarde, 5 Bro. P. Heard, 1 Caldw. (Tenn.) 163; Shuetze C. 547; Fenn v. Harrison, 3 T. E. 758. v. Bailey, 40 Mo. 69; Smith d. Perry, 29 But where an agent acts in good faith N. J. L. 74; Banorgee v. Havey, 5 Mass. and discloses his real authority, the fact 11 ; Moss v. Worthing, 4 III. 26 ; Wheeler that he executes a lease in excess of his D. Nivins, 34Me. 54; Ehodesv. Loutham, authority will not make it personally 8 Blackf. (Ind.) 413; King d. Brooks, 9 binding upon him. It is only when he Ired. (N. C. )L. 218; Gordon k. Bulkley, professes to have a power that he does il4 S. & E (Penn. ) 331 ; McMenty ». not in fact possess, that he is liable. If Leases by Agents. 201 though an agent exceeds his authority, or even though in the first instance he acts without any authority whatever, and executes a lease under seal in the name of the principal, the principal may ratify and confirm his acts and give validity thereto as against himself, the same as though the act had been done under competent authority in the first instance,^ but in order to operate as a valid instrument against third persons, and thus fully protect the lessor, it is necessary that the authority should be under seal, or that it should be subsequently ratified by the princijfjal in writing under seal,^ or at least that there should be a clear and express ratification or facts and circumstances equally clear and undisputed from which it can be implied,^ and upon the principle that, where a iDrincij^al enjoys the benefits and fruits of an agent's acts, hnowing what he has done, he shall be bound thereby, there would be no question but that a receipt of rent from a tenant, under a lease made by an agent, without authority, would amount to a ratification that would bind the principal, e\&;it\iO\xgh. not operative against third persons.^ If a lease is executed by an agent under seal, in the presence of the principal and with his knowledge, no other authority is necessary ; ^ and if he subsequently ratifies a lease made by his agent, which is invalid in a court of law for want of a seal or other informality, a court of equity will compel him to ratify and confirm it as a valid instrument by attaching a seal thereto, or doing any other act requisite to give it validity as a legal instrument,^ a coui-t of equity having ample power to reform any instrument so as to make it express and effectuate the real intention of the parties,' and in order to ascertain and carry out their intention, it will look at the whole transaction and the situation of the parties at the time of its execution, as well as at tlieir acts since.' In order to make out a ratification by the principal, from his acts, it must appear that they were done with knowledge of all the material facts,^ and his failure to repudiate the lease within a the party who contracts with him know- '' Low v. Conn. &c. R. R. Co. , 46 N. H. ing the facts, talces a contract in excess 284; Ruggles v. Washington County, 3 of his authority, he must suffer the con- Mo. 496,- Keid v. Hibbard, 6 Wis. 175 ; sequences himself. Sinclair v. Jackson, Hastings v. Bangor House, 18 Me. 436. 8 Cow. (N". Y.) 543. 5 Q-arduer v. Gardner, 5 Cush. (Mass.) 1 Adams v. Power, 52 Miss. 828; Irons 483. u. Reyburn, 11 Ark. 378; Haynes o. ^ Story on Agency, Sec. 49. Seachrist, 13 Iowa, 455; Wisconsin Bank ' White v. Denman, 16 Ohio, 59; Web- !). Mortley, 19 Wis. 62; Brags iJ. Fessen- star v. Harris, 16 id. 490; Busby v. den, 11 111. .544; Goodell «. Woodruff, 20 Littlefield, 31 jST. H. 193; Ward v. Camp. 111. 191 ; Overby u. Overby, 18 La. An. 28 Ga. 74; Tisson ». Ins. Co., 40 Mo. 33. 546 ; Odiorne v. Maxey, 13 Mass. 178; « Yri-cik v. Cole, 10 111. 339; Clapton v. Baines t. Burbridge, 15 La. An. 625; Martin, 11 Ala. 187; Mosby v. Wall, 23 Powell u. Gosson, 18 B. Mon. (Ky.) 179; Miss. 81; Hook v. Craighead, 32 Mo. Breithaupt v. Thurmond, 3 Rich. (S. C.) 405; McKay u. Simpson, 6 Ired. (N. C.) 216 ; Hall v. Tanness, 49 Penn. St. 457. Eq. 452; Kent v. Manchester, 29 Bool. 2 Pollard B. Gibbs, 55 Ga. 45. (N. Y.) 595; Lankins v. Biddle, 21 Ala. 2 Wisconsin Bank u. Mortley, 19 Wis. 252. 62; Haynes v. Seachrist, 13 Iowa 455; 'Seymour v. Wyckoff, 10 N. Y. 213; Roby V Cossitt, 78 111. 638. Mapp v. Phillips, 32 Ga. 72; Dickinson '20'2 Leases by Agents. reasonable time, after informed of its terms, would Le construed as an acquiescence.^ At all events, whenever an agent executes a deed, lease or other instrument under seal without competent authority, the principal may adopt and ratify it by a re-delivery thereof, or any act tantamount thereto. ^ The authority of an agent, if disputed, must be proved by the party seeking to avail himself of his acts," and this may be done by proving express authority, or by showing a state of facts from which authority may be imj^lied, or by showing that the principal has ratified his acts.* If a person relies upon the ajjparent authority of an agent, he is bound to know the extent of such apj)arent authority, and if he seeks to avail himself of acts in excess thereof, he must either show that the agent has done similar acts in excess of his apparent au- thority, which were subsequently ratified by the pi-incipal,^ or that this particular act was ratified by him either expressly or by fair im- plication.^ Prima facie, a person merely having the care and over- sight of lands, as a steward or land agent, has no authority to bind his principal either by a contract for a lease, or by a lease, and if his au- thority in that respect is relied upon, and is questioned by the princi- pal, it must be established by competent proof.' In an English case,^ it was held that a person who had authority to let from year to year on usual terms, and receive rents, derives no implied authority from such cir- cumstances, to let upon unusual terms, or to make any special stipula- tions, without the express authority of the principal ; and an agent employed to let a house, does not necessarily have an implied authority to let a person into possession.' If the landlord, however, has delivered the keys of the house to the agent, from this circumstance, authority to let into possession might be implied, and in any event but slight ;vidence would be necessary to prove that he had express authority." A person merely having authority to collect rents, and look after the V. Comvay, 12 Allen (Mass.), 487; 431 ; Kelsey b. Bank, &c. , 69 Penn. St. Fletcher v. Dysart, 9 B. Mon. (Ky.) 426. 413; Tidrick v. Eice, 13 Iowa, 214; Bur- 2 Tapper v. Faulkes, 9 C. B. {N. S.) sess V. Harris, 47 Vt. 322; Meeliau v. 797; Sheppard's Touchstone, 57. Forrester, 52 N. T. 277; Chapman v. ^ Turner d. Hutchinson, 2 F. & F. 185; Lee, 47 Ala. 148; Hammond v. Hannin, Eidgway v. Wharton, 6 H. L. Cas. 238; 21 Mich. 374; Wright v. Burbank, 64 Blore v. Sutton, 3 Mer. 237; Firth ». Penu. St. 247 ; Gulick v. Grover, 33 N. Greenwood, 1 Jur. N. S. 806. .J. L. 463 ; Vincent ». Rather, 31 Tex. 77 ; * Frailey v. Waters, 7 Penn. St. 221 ; Drakeley ». Gregg, 8 Wall. (N. S.) 242 ; Damon v. Granby, 2 Pick. (Mass.) 345; Williams v. Storms, 6 Caldw. (Tenn.) Odiorne ». Maxey, 13 Mass. 178; Eich- 203. But acts done in ignorance of ards 0. Folsom, 11 Me. 70. material facts cannot amount to a rati- ^ Tibbitts v. Moore, 19 N'. H. 369. flcation. Lester v. Kinne, 37 Conn. 9. ^ Chamberlain b. CoUinson, 45 Iowa 'Kehlor ». Kimble, 26 La. An. 713; 429. Farwell v. Howard, 26 Iowa, 381; ' Mori at v. Lyons, 8 Ir. Ch. 112; Searing v. Butter, 69 111. 575; Whitehead Eidgway v. Wharton, 6 H. L. Cas. 238; V. Wells, 29 Ark. 99 ; Mining Co. v. Collun v. Gardner, 21 Beav. 540; Gyb- Bank, 2 Cal. T. 248; Bredin v. Dubarry, son v. Searls, Cro. Jac. 84, 176. 14 S. & E. (Penn.) 27; Hawkins v. ^ Xurner «. Hutchinson, 2 F. * F. 185. Large, 22 Minn. 557; Mayer v. Morgan, ^ Slack v. Crowe, 2 F. & F. 59. 51 Miss. 21 ; Saveland u. Green, 40 Wis. i" Ibid. Leases by Agents. 203 estate, cannot be treated as having an implied powei to lease tl e prem- ises for a term, but it would seem that he may lease them at will with- out any special authority, because, having to answer for the rents to his principal, the principal might sustain great prej udice, if the agent might not lease at will.-' Ho-w should be executed. Sec. 134. An agent leasing an estate for his principal, whether under verbal authority, or by power of attorney, should execute it in the name of his principal, as " John Doe, by Richard Roe, his agent," or " his attorney," and if he executes it in his own name, as, " Richard Roe, Agent for John Doe," or " attorney for John Doe," no interest in the premises passes under the lease.^ The form of the execution is not material, if it is really executed in the name of the person giving the authority.^ Thus a lease or other instrument executed by an agent, 1 Woodfall's L. & T. 63; Shopland v. Eydler, Cro. Jac. 55; Gybson v. Searls, Cro. Jac. 84, 176. 2 The addition to the name is treated as a mere descriptio personal, and evi- dence is not admissible to show that it was intended to bind the principal named. Kleckner v. Klapp, 2 W. & S. (Penn.) 44 ; Robertson v. Pope, 1 Kich. (S. C. ) 501 ; McBean d. Morrison, 1 A. K. Mar. Ky.) 545 ; Pisk v. Eldridge, 12 Gray Mass.), 474 ; Robertson v. Banks, 9 Miss. 666; Cravens v. Logan, 7 Ark. 103 ; Fowler v. Atkinson, 6 Minn. 578 ; Austell V. Kice, 5 Ga. 472 ; Bryante v. Durkee, 9 Mo. 169; Boyd v. Plumb, 7 Wend. (N. T.) 309; Brigham v. Calvert, 13 Ark. 399 ; Tassey v. Church, 4 "W". S. (Penn.) 346; Hill v. Bannister, 8 Cow. (N. Y.) 31 ; Chadsey v. McGreevy, 27 111. 253. 8 The agent should always sign the name of his principal by himself as agent, and never in his own name only. Cooke v. Wilson, 1 C. B. N. S. 153 ; Greener. Koppe, 18 C. B. 149; Deslandes V. Gregory, 2 E. & E. 602; Clayton v. Southern, 7 Exchq. 717; Parker v. Win- low, 7 E. & B. 492. Thus, if an agent executes a contract in this manner : " For John Doe, Richard Roe," without adding the word, agent, it will be the personal contract of Richard Roe, and he alone may sue or be sued upon it. Clay V. Southern, ante. And parol evidence would not be admissible to exonerate him from liability thereon, as that would contradict the writing. Higgins V. Senior, 8 M. & W. 844 ; Wells v. Coons, 20 Wend. (K. Y. ) 257 ; but it would be admissible to charge the prin- cipal and to enable him to sue or be sued thereon. Higgins v. Senior, 8 M. & W. 844; Humphreys. Dale, 7 E. & B. 266. If he attempts to convey lands or any interest therein in his own name, no title or interest therein passes. Pryor V. Coulter, 1 Bailey (S. C), 517 ; Camp- ton V. Cassada, 32 Ga. 428 ; Bellas u. Hays, 5 S. & E. (Penn.) 427 ,■ but if the instrument on its face purports to be the contract or covenant of the principal, it will bind the principal, although it is signed by the name of the agent as " agent for ," the principal. Hall V. Woods, 10 N. H. 470. See also Cook V. Sanford, 3 Dana (Ky.), 237, where it was held that where the terms of an ob- ligation, signed by an agent for his prin- cipal, and not with that of the agent, as "the promise to pay," signed "V. M. for N". B. C. & Co.," it mvist be under- stood as the obligation of the principal, and this is generally the rule, when it appears upon the /ace of the instrument that he acts in the capacity of agent. Deanr. Eoesler, 1 Hilt. (N. Y. C. P.) 420 ; Magill v. Hinsdale, 6 Conn. 464, and it must be executed in the name of the principal or he will not be bound. Sencerbox b. McGrade, 6 Minn. 484; Copelando. Ins. Co.,6Pick. (Mass.)]98 ; Savage v. Rix, 8 N. H. 263; Dennison v. Story, 1 Oregon, 272 ; Spencer v. Field, 10 Wend. (N. Y.) 87, and if the author- ity is special, it must be strictly pursued, and any substantial variation there- from renders it void. Nixon ». Hyser- ant, 5 John. (N. Y.) 58; Allen v. Ogden, 1 Wash. (tJ. S. C. C.) 173 ; and if two or more agents are appointed, all should sign. Law v. Perkins, 10 Vt. 5.32 ; Copeland v. Ins. Co., ante; Jewett ». Alton, 7 N. H. 253 ; Johnson v. Bing- ham, 9 W. & S. (Penn.) 50 ; Rollins u. Phelps, 5 Minn. 463 ; but in New York a 204 Leases by Agents. as follows, " John Doe, Agent for Richard Roe," all that follows after ' his own name, is mere matter of description, and the lease or other in- strument is treated as that of the agent, and is not binding upon the principal.^ Great care in this respect should be observed by agents or attornies, ^ as, if they execute the instrument professedly for another, he thereby impliedly warrants that he has sufficient and ample au- thority to execute such contract on his behalf, and an action will lie against him for a breach of such warranty, if he in fact has not such authority, ^ and if he has authority in fact, but executes the instrument so defectively as not to bind the principal, but as appear to be his owi\ personal contract, he will be personally responsible thereon.^ So, too, care should be observed that the covenants of the lease appear to be the covenants of the principal, as, if a person describes himself in the beginning of an agreement to grant a lease, as making it on behalf of another, but in the subsequent part of it says that ke will execute the lease, he is personally liable.^ Thus, where the solicitor of the as- signees of a bankrupt tenant, upon whose lands a distress had been put by the landlord, executed an instrument as follows : " We, as solicitors to the assignees undertake to pay to the landlord his rent, provided it do not exceed the value of the effects distrained, they were held per- sonally liable thereon." So where one covenants for himself, his heirs and assigns, and under his own hand and seal, for the act of another, he is personally bound by the covenant, although he describes himself in the instrument as covenanting for, and on behalf of such other person.' Agent or attorney cannot delegate his power. Sec. 135. Where a power is given, whether over real or personal es- tate, and whether the execution of it will confer the legal, or only equit- able rights on the appointee, if the power reposes a personal trust and confidence in the agent, to exercise his own judgment and discretion, he cannot refer the power to the execution of another, for delegates non potest delegare.^ Thus, where a father had a power of appoint- ment to his children over real estate, and he delegated the power to his wife, Lord Hardwicke said that this must be considered as a power majority may act. Woolsey n. Tomp- b. Biuks, .5 East, 148; Parker b. Winlow, kins, 2.3 Wend. (N. Y.) 324 ; so in Iowa 7 E. & B. 942; Willis v. Bach, 2 East, E. R. Co. V. Stewart, 25 Iowa, 115; in 142. Maine, by statute, Junkins v. School ^ In Combe's Case, 9 Coke, Tl a, the District, 39 Me. 220. court held that, " when one has au- 1 Echols V. Cheney, 28 Cal. 157; thority to do an acf, he ought to do it in Locks V. Alexander, 1 Hawks. (N. C.) his name who gives the authority, aiieZ fte 411; Bogart ». DeBussey, 6 John. (N; cannot do it in his own name, nor as Ids T.) 64; Morrison v. Bowman, 29 Cal. own "proper act." 3.37; Saxon 1). Bljake, 29 Beav. 438; ^ Bond ?). Storre, 13 Conn. 412 ; Kirk- Froutier v. Small, 1 Stra. 705; 2 Ld. man ». Benham, 28 Ala. 501; And v. Rayd. 1418, Combe's Case, 9 Coke, 77 a. Magruder, 10 Cal. 282 ; Conro ». Port Cook V. Wilson, 1 C. B. If. S. 153; Henry Ii-on Co. 12 Barb. (N. T.) 27. White !). Cuyler, 6 T. R. 177; Appleton Leases by Agents. 205 of attorney which could be executed only by the husband, to whom it was solely confined, and was not in its nature transmissable or del- agatory to a third person.^ A person whose consent is made requisite to the due execution of a power, cannot authorize another as his attorney to consent to an execution of it,^ unless the instrument itself authorizes such delegation of power.' But where a person acts under a parol authority, or even under a written appointment, if he delegates authority to another to do an act embraced within the scope of his agency, and the principal adopts it, it is as obligatory as though done by the agent himself; and the same is true if from the circumstances it was evidently contemplated by the parties that the agent would cm- ploy others to act for him.^ Real estate agents. Sec. 136. Real estate agents, employed to let houses or other real es- tate, are, prim,a facie at least, if in possession of the keys of the house, authorized to let the premises upon such terms as they choose to make, and to let the tenant into possession, and it has been held that they are answerable to the landlord if they fail to make reasonable inquiries as to the solvency of the tenant ; ^ but the question as to whether that w.as a jiart of his duty in a particular case is for the jury, in view of his em- jiloyment, the usages of the place, if there are any, and all the circum- stances of the case.^ The authority of such agents to let premises and ' Ingram T. Ingram, 2 Atk. 88; Hamil- v. Baker, 4 Mass. 522. Where a person ton V. Royse, 2 Sch. & Lef. 330. This, is appointed attorney, with power of sub- however, is not the rule where the ap- stitution, either for theleasing or sale of pointment itself provides forthe appoint- land, if he appoints a substitute, the ment of sub-agents, or that the act may latter must execute the lease or deed as bo done by any person whom the agent substitute, and not as attorney for the or attorney may appoint, or, where the principal. StrickcombT. Marsh, 15 Gratt. nature of the act or acts to be done are (Va.) 202, but the attorney cannot re such as necessarily to call for the aid of cover the rents or purchase-money in an others. Palliser v. Ord, Bunb. 166. action in his own name. Hutchins v, ^ Hawkins v. Kemp, 3 East, 410; Atty. Gilman, 9 N. H. 359. Genl. V. Scott, 1 Ves. 407 ; Sugden on ° Hayes v. Tindall, 3 F. & F. 444. Powers, 175. " Hayes d. Tindall, 1 B. & S. 296, ^ Palliser v. Ord, Bunb. 166. Hemmenway v. Eemmenway, 5 Pick. * Lyon V. Jerome, 26 Wend. (K". T.) (Mass.) .389. There would seem to be 485; Smith v. Sublett, 28 Tex. 163; Lynn no doubt that if a real estate or other V. I3urgoyne, 13 B. Mon. (Ky.) 400; agent was directed by his principal to Stougiton V. Baker, 4 Mass. 522. Where let the premises to a responsible tenant, the powers are merely meclianical,'Com- he would be bound to exercise such merelal Bank v. Norton, 1 Hill (N. T. ), (Jil'g^uce in ascertaining the responsi- 501, and do not involve skill, discretion, bility of a tenant, as a prudent man or trust, and confidence, Grinnell v. would employ in his own affairs, Hem- Buchanan, 1 Daly (N". Y. C. P.), 538; menway v. Hemmenway, ante; Moore Joort). Sullivan, 5 La. An. 177, the agent v. Gholson, 34 Miss. 372; Anthony v. may delegate them to others, and such Smith, 9 Humph. (Tenn.) 508, upon the is also the rule, when from the nature of principle that an agent for hire, even the transaction, or the peculiar circum- without specific instructions, is bound stances of the case, or the usages of the to obsen'e all the precautions ordinarily business, it was evidently contemplated pursued in the particular business, and by the parties that the agent would according to the usages of the place and employ others to act with or for him. the circumstances. Kedfield v. Davis, 6 Smiths. Sublett, 28 Tex. 163; Stoughton Conn. 439; Hill v. White, 11 La. An, 206 Leases by Agents. bind the principal, are to be determined in the same manner as the au- thority of other agents. An agent authorized to let premises, cannot let them to himself, as one who undertakes to act for another in a matter cannot in the same matter act for himself.^ Authority must be strictly pursued. Sec. 137. An agent for the letting of real estate, whether authorized in writing under seal or by parol, must proceed substantially according to the power conferred,^ and if he exceeds his instructions, his principal is not bound by his acts, and he becomes personally responsible, and the fact that his intentions were good, and, as he believed, his acts were for the benefit of his principal, will not excuse him.' But there are instances where his acts have been sustained, when in excess of his authority, at least so far as they were consistent with his authority. Thus, where an agent made a lease for twenty years, when he was only authorized to make it for ten, it was held in equity to be a good lease for ten years,^ but at law it is held not to be good'^ro tanto ;^ but if the tenant enters under it, and the landlord has received the rent, it is evidence of some kind of tenancy, the nature of which is to be determined by a jury.^ premises, or any part thereof, to make leases for any time or number of years not exceeding twenty-one. It was held that a lease made by one of the tenants for ninety-nine years, determinable on lives as it might exceed twenty-one, was void at law, and was not even good pro tanto, but the jury having found that the tenant in tail had received the rent reserved by such lease, after the death of the tenant for life who made it, and who had not given any notice to quit, it was held that the receipt of the rent by him was evidence of a tenancy, the par- ticular nature of which it was the duty of the jury to decide upon. It is hardly to be doubted that at the present time, acquiesence on the part of a principal in the acts of his agent, or of one who has done an act for him, knowing the facts, will constitute a full ratification thereof tliat will maltehis acts binding upon the principal, especially where such acqui- escence cannot be explained or otherwise accounted for, except upon the ground that the principal ratified and confirmed his acts. Shaw B. Nudd, 8 Pick. (Ma-ss. ) 9; Farwell v. Howard, 26 Iowa, 3S1 ; ■Williams t). Merritt, 23 111. 623: Bredin V. Dubarry. 14 S. & E. (Penn.) 27; Cairni>s v. Bleecker, 12 John. (N. T. ) 300; Kehlor b. Kemble, 26 La. An. 713; Burgess v. Harris, 47 Vt. 322; Union, cfec. Mining Co. ». Rocky Mountain Kational Bank, 2 (Jal. T. .565 ; Whitehead v. Wells, 29 Ark. 99; Searing v. Butter, 69 111. 575; Abbott v. May, 50 Ala. 97; Turner ■0. Wilcox, 54 Ga. 593. 170; Wright v. E. E. Co., 16 Ga. 38; Hall B. E. E. Co., 15 Md. 362; Adams «. Capron, 21 Md. 186; Babcocku. Orbison, 25 Md. 75. 1 Whichcote v. Lawrence, 3 Tes. 746. 2 Long V. Coburn, 11 Mass. 97 ; Towns- end V. Hubbard, 4 Hill (N". Y.), 357; Walker v. Smith, 1 Wash. (U. S. C. C.) 152; Kerr v. Colton, 23 Tex. 411. 3 Hardeman v. Ford, 12 Ga. 205; Holmes «. Misroom, 3 Brev. (S. C.) 209; Merritt v. Wright, 19 La. An. 91 ; but he is only bound by his instructions as he understood them, unless there is fraud, or s'cne fault on his part in not comnre- lieading them, and in the absence of all proof he will not be presumed to be in fault in not properly comprehending his instructions to their full extent, par- ticularly if such instructions were given orally, or if in writing, if they were susceptible of such a construction as he put upon them. Pickett v. Pearson, 17 Vt. 470. But if the agent is guilty of any fraud, or if fraud is fairly inferrable from the circumstances, the principal will not be bound. Proudf oot v. Wight- man, 78 111. 553. * Perry D. Bowen, Nelson, 87; Sugden on Powers, 545; Alexander ». Alexan- der, 2 Ves. 644; Pitt c. .Jackson, 2 Bro. Ch. Cas.54; Phillpots' Case, 3 Leon, 29. * Eoe V. Prideaux, 10 East, 158. ^ In Roe V. Prideaux, ante, an estate was settled on several tenants for life, in suc/-ession, with remainders in tail, with power to every tenant for life who should be entitled to the freehold of the Leases by Agents. 207 Agent to take leases. Sec. 138. A person who is authorized to take a lease of premises for another, can bind his principal by any usual covenants, though not spe- cially empowered in that respect. If he takes the lease in his own name* the principal may compel him to assign it to him if it is shown that the real object and understanding of the parties was that the lease was to be for the benefit of the principal; or if it is a mere agreement for a lease, made in the agent's name, the principal may, by bill in equity against the lessor and the agent, compel the making of a lease in pursuance of the agreement to him,^ and it is not material whether at the moment lie intended that the agreement should be for his benefit or the principal's, as in either case the principal would, as against him, be entitled to its benefits,^ as the agent is to be treated as a trustee for his principal.^ Misrepresentation by agent. Sec. 139. If, upon the leasing of premises by an agent, hefraicdulently misrepresents their condition, the principal will be bound thereby, although he gave no instructions to the agent in that respect.'' But in order to sustain an action against the principal, either for fraud ■' or for deceit, " fraud, either upon the part of the principal, or of the agent, must be shown. If the principal, knowing that the premises were ob- jectionable on account of a nuisance existing thereon, should purposely employ an agent to lease the same who knew nothing of the existence of the nuisance, and the agent in ignorance thereof should represent the housp as not objectionable,' the principal would be deemed guilty of 1 Taylor v. Salmon, 4 My. & Cr. 1.34. Cornfoot v. Fowke, 6M. & W. 371, where ■^"Wilson V. Hart, 1 J. B. Moore 45; he says: " It is said that this will open Lees V. Nuttall, IR. & My. 53; Maclean a door to fraud, by enabling parties in v. Dunn, 4 Bing. 722. the situation of this principal to appoint 2 Lees t). Nuttall, ante. agents who unconsciously may make * In Law V. Grant, 37 Wis. 548, an misrepresentations to the injury of third agent employed to sell lands made cer- persons. This does not follow. If the tain false representations in reference fact could he shown, it would be a fraud thereto, without the authority or knowl- on the part of the principal, with such a edge of his principal. The court held motive, to appoint such an ar/ent." In that the principal was chargeable with this case the principal employed an agent the fraud in the same manner as though to let a house for him, and the agent he had known of, and authorized them, upon being inquired of by him if the See also Fuller r. Wilson, 3 Q. B. 58. It house was objectionable, replied that it is proper to say, however, that the doc- was not, and the defendant thereupon trine of tills case was sitbsequently over- entered into an agreement to take a lease ruled upon a hearing of the case in the of it. It turned out that the house was Exchequer Chamber, 3 Q. B. 68, and the objectionable, because the house nrxt court held that, ttnless actual fraud was door was a brothel, but the agent was shown, either on the part of the princi- Ignorant of this fact, nor did the land- pal, or of the agent, no recovery could lord instruct him to make any represen- be had. See also 3 Q. B. 1009, where tations in reference to the matter, or the opinion of Tindal, .T., is given. fraudulently concealed the fact from ^Fuller ». Wilson, 3 Q. B. 68, 1009; him. The defendant, upon ascertaining F-eret p. Hill, 15 C. E. 207; Cornfoot v. the fact, refused to take the lease, and Fowke, 6 M. & W. 358. in an action against him for breach of * Ormond !). Huth, 14 M. & W. 651; tlie agreement, the court lield that the Fuller V. Wilson, ante. plaintiff was entitled to recover because ' See opinion of Aldkkson, B., u no fraud upon the part either of the 208 Leases by Agents. a fraud, and liable therefor,^ although he did not instruct him to taake such representations. ^ If the principal authorizes any false represen- tations to be made by the agent, or if he connives in any way to their being made, as, by purposely concealing the facts from him, or know- ingly employs an agent who is ignorant of the real condition of the lease, or of well-grounded objections thereto, in order that he may in- accurately or ignorantly answer questions in reference thereto, the person deceived thereby has his remedy against the principal for the fraud, and in some cases, where he can put the other party in statu quo, may rescind the contract upon that ground.' But if the estate has passed to him, or if he has taken possession, he cannot put the other party in statu quo, and cannot rescind.* principal or agent was established, and that in order to sustain an action for fraudulent representation, or in or- der to defend against an action upon that ground, the representation should have been communicated for a fraudu- lent purpose. See also, to same effect, Ormond c. Huth, 14 M. & W. 651; Moens v. Heyworth, 10 id. 147; Taylor V. Ashton, 11 id. 401; Wilson ». Fuller, 3 Q. B. 68, 1009; Evans v. Collins, 5 Q. B. 820. But in the case of Cornfoot u. Fowke, ante, Lord Abingek, C. B., dissented from the doctrine advanced by the court, and in an able opinion, the arguments adduced in which are much more consistent with principle, and much more convincing, insisted that liability should exist on the part of the principal for the misrepresentations of the agent in reference to the business with which he was entrusted, whether he was guilty of intentional fraud or not, insisting that it was a fraud upon the part of the agent to give an assurance upon a matter in reference to which he knew nothing, as well as to give an answer wnich he knew to be false. And this is believed to be the American doctrine. If an agent assumes to give information as to material matters, about the truth or falsity, of which he knows nothing, it is difficult to conceive why, if the infor- mation is in fact false, it is not as much a fraud upon the party with whom he is dealing, as a statement made by him which ho knows to be false (Bennett v. Judson, 21 N. T. 288) ; and it will be noticed that the court, in Fuller v. Wil- son, 3 Q. B. 68, do not attempt to justify the doctrine of Cornfoot ». Fowke, ante, but based their decision upon the ground that the defendant did not rely upon any representations of the agent, but grounded himself upon a supposed knowledge of the usual course of practice in such cases; and upon this ground the doctrine of the case is clearly maintain- able. Because, if the person does not rely upon a statement made by an agent, but makes inquiries for himself and acts upon his own supposed knowledge, he cannot claim that he has been misled by the agent. In our courts it is held that the acts, representations and declarations of an agent, made within the scope of his real or apparent authority, are to be treated as having been made by the prin- cipal himself. Chorpenning v. Royce, 58 Penn. St. 476; American Fur Co. v. United States, 2 Pet. (IT. S.) 858; Sharp ». New York, 40 Barb. (N". T.) 256; City Bank v. Bateman, 7 H. & J. (Md.) 104; Locke 1). Stearns, 1 Met. (JIass.) 560. And this is so even though the agent made such representations without the knowledge of his principal. Wright v. Calhoun, 19 Tex. 412; Henderson v. R. R. Co., 17 Tex. 560; Jeffreys v. Bige- low, 13 Wend. (N. Y.) 518; or even though he acted contr.ary to the instruc- tions of the principal in making such representations. Lobdell v. Baker, 1 Met. (Mass.) 193. But representations made by an agent without authority, and contradicted by the express terms of the contract, are not binding upon the principal Cook v. Whitfield, 41 Miss. 341. Whatever may be the English doctrine, there can be no doubt that in this coun- try the defence set up in Cornfoot v. Fowke, ante, would be available, even though the agent did not at the time know that his representations were false. Bennett v. Judson, 21 IST. Y. 238. 1 See last note. 2 In Fuller ». Wilson, Q. B. 58, 68, 1009. " Hunt 13. Silk, 6 East, 449 ; Black- burn V. Smith, 2 Exchq. 783 ; Clark o, Dickson, E. B. & E. 148. * Blackburn v. Smith, ante. Of Leases Between Particulae Individuals. 209 CHAPTER XX. OF LEASES BETWEEN PAETICtTLAK INDIVIDUALS. Sec. 140. By principal to agent — By client to attorney — By ward to guardian — By cestui que trust to trustee — By mortgagor to mortgagee. Sec. 141, Leases to may be good. Sec. 142. Consideration may be mixed. Sec. 143. What should be done to avert suspicion of unfair dealing. Sec. 144. Effect of acquiescence. Sec. 145. Leases from client to attorney. Sec. 146. Rule in Dawson v. Massey. Sec. 147. Leases between relatives and members of the family. Sec. 148. Rule in Mulhallen v. Marum. Sec. 149. Mortgagor to Mortgagee. By principal to agent — By client to attorney — By -ward to guardian — By cestui qui trust to trustee — By mortgagor to mortgagee. Section 140. " Leases," says Mr. Piatt in his work on Leases,' " granted to agents by their principals or employers ; to attorneys by their clients ; to guardians by their wards, soon after attaining their majority ; to trustees by their cestuis que trust, and others in similar fiduciary situations, though unimpeachable at law, are viewed with the utmost jealousy in equity, lest an undue advantage should be taken by the lessees of the influence or knowledge acquired by them in their confidential character ; and the slightest appearance of unfair dealing will suffice to invalidate the transaction. Iieases to may be good. Sec, 141. But there is no rule of policy even in equity, which abso- lutely prohibits an agent, or attorney, from being the lessee of his em- ployer, principal, or client. ^ And a lease purely voluntary may be granted from motives of kindness and friendship, even during the con- tinuance of the relation; nor can it be annulled unless misrepresenta- 1 Piatt v. Leases, 559, 566. Col. Exch. 498, 519 ; Ker v. Lord Dun- " Harris v. Tremenheere, 15 Ves. 34, gannon, 1 Dru. & War. 509, 542 ; Lord Selsey jj, Ehoades, 2 Sim. & Stu. Malony v. Kernan, 2 Dru. & War. 31, •41, 49; S. C, on appeal, 1 Bli. P. C. N. 38; Andrews v. Mowbray, 1 Wills. Exch. S. 1.; Ward c. Hartpole, 3 Bli. P. C. 71,73. And see Dent j). Bennett, 4 Myl. 470; Hunter ^). Atkins, 3 Myl. & Keen. & Cr. 269, as to an agreement between 113, 135; Jones ». Thomas, 2 Yo. & a patient and his medical attendant. 14 210 Of Leases Betwees^ Paeticulak Individuals. tion, circumvention, or undue means, be resorted to for the purpose of influencing the lessoi-. The slightest hint, however, in answer to a bill or in the evidence, that the lessee had laid before the lessor an account of the value of the premises, which was not perfectly accurate, will be a sufficient inducement for the court to set aside such lease, whatever the parties might intend, upon the general ground, that the principal never would be safe if the agent could take a gift from him uj)on a representation that was not most accurate and j^recise. ^ If the lease be granted to the agent, not gratuitously, but upon consideration, if any doubt be raised, it is incumbent on the lessee to shew that he made as good a bargain for his employer, as against himself, as a provident, well managing, honorable agent, acting most adversely, in a fair sense, would ; and that he paid the full amount that he could have obtained from any other person. ^ Thus in one case the lease was set aside, the lessee, who was the agent and attorney of the lessoi", having obtained it for a consideration grossly inadequate the circumstances of the lessor being at the time in an extremely em- barrassed state.'* And, in like manner, where a reversionary lease was granted to commence upon the. determination of a life of seventy, contrary to a former resolution by the lessor not to grant another re- versionary lease where only one life above the age of sixty was exist- ing, and the consideration professed to have been given for the lease was 150^. Lord Eldon thought that the defendant should have pro- duced evidence, in support of the transaction, that the consideration was adequate ; for the fairness of the bargain was not to be presumed ; and as he had failed to do so, an issue was directed ; and the verdict ujDon the trial being against the adequacy of the consideration, a de- cree was made directing the lease to be delivered up. ^ The same equity affects an assignee of the lease with notice. * Consideration may be mixed. Sec. 142. Notwithstanding Lord Eldon's remark that when the grant is founded on a proposal for purchase, the court will not permit mo- tives of kindness and gratuity to be mixed with it, ^ it is said, in a more recent case, that the transaction may be founded partly on a ^ Harris t). Tremenheere, ante. S. C. 7 Vcs. 599; 11 Ves. 358; Lady ^ Ker V. Lord Dungannon, 1 Dru. & Ormond v. Hutchinson, 13 Ves. 47 ; 16 War. 509 ; Molony v. Kearnan, 2 Dru. Ves. 94 ; Medlicott v. O'Donnel, 1 Ball & War. 31. & Beat. 164 ; Hunter v. Atkins, .3 Myl. 8 Hanis v. Tremenheere, 15 Ves. 42. & Keen, 435; 140; Champion v. Eigby, 1 * Harris ». Tremenheere, 15 Ves. 39, Russ. & Myl. 539; S. C. 1 Taml. 421. 40, per Lord Eldon. Hunter v. Atkins, And see Kossiter v. Walsh, 2 Con. & 3 Myl. & Keen, 138 : Ker v. Lord Dun- Law. 563; S. C. 4 Dm. & War. 485, no- gannon, 1 Dru. & War. 509, 542. ticed ante, p. 391. * Harris v. Tremenheere, 15 Ves. 42 ; « Ward v. Hartpole, 3 Bli. P. C. 470: Lord Selsey v. Ehoades, 2 Sim. & Stn. and Gartside B. Isherwood. 1 Bro. C. C. 60 ; Beaumont ». Boulsbee, 5 Ves. 485 ; 558, Appendix, 5th ed. by Belt. Of Leases Between Particular Individuals. 211 pecuniary consideration, and partly on motives of bounty ; but tli.'il, where the consideration is thus mixed, the steward is bound to make out that his employer was fully apprised of every circumstance re- specting the property which either was or ought to have been within the knowledge of the steward, and which could tend to demonstrate the value of the property, and the precise measure and extent of the bounty of the employer. ■^ What should be done to avert suspicion of unfair dealing. Sec. 143. In all cases of this kind, to avoid the suspicion of unfair dealing, the party contracting for the lease should avail himself of the mediation of a third person ; the neglect of this precaution being «ufti- cient to justify an examination.^ The court, said Lord Eldon, never ought to give costs upon the result of that examination, where the party has not interposed any other person ; " and in one case he re- fused the costs of the appeal, declaring at the same time that he should not have given costs in the court below, as had been done by the Vice- Chancellor. * The costs which were allowed on the dismissal of tht- bill in Harris v. Treinenheere, as to some of the voluntary leases grant- ed to the defendant, were given on the ground of such leases being an inducement to, and provision upon, the defendant's marriage. But, on setting aside leases so granted, the lessee will be allowed credit for valuable and lasting improvements of the property. ^ Effect of acquiescence. Sec. 144. Length of acquiescence, however, or acts of confirmation may give validity to leases which could not originally have been suji- p"orted, had means been resorted to within a reasonable time for the purpose of setting them aside. Thus, in a case where the plaintiff had slept upon his title for twenty-seven years, during which period tho defendant was altogether divested of the fiduciary character of agent, and every other character which could have infected the transaction had ceased to subsist, the court refused to interpose to vacate tht' leases. ' The same rule prevailed in the case of Lord Selsey v. Rhoades. James Lord Selsey, being tenant for life with power of easing, in the year 1804, concurred with Mr. Peachy, his son, the next 1 Lord Selsey v. Khoades, 2 Sim. & 'Ibid. And see Medlicott b. O'Donnel, Stu. 50, per Leach, V. C. ; S. C. 1 Bli. 1 Ball & Beat. 156. P. C. N. S. 1. And see Dawson v. ■> Selsey v. Rhoades, 1 Bli. P. C. N. Massey, 1 Ball & Beat. 235; Lord Kings- S. 8. land V. Barnewall, 1 Bro. P. C. 184 ; ^ Watt v. Grove, Grove v. Watt, 2 Toml. ed. vol. 4, p. 154 ; Jour. vol. 18, Scho. & Lef. 492, 513; Attorney-General p. 264 ; Rhodes t). Beauvoir, 6 Bli. P. C. v. Baliol College, Oxford, 9 Mod. 411; N. S. 195. Ward v. Hartpole, 3 Bli. P. C. 470, 490. 2 Hari'is v. Tremenheere, 15 Ves. 40-1 ; " Medlicott v. O'Donnel, 1 Ball & Beat. Hunter v. Atkins. 3 Myl. & Keen, 137, 156, 164. And see Blackeney t. Bagot, :i et seg ; Watt v. Grove, Grove v. Watt, 2 Bh. P. C. N. S. 2.S7; Champion o. Rigby, Scho. & Lef. 592, 592.* 1 Kuss. & Myl. .539: S. C. Taml. 421. 212 Of Leases Between Paetioitlae Individuals. tenant for life, in an agreement with the defendant, their steward, to grant him a lease for twenty-one years, under circumstances which it is not necessary to particularize. On Lord Selsey's death in 1808, Mr. Peachy (then John Lord Selsey) became tenant for life, and exe- cuted a lease in 1809 according to the terms of the agreement. He died in 1816, when the reverson became vested in the appellant, who delayed the filing of his bill till 1821, having in the meantime accept ed the rent reserved in the lease. " I have looked," said Lord Eldon,^ " into this case, with a desire to affect the lease ; for the situation of the parties was such as to induce a court of equity to look at the trans- action with great suspicion. If the suit had been instituted recently after the contract, and there had been no acts of confirmation, probably the lease might not have stood ; but James Lord Selsey and John Lord Selsey acquiesced so long, being well acquainted with the facts, that it is difficult to say that they could have impeached the lease, and the appellant cannot do that which they could not have done." There is no limited time, however, within which relief must be sought ; every case must depend on the peculiar circumstances which give rise to the application. Leases from client to attorney Sec. 145. Leases granted by a client to his attorney are governed by the same principles as those between employer and steward. " As to leases taken by a guardian of his ward, it was said by L. C Manners:" " Generally speaking, there are no transactions in a man's life that ought in this court to be more scrupidously or with more jealousy examined, than those which occur recently after the ward at tains the age of twenty-one, affecting his real property. Antecedent to that period his infancy is his protection, his disabilities are his security ; but instantly after he attains the age of twenty-one, as if he had ac- quired all the prudence and experience necessary to the management or disposal of his property, with the possession are given the absolute control and dominion over his estates. At law, all his acts are bind- ing, all his deeds are valid, unless, upon some distinct case of fraud, they cannot be impeached ; but it is not so in this court ; those rela- tions of guardian and ward, principal and agent, trustee and cestui que trust, which are little regarded in a court of law, are in this court decisive ngainst the validity of a transaction which between strangers could not be impeached." 1 Selsey v. Khoades, 1 Bli. P. C. N. 462 ; Blakeney ». Bagott, 3 BU. P. C. S. 8. N. S. 237; Jones v. Thomas, 2 Yo. & Col. 2 Harris », Tremenheere, sup. Lord Exch. 498; Champion v. Rigby, 1 Rugs. Selsey ». Rhoades, sup. ; Ward v. Hart- & Myl. .539 ; S^ C. Taml. 42l'; Rhodes pole, sup. ; Watt b. Grove, Grove ». o, Beaiivoir, 6 Bli. P. C. N. S. 195. Watt, 2 Scho. & Lef. 492, 503. Aud » Dawson ». Massey, 1 Ball •& Beat, see Kenney v. Browne, 3 Ridg. P. C. 232. Of Leasks Between Paeticulak Individuals. 213 This last position carries the dooti'iue higher than, perhaps, is ir- commended by sound policy ; and, as to principal and agent, and trustee and cestici que trust, at least, is certainly inconsistent with the cases previously cited in this chapter. Without doubt, however, transactions between guardian and ward, occurring soon after the de- termination of the relation, require the most satisfactory proof of fair dealing to support them. Rule in Da-wson v. Massey. Sec. 146. In a leading English case, ' Mr. Massey, the defendant, and the plaintiff's uncle, had been agent to the plaintiff's father for thirty years, and in that capacity had acquired an intimate knowledge of the nature and value of the estate. He then became guardian to the jilaintiff, who was a ji-oung man educated in England, and had not seen his estate since he was a boy. In September, 1800, the plaintiff came of age, and then apprised his uncle of his intention to appoint an agent : the uncle, displeased at his so doing, urged him strongly against it, and made use of the expression, "that no one could acqiiii-c a knowledge of the estate for years.'' The plaintiff, however, did aji- point one John Massey, (not the defendant) his agent, and went over to Ireland assisted by him, and immediately after entered into a treaty with his uncle, who then obtained five leases of different parts of his nejahew's estate ; some for ever, and the remainder for four li\es, the latter containing clauses of surrender; and the uncle soon afterwards underlet those lands at a profit rent of nearly 1300/. per annum. It a}>- peared from the depositions of Jcrbn Massey, the plaintiff's agent, that the lands were let at an undervalue ; that the defendant refused to treat with him, and actually turned him out of the room when he was treating with the plaintiff for a lease, for having offered his opinion as to the value. It also appeared that the uncle, an elderly man without children, had a considerable influence over his nephew, then very inexperienced in tlu" value of his estates ; and that he held out inducements both to Massey, the agent, and to the plaintiff, by letter, stating that whatever interest he got in the leases would utimately be for the benefit of the plaintiff. It was also proved that persons who would have bid for some parts of the lands taken by the defendant, declined doing so, finding that be had proposed for them. It appeared that, before the defendant got leases of the principal part of the estate, the plaintiff and his agent visited them, and received several proposals for leases which were not accepted. Upon these grounds, as well as upon the ground of the subsisting influence of the uncle over the nephew, though the relation of guardian and ward had ceased, and of the absence of all security for the inducement held out that the transaction would ultimately tend to ^ Dawson v. Massey, 1 Ball & Beat. 210. 214 Of Leases between Paeticulae Individuals. the advantage. of the plaintiff, the court decreed the leases to be set aside, and gave the plaintiff his costs. Leases between relatives and members of the family. Sec. 147. As to the dealing being one of a family nature, an arrange- ment between the uncle and nephew, so that the full value of the property or the highest rent was not to be taken as the only consideration be- tween the parties, or the criterion by which the court was to form a Judgment of its fairness, his lordship said, that that was not the ground upon which the defence was rested, nor was there any proof of it ; ^ and, indeed, he should expect some very satisfactory evidence be- fore he could act upon such a case ; something to show that the young man was well advised, and that there was some security for what was held out ; but the declaration by the defendant to the plaintiff's agent was calculated only to silence the agent, and to keep in check his ac- tivity and exertion. ^ Rule ill Mulhalleu v. Marum. Sec. 148. The same doctrine was adhered to in a case ^ where a lease ])erpetually renewable made by a party shortly after the attainment of his majority to a person standing in the relation of his guardian, agent, receiver, and tenant, was set aside on grounds of public policy, not- withstanding the plaintiff bad delayed the filing of bis bill for eleven years after the grant of the lease. And in another case a lease obtained by the guardian's son from the ward a few years after he came of age was set aside thirty years after its execution, the ward being of weak understanding, and con- tinuing during his life under the control and influence of the guardian and his family. The length of time was not considered, under the cir- cumstances, to amount to a bar. ^ Mortgagor to Mortgagee. Sec. 149. A lease is not void, even in equity, simply from the cir- cumstance of its being granted by a mortgagor to his mortgagee ; but if thei-e be anything more, the court will look into the transaction witli the greatest possible jealousy. ^ In the case cited, the lease was set aside, the mortgagee having obtained it at an unfair value, in conse- quence of the distressed circumstances of the lessor. ' See Watt v. Grove, Grove v. "Watt, 2 Piatt on Leases, being chap. 3 of that Scho. & Lef. 492, 501, per Lord Redes- work, and is given entire, as it expresses dale, C. clearly the course pursued by courts of '^ 1 Ball V. Beat. 235. equity relative to dealings between par- * Mulhallen v. Marum. 3 Di-u. B. & Ad. 7.55. 2 Martin c. Watts, 7 T. R. 83; S. 0. 2 Esp. .501; Wright D. Smith, 5 Esp. 203; Pennington ». Tanniere, 12 Q. B. 998 ; Potter V. Archer, 1 B. & P. 531 ; Tucker J). Moore, 1 B. & Ad. 36.5; Collins v. Weller, 7 T. E. 478, nor in equity does acceptance of rent amount to a confirm- ation of the lease. Bowes b. East Lon- don, &c., Co., Jac. 324. 8 Biggs B. White, 2 D. & R. 716. ^Poroher v. Daniel, 12 Rich. (S. C.) Eq. 349. N"or is it necessary to recite either the power or the terms of the ap- pointment. It is enough if there be such a dealing with the estate as can only be effectuated by virtue of the power. Camp- bell 1). Leach, Ambl. 748. The rule is that, if the instrument will work two ways, the one way by interest and the other way by authority or power, and it is indifferent whether it work one way or tlie other, the law will attribute it to the interest, and not to the authority; but, where interest and authority meet, if the party clearly declare that it shall take effect by virtue of his authority or power, then such expressed intention will prevail against interest for mndtin coiwentin vineunt ler/em. Brekley r. York, 6 East 86; Hob. 159, and if the lease, if construed to be derived out of the interest, would have some effect, but not all intended by the parties, tlien. In order to effectuate the main desiijn, the estate will pass undet the power. 1 Vent. 228; Campbell v. Leach, Ambl. 748; Thomlinsou v. Dighton, 10 Mod. 36; 1 Salk. 239; Andrews v. Brumfield, 32 Miss. 107. ^ Davis V. Vincent, 1 Houst. (Del. ) 416. In Myers v. McBride, 13 Rich. (S. C.) L. 178, a wife having power un- der a marriage settlement to convey the land by deed, the deed of herself and husband, not purporting to be in execu- tion of the power and without a valid re- lease of her inheritance, was held not to convey her title to the land. See also Gee B. Graves, 2 Head. (Tenn.) 289, where it was held that there must be something to show that the party in- tended to execute it. Lease undee Powees. 2'il essential, a leasing power could never be executed where tlie lands were in the possession of a tenant.' What kind of leases may be granted. Sec. 153. Power to lease for lives or years, may be executed by a lease either absolutely for certain lives, or conditionally for a number of years, determinable upon a life or lives.^ So where power is given to make leases for the lives of three persons, he may make a lease to them for their three lives, or to the. longest liver of them.^ So a lease to one for three lives, or to three for their lives, is good.* But a power to make ,i lease for three lives does not warrant a lease for ninety-nine years, determinable upon three lives.'' Me. Woodpali,, in hi.? work 1 Hall B. Bukley, 1 Doug. 292; Kodg- ers v. Wallace, 5 Joiie (N. C.) 9 L. 181. ^ Commons ». Marshall, 6 Bro. P. C. 168. Sugden on Powers, 409, 737. ' Alsop V. Pine, 3 Keb. 44; Doe v. Dardwicke, 10 East 549; Bacon's Abv. Tit. Leases, (I.) 11. * Baugh V. Haynes, Cro. Ja<;. 76. 5 Whitlock's Case, 8 Coke 69 b. ; Rattle V. Popham, 2 Stra. 992. In Zouch B. Wallaston, 3 Burr. 1147; Lokd Mans- field said, that in Rattle v. Popham, ante, the court thought themselves bound by the resolution in Whitlock's Case, and held the lease not to be war- ranted by the power. The widow brought her bill in chancery, and Loud Talbot, reasoning from the same premises, held the lease to be warranted by the power. He said it was not a defective, but a Ijlundei'iiig execution. In Shannon v. Bradstreet, 1 Sch. & Sef. 71, Lokd Redbsdalb said, th^t if Lohd Mans- field found fault with the decision in Rattle B. Popham, as he was represented to have done, he thought, with deference, there was no ground for the remark. From a MSS. note of the case, to be found in the appendix to Sugden on Powers, No. 20, it will be seen that Lord Talbot admitted that the power was not well executed at law, but relief was given against the defective execution upon the general rules of equity. In Rae 0. Prideaux, 10 East 452, where the powei' authorized a lease for any number of years not exceeding twenty-one, or fur the life or lives of any two or three persons, so as no greater estate than for three lives be at any one time in being in ally part of the premises; it was held, that the power authorized a lease for years, but not a lease for years deter- minable upon lives, and that a lease by a tenant for life for nitiety-nine years determinable on lives, as it might ex;ceed twenty-one years, was void at law, and not good even pro tanto. The court re- lied on Whitlock's Case and Rattle v. Popham, ante, as expressive of good law. Mr. Sugden, in his work upon Powei-s, 453, says : " The result of all the author- ities appears to be that, subject to the distinction taken in Whitlock's Case, where a freehold interest is autliorized to be appointed under a power, a dif- ferent species of estate, although less valuable as a term for ninety-nine years determinable with the life, cannot at law be gi-anted; but that in equity, such an execution will be supported because less than the poiiier is effected, and it clearly appears how much less." Equity will support the exercise of a power, where the donee thereof is clothed with discretion as to its exercise, when it appears that he acted fairly and honestly, although mistakenly. Thus a testator directs, in his will, that his wife shall retain possession of his farm for five years after his death, the family to be kept together, and the plantation managed by her, and certain kindred supported by her ; and he provides means to enable her to conduct the farm. By a subsequent clause he authorizes his executor " at a proper time, say at the expiration of five years from the time of my decease," (but expressing a desire that his wife retain possession longer, if for the interest of the family, ) to dispose of all his estate in fee simple, and as each child comes of age to pay him or her a distributive shai'e. The widow lives on the farm till the expiration of the five years, when, the oldest child being within a few months of twenty- one years of age, the executor offers the land for sale. Held, that the executor, acting in good faith, and being of opinion that the interests of the family required a sale, which opinion was not contravened by evidence, it would be an improper exercise of power in a chancel- 222 Lease under Powers. on Landlord and Tenant, i^p. 157-168, says : " Where, by a marriage settlement, the husband had the wife's estate for life, with a jsower to grant leases for twenty-one years, but no longer ; and in breach of the power, he granted a lease to A. for ninety-nine years, determinable upon lives ; and the wife survived him, and conveyed the fee to B. ; and in the conveyance was recited the lease to A., who was recognized as being then tenant in possession of the estate, at the yearly rent reserved: on an action of ejectment brought byB. against the assignee of the lease, it was held that the lease was void, and the recital only matter of description.' Under a power to lease for years or lives, with or without covenants for renewals, leases for 999 years are valid.^ A man having a power may do less than such power enables him to do ; or, if he do more, it shall be good to the extent of his power : thus, if a man have power to lease for ten years, and he lease for twenty years, the lease for twenty years shall be good for ten years of the twenty in equity.' A lease for fourteen years is warranted by a power to lease for twenty-one years.* A power to lease for any term or number of years certain, not exceeding twenty-one years, will warrant a lease for twenty-one years, determinable at the option of the lessee at the end of the first seven or fourteen years.^ A power to lease for three lives may be executed by a lease for two lives. ^ A power to lease for any term not exceeding thi-ee lives awe? forty-one years will warrant a lease for three lives and forty-one years, to commence from the 1st of November preceding the day of the death of the survivor of the cestuis que vie.' A tenant for life, having power to grant building leases for sixty-one years, reserving the best improved ground rent, granted a lease for that term, which was not expressed to be a building lease, biit whioli contained a covenant by the lessee to keep in repair the premises demised (old houses) or such other " house as should be built during the term : " it was held, that this was not a building lease within the power, and that such a lease being granted by tenant for life, who had a bare naked power withoiit any legal interest, was void, and not lor to interfere and substitute his own ' Biggs v. Wliite, 2 D. & R. 716. discretion for tlie executor's, when the ^ Sug. POw. 744 ; Lord Muskerry v. power has not been exceeded. Dixon o. Chinuery, 2 D. & R. 932; Muskerry c. McCue, 14 Gratt. (Va.) 540. Equity Sheeny, 1 H. L. Cas. 576; Sug. H. L. may aid the defective execution of a Cas. 465. power, but not a non-esecution. How- ^ Mayor of London v. Tench, 7 Mori. ard B. Carpenter, 11 Md. 259. In Islier- 173 ; 12 & 13 Vict. c. 26, s. 2. wood V. Oldknow, 3 M. & S. 382, the * Isherwood v. Oldknow, 3 M. & S. court held that when a power authorized 382; Easton v. Pratt, 2 H. & C. 676; 33 a lease for twenty-one years, without L. J., Exch. 233. saying for any time not exceeding * Edwards ». Milbank, 4 Drew. 606; ill twenty-one years, a lease may be made L. J., Ch. 45; Sug. Pow. 742. for fourteen, or any number of years ^ Sug. Pow. 746, pi. 26. less than twenty-one, and the covenants ' Be Crommellin Estate, 1 Ir. Com. 1.,. enure to the reversioner. E., N. S. 182 ; Sug. Pow. 746. Lease undee Powers. 'I'l^i capable of being confirmed by acceptance of rent by the remainrler- nian.^ So a power to grant long leases "for the purj^ose of new building or effectually rebuilding and repairing any messuage, &c., being or to be on the premises," is not well executed by a lease contain- ing a covenant effectually to repair^ as it is not equivalent to a covenant effectually to rebuild and repair.^ But a power to grant leases for twenty-one years, or building or repairing leases for 61 years, is well executed by a lease for forty years containing the usual covenants to repair and keep in repair the demised premises, and so to leave them at the end of the term." In this case there was no absolute covenaTit to put in repair, or to expend any definite sum in repairing, nor was the lease expressed to be granted in consideration of any such outlay.* Upon a power to grant building leases, such a lease exj^ressly exern}it- ing the lessee from rebuilding in case of fire, and by another clause enabling him to surrender the lease upon notice, couldnot Ije sustained.'^ Lands held on a lease for lives, renewable forever, were settled on one for life, with a power for him and all other persons to whom any use was limited, when in actual possession, to demise for any number of lives or years consistent with their respective interests therein, to com- mence in possession and not in reversion, reserving the best rents without taking any fine : the tenant for life granted a lease at a farm rent for the lives of three persons named, with a covenant that on the failure of any of the lives, the lessor, his heirs and assigns, would, on payment of five pounds as a fine, add to the time and term of the lease another life from time to time forever ; held that this lease was not warranted by the power.^ Under a power to a tenant in possession to let all or any part of the premises, so as the usual rents be reserved, a lease of tithes, which had never been let before, was held void.' A lease under a power to lease in possession or reversion, for one life or for two or three lives, or for any term or number of years deter- minable upon one life or two or three lives, any part of the premises usually so letten, does not authorize a lease at a single rent of premises under the power, together with other premises to which the power does not extend ; but joining different lands in one lease which are all under the power, though they had never before been let by a single demise, is not objectionable.* A power to demise lands or any part of them is not well executed by a demise of part with liberty of shooting over the 1 Jones d. Cowper v. Verney, Willes, « Clarke v. Smith, 9 CI. & F. 126. 169; Sug. Pow. 738. ' Pomery v. Partington, 3 T. R. mn; 2 Dymoke v. Withers, 2 B. & Ad. 896. Sug. Pow. 731, pi. 12. 3 Easton v. Pratt, 2 H. & C. 676. * Earl of Egremont v. Stephens, (i Q. * Id. 678. B. 208; Doe d. Earl of Egremont v. Wil- 5 Sug. Pow. 743; Stiles v. Cowper, 3 Hams, 11 Q. B. 688. Atk. 692. 224 Lease uxdee Pom-ehs. whole.^ But the right to shoot and fish over the lands demised may be excepted and reserved to the lessor and his assigns.^ If a tenant for life make a lease without taking notice of his power, it shall be an execution of his power to make leases; for otherwise the lease shall not have an effectual continuance.' If a man having a power annexed to his estate, charge his estate, and afterwards execute his power, the estate which rises by the execution of the power shall be subject to the charge during the estate ; as if a tenant for life, with power to make leases, grant a rent>charge, and afterwards make a lease, the lessee shall take subject to the rent-charge during the life of the lessor.* In ■whom poTvers may vest. Sec. 154. If the power be to a man and his assigns to make leases, &c., it may be exercised toties quoties,^ and will run with tlie estate to the assignee in deed or in law, and go to his executor, or to the assignee of the executor ; ^ or to his heir, together with the estate.'' It is no objection to a lease under a power, that it is in trust for him who executes the power; provided the legal tenant be bound during the term in all requisite covenants and conditions.' But where, by a marriage settlement, a power was given to the wife, after the death of her husband, to grant leases for twenty-one years, reserving the best rent, «S;c., it was held that a lease by the wife to a second husband was not a good execution of the power." Where trustees are invested with a power of leasing, they must exercise it in like manner as a trust to let.^" Where devisees in trust, with discretionary powers, disclaim, and the trust estate descends to the heir, he cannot exercise any of the dis- cretionary powers, such as granting leases, &c." Where the heir of a surviving trustee is the proper party to demise, a lease granted by the executors of such trustee is void.^'' By a private act, being an act to confirm a marriage settlement of lands made by the Earl of Shrewsbury, power was given to the persons entitled in possession for the time being to the use of such lands, to demise and lease all or any part of the lands for a term of three lives, or for a term of twenty-one years, provided the usual or accustomed rent were reserved. By a sub- 1 Dayrell ».■ Hoare, 12 A. & E. 356. 197.5; Earl of Cardigan)). Montague, 2 Goodtitle V. Funucan, 2 Doug. 566. Sug. Pow. 918 ; Bevan t;. Hapgood, 1 8 1 Ventr. 228. Johns. A H. 222; 3 J L. J., Ch. 107. * Sabbarton ». Sabbarton, Cas. temp. " Doe d. Hartridge ». Gilbert, 5 Q. B. Hardw. 415. 423. 6 Sug. Pow. 718. " Sutton ». Jones, 15 Ves. 588; Sug. « How ». Whitfield, 1 Vent. 340; Free- Pow. 722. man, 476. " Robson v. Flight, 34 Law J., Ch. 226 ; ' Exparte Cooper, Be Iforth London 13 W. E. 393. R. Co., 34 Law J., Ch. 373. " Ex parte Cooper, Ee North London « Atkvns V. Horde, 1 Burr. 124; Wil- E. Co., 34 Law J., Ch. 373. son ». Sewell, 1 W. Blac. 617 ; 4 Burr. Lease undeii Powers. '225 sequent private act, all the estates of the Earl of Shrewsbury were \c'stecl in trustees for sale, and for laying out the money to arise from .such sale in the purchase of other lands, to be settled to the same uses ; and it provided, that, until the lands were sold in pui'suance of the trust directed by the act, the same should be held, possessed and enjoyed, and the rents, issues and profits should be had, received and taken by the person who ought to have held and enjoyed the same if the act had not been passed : held, that this act did not preserve the leasing power contained in the first act, so as to enable the tenant for life to grant leases of the lands which might remain unsold.'' By a private act of parliament, lands were, in 1720, settled on those who should be Earls of Shrewsbury. In 1803, a portion of these estates, by another act, was vested in trustees for sale, freed from the uses of the prior act, with a provision that till sale they should be held for the benefit of those who but for the act would be entitled. In 1843, by a third act, which provided for the sale of another portion of the estates, it was also provided that those to whom the estates limited by the first act were successively limited, when by virtue of the limita^ tions they came into possession or were entitled to the profits of the lands which should for the time being stand limited and settled to such of the uses of the first act as should then be subsisting or capable of effect, might lease them in a particular way : held, that this power of leasing extended to lands vested in trustees under the second act, and still unsold.^ Usual covenants. Proviso for re-entry. Counterpart. Sec. 155. Where the settlement creating the power makes no mention of the covenants to be contained in the leases, any covenants may be inserted or omitted accoi-ding to the agreement of the parties, provided they do not amount to a fraud on the power by lessening the value of the reversion.* In general there must be a covenant for payment of rent as well as a reservation of the rent ; for under a mere reservation it cannot be payable till entry, and therefore, in fact, may never be payable during the term : besides, if there be no covenant to pay the rent, the lease may be assigned to a succession of beggars.^ There must also be a clause of re-entry, else the ground may be unoccupied without any, or at least a sufficient, distress upon it, so that the re- mainder-man can neither have his rent nor his land.° The lessee should always be required to execute a counterpart or duplicate of the lease, 1 Earl of Shrewsbury v. Keightley, 19 ' Groodtitle v. Fuimcan, 2 Doug. 575. C. B., N. S. 606. * Atkyns v. Horde, 1 Burr. 125. ^ Earl of Shrewsbury c. Beazley, 19 C. ' Douglas v. Lock, 2 A. & E. 705. B., N. S. 651. 15 226 Lease under Powers. even -where that is not expressly prescribed by the power ; as is g-enerally the case. Leases in possession or reversion. Sec. 156. In all well drawn powers of leasing, where it is intended that a lease in reversion may be granted, it is expressly declared so ; .xnd if a reversionary lease is not to be granted, it is expressly declared that the lease shall be made to take effect in possession, and not in reversion, or by way of future interest.^ Upon a general power to make leases, without saying more, the law adjudges that the leases ought to be leases in possession, and not leases in reversion, or in futuro ; for if upon such power a lease might be made upon a lease, the party might, by making infinite leases, detain those in remainder out of possession forever ; which would be contrary to the intent of the pai'ties and against reason.'-^ A general power to make leases for one- and-twenty years, does not enable the party to make such a lease in 7'eversion.^ Under a power to make leases to one, two or three pei'- sons, the donee of the power cannot make a lease for the life of the first (unborn) son of J. S.* A power to trustees " to lease premises for a term not exceeding twenty-one years, and determinable as a former term of ninety-nine years was determinable," was held to authorize a lease in possession only, and not in futuro ; and as tho trustees had let the premises for ten years determinable as in the original lease, and afterwards relet them for the term of eleven years, before the expiration of the ten years' lease, the last lease was held void, and a bad execu- tion of the power.'* A tenant for life, having power to lease for ninety- nine years from the time of executing, so as that such lease or leases be made to take effect in possession, or immediately after the determina- tion of the leases then subsisting, reserving the best and most beneficial yearly rents to be incident to the immediate reversion, in pursuance of one entire bargain, granted, at the same time, in 1787, two leases, one for thirty years, to commence from October, 1791, on the expiration of an existing lease, and the other for sixty-three years from October, 1821 : it was held, that the second lease was void.° On ■what Land they attach. Sec. 157. If there is a power to make leases expressly stated to be in possession, which attaches upon an estate, part of which is in posses- sion and part in reversion at the creation of the power ; the donee of the power may immediately make leases in possession of the estate in 1 Sug. Pow. 747. * Snow v. Cutler, T. Raym. 163. 2 Slieecomb v. Hawkins, Cro. Jac. 318; ' Shaw i). Summers, 3 Moo. 196. Yelv. 222. « Sutton v. Harvey, 1 B. & C. 426. " Countess of Sussex v. Wroth, Cro. Eliz. 5; Sug. Pow. 749-752. Lease under Powers. 227 reversion, as -vvell as of that in possession ; for in such case the word "possession" in the power refers to the lease, and not to the land :' but it seems, that if a power enable any one to make leases in reversion as well as in possession, and some parts of the land subject to the power be in possession, and other part of it in reversion, he cannot make a lease in possession and another lease in reversion of the same land; but his power to make leases in reversion will be confined to such land as was not then in possession.^ What is a Lease in Reversion. Sec. 158. Where there is a power to grant leases in possession only, a lease in possession is not contrary to the power, although the estate at the time of granting the lease was held by tenants at will, if, at the time, they receive directions from the lessor to pay their rent to the lessee, to which they assent.^ Where a tenancy from year to year has expired, but the out^going tenant has a customary right over part till a future day, a lease in possession may be granted.* Where one under a power to lease for twenty-one years in possession, but not in rever- sion, granted a lease to his only daughter for twenty-one years, " to commence from the day of the date ; " it was adjudged a good lease, as the word "from" may mean either inclusive or exclusive, according to the context and subject-matter, and the court will construe it so as to effectuate the deeds of parties, and not to destroy them.^ But if made to commence only a day after the execution of the lease, it was not good at common law or in equity as a lease in possession.* Under a power to demise for twenty-one years in possession, and not in rever- sion, a lease dated 17th February, 1802, to hold from the 25th of March next ensuing the date thereof, is good, if not executed and delivered till after the 25th of March, for it then takes effect as a lease in posses- sion, with reference back to the date actually expressed : ' but under a ])ower to- lease in possession and not in reversion, a lease for years executed on the 29th of March to the then tenant in possession, to hold as to the arable land from the 13th of February preceding, and as to the pasture from the 5th of April then next, under a yearly rent paya- ble quarterly on the 10th of July, 10th of October, 10th of January and ^ Powell on Powers, 425 ; Bac. Abr. tit. Preeman v. West, 2 Wils. 165 ; Denn u. Leases (I) ; Fox u. Prickwood, Cro. Jac. Fearnslde, 1 Wils. 176; Att.-Gen. v. 347; 2 Roll. Abr. 260. pi. 5; Sug. Pow. Countess of Portland, Cowp. 723; Sug. 755. Pow. 760, 761. 2 Bac. Abr. tit. Leases (I. 11). « Pollard v. Greenvil, 1 Ch. Cas. 10; 1 ''Clarges u. Punucan, 2 Doug. 565; Ch. Eep. 184; Calvert, 2 East, 375; Bac. Abr. tit. Leases (I. 11); Sug. Pow. Bowes v. East London Water Works 762. Co., Jacob, 374; Sug. Pow. 760. 4 Snowden, 2 W. Blac. 1224; Doe ». ' Coxe». Day, 10 East. 427; Sug. Pow, Calvert, 2 East, 376; Sug. Pow. 763. 761, pi. 43. '" Pugh V. Duke of Leeds, Cowp. 714; 228 Lease undek Powers. 10th of April, was held void for the whole ; though such lease were according to the custom of the country, and the same had been before granted by the person creating the power.^ Effect of existing Iieases. Sec. 159. The circumstance of the second lease for years being granted to the same lessee who holds under a former lease, to commence after the expiration of such former lease, does not operate to make the latter a continuation of the former lease, where the terms are granted by different deeds ; although the residue of the time to come after the former lease, together with the period for which the latter lease is gi'anted, do not in length of time exceed the limits fixed by the power ; for the latter will notwithstanding be considered as a reversionary lease, as much as if it had been granted to a reversionary lessee.^ Leases in Possession or Reversion. Sec. 160. If a man have power to make leases in possession or reversion, and he make a lease in possession once, he shall never after- wards make a lease in reversion, for he has an election to do the one or the other, but not both. Under a power to lease in possession for lives, or for years determinable on lives, a man cannot make an abso- lute lease in possession for years ; but he may make an absolute lease in reversion for years." Where powers were given to make leases of present but not of future interest, and so as the same should go with and be incident to the remainder and reversion ; a lease with a rever- sion in execution of those powers to the tenant in possession of the freehold, his heirs and assigns, was held good, because "heirs and assigns " meant those to whom the remainder and reversion would go.^ Where one having power to make leases for twenty-one years in possession made a lease to A. f^r twenty-one years in trust for the payment of debts, but the lease was made to commence from a time to come, and so not pursuant to the power, yet being made for the pay- ment of debts, it was supported in equity.^ ■What are usual Covenants within such Powers. Sec. 161. What are usual covenants in a lease, under a power requiring such covenants, is a question of fact for the jury, and not for the coilrt.' It depends on what are the usual and customary covenants > Allan r. Calvert, 2 East, 376. ^ PoUard ». Greenvil, 1 Ch. Gas. 10; 1 2 Doe d. Pulteney ». Lady Cavan, 5 T. Ch. Eep. 184. K. 567; Smith v. Day, 2 M. & W. 684. » Clarges ■». Funucan, 2 Doug. 665; "Winter v. Loveday, 1 Ld. Eaym. Bennett ». Womack, 3 C. & P. 96; 7 B. 267; 2 Salk. 537. & 0. 627; Powell on Powers, r,7S. * Hotley V. Scott. Loffi, 316. Lease under Powers. 229 of the neighborhood ; '■ but it has been held, that what are the " usual and reasonable covenants " must depend on the leases of the same land in existence at the time of the creation of the power.^ Where a power to lease was given upon reserving the ancient, usual and accustomed ]-ents, heriots, boons and services ; a covenant " to keep in repair " was held to be " an ancient boon," and the omission of it was deemed fatal.' Where there was a power to tenant for life to lease for years, with the usual covenants, &c., it was held, that a lease made by him, containing a proviso, that in case the premises were blown down, or burned, the lessor should rebuild, otherwise the rent should cease, is void, the jury finding that such covenant is unusual ; ' so, a covenant not to assign Avithout license does not come within a contract to grant a lease with common and usual covenants.* Where the settlement creating the ] ower does not require the usual covenants to be inserted in the leases, any covenants may be inserted or omitted, as agreed on, provided they do not amount to a fraud on the power.* Ways, !«. Fuller V. Abbott, 4 Taunt. 105. » Ex Parte Smyth, aute. The (Idiicc - Williams i'. Matthews, 5 B. & Ad. of a power in whose discretion special 298. confidence is reposed, cainiot act Jjy an- ^ Lord Egremont v. Stephens, 6 Q. B. other, sane in those matters not reqnii'- 2(';8. ing the exercise of judgment. Singleton * 1 Piatt on Leases, 401 ; Hearle v. v. Scott, 11 Iowa, 589. Greenbank,, 3 Atk. 695-710 ; Grange v. "> Ex Parte The Committee of Lonl Tiving, O'Briedyn by Barm. 116 ; Ex Bradford, ante. Parte, The Committee of Lord Brad- i» Hotchkiss ». Ettijig, 30 Barb. (N, ford, Co. Temp. Hardw. Ch. 113. Y.) 38, but this is not so when flie * Bagly 11. Warburton, Com. 494 ; power is given to executors by officiiil Grange v. Tiving, ante ; jflarris v. Gra- designation. In such case, the power ham, 1 Rail. Ab. tit. Authoritie (B.) survives, unless the power is expre.csly pi. 12; Daniel o. Uply, Latcli. 9 ; Digli- joint. Davis r. Christian, 15 Gratt. (A'a.) ton V. Tomlinson, Com. 194. 11; Belate v. White, 2 Head. (Tenn.) >■ Grange v. Tiving. ante ; 1 Sugden on 703. Powers, 194 (6th Ed.). " Smyth v. Taylor. 21 III. 290. ■2U Lease under Powers. Statutory povrers. Sec. 168. Where powers are derived under a statute, whether gen- eral or special, the extent of the power, as well as the rules and direc- tions for its execution, must be sought for in, and must conform to, the statute.^ 1 Baltimore v. Porter, 18 Kd. 284. The New York statutes of 18.30, relating to active trusts, limit and define the cases in which the estate and title can l)e given to one to be used for the bene- fit of another ; but it expressly provides that limitations in trust not within the allowed cases shall be effectuated by holding the limitation to be a grant of a power to be used for the purposes desig- nated, if those purposes can be attained by means of a power. The statute does not limit the purposes for which a power may be created, and where limitation by way of trust is invalid under the stat- ute, but when the desired object can be accomplished by means of a power, which is not forbidden by statute, the apparent trust will be construed as a grant of a power. Manufacturing es- tablishments can be carried on by means of a power in the trustees, as well as by vesting the legal estate in them, and a direction to sell tliose establishments at a certain specified time, or sooner, at the direction of tlie trustees, and to dis- tribute the proceeds, does not require a legal estate in the trustees, but may be carried out by means of a power. Down- ing V. Marshall, 23 N. Y. 366. Where a sale of a lottery privilege was made by agents or managers under an autliority conferred by the legislature, it was held, that the authority must be strictly pur- sued ; and if departed from, no acqui- escence of tlie parties to the contract, or the parties interested, can render it valid. Gregory u. Shelby College, 2 Met. (Ky.)589. By Teusxees. 235 CHAPTER XXII. BY TET7STEES. Sec. 169. Generally. Sec. IVO. Powers of cestui que trust. Sec. 171. For what term, trustees may lease. Sec. 172. Confirmation of imperfect lease by cestui qae trust. Sec. 173. Trustee not liable for loss, wben. Sec. 174. Trustee cannot be compelled to specifically perform contracts of his grantor, when. Sec. 175. Cannot subject property to his own debts. Sec. 176. Lease may be good in part, and bad in part. Sec. 177. Lease under power, requiring the best rent. Sew. 178. Leases by trustees of charities. Sec. 179. Grounds on which equity intervenes. Sec. 180. How rental value is to be ascertained. Generally. Sec. 169. A trustee of lands, being the owner of the legal interest,* may grant leases at law which cannot be impeached in equity, so long as they are justified by the quantity of his estate. But a person tak- ing a lease from a trustee with notice of the trust, and without the concurrence of the cestui que trust, is subject to the control of the court of equity.^ But where the trust is, to sell, the granting of a lease, or of an un- der-lease of a term, is prima facie inconsistent with the trust, There may be circumstances, however, that would justify such action, as, if, after making reasonable efforts, a purchaser at a reasonable price | ' Upham V. Varney, 15 N. H. 426 ; vie), which it is his duty to preserve ; Fay V. Taft, 12 Cush. (Mass.) 448; and the statute forthwith executes the Pearce v. Savage, 45 Me. 90; Gill v. Lo- use as to the residue in the remainder- gan, 11 B. Mon. (Ky. ) 231. Where an men, concerning whose interest the estate is devised to a trustee, in fee, trustee has no special duty to perform, "for the sole use, benefit, and behoof " So where the legal estate given to the of a married woman for life, and after trustee has not amplitude sufficient to her death " for the sole use, benefit, enable him to perform the duties of his and behoof" of a person or class of per- trust, his legal estate will be enlarged sons, who are m esse, and are sui juris, by implication to an extent commensur- the legal estate in fee given to the trus- ate with the objects and duties of the tee is cut down to an estate commensur- trust. Williman v. Holmes, 4 Eich. ate with the separate estate for life of (S. C.) Eq. 475. the married woman (an estate per autre ^ 1 Piatt on Leases, 345. 236 By Teustebs. could not be found, or if there exists such financial depression as ren- ders it impossible to obtain the fair value of the property, the trustee would doubtless be justified in departing from the trust.^ Po'vrers of cestui que trust. Sec. 170. The cestui que trust, having only an equitable estate, can- not, without the concurrence of the trustee, convey a legal interest ; but he can give a good title in equity, and his demise may be operative by way of estoppel; but such a tenancy is precarious, and, as against the trustee, the tenant is a mere trespasser,^ and liable to be evicted by the trustee without previous notice to quit.^ In order to fully pro- tect the lessee, the trustee and cestui que trust should join in the lease. The trustee should " demise and lease," and the cestui que trust should insert not only words of demise, but also of consent and approbation.* If there are several cestui que trusts, of course the assent of all sliould be obtained, as none will be bound, except those who concur, and the lessee, from the circumstance of the recital, is bound to make further inquiry, and thereby being treated as having notice of the title of the other cestui que trusts, cannot hold in opposition to them.' The rule is, that, if a man has before him that vihich ought to put him on fair inquiry, and he does not inquire, the knowledge of all that he might have learned by such inquiry, is imputed to him.^ In order that the covenants in such a lease should run with the land, they should be en- tered into with the trustee,' but the rent should be reserved generally, without specifying to whom, leaving it to the law to make the proper application.' Tor Twhat term, trustees may lease. Sec. 171. The trustee may lease the premises for a reasonable term, and as to what is reasonable, is to be determined in view of the na- ture, character and purpose of the trust, and is therefore a question that must necessarily depend upon the peculiar circumstances of each case. Thus, where a testator devised lands to trustees upon trust, to pay out of the rents and profits certain annuities, and subject thereto to permit A, and after him his wife, to take the rents and profits dur- ^ Evans v. Jackson, 8 Sim. 217. See ^ Mb. Sugdkn in his argument in iilso, Jervaise v. Claris, 5 Madd. 96, Mulpas v. Ackland, 3 Russ. 273, and where leases of mines upon lands given adopted by the Master of the Kolls in in trust for sale, were upheld, it being that case. understood that the trustee proposed to ' Webb v. Eussell, 3 T. R. 393. The eell the leases. covenants should run to one who holds 2 Blake b. Foster, 8 T. E. 487. the legal estate, Stokes v. Russell, 3 id. 3 1 Piatt on Leases, 123. * Ibid. 124. 678; Eussell v. Stokes, 3 H. Bl. 562. ' Piatt on Leases, 124 ; Mulpas v. * 1 Piatt on Leases, 124 ; Whitlock's Ackland, 3 Euss. 273. Case, 8 Coke, 69 6., 71 a. By Teustdes. 237 ing their respective lives, the lands, after their decease, to go to their children, it was held, that a lease made by the trustee for the term of ten years was reasonable and valid.^ In a New York case, a lease made by trustees for twenty-one years was upheld ;'' however, the burden of establishing the reasonableness of the term devolves on the trustee and the lessee holding under him,^ Trustees to whom a discretionary power is given of renewing leases, have not an arbitrary power of re- newal, but must renew when most for the benefit of the cestui que trust.* Confirmation of imperfect lease by cestui que trust. Sec. 172. Where a cestui que trust receives the rents from a tenant under a lease executed by a trustee in excess of his authority as such, he will, in equity, be bound thereby ; but the acceptance of rent, even for a long period, (in the case cited, for nine years,) the cestui que trust will not be precluded from obtaining equitable relief against the lease, if he was ignorant of the fact that the trustee had imperfectly exercised liis power.^ The rule seems to be, that the cestui que trust may con- firm, by his acquiescence therein, any act of the trustee which would liave been valid if it had originally been concurred in by the cestui que trust.^ Trustee not liable for loss, ■when. Sec. 173. A trustee letting premises originally at a proper rent, will not be held personally liable for the difference between that rent and tlie rent which, at a subsequent period of the tenancy, might have been I Naylor v. Amitt, 1 Euss. & My. 501. * Milsinton v. Mulgrave, 3 Madd. 491. .See also Attorney-General n. Owen, 10 Where a manor is conveyed to trustees, Yes. Jr. 555, where Lord Eldon held upon trust, to divide the profits of it that, while a trustee might do what Is amongst the tenants of the manor, it is reasonable, he certainly could not alien- the duty of trustees not to let the right ate the term for ninety-nine years. In of sporting to any of the tenants upon all cases terms advantageous to them as tenants, ^ In that case it was held, that a trus- hut to make the best profit they can, by tee holding a legal fee, determinable letting the right of sporting to all eligi- when the trust shall cease, has power at ble persons, whetlier tenants or other- law to lease for a term which may ex- wise, and to divide the profit so made tend beyond tlie period of his trust-es- ratably amongst the cestui que trusts, fate, subject to the ]'urisdiction of a Hutchinson v. Morritt, 3 Yon. & C. court of equity to annul the lease if un- 547. For instances in which the ques- reasonable or improvident. Thus, trus- tion of the reasonableness of terms has tecs having a fee determinable upon the been discussed and decided, see Attor- death of testator's children, have power ney General i. Griffith, 13 Ves. 575 ; to lease for a term of years, with a cove- Attorney-General jj. Hatham, 1 T. & E. nant to renew or pay for buildings to be 209; Attorney - General v. Warren, 6 erected by the lessee. Greason z. Ket- Beav. 288. eltas, 17 N. T. 491. To the same effect ' Barnes v. East London Waterworks is a previous decision in S. C, 1§ Barb. Co., 3 Madd. 375. 608. " Munch t. Cockerell, 5 Myl. & Or. ' Attorney-General r. Owen, 10 Ves. 178. 555. 238 By Trustees. obtained, merely because he neglected to give notice to quit a few months after there appeared to be a probability that the price of agri- cultural produce would enable him with propriety, as between land- lord and tenant, to obtain a higher rent. And that rule would be ap- plicable even to a case in which the tenant was a near relation of the trustee, unless there were some other circumstance to confirm the sus- picion of personal favor which that relationship is calculated to excite.^ Trustee cannot be compelled to specifically perform contracts of his grantor, ■when. Sec. 174. A trustee cannot be compelled to specifically perform any contract entered into by his grantor ; where he has no beneficial inter- est in the estate, he will be required to enter into covenants against other than his own acts. Thus a copyholder agreed to demise a tene- ment within the manor for sixty-three years, on a building lease, and, as the custom did not allow a lease to be made for more than twenty- one years, the copyholder agreed to execute a lease for twenty-one years, with a covenant, for himself, his heirs and assigns, to renew the lease for a further term of twenty-one years at the expiration of the first, and for a further term of twenty-one years at the expiration of the second term. The copyholder died before the lease was executed, hav- ing devised the premises to a trustee. It was held, on a bill by the lessee against the trustee for specific performance, that the trustee, having no beneficial interest in the estate, was not bound in the lease for twenty-one years to enter into any covenant for the renewal of the lease at the expiration of that term, and that he could only be required to covenant against his own acts.^ Cannot subject property to his ovrn debts. Sec. 175. A trustee cannot, by permitting the property of his cestui que trusts to be hired out by another, divert the title of the donees, or subject the property to the payment of his own debts or those of a third party, especially when the donees are infants.^ But he may bind the estate under a building lease, either to renew the lease according to a covenant to that effect, or to pay for the erections made upon the estate.* Lease may be good in part, and bad in part. Sec. 176. A trustee, empowered to lease for twenty-one years, must have in possession, and if there is a valid outstanding term at the time ' Eerraby v. Hobsou, 2 Ph. 255. , » Easly v. Dye, 14 Ala. 158. 2 Worle'y v. Frumpton, 5 Hare, 560 ; ♦ Robinson v. Kettletas, 4 Edw. Ch. Evans ». .Jackson, 8 Sim. 217. (K. Y.) 67. By Teustees. 239 a new lease is made " for twenty-one years from date," inasmuch :is the lessee cannot enter until after the previous term has expired, the lease is void because it is the grant of a reversion, and equity has no power to aid the defective execution, and render it a valid lease for twenty-one years from the expiration of the outstanding term. But if the lease is valid, the fact that it contains a covenant for a i-euewal for two terms of twenty-one years each, where the power only gives the right to make a lease for one term of twenty-one years, will not in- validate it, but equity will sustain it as a lease for twenty-one years, and cut off the right to renew.^ Lease under poTver, requiring the best rent. Sec. 177. A power given to a trustee to lease for the best improved rent is void, if it is shown that reasonable diligence would have se- cured a much larger at the time the lease was made. Such a power requires that the trustee should not only exercise good faith, but rea- sonable diligence, and whether he used such diligence or not, will . Ford, 1 Bos. (N. Y. Supr. liams u. Pearson, 38 Ala. 299 ; McCorrl Ct.) 123. V. Ochiltree, 8 Blackf. (Ind.) 1.5 ; Beall 2 Ibid. ». Fox, 4 Ga. 404 ; Tappan «. Deblois, 8 Hinter ». Stirgel, 1 Md. Ch. 283 ; 45 Me. 122 ; Dutch Church i'. Mott, 7 Johnson v. Dorsey, 7 Gill (Md.), 269. Paige Ch. (N. Y.) 77; Burr i). Smith, 7 * Booker ». Anderson, .35 111. 66 ; Vt. 241 ; Attorney-General v. .lolly, 1 Singleton u. Scott, 11 Iowa. 589; Bus- Rich. (S. C.) 99; Perrin v. Carey, 24 nett v. Higgiiis, 2 W. Va. 485, Dew. {U. S.) 465 ; Going b. Emery, Ki " 3 Blackstone's Com. 427 ; Attorney- Pick. (Mass.) 107 ; Whitman v. Sex, 17 General r. Talbot, cited 13 Ves. .Jr. 580, S. &. R. (Penn.) 88. The statute of and this supervisory power exists in the Eliz. 43, ch. 4, not in force in Maryland Court of Chancery by virtue of its orig- or Virginia. It was repealed in the lat- inal jurisdiction, and is in no measure ter State in 1792, dependent upon the 43 Eliz. 64; Wil- 240 By Trustees. be set aside, irrespective of the length of time which they have existed.^ LoED Eldon was of the opinion that trustees of charities were not bound to look with more providence to the affairs of the charity than their own; " but this does not seem to be the accepted doctrine, and in several later cases it has been held that the fact that a trustee has acted with reference to the affairs of a charity, with the same pru- dence that he would have acted in his own business, is not sufficient, but that he must be able to satisfy the court that he has acted fairly and prudently, and for the benefit of the cestui que trust? Grounds on -which equity intervenes. Sec. 179. The court always rests its intervention in such cases upon the assumption that the lessor has been guilty of a breach of trust, and that the lessee was accessory thereto by accepting such a lease,* and this is especially the case where the lease is made for a long term at a stationary rent.^ But if the lease is beneficial to the charity, the fact that it is for a long term is not regarded as a sufficient ground for setting it aside. Thus, in our case, a building lease for six hundred years, was upheld, it being made to appear that the lease was beneficial to the charity.' The same principles apply to the renewal of such leases, under a covenant to renew, contained in the lease. Whatever 1 4 Jaurm. Byth, 259 (3d Edn.) ; At- torney-General V. Hatham, 3 Russ. 415 ; Attorney-General v. Owen, 10 Ves. Jr. 555 ; Attorney-General ». Brooke, 18 id. 320 ; Attorney-General v. Hungerf ord, 3 Bligh. N. & C. 437. ^ Attorney-General v. Dixie, 13 Ves. ■7r. 519. ^Attorney-General v. So. Sea Co., 4 Beav. 453. In Attorney - General ». Kerr, 2 id. 420, Lord LANacALE, Mas- ter of the Rolls, said : " As to granting leases of a charity property, it is cer- tainly a strong proposition to lay down, that the trustees of a charity have the same powers which a prudent owner has with respect to his own property ; there may perhaps be dicta which go almost to that extent, but I apprehend that much more is expected from trus- tees acting for a paramount charity, than can be expected from the ordinary prudence of a man in dealing between himself and other persons. A man act- ing for himself may indulge his own caprices, and consider what is conve- nient or agreeable to himself, as well as what is strictly prudent, and his pru- dential motives cannot afterwards be separated from the others, which may have governed him. Trustees of a charity, within the limits of their au- thority, whatever they may be, should be guided only by a desire to promote the lasting interests of the charity." See opinion of Lord Brougham in Attorney-General v. Mayor, &c. , of New- bury, 3 My. & R. 647. * Atty. -General v. Cross, 3Meriv. 539; Atty.-Genl. v. Moses, 2 Madd. 308. . '■ Atty.-Genl.D.Cross, ante ; Atty.-Genl. r>. Brooke, 18 Ves. 32B. An husbandry lease for ninety-nine years at a uniform rent. Atty.-Genl. v. Owen, 10 Ves. .555; Atty.-Genl. v. East India Co., 11 Sim. 360; Atty.-Genl. u.Morgan, 2 Russ. 336; Atty.- Genl. V. Cashel, 2 D. & W. 294; Atty.- Genl. ». Lord Hotham, 1 T. & R. 2'J9 ; affd. 3 Russ. 415, or for seventy years, at a stationary rent, Atty.-Genl. v. Grif- fith, 13 Ves. 575; Atty.-Genl. ». Foord, 6 Beav. 283; Atty.-Genl. ». Backhouse, 17 Ves. 290; Atty.-Genl. v. Warren, 2 Swaust. 304, will be set aside as improvi- dent, unless they are shown to be bene- ficial to the surety. "It is too clear," says Sir ThosH-S Plumor, M. R., in Atty. Genl. v. Hotham, ante, "to admit of any doubt, that a husbandry lease of lands belonging to a charity, for ninety- nine years at an uniform rent, cannot stand, unless some satisfactory reason is given to support it." « In Ke Cross, 27 Beav. 592. By Tetjstbes. 241 •may formerly have been the rule,' it is now certain that a renewal will not bo decreed, unless it is shown to be beneficial to the charity,^ or, unless the lessee has made extensive improvements upon the lands, and the renewal will afford him no more than a just compensation for the outlay.^ It is not, however, an inflexible rule, that the courts will not uphold leases by trustees of a charity for a long term, as circumstances may exist which will justify such leases, or even an absolute alienation of the property.* Thus, in the case last cited, the court upheld a lease for nine hundred and ninety-nine years, at a fixed rent, because the transaction was fair, and the rent reserved adequate for the term. In an Irish case,° which was afterwards afiirmed in the House of Lords, the court refused to set aside a lease made by the trustees of a charity, with covenants for perpetual renewal, because it appeared to be a bene- ficial disposition of the property. But it may be stated as a general rule, that leases of property belonging to a charity will in all cases be set aside, unless they are shown to be provident and beneficial, and the burden of establishing their beneficial character is upon the lessee and trustees who seek to uphold it.^ If, however, the lease, at the time when it was made, was fair and free from all suspicion of collusion or fraud, it will not be set aside, because by adventitious circumstances its rental nature has been largely increased.' But if the founder of the charity prescribes a definite term as the utmost limits of leases to be made by his trustees, they cannot exceed such limits either directly or indirectly,' and a court of equity has no power to order a lease to be made for a longer term,^ although in the case last referred to, the court granted such an order ; but Vice-Chanoellor Sm Anthony Haet said : " But, I would not take such a lease under the order of this, or any other court of equity. There must be an Act of Parliament to render legal such deviation from. the founder's intention." " Courts of equity will set aside leases by trustees of a charity, when the rent reserved is 1 See Atty.-Genl. u. Smith, 2 Vern.716, Stu. 441 ; affd. 1 Euss. & My. 751, Sus in which a decree for a perpetual re- JoHif Lbach, V. C, said: "I cannot newal of a lease was made. • think it the office of a court of equity, at 2 Watson v. Hunsworth Hospital, 14 the distance of more than two centuries, Ves. Jr. 333; Atty.-Genl. ». Warren, 2 to undo an arrangement which was per- Swanst. 303; Atty.-Geul, v. Brooke, 18 fectly fair at the time between the con- Ves. Jr. 326. tracting parties, and was sanctioned with * Atty.-Genl. v. Bajiol College, 9 Mod, the full approbation of the executor of 407. the founder, and has become unequal * Atty.-Genl. v. So. Sea Co.., 4 Beav. only from accidents arising out of the 253. , course of time." ^ Atty.-Genl. b. Hung«rford, 2 CI. & P. ' Watson ». Hunsworth Hospital, 14 357. Ves. Jr. 324; Atty.-Genl. ». Griffith, 13 ^Atty.-Genl. ». So. Sea Co., ante; id. 565; Taylor v. Dulwich Hospital, 1 Atty.-Genl. v. Griffin, 13 Ves. Jr. 575; P. Wms. 655. Atty.-Genl. ». Owen, 10 id. 560; Atty.^ ' « Atty.-Genl. -o. Rochester, 2 Sim. 34. Genl. V. Kerr, 2 Beav. 297. ^^ But see Birkhampstead Free School, ' In Atty.-Genl. v. Pembroke, 2 Sim. & Ex parte, 2 V. & B. 138. 16 242 Bt Tbustbbs. satisfactorily shown to be so considerably below the actual rental value as to evince unfairness on the part of the lessee.' 1 See Atty.-Genl. v. "Wilson, 18 Ves. Jr. 518; Reresby v. Farrer, 2 Vern. 414; East c. Ryal, 2 P. Wms. 284; Atty.-Genl. v. Gore, 9 Mad. 224, where the court as- sumed to control a power conferred by the founder of the charity, when it was shown not to be best to act upon it. Atty.-Genl. n. Cross, 3 Meriv. 541; Atty.- Genl. V. Hungerford, 2 CI. & . F. 357. It does not follow that a tenant who has got a lease of a charity estate at too low a rent with reference to the actual value, is of necessity to be turned out, if it appear that he himself has acted fairly and honestly. Ex parte Skinner ; in the matter of the Lawford Charity, 2 Meriv. 453^57; S. C. 1 Wils. Ch. Ca. 14; Attorney-General v. Hungerford, 2 CI. & F. 357. The only ground for so deal- ing with him would be some evidence or presumption of collusion or corruption of motive. The circumstance of the tenant being a relation of the trustee, furnishes a ground of suspicion. Ex parte SIcinner, 2 Meriv. 457. But if the trustee, or one of the governors of the charity, be himself the tenant, though notliing wrong in a moral point of view can be imputable to him, or the other governors, yet, according to the general rule adopted in equity for the purpose of guarding against possible fraud, the court will not allow him to remain lessee of the lands, which, as trustee or governor. It was his duty to let at the greatest possible advantage. Attorney- General V. Dixie, 13 Ves. 519, 531,534; Attorney-General v. Earl of Clarendon, 17 Ves. 500. It ought, however, to be remembered, that the case of a charity estate is one in which, of all others, the f ecurity of the rent is the first object to be regarded; and, therefore, in such cases, the inadequacy of the rent is less a badge of fraud than it would be in almost any other instance. E.x parte Skinner, ante. The discovery of the fact of undervalue, depending, as it neces- sarily must, on numerous relative cir- ctlmstanoes, and involved in obscurity in proportion to the remoteness of the transaction, is occasionally surrounded by difiRcuIties of the most perplexing character. From the conflicting nature of the evidence adduced, it is sometimes next to impossible to elicit any data, or establish any position, as a safe or satisfactory guide to the judgment. Sur- veyors very seldom concur in opinion. Attorney-General t). Owen, 10 Ves. 560. in one case (Attorney-Gen- eral V. Magwood, IS Ves. 317), for instance, a messuaige was estimated by diiferent witnesses to be of the annual value of 55i., 50i., and 30i. But in one of later decision (Attorney-General v. Cross, 3 Meriv. 535), the difference was rather more startling. Witnesses were examined on both sides, and a good deal of contradictory evidence produced, as to the value of the estate at the respect- ive times of granting certain leases in 1772, 1801, and 1814, and filing the original information, and the proportion of the several fines paid and of the rent reserved to such annual value. The same, according to the witnesses for the plaintiff, was made to amount in 1772 to SOL, in 1801 to 180Z., and in 1814 to 230i., exclusive of outgoings; while the wit- nesses for the defendants differed in their opinions as to value, making it from 40i. to 65(. at the first, from 106J. to 150L at the second, and from lOOi. to 130i. at the third, of the above periods. These examples furnish additional and painful proof, if additional proof be wanting,' of the uncertainty and in- security of human testimony. When, however, these differences occur, the testimony of witnesses who have never had occasion to survey the premises with a view to a correct estimate of their value, but who, upon a loose recollection of the several circumstances that entered Into their computation at a distant period, offer opinions as to their value at that period, cannot be put Into any degree of competition with the evidence of persons who made a survey for that express purpose at the granting of the lease, particularly where neither the skill nor integrity of the surveyor can be impeached, nor improper motives for undervaluing the land imputed to him. Attorney- General v. Cross, 3 Meriv. 542. These considerations suggest the policy of having the estate valued by a sur- veyor of skill and reputation previously to a lease being granted. In administer- ing relief, the mode may differ with the peculiarities of the case ; but where the lease has been granted for an unreason- able term, the court usually decrees its cancellation. Yervel Poor ». Sutton, Duke's Charit. Uses, 43, Bridgm. edit. 628; Attorney-General v. Green, 6 Ves. 452 ; Attorney-General v. Owen, 10 Ves. 555; Attorney-Generals. Grifllth, 13 Ves. 565; Attorney-General u. Hotham, 1 Turn. & Russ. 209; affirmed on appeal, 3 Russ. 415. If inadequate considera- Bt Teustees. 243 Ho'w rental value is to be ascertained. Sec. 180. But, in ascertaining the real rental value, regard is to be had to the condition of the property and its rental value xohen the lease was made^ and the fact that the lessee subsequently underlet the prop- erty for a much greater rental, does not afford conclusive evidence that the rental was undervalued, because the increase may be due to the good-will established by the lessee, or to improvements made by him, tion form a ground of complaint, the payment of an additional rent, generally- computed from the filing of the informa- tion, or previous demand by the relators (Attorney-General v. Green, ante; At- torney-General V. Owen, ante ; Attorney- General V. Griffith, ante), is decreed against the lessee. Id. ; Yervel Poor v. Sutton, sup. ; Eltham Parish b. Warreyn, Duke's Charit. Uses, 67, 641; Wright v. Newport Pond School, Duke's Charit. Uses, 46, 649 ; Reresby v. Farrer, 2 Vern. 414; 1 Eq. Oa. Ab. 100, pi. 7; Smith ». Stowel, 1 Ch. Ca. 195. But, as equity caimot relieve without being acquainted with the terms of the original contract, in cases of uncertainty, \Yhere, for ex- ample, the surrender of a former lease formed part of the consideration, an in- quiry will be directed to ascertain whether the lease were reasonable at first, regard being had to .the rent reserved, the money expended in build- ing, or otherwise, and the duration of the term. Attorney-General v. Back- liouse, 17 Ves. 283; Attorney-General v. Magwood, 18 "Ves. 315. A specific prayer for an account of the rent is not requisite. The rule in cases of charity is almost universal, that the general prayer is suf- ficient; and the relief will be adapted to the case (Attorney-General v. Brooke, IS Ves. 319), even although the informa- tion prays wrong relief. Attorney-Gen- eral B.Whiteley, 11 Ves. 247. The court does not permit its feelings upon the abuse of a charity estate to carry it be- yond what is just, even against those who are guilty, much less against inno- cent parties (Attorney-General b. Back- house, 17 Ves. 292. And see Attorney- General V. Griffith, 13 Ves. 579) ; there- fore, if the lease be valid at law, equity will not set it aside without allowing for lasting (Attorney-General v. Baliol Col- lege, 9 Mod. 407, 411; S. C. Duke's Charit. Uses, 268; Attorney-General v. Kerr, 2 Beav. 420. But see Attorney- General V. Griffith, 13 Ves. 580), though not for merely ornamental (Attorney- General V. Kerr, 2 Beav. 420) improve- ments. And it would appear, that, if, under a covenant to build, buildings be erected, not ejusdem generis, but equally beneficial to the charity as if they had been made pursuant to the stipulation, the court would be unwilling to hold that the charity, after a great lapse of time, should have both the buildings and the price due, upon the principle of waste, by the failure to perform the covenants. Attorney-General v. Back- house, _17 Ves. 292. So, the enjoyment of an under-lessee is seldom disturbed. Id. ; Attorney-General v. Griffith, 13 Ves. 505; Attorney-General v. Poord, 6 Beav. 288. The court, feeling the ex- treme hardship upon those who have given a full consideration, usiially miti- gates the decree with regard to their interests, by merely directing them to pay the rent to other persons than those to whom they had contracted to pay it ; for, as the interests of those persons may be very fair as between them and those from whom they take, the relief is adapted to the conduct of the parties, as the court finds them respectively to have acted fairly or not towards the trust. Attorney-General v. Backhouse, 18 Ves. 292. The same indulgence is extended to a party purchasing the under-lessee's interest ; for though the purchaser of a lease has never been considered as a purchaser for valuable consideration without notice, to the extent of not being bound to know from whom the lessor derived his title, yet no case has gone the length of saying that he is to take notice of all the circumstances under which the lessor derived that title. The purchaser of the underlease must be understood at least to have notice that the lessors were trustees for a charity; but not that the lease was bad; that depending upon a variety of cir- cumstances dehors the lease. Atty.- Genl. V. Backhouse, 17 Ves. Jr. 283; Atty.-Genl. v. Pargeter, 6 Beav. 150. In setting aside a lease improperly granted, the court will not permit the personal covenants of the trustee for quiet enjoy- ment to remain in force, but will annul the transaction in toto. Atty.-Genl. v. Morgan, 2 Russ. 306; 1 Piatt on Leases, pp. 359-362. 244 Bt Tettstebs. and these matters are always to be considered, * and even though the rent is too small, yet, if the lessee has acted fairly and honestly, the lease ought not to be disturbed. * 1 Atty.-Genl. v. Magwood, 18 Ves. 315. Atty.-Genl. v. Hnngerford, 2 CI. & F. *Ex parte Skinner, 2 Meriv. 453; 357.. B7 DisssizoB OB Disseizee. 245 CHAPTER XXIV. BY DISSEIZOB OB DISSBIZBB. Sbc. 181. Leases by disseizor. , Sbc. 182. By disseizee. ■ Leases by disseizor, SEb. 18l. A person in possession of lands may grant a lease thereof that will be valid ais against him and all others not having a better title, and this is so, although his jiossession is tortious, and he is a mere disseizor ; * and if he subsequently^ becomes entitled to the lands, by con- veyance from the rightful owner, he is estopped from denying the validity of the lease, if the tenant was, at the time of the purchase, in possession under it. Hjs after^acquired title does not afEect the tenant except to make his rights, under the tenancy, more secure. '^ But the rule is otherwise, if it appears by the recitals in the lease that the lessor had no title, and, consequently, nothing to demise ; and in such a case a subsequent purchase of the premise by the lessor would not feed the estoppel, ' the rule being, that a party is not estopped by a deed or other conveyance executed by him, if the whole truth of the case appears in the recitals. * Of course, a lease from a mere trespasser or disseizor has no validity against the real owner, and he may be ejected by the 1 Lee V. Norris, Cro. Eliz. 331 ; Thurs- house for twenty-one years ; then Cart- ton's Case, Ow; 66 ; Webb o. Austin, wright re-demised to Kawlins for ten 8 Scott, N. K. 419. years. The court held : 1st. That the ^Cooke B. Brogan, 5 Ark. 693; Jack- lease by Cartwright to Warlow was son t). Murray, 12 John. (K. Y.) 201; good for six years against Cartwright by Leicester D. Rehaboth, 4 Mass. 180; Sin^ conclusion, but nothing in interest. 2d. clair *. Jackson, 8 Cow. (K. Y.) 543; That as soon as Cartwright had pur- Trevivan c. Lawrence, 6 Mad. 258 ; chased his interest for twenty-one years, Faulkner v. Morse, 3 T. R. 3*71 ; the Warlow' s interest for six years became subsequent acquisition of title by the o lease in interest, the reversion in lessor feeds the estoppel, Christmas v. Cartwright. 3d. That when Rawlins Oliver, 5 M; & R. 202; 2 Smith's L. C. took a re-demise from Cartwright, for 418. Paeke, B., in Sturgeon c. Wing- ten years, he was bound by the estoppel, fields, 15 M. & W. 230. In Rawlins' and took only a future interest, there Case, 4 Coke, 53 6., one Cartwright being no attornment, made a lease to Warlow, for six years, ' Hermitage v. Tomkins, 1 L. & Rayd. by indenture, of a house, in which he 729. had no title, and afterwards he pur- * Dew ». Camp, 19 N. J. L. 148; War- chased a lease of Rawlins of the same ren v. Leland, 2 Barb. (H. Y.) 613. -246 By Disseizor oe Dissiezee. latter, without previous notice to qliit, ^ unless the disseizee has in some manner ratified or confirmed the lease, as he may do, it being merely voidable. ^ If the lease is for life, a confirmation of the land by the disseizee confirms the whole;" but if it is for a term of years he may apportion his confirmation : as, where the disseizor's tenant has underlet, he may ratify the one lease, and not the other, or may confirm the whole or part of the land for any number of years. '' If the lessee of the disseizor is evicted by the disseizee, he is thereby released fi-om all liability upon his covenants to the disseizor ; but, until he is evicted, he is bound by his covenants, and must perform them, ^ as he cannot deny the title of his landlord, where no fraud was used, and, therefore, must pay the rent, and perform all the covenants he has taken upon himself under the lease. By disseizee. Sec. 182. Possession in law, or in fact, is indispensable, both by the statutes existing in most, if not in all, the States, and by the common law, in order to create a lease to operate in presenti,^ and if the premises are in the adverse possession of another, a lease made and delivered -whiie they are so advei-sely held, will be absolutely void. ' But ^ Thurston's Case, Ow. 16; Viner's Abr. tit. Estates. (R. a, 5) pi. 3 ; 2 Veiitr. 08. ■^ BacoB's Abr. tit. Leases, (H.) 5; Bedford v. Ford, Cro. Eliz. 447. In Foord's Case, 5 Coke, 81 a, the court held, that where a disseizor makes a lease, its confirmation by the disseizee for one hour confirms the whole estate. 2 Foord's Case, 5 Coke, 82 a. * Foord's Case, ante, 8. C, also in 3 Dyer, 383 h. ; Cro. Eliz. 447 ; 1 And. 47. In Dyer, the court is represented as not having been unanimous, Jeffrey, J., being of the opinion that the confirma- tion was void for the whole, and judg- ment is represented as having been ren- dered without argument for the 51 years ; but Coke says, and Crokb and ANDEE.SON both agree with him in this respect, that the confirmation was held to be good for the whole time. In 4 Bacon's Abr. tit. Leases, (H.) 4, the author says ': " If a disseizor makes a lease for years, or grants a rent charge, and the diasHzee confirma it, and aiter re-enters, yet he shall not avoid the lease or rent, because, by his confirmation of them, he hath departed with so much of his ancient rights, which incorporates or mixes with the lease or grant, so that he can never after avoid them." ^ Andrews v. Needham, Cro. Eliz. 656. " Co. Litt. 46 6, 352 a; Parsley v. Day, 2 Q. B. 147; the lessor must either have possession or an inter esse termini. Sheppard's Touchstone, 269. ' Isham V. Morrice, Cro. Car. 109; at common law, an actual or constructive possession of land is an indispensable requisite to the transmission of any right or interest therein. Jackson v. Huntington,- 5 Pet. (U. S. ) 402. And the rule is the same, whether such adverse possession lias existed for a long, or only for a brief period, or even whether the lessor knew of such adverse occu- pancy. Sohier v. Cofiin, 101 Mass. 179. If an actual adverse possession existed, it will defeat the conveyance of any in- terest therein by the owner, until he re- invests himself with the possession, either by action, or by forcibly turning the disseizor out of possession. In order to constitute an adverse possession there must be a possession under a claim of right adverse to the true owner. Baker ». Swan, 32 Md. 355. And unless the occupancy is under a color of title it must be actual, as there can be no constructive possession without it. Wells V. Jackson Mfg. Co., 48 N. H. 491 ; Sepulveda v. Sepulveda, 39 Cal. 13. But if a lease is made to, and accepted by, the disseizor, it is good, because by such acceptance the disseizin ends, and the relation of landlord and tenant By Disseizor oe Disseizee. 247 where there is no adverse holding, the possession will follow the title, and be deemed to be in him who has the title ; ^ consequently, in all cases where there is no adverse occupancy, the owner of the land has such a constructive occupancy as will give validity to a lease made by him. Therefore, a lease made of premises, to take effect when another lease outstanding terminates, is valid, because the possession of the tenant is the possession of the landlord and enures to his benefit, and cannot be adverse. ^ A disseizee can only make a valid lease, while actually disseized, by delivering it in escrow, to be delivered after entry and actual possession of the lands demised, in his name. " Or," says Bacon, ° " after signing and sealing before actual delivery, he may make a letter of attorney to a third person, to enter upon the land in his name, and after such entry to deliver it upon the land, or else- where, as his deed, to the lessee ; and though such letter of attorney be affixed to the deed (and to make it an effectual letter of attorney, it must be sealed and delivered), yet the sealing and delivery of that by the lessor, though affixed to the deed of lease, will not be construed a delivery of the lease itself, because no such intent appears, but the contrary ; and, therefore, the delivery of the letter of attorney shall have no more influence upon the deed of lease tlian if it had not been affixed thereto : or such disseizee may prepare a deed of lease, and at the same time execute a letter of attorney to a third person, to enter upon the land, and after such entry to sign, seal, and deliver arises ; and so long as this lease is out- deed, even by a person wlio has merely standing, or as he recognizes the lessor's a reversion or remainder; but when title, no adverse possession exists, granted without deed, it confers no Abbey, &c., Assn. v. Welland, 48 Cal. right to the possession, until the pos- 614. session is vacant, nor to the rents ac- 1 Halley ». Hawley, 39 Vr. 525 ; Fa's- cruing in the interim ; on a reversionary gate B. Mfg. Co. , 12 N. Y. 580, and the lease, however, as well as leases of the burden of establishing an adverse occu- reversion, the lessor may reserve rent, pancy, is upon him who seeks to avail immediately ; because there is a valid himself of it, as the presumption that contract, upon which the lessee is the owner is in possession must be over- bound, and upon which an action of come by proof. Washburn o. Cutter, lY debt will lie against him; and when the Minn. 361 ; Lamb v. Burbank, 1 Sawyer, lessee comes into possession, the lessor (U. S. S. C.) 227. may proceed against him by distress 2 Corning v. Troy Iron Factory, 34 for the arrears. 2 Roll's Abr. 406-7, 1 Barb. (N. Y.) 485; Sharp ». Kellogg, 5 Just. 47 a, 411 (G.), Plowd. 423. But Den. {N. Y. ) 431 ; Belliugham ». Alsop, such leases do not disentitle the lessor Cro. jac. 52, 408; Grant v. Town send, to proceed against the first lessee by ac- 2 Hill (N. Y. ), 554; Sassyn v. Adams, tion or distress, for the rent. . Smith e. Cro. Jac. 66 Eoll. 1242; Burton v. Day, ante; Eawlings ». Walker, 5 B. i& Brown, Cro. Jac. 648; Fish ». Bell any, C. 111. A reversionary lease takes Cro. Jac. 71. A reversionary lease, effect immediately upon the determina- which may be defined to be a lease to tion of the first lease. Hinchcliffe v. commence on a future day, or event, Kinnval, 5 Bing. N. C. 1. By giving a Winter B. Loveday, 2Salk. 537; Clarges lease to commence at a future day, the V. Fuiiucan, 2 Eang. 565, operating in tenant acquires a right to enter when the mean time as an inter esse termini ; the day arriyes. Wall v. Granger, 8 N. Smith I). Day, 2 M. & W. 684, may be Y. ll'5. granted at common law, with or without ^ 4 Bacon's Abr. tit. Leases, (H. ) 4 248 By Disseizsoe ok Dissbizbb. ■the lease as- his act and deed to the lessee ; and all these ways are good, because the delivery is the essential and finishing part of a d«ed ; and if the possession and seizin be reducSed before that comeSi the delivery after i3 as effectual as if the whole deed had been pre- pared and executed after; because, till the delivery, the deed took no effect, and when the delivery was, he was in actual possession, and consequently might make such lease. ^ But if such disseizee being out of possession, had sealed and delivered the deed of lease as his deed, though he had after actually entered upon the land, and then delivered the lease again as his deed, yet, no interest would pass to the lessee by either of these deliveries, for, as his deed, it took absolute effect by the first delivery, and then the second delivery, to make it his deed, was void, and to no purpose, ^ for a deed cannot have two deliveries, * for, if the first delivery took effect, the second is void, * and the first delivery to make it a lease was void, because he mas then out of pos- session, and had only a right of entry, which he could not transfer to a stranger ; arid, therefore, the lease is absolutely void to carry any in- terest to the lessee. And so it would be, if after such delivery of it as his deed, he had made a letter of attorney to enter and deliver it as his deed upon the land ; for the first delivery made it his deed effectually ; but that could pass no interest, because he was then out of possession ; and the second delivery to make it a deed was void, because it was his deed by the first delivery, and therefore cannot be delivered again ; and qucere, in t&e case above-mentioned, if the letter of attorney were at the conclusion of the deed of lease, in the very same parchment or paper, whether the disseizee could distinguish his sealing and delivery of that as a letter of attornej-, so that should not amount to a sealing and delivery of the deed itself, and thereby make void any after-delivery, when the possession and seizin were reduced?^ The heir, after the death of his ancestor, before any actual entry, may make a lease for years, because the possession in law was cast upon him immediately by the death of his ancestor, and none had possession in fact. But if a stranger first enter by abatement, then such lease made by him after will be void ; because by the entry the stranger gains possession in fact, which divests the possession in law of the heir, so that the heir hath neither possession in fact nor law, whereof to make a lease, and conse- quently the lease must be void. ^ A bargainee of a freehold estate, be- fore it is enrolled, still labors under this disability ; and subsequent ' Co. Litt. 48 b ; Sharp v. Sharp, Cro. * Goodright v. Straphan, Cowp. 203. Eliz. 483; Stephens v. Elliot, id. 484; ^ Plowd, 1.37 a, 142. See Comyn's Jennings v. Bragg, id. 446; Davis v. Dig. tit. Seizin, (A.) 2; Sheppard's' Bridges. 2 Roll's Abr. 25. Touchstone, 269. 2 Stephens v. Elliot, Cro. I!liz. 484. « Comyn's Digest, tit. Seizin, (A.) 2 ; 8 Perkins, Sec. 154. Sheppard's Touchstone, 269. By Dissbizoe oe Disseizee. 249- enrolment, within the statutory period, will not give validity to the lease hy relation. ' The rule is the same in reference to a tenant by dower. She is incapable of demising her estate in the land, until it has been set out to her and seizin has been delivered to her. " Tlie pos- session conferred by the statute of uses, is sufficient to enable the cestui que trust to grant a lease, without a previous entry into the lands demised. ' 1 Elliott V. Danby, 12 Mod. 3; Belling- ' Latwefch v. Autton, Cro. Jac. 604; ham V. Alsop, Cro. Jac. 52. Geary v. Bearcrof t, Garth. 57 ; Barker ^ Sheppard's Touchstone, 269. v. Kent, 2 Mod. 249. 250 Agreement foe a Lease. CHAPTER XXY. AGREEMENT FOE A LEASE. Sec. 183. "When a present demise. Sec. 184. Agreement must be complete. Sec. 185. When not a present demise. Sec. 186. Entry under agreement for lease — Effect of. Sec. 187. Agreement should contain all covenants that are to he embodied in the lease. Sec. 188. Statute of frauds — Effect of, upon agreements for leases. Sec. 189. Remedies upon valid agreements. Sec. 190. Remedy at law. Sec. 191. Specific performance of valid agreements. Sec. 192. Illegal purposes. Sec. 193. Surprise, mistake, fraud. Sec. 194. Party will not be compelled to accept less than he contracted for — May elect to do so. Sec. 195. Where anything remains to be fixed or decided by third persons. Sec. 196. When contract conditional on lessor's ability. Sec. 197. Where intended lessor has no suflacient title. Sec. 198. Where the contract is uncertain. Sec. 199. Common covenants. Sec. 200. Not of part of a contract — ^Exceptions. Sec. 201. After unnecessary delay by plaintiff. Sec. 202. Oral agreements partly performed. Sec. 203. What constitutes part performance. Sec. 204. Parties plaintiff in actions for — Defendants. When a present demise. Section 183. An agreement for a lease will be treated as a present demisBj when the agreement does not contemplate the execution of any formal lease, and possession is taken under it ; ^ but, if the agreement 1 Jenkins v. Eldridge, 3 Story (U. S.), rents, covenants and agreements therein 325; Emmons v. Klger, 23 Ind. 483; reserved on the part of C. , his executors, Munson v. Wray. 7 Blackf. (Md. ) 403; &c., to be paid, performed and observed, Doe i;. Richards, 4 Ind. 374 ; Municipality covenanted, promised, and agreed with No. One v. N. 0., 5 La. An. 761; People C, his executors, &c., that she, W., her II. Kelsey, 38 Barb. (N.Y. ) 269; Bacon b. heirs or assigns, should and would, at Bowdoin, 22 Pick. (Mass.) 401;Hurlbut any time during the term thereinafter V. Post, 1 Bos. (N. Y. Supr. Ct. ) 28. agreed to be demised, upon request made Thus, in a case where by an instru- to her or them in writing under the ment under seal, and stamped with a liand of C, his executors, &c., for that lease stamp, W., in consideratioi of the purpose, grant and execute to C, his Agebement foe a Lease. 251 contemplates the execution of a formal lease, or if anything remainjj to fee done, or if all the ingredients essential to make a lease are not embodied in the agreement, it cannot operate as a lease unless clearly so intended by the parties.^ The rule may be said to be that, although an agi'eement between an intended lessor and lessee may possibly amount at law to a present demise or assignment, yet, if upon the face of the instrument, it appears that a further instrument is necessari/ to carry the intention of the parties into execution, a court of equity will decree specific performance of the agreement in that particular, executors, &c. ; and C. thereby con- sented and agreed to accept and execute a counterpart of a good and effectual demise or lease of certain premises therein described, for the term of twenty- one years from a day past, determinable as thereinafter mentioned, at a certain rent, payable quarterly; and C. thereby covenanted to lay out a certain sum in repairing, painting, &c. ; and it was agreed, that there should be contained in the said lease and counterpart, by and on the part of C, his executors, &c., a covenant for payment of rent, to repair, &c. ; and also a covenant for quiet enjoyment, and a power to C, his execu- tors, &c. , to terminate the tenancy in the lease at the end of the third, seventh, or fourteenth year of the term of tweuty- one years, on giving a certain notice. It was held an actual demise, and not a mere agreement for a future lease. Curl- ing V. Mills, 7 Scott, N. K. 709. So in a case where A., by deed, in considera- tion of the rents, covenants, and agree- ments hereinafter reserved and con- tained on the part of B., covenants to grant to B., at his request, a lease of a house, habendum for twenty-one years from a day past, but determinable as hereinafter mentioned. B. covenants to lay out a sum on the premises; and it is agreed that the lease shall contain a covenant for the payment of rent, and other usual covenants ; and also a cove- nant, as it is also hereby figreed on the part of A. , for the quiet enjoyment, &c. ; and, in the event of a lease being execu- ted, there shall be contained in the lease a proviso empowering B. to determine the tenancy of the lease, &c., the agree- ment operates as a present demise. Curlins v. Mills, 6 Man. & G. 173. 1 Buell V. Cook, 4 Conn. 238; teople r. Gillis, 24 Wend. (N. Y.) 201. In Kabley v. Worcester Gaslight Co., 102 Mass. 392, an agreement "to rent or lease " to the defendant certain described premises, " for the purpose of delivering sand, bricks and cement," and " to he occupied durinc/ the construction of the same," was held a present demise, and the lessor having, at the defendant's re- quest, cleared the premises of trees and a building, for such purposes, was held entitled to recover the agreed rent, although the defendant did not occupy the premises under the lease. But, in another case, McGrath v. Barton, 103 Mass. 369, where the agreement was: " I hereby agree to let " to the plaintiff a certain house; "he agrees to pay me $400 per year, monthly," he to do the inside repairs. " I ain to do all outside repairs, and at present to fence the yard, repair the cellar and lay a water pipe ; and I will make a lease to McGrath of the premises for three, with the .privilege of five, years from date," was held not a present demise; and that the plaintiff, who had gone into possession, could not maintain an action against the city for damages for taking, for street widening, a portion of the premises. See also, Becker v. De Forest, 1 Sweeney (N. Y. Superior Ct.), 528, as to the effect of a mere agreement for a lease. In Shaw V. Farnsworth, 108 Mass. 358, a proposal by a tenant at will, for a lease for three years from a certain date, " if the owner would put in a new furnace," and the acceptance thereof by the owner and per- formance of the condition by him, was held to be a present demise to commence in the future, and not a mere agreement to execute a lease. In Eastman v. Per- kins, 111 Mass. 30, at the foot of a re- ceipted bill of sale of hay, headed "P. bought of H." was a memorandum signed by H. , as follows : ' ' Left at stable on O. street, where P. takes possession ; rent to begin October 1st, 1870, for one year at $150." The court held that this was a lease, and that oral evidence was admissible to show that the demised premises consisted of a lot of land ou which was a stable, and a small house which had been occupied by H.'s groom, and that the plaintiff took possession thereunder. 252 Agbeemekt fob a Lbabs. and the instrument cannot be operative as a demise oi the premises until such future instrument is executed, either voluntarily by the lessor, or under a decree of the court.^ Thus, an agreement that A; will let B. certain premises at a certain fixed rent named in the agree- ment, ^?-ou* 44; Hurlburt v. Post, 1 Bos. (N. Y.) 28. The words "shall hold and enjoy," ■Jackson T. Ashburner, 5 T, E. 163; or ,' ' I dem,ise, &c." Gaselee J. , in Pinero B. Judson, 6 Bing. 212; or " agree to let or lease," Wilson v. Chlsholm, 4 C. & P. 474; or "I this day agree to let," Staniforth v. Fox, 7 Bing. 590, &c., &c., are all words of present demise, and so are any words that show an intention on the part of the landlord to give, and of the tenant to take, possession under the instrument. But where an instru- ment contains words of present demise, but in which are inserted an agreement by the owner to make alterations and improvements, and by the other party to take a lease when the premises should he so altered and improved ; and the term was stipulated to commence from the day that the premises should be altered and improved in the manner agreed on, it was held to be but an agreement for a lease. Jackson v. De La^- croix, 2 Wend. (N. Y.) 433. So where the intended tenant agreed to repair a mill for the owner for a sum to be paid after the work was finished, and the owner agreed to secure the premises to him until the price was realized out of the profits of the mill, it was held a mere agreement for a lease, and not a demise of the mill. People v. Gillis, 24 Wend. (N. Y. ) 201. In Aiken v. Smith, 21 Vt. 172, the defendant entered into a con- tract with A., in writing, not under seal, by which he agreed " to let " to A. a cer- tain farm, the tenancy to commence on the 1st of April, 1842, and continue from year to year for the term of five years, or so long as the parties should agree and be satisfied, reserving to either party the right to terminate the contract by giving one month's notice in writing, the pro- duce of the farm " to be equally divided by weight or measure between the par- ties." It was held, that, although this gave to A. an interest in the land, and a right to occupy it without molestation from the defendant, wliile he continued in the performance of the contract, yet that it did not , constitute a lease of the 254 AGREEMiE>fT FOE A LeASE. to be to give to it that effect and character} Thi intention, of the parties, as gathered from the language employed in the instru- ment, must control, and an instrument which contains words of present demise, will be given that effect if such appears to be the paramount intention of the parties, although it contains a stipula^ tion for the execution of a future lease, " with usual covenants," ^ but if the agreement provides for the execution of a lease with special or unusual covenants, it is held not to amount to a lease.' The fact that the contract is conditional, will not prevent -it from operating as a lease, if the condition is performed or satisfied,* or waived.^ No par- farm, but that A. was a quasi tenant at will, while the contract continued in force, and that the defendant and A. were tenants in common of the growing crops, and of the produce of the farm be- fore severance. An instrument whereby one party " agrees to let for one year" from its date, and the other party agrees to pay the stipulated rent quarterly, and which declares that it shall continue in force for one year from its date, has been construed to be a present lease. Hurlbut V. Post, 1 Bos. (N. Y., Superior Ct. ) 28 ; so an instrument by which one agrees "to lease and rent," and the other "agrees to relit the said premises." Arerill v. Taylor, 8 N. Y. 44. 1 Poole V. Bentley, 2 Camp. 286. In this case, as reported in 12 East, 168, one agreed to let, and the other agreed to take, certain land, for the period of sixty-one years, at a certain rent for building, and the tenant agreed to ex- pend £2000, within four years, in build- ing five or more houses, and when five houses were covered in, the landlord agreed " to grant a lease or leases ( whichever might be for the more con- venient underletting or assignment of the leases), " but the agreement was to be considered binding till one fully pre- pared could be pcoduced : the instrument was held to operate as a present lease. " The rule to be collected from all the cases," said Loed Mansfield, C. J., " is that the intention of the parties, as declared by the words of the instrument, must r/ovem the construction, and here, their intention appears to have been that the tenant, who was to expend so much capital upon the premises within the first four years of the term, should have a present legal interest in the term, which was to be binding upon both parties, though, when a certain progress was made in the buildings, a more formal lease or leases * * might be executed." See also to the same effect, Pearce ». Chesslyn, 4 Ad. & El. 225; Hancock v. Coffyn, 8 Bing. 3.58; Pinero 0. Judson, 6 Bing. 206; Warman v. Faithful, .5 B. & Ad. 1042; Alderman o. Neate, 4 M. & W. 704; Phillip v. Benja- min, 9 Ad. & El. 644; Chapman v. Bluck, 4 Bing. N. C. 187; Pearson v. Eies, 8 Bing. 178; Staniforth v. Fox, 7 Bing. 590; Walker ». Groves, 15 East, 244; Barry v. Myent, 5 T. R. 165 n. ; Wright D. Trezevant, 3 C. & P. 441 ; Jackson v. Ashburner, 5 T. R. 163; Wilson v. Chisholm, 4 C. & P. 474. " Warman v. Faithful, 5 B. & Ad. 1042 ; Pearson v. Kies, 8 Bing. 182 ; Walker v. Groves, 15 East, 244 ; Paule V. Bentley, ante. The addition of a clause that a lease shall be made " with usual covenants," does not prevent the agreement from becoming operative as a present lease, because, in all cases, where no other provision is made, it is the rir/ht of both parties to have the lease contain those covenants. Flight v. Bar- ton, 3 My. & K. 282. And no special covenants can be inserted in a lease, as against carrying on a particular trade therein, or against underletting, &c., &c., unless specially provided for in the agreement. Probert v. Parker, 3 id. 280; Van V. Corpe, 3 id. 31 ; Henderson v. Hay, 3 Bro. C. C. 652; Browne v. Rahan, 15 Ves. 528; Vine v. Lanedou, 12 Ves. 179; Church v. Brown, 15 id. 258 ; Jones V. Jones, 12 id. 186; Jackson v. De La- croix, 2 Wend. (N. Y.) 433; Livingston B. Kisselbrack, 10 John. (N".Y.) 336. " Burnell v. Curtis. 4 Jur. 490. * In Chapman v. Bluck, 4 Bing. N. C. 187, TiSTDAL, C. J., said : "It is said that the contract is conditional only, depending on the defendants being sat- isfied with the reference for character, and that, being conditional, it conveys no interest. But upon the defendant's expressing his sati^action at the char- acter given, the condition is performed and the agreement absolute. ^ In Chapman v. Bluck, ante, there was to be a valuation, but the plaintiff Agreement rOE a Lease. 255 ticular form is necessary to give an agreement this effect, nor is it es- sential that it should be contained in one instrument. It may be made out by letters between the parties. All that is essential is, that there should be an agreement, and that the intention of the parties should clearly appear.^ It is enough if there are words showing a present in- tention, that one is to give and the other to have possession for any determinate time, in whatever form they arise,^ whether in the form of a license,^ covenant,* or agreement ; ° and if the words of the instrument are ambiguous the acts of the parties, and their contemporaneous or subsequent dealings under it, may be looked at for the. purpose of ascertaining their intention.' In England, under the stamp act, the fact that an agreement is stamped as a lease has been held, in the. absence of anything in the agreement indicating a contrary intention, sufficient to indicate the purpose of the parties to have the agreement operate as a lease ; ' and so generally where there is anything to indicate such an intention the instrument will be construed as a lease.^ Especially is this so when such words as " agrees to let " or " agrees to take " are employed ; ^ and the fact that a more formal lease is contemplated will not change the rule.^" An instrument containing an express proviso that it shall not operate as a lease, but only as an agreement, will be construed as an agreement only, although it contains words of present demise, because the intention of the parties must control.-''' But the inten- tion of the parties, as gathered from the vihole instrument, must be looked at; and even though there is an express provision that the instrument shall only operate as an agreement, yet, if there are subse- quent clauses that create an actual demise, the instrument will be so construed.^^ Thus, where an agreement contained the following clause : " And it is hereby mutually agreed that these presents shall operate as an agreement only, and that imtil a lease shall be executed the rents, having paid the defendant £100 towards " Pritchard v. Dodd, 5 B. & Ad. 693 ; the valuation when made, the defend- Fenny b. Child, 2 M. & S. 255 ; Whit- ant let him into possession. The court lock ». Horton, Cro. Jac. 91. held that this gave the plaintiff more ' Lovelock b. Franklyn, 8 Q. B. -371. than an inchoate interest, and was really ^ Gore v. Lloyd, 12 M. & W. 463. a possession under a demise. ' Colcombe v. Fideler, Peake's Adv. 1 Chapman v. Bluck, ante ; Steel ». Gas. 33 ; Pearce d. Chamberlain, 4 Ad. Frick, 56 Penn. St. 176 ; Jones v. Key- & El. 225. nolds, 1 Q. B. 506. ' "Wright v. Trezwant, 8 C. & P. => Park, B., in Bicknell u. Hood, 5 M. 441. & W. 106 ; Jackson e. DeLacroix, 2 ' Pearson b. Ries, 8 Bing. 182. Wend. (N. Y.) 433 ; Bacon «. Bowdoin, i" Pinero v. Judson, 6 Bing. 206; An- 22 Pick. (Mass.) 401; Chicago, &c., Co. derson t>. Midland R. R. Co., 30 L. J. Q. ■B. United States, &c., Cq., 57 Penn. St. B. 94. 83; Walker B. Giles, 6 C. B. 662; Drake " Perring «. Brook, 7 C & P. 3.59. V. Munday, Cro. Car. 207; 4 Bacon's ^^ RoHason b. Leon, 7 H. & N. 73; Abr. tit. Leases (K. ). Pinero b. Judson, 6 Bin'i;. 206 ; Ander- 8 — D. Wood, 2 B. & Aid. son u. Midland R. R. Co.', ante. 724; Hall v. Seabright, 1 Mod. 14. obd Eldon. s Kendall v. Hill, 6 Jur. N. S. 968 Sharp V. Milligan, 23 Beav. 419. * Bandy v. Cartwright, 22 L. J. Exchq, 285; 8 Exchq. 913 ; Vernam v. Smith, 15 N. T. 327. s In Hampshire v. Wickens, .38 L. T, Rep. (N. S.) 408, decided in tlie chan- cery division of the English High Court of Justice, the defendant entered into an agreement to talce a lease of a dwell- ing-house in Kensington, to contain all usual covenants and provisoes. The lease tendered to the defendant con- tained a covenant not to assign without the lessor's consent, such consent not to be withheld to a respectable and re- sponsible tenant. The present action was brought to enforce the agreement. The court held, that the covenant was not a usual covenant, and the action was dismissed. The authorities upon this subject in England are conflicting. In Church v. Brown, 15 Ves. 258, and Henderson v. Hay, 3 Bro. C. C. 632, such a covenant was held not to be usual, but in Haines v. Burnett, 27 Beav. 500, and Stratigways v. Bishop, 29 L. T. Rep. (O. S.) 120, the contrary was held. The doctrine of the princi- pal case has also the support of the Court of Appeal in Hodgkinson v. Crowe, L. R., 10 Ch. 622, and of the Court of Chancery in the same case, L. R. 19 Eq. 593. In Hodgkinson v. Crowe, ante, an agreement for a lease of mines and minerals provided that the lease should contain all usual and customary mining clauses. It was held, that the lessor was not entitled to have inserted in the lease a proviso for re-entry on non-payment of rents or royalties, or if and whenever there should be any breach by the lessee of any of the cove- nants and agreements contained in the 6 Bienderson v. Hay, 3 Bro. C. C. G32; Buckland v. Papillon, 36 L. J. Ch. aS ; Vine V. Lovedon, 12 Ves. 179 ; Brown V. Rahan, 15 id. 528 ; Church v. Brown, 15 id. 258. ' Propert v. Parker, 3 My. & K. 280 ; Van v^ Corpe, 3 id. 269. In The Mar- quis of Bute V. Guest, 15 M! & W. 160, A agreed to let, and B to take, a piece of land, with liberty to build thereon such warehouses, glasshouses, kilns, houses for workmen and other erections neces- sary for carrying on the business of a glass manufactory, as he should think fit, for the tei-m of sixty-one years, at a certain rent ; and B agreed to pay the rent, to build in a substantial manner, and not to use the premises for any other purpose than that of a glass man- ufactory during the ■ tenn ; a lease and counterpart to be executed in conform- ity with the agreement, in which should be inserted the usual covenants. It was held, that this did not warrant the in- sertion of an affirmative covenant in the lease, that B would carry on the business of a glass manufactory upon the premises during the term. " Noth- ing," said Parke, B., "is to be intro- duced into a lease as matter of covenant beyond the precise stipulations con- tained in the memorandum of agree- ment, unless we can make out clearly that the parties intended something more than they have expressed thereby." 8 Clark V. Clark. 49 Cal. 586. Agreement fok a Lease. 265 are blown down or burned, have been held not to be usual covenants.^ " The result of all the authorities," says Mk. Datidson,^ " apjDears to be, that in case the agreement is silent as to the particular covenants to be inserted in the lease, and provides merely for the lease contain- ing usual covenants, or, which is the same thing, is an open agreement without reference to the covenants, and there are no special circum- stances justifying the introduction of other covenants, the following are the only ones which either party can insist upon, namely, cove- nants by the lessee : (1) to pay rent ; (2) to pay taxes, except such as are expressly payable by the landlord ; (3) to keep and deliver up the premises in repair ; and (4) to allow the lessor to re-enter and view the state of repair, and the usual qualiiied covenant by the lessor, for quiet enjoyment by the lessee." * In equity, the lease, if one is made in pur- suance of an agreement, and the agreement will be construed together, unless it is shown that the terms of the agreement were subsequently changed by mutual consent, and the agreement will control the lease as to any matter about which there may be any apparent difference. Thus, in an English case,* H agreed to lease to the plaintiff certain premises, the lease to be in the form annexed to the agreement ; and it was provided in the agreement that nothing therein should be con- strued as giving to the plaintiff a right to any easement which did not belong to the premises to be demised as they then existed, nor to any right of light and air derived from over the houses opposite. Subse- quently H granted to the plaintiff a lease of said premises, together with the house erected thereon, " and all cellars, lights, easements, ways, watercourses, privileges, advantages, atid appurtenances to the said premises belonging,^'' being in the form annexed to the agreement. H subsequently leased to the defendants said houses opposite the premises leased the plaintiff ; and the defendants pulled the houses down, and began the erection of a new building which was intended to be of a much greater height than the houses so pulled down. It was held, that the lease was controlled by the above provision in the agree- ment, and that the plaintiff was not entitled to restrain the erection of the building by the defendants. Statute of frauds — Effect of, upon agreements for leases. Sec. 188. In order to give validity either to an agreement for a lease, or to a lease itself, it must be made conformably to the require- ments of the statute of frauds, in the State where the premises lie. The 1 Medwin* v. Sandham, 3 Swanst. 685 ; 18 Beav. 206, and Parish v. Steeman, 1 S. C. 1 T. E. 705. DeG. F. & J. 326. Thfe second cove- ^ Davidson's Precedents on Convey- naut, as to payment of taxes, Is not ancing (3d Ed. ) p. 48. usual In leases of dwellings. ' See, hoveveriWilbraham v. Livesay, * Soloman ». Glover, L. K. 2 Eq. 444. 266 Ageeement fob a Lease. Statute 29, Car. 2, Chap. 3, Sec. 4, whicli is peculiarly applicable to agreements, exists in most of the States without essential change. It is therein provided that, " No action shall be brought whereby to charge any person upon any contract or sale of lands, tenements or hereditaments, or any interest in or concerning them, unless the agree- ment upon which such action is brought, or some memorandum or note thereof, sliall be in writing, and signed by the party to be charged therewith, or some other person thereunto by him lawfully authorized." ^ And contracts for the future use and occupation of premises come within this provision, ' unless they operate as a present demise. Under this statute, which, as before stated, is practically in force in all the States, it is not essential that the agreement and memorandum should be contemporaneous, ^ or that it should be contained in a single paper, but a series of papers, as letters, * telegrams, '' and a letter or other document signed, may be used in connection with one previously written, but not signed, " but not in connection with one subsequently 1 This provision is adopted substan- tially in Vermont, Sec. 1, Chap. 20, Genl. Stat. 452, the words " promise, contractor" being inserted before the word " agreement." ^ Inman v. Stamp, 1 Stark. 12, where an agreement to occupy lodgings at a yearly rent, the occupancy to commence at a future day, was held to come within the provisions of this section of the statute, although Loed Ellenbok- OUGH intimates a different rule if pos- session had been actually taken under the agreement. See also Evans v. Rob- erts, .5 B. & C. 839; Edge v. Strafford, 1 Cr. & J. 391. ^ Shippey v. Derrison, 5 Esp. 193. In New York it has been repeatedly held that a parol lease for one year to com- mence in /wiiw-o is not an executory con- tract, hut vests a present interest iyi the term, and that it is assignable before entry, and that the lessee can bring ejectment if possession is withheld. Young V. Duke, .5 N. Y. 463; Whitney V. Allaire, 1 id. 307; Trull v. Granger, 8 id. 115, or the tenant may bring an action for damages, or of tort, for with- holding the possesion. Trull ». Gran- ger, ante, and the lessee cannot rescind the contract by notice, before the time for taking possession has arrived, and the lessor is not bound after such notice to let the premises to another. Becar b. Flues, 64 N. Y. 518, and a similar doc- trine is held in Colorado. Lears v. Smith, 3 Col. 287 ; in Indiana, Huffman V. Stark, 31 Ind. 474; but, a contrary doctrine is generally held, resulting from the difference in the language em- ployed in the statute of frauds in the several States affecting the question. Parker v. Hallis, 50 Ala. 411. * Lerned v. Waunemacher, 9 Allen (Mass.), 416; Tallman v. Eranklin, J.4 N. Y. 584 ; Parkluirst v. Van Cort- landt, 14 John. {N. Y.) 15; Gibson v. Holland, L. E., 1 C. P. 1. In order to take a contract for a lease of lands out of the statute of frauds, any writing executed by either of the parties that tends to establish a consummated con- tract may be given in evidence as a "memorandum," even though, in order to apply it, evidence of conversations between the parties as to the subject matter of the contract are necessary. Thus, the plaintiff had been negotiating with the defendant for the lease of a piece of ground for a strawberry garden. A few days after, he wrote to the de- fendant to ascertain whether he could have the lands on the terms offered, to which the plaintiff replied, " Set your strawberries." It was held, that this was a sufficient memorandum to take the case out of the statute. Lindleyc. Tibbals, 40 Conn. 522, even though there was a misunderstanding as to the terms of the lease. ' Palmer ». Marquette, &c. , Co. , 32 Mich. 274. <• Loomer d. Dawson, Cheeves (S. C. ), 68; Buxton v. Rust, L. E. 7 Exchq. 79. Letters, in order to satisfy, the statute, must, taken together, amount to a com- plete contract. Wright i). St. George, 12 Ir. Ch. 226; a written proposal signed by the defendant, and accepted orally by the plaintiff, is sufficient. Ageebment fob a Lease. 267 to be prepared. ^ Letters written to any third person containing direc- tions to carry the agreement into effect, have been held sufficient. " But in order to be operative as a memorandum, the writing or writings must be something more than a proposal for a tenancy ; it or they must contain all the elements essential to constitute a valid contract, without the aid of extrinsic evidence, ^ and must describe the premises with reasonable certainty, ■* the duration of the term, ° the rent to be paid, ° the names of both parties thereto, ' and it must be signed by the party sought to be charged thereby, or by some person by him Barker v. Allen, 5 H. & X. C. 61 ; Smith V. Male, 2 C. B. N. S. 67 ; Boys v. August, 6 Madd. 316; Reuss v. Picksley, L. E. 1 Exchq. 342; Warner v. Wiliington, 3 Drew, 523; but a written proposal signed by the j)lainUff, and accepted orally by the defendant, is not suflScient. Felthouse v. Bindley, 11 C. B. N. S. 869. See also the cases last cited. 1 "Wood V. Midgeley, 5 DeG. M. & G. 41. 2 Gibson v. Holland, L. R. 1 C. P. 1. BPeabody v. Speyers, 56 N. Y. 2.30; Forster v. Rowland, 7 H. & N. 103; Watts 1). Ains worth, 6 L. T. N. S. 252; Williams o. Lake, 2 E. &E. 349; Clarke ». Fuller, 10 C. B. N. S. 24. It has been held that, where there is a sufficient writ- ing to satisfy the statute, but subsequent to its execution the parties agreed upon certain changes by parol, that the parol changes cainiot be enforced, because this would open the door to the very mischief that the statute seeks to pre- vent. A contract of this character must be wholly established by the writing, and cannot be shown partly by writing and partly by parol. Stead v. Dowher, 10 Ad. & El. 57; but, unless the parol changes in the contract change its char- acter in a material respect, that is, if they were intended to modify, rather than to enlarge or restrict it, it seems that the original agreement may stand. But, whether the modification has the eSect of destroying the original con- tract, will depend entirely upon the extent of the change sought to be wrought thereby. Noble v. Ward, L. R. 1 Ex. 117; Price v. Dyer, 17 Ves. 356; Moore v. Campbell, 10 Exchq. 323; Marshall b. Lynn, 6 M. & W. 109; Rob- inson u. Page, 3 Russ. 114; Martin v. Pycroft, 2 DeG. M. & G. 785. There may be a parol waiver of a written contract, and the question in these cases is, whether the changes agreed upon by parol have that effect. Goss v. Lord Nugent, 5 B. & Ad. 64. ^ Lancaster v. DeTrafford, 31 L. J. Ch. 55-t; Daniels v. Davison, 16 Ves. 249; Ogilvie «. Foljambe, 3 Mer. 53. But the premises need not be so described that they can be identified, as parol evi- dence is admissible to identify the partic- ular estate. Bleakley v. Smith, 11 Sim. 150; Price v. Griffith, 1 DeG. M. & G. 80; Owen r. Thomas, 3 My. & K. 353. A reference to preceding deeds is enough. Owen v. Thomas, ante ; or, "my brick house," or "ray house in London," or " the store now occupied by John Doe," or " the house on Cedar Street," or " the building known as Jones' Block," or " the two seams of coal, l;nown as the two-foot coal ajid the three-foot coal, lying under lands hereafter to be defined, known as Bank End Estate," are all sufficiently definite, because the description makes a basis from which the precise estate can be shown by parol. Ogilvie v. Foljambe, 3 Mer. 61; Bleakley v. Smith, ante; Jen- kins ». Green, 27 Beav. 437; Lancaster D. DeStrafeord, 8 Jur. N. S. 873; Hay- wood V. Cope, 25 Beav. 140. ^Fitzmaurice v. Bayley, 8 E. & B. 664; Clinan v. Cooke, 1 Sch. & Lef. 22; Hughes V. Parker, 8 M. & W. 244; Gor- don !). Trevadyan, 1 Price, 64; Clarke v. Fuller, 160 B. N. S. 24; Hersey v. Gib- lett, IS Beav. 174; Blore v. Sutton, 3 Me. 237; Hodges v. Howard, 5 R. I. 149. "i Wain B. Warltens, 5 East, 10. An agreement for a lease at "a fair rent" has been held sufficiently certain : be- cause the tender of an agreement for a lease at a sufficient rent must precede the action for a breach of the agreement to lease, unless the defendant has waived a tender, and such waiver may be in- ferred when he has put it out of his power to perform. Weaver ». Wood, 9 Penn. St. 220; Baumann o. James, L. R. 3 Ch. 508; Powell v. Lovegrove, 8 DeG. M. & G. 3.57; Woolam v. Hearn,7 Ves. 211 ; Morphett v. Jones, 1 Swanst, 172. 'Champion r. Plummer, 5 Esp; Lang V. Henny, 54 N. H. 57; Williams v. Lake, 2 E. & E. 349; Warner v. WiUington 3 Drew, 530. 268 Agreement foe a Lease. authorized for that purpose. ^ It is not indispensable that it should be signed by both parties, especially as such agreements may properly be unilateral, but it must be signed by the person sought to be cliarged, ^ a7id accepted by the other. " A partner may sign for the firm, * or an agent of a corporation for it,^ and in the case of a partner he may sign the name of the firm, or his own name, and it may be shown in either case that he signed as agent of the firm, and in any case it may be shown that a person signed as the agent of another. ^ But, if disputed, the authority of the agent must be proved, ' and this may 1 Sanborn u. Flagler, 9 Allen (Mass.), 474; Stoddert v. Vestry of Port Tobacco, 2 G. & J. (Md.) 227; Kyle v. Roberts, 6 Leigh. (Va.) 495; Bailey v. Ogden, 3 John. (N. T.) 417. The signature must be such as amounts to an acknowledg- ment by the party, that the agreement is Ms ; and unless such authenticity is thereby given to the instrument, the statute is not satisfied. Therefore, the memorandum must be signed by the party to be charged, and it is not enough that his name is inserted in his own hand in the body of the instrument. Stokes V. Moore, 1 Cox, 219; nor is it enough that the memoi-anda was drawn up by the person to be charged thereby, with his own hand, and delivered to the other party. The absence of his signa- ture is absolute evidence that he regards the instrument as incomplete. Bawdes V. Amhurst, Prec. Ch. 402. But, where an agreement has been signed by one party, and delivered to and acted upon by the other, it is not a valid objection to its being enforced that the party seeking performance has not, also, signed it. Sutherland v. Briggs, 1 Hare, 26; Fowle v. Freeman, 9 Ves. 351; Allen V. Bennett, 3 Taunt. 176; Hud- dlestone v. Briscoe, 11 Ves. 592; Martin V. Mitchell, 2 Jac. & W. 426; Laythrop V. Bryant, 2 Bing. N". C. 735. 2 Coles 15. Bowne, 10 Paige Ch. (N". Y.) 520; Emzy v. Gorton, 18 111. 483; Frazer v. Ford, 2 Head. (Tenn.) 464; Boys 13. Ayerst, 6 Madd. 323; Liverpool, ■fee, Bank v. Eccles, 4 H. & P. 139; Butter V. Powns, 2 Coll, 161. It may be in any part of the writing, if it was intended as a signature. Bleakley v. Smith, 11 Sim. 150; Propent v. Parker, 1 Buss. & My. 025; and either with ink or by pencil. Selby b. Selby, 3 Mer. 2. 5 Justice V. Lang, 47 N. Y. 493; Sams V. Fripps, 10 Rich. Eq. (S. C.) 447. A written contract signed by one and acted upon by the other, may be en- forced in equity against the one who did not sign it. Old Colony R. R. Co. v. Evans, 6 Gray (Mass.), 25; Clason v. Bailey, 14 John. (K. Y.)484; Douglass m. Spears, 2 ST. & M. (S. C.) 207; Reynolds V. Dunkirk, &c., E. E. Co., 17 Barb. (K. Y.) 613. In Cadwalader's Appeal, 81 Penn. St. 384, it appeared that Penn in 1784, leased a lot to Wormley for ten thousand years, at an annual rent, with right of distress and re-entry, to forfeit the lease in default of payment, if there were not suflBcient distress on the premises to pay the rent. "Wormley died in 1829 without known heirs ; App then took possession of the lot; the plaintiff had been agent of Penn before Wormley' s death, and so continued until 1838, when Penn's devisee con- veyed to him the ground-rent and all the grantor's estate in the lot. No rent hav- ing been paid by Wormley, the plaintiff, July 1, 1839, entered for its non-pay- ment, declaring his intention to resume possession. By arrangement with App, in order that plaintiff might make title to him, he removed everything from the lot, and continued in its occupancy to take care of it for plaintiff. In Octo- ber, 1839, App and plaintiff signed, without seals, a paper by which App agreed " to take the lot," describing it, on a ground-rent of $60. It was held, that this paper was an agreement in writing, under the statute of frauds, for a lease of the land on ground-rent. The requirements of the statute are met by a memorandum in writing signed by the party to be charged therewith. If signed by the vendor alone, and deliv- ered to the vendee, no more is required. It is not necessary that the writing be under seal nor in any particular form of words. * Kyle V. Roberts, 6 Leigh. (Va.) 495; Starkpate v. Arnold, 11 Mass. 27. •■ Stoddert v. Vestry of Port Tobacco, 2G. & J. (Md.) 227. "Higgins 4). Senior, 8 M. & W. 834; Minard v. Mead, 7 Wend. (IST. Y.) 68. , ' Baines v. Ewing, 35 L. J. Exchq. 194; Blore v. Sutton, 3 Mer. 237; Forster V. Rowland, 7 H. & N. 103. Ageebment foe a Lease. 269 be done by showing a subsequent ratification by the principal. ^ If a person acting as agent signed his own name to the contract, he is per- sonally bound by, and may be compelled to specifically perform it. ^ Remediea upon valid agreements. Sec. 189. There are two remedies open to the parties to a valid agreement for a lease, but the parties must elect which they will pursue, as they can only avail themselves of one of them ; " to wit, an action at law for damages for not performing the agreement,* or a suit in equity for a specific performance — and these remedies are open to either party thereto.^ Both remedies cannot be pursued at the same time ; and if the party pursues his remedy at law and obtains a judgment for damages, he cannot afterwards proceed in equity for specific perform- ance ; " and if he commences an action at law for damages, and also in equity for specific performance, he will be compelled to elect which remedy to pursue,'^ as a court of equity has no discretion to retain the suit, where the plaintiff is also proceeding at law for the same cause of action, except where the proceedings at law are auxiliary to those in equity.' Where a party has brought an action at law and failed, equity will not enforce the contract, unless there have been some circumstances excusing the failure at law, or waiver of the forfeiture on the part of the obligee.' But where the cause is not the same, as, where the action at law is brought for the non-performance of particular acts only, as for not improving or repairing the property, the perfoi-m- ance of which is not specifically prayed for, or for acts the specific performance of which cannot be decreed, and the action is brought only for damages sustained up to the time of its commencement, the party is not driven to his election, because there is no conflict of jurisdiction or remedies.^" So, too, in some cases, a party may have his remedy in equity, wlien he has lost his remedy at law by reason of laches on his part, as, by permitting the day to go by on which he ought to have performed or offered to perform," or some other condition precedent, 1 Ktaclean b. Duiin, 4 Bing. 722; Bay- ^ Cowen v. Phillips, ,33 Beav. 18; Par- ley V. Pitzmaurice, 8 E. & B. 664; Ridg- ker -o. Taswell, 2 De G. & J. 557; Pain way 0. Wharton, 6 H. L. Cas. 238. v. Combs, 3 Sm. & Giff. 449. " Saxon M. Blake, 29 Beav. 438. ^ Saintor v. Ferguson, ante; Marston 5 A party cannot avail himself of both ». Humphrey, 24 Me. 513. remedies. Orme v. Broughton, 10 Bing. ' Fennings v. Humphrey, 4 Beav. 1 ; 538; Sainter ». Ferguson, 1 Mac. & Ambroses. Nott, 2 Hare, 649; Roule d. G. 286; Dart's Vendors v. Purchasers, Wynne, Cr. & Ph. 252. 703. * Roule D. Wynne, ante; Barker v. *Bond B. Easling, 1 B. & S. 371; Smarlc, 1 Euss. & M. 423 m. 1. Cocking V. Ward, 1 C. B. 858; De " Tevis u. Richardson, 7 B. Mon. (Ky.) Medina v. Norman, 9 M. & W. 820; 654; Allen v. Beal, 3 A. K. Mar. (Ky.) Forster v. Rowland, 7 H. & N. 103; Sou- 554. ter !). Drake, 5 B. & Ad. 992; Rollason v. " Fennings v. Humphrey, 4 Beav. 1. Leon, 7 H. & N. 73; Jinks v. Edwards, " Tidey v. Mollett, 16 C. B. N. S. 298; 11 Exchq. 775 ; Hall b." Betty, 4 M. & G. Berry v. Young, 2 Esp. 640 n. ; Stowell v. 410; Wright v. Calls, 8 C. B. 150. Robinson, 3 Bing. N. C. 928. 270 Agreement for a Lease. lie may still have his remedy in equity, because, in the language of Anderson B.,^ while " at law, time is always of the essence of the con- tract ; in equity the contract is considered as a purchase of land for money, without reference to the time when the title is to be made out." ^ But to entitle him to this equitable remedy, there must have been a substantial performance, or offer to perform, on his part, or circum- stances that excuse it, so that in equity and good conscience the agreement ought to be performed.' Remedy at law. Sec. 190. Either party may maintain an action at law, for the breach of a complete and valid agreement to make or take a lease of premises.* But, in order to maintain an action for such breach, the agreement must be full, complete and perfect in all the essential elements requisite to make a lease, and not a mere proposal therefor.* In an action upon an agreement, the plaintiff may recover back any sums which he has paid the defendant, as well as the actual damage he has sustained.' Generally, an action will not lie until the day arrives for the execution of the lease ; but if the defendant previously to that time has disabled himself from the performance of the agreement, as, by a sale of the property, or by granting an inconsistent lease, the other party may bring his action at once, as such acts are regarded as a breach of the contract.' If an action is brought by the intended lessor against the intended lessee for not taking the lease, the latter may defend upon the ground that the plaintiff has no title to grant such a lease as he contracted to grant, as in all such cases the lessor impliedly undertakes that he has title under right to grant such a lease ; ° and, a lessee being regarded as a purchaser j>?-o tanto, he has a ' Hanslip ?). Paderick, 5 Exoliq. 623. ance with Ms siiggestions ; we trust 2 Cartan v. Bury, 10 Ir. Ch. 387 Davis V. Hone, 2 Sell. & Lef. 341; Sug- den's Vendors (14 Eng. Edn.), 212 Fry on Specific Performance, 4. "i Coale V. Barney, 1 G. & J. (Md. ) 324 tliere will be no impediment to prevent an early completion, and shall be glad to receive the draft as soon as you can, that we may engross the counter part." The plaintiff's solicitors returned the Voorhees v. DeMeyer, 2 Barb. (N. Y.) papers, stating that, according to the 37 ; Guest v. Homfrey, 5 Ves. 818 ; Jones practice, where there is no stipulation V. Price, 3 At. 924; 2 Tudor' s Leading on the subject, the lessor's solicitor in- Cases, 443; Paine v. Miller, 6 Ves. 349; variably prepares the lease, &c. After Smith V. Burnham, 2 At. 527. some further correspondence, the de- * Ridgway d. Wharton, H. L. Caa. fendant refused to execute the lease; 238 ; Forster v. Eowland, 7 H. & jST. 103. and in an action brought by the intended * In Forster ». Eowland, ante, the de- landlord against the intended tenant to fendant having proposed to take a lease recover damages for a breach of the of premises for seven years, a draft lease agreement to lease, the court held that was prepared, to which the defendant no valid agreement was shown, objected, but he ultimately took it away ^Wright v. Calls, 8 C. B. 150. to be settled by his solicitors, and the ' Ford v. Tiley, 6 B. & C. 325. solicitors afterwards returned it to the ' Gevillim v. Stone, 3 Taunt. 432; plaintiff's solicitors with the following Strauks v. St. John, L. R 2 C. P. 376; letter: "We have seen our client, and Eoper u. Coombes, 6B. & C. 534; Tem- have altered, the draft lease in accord- pie v. Brown, 6 Taunt. 60 Agbbement foe a Lease. 271* right before accepting the lease to be satisfied as to the lessor's title, and to call for an inspection of it.^ Specific performance of valid agreements. Sec. 191. A decree for the specific performance of agreements for leases, in all respects complying with the provisions of the statute of frauds, and entered into by parties competent on the one hand to lease, and on the other to take a lease, is almost as much a matter of course in a court of equity, as are damages for their breach in a court of law.'' The fact that the party has a remedy at law for 1 Sugden's Vendors, 141 ; Purvis v. Rayer, 9 Price, 488; Keech v. Hall, 1 Doug. 21. 2 White 13. Tudor's Leading Cas., 645; Hall V. Warren, 9 Ves. 608; Chance v. Beall, 20 Ga. 143; Hooper v. Hooper, 16 N. J. Eq. 147; Rogers v. Sanders, 16 Me. 92. Courts of law have no power to enforce specifically the performance of any contract or obligation, l^ts power and jurisdiction only extends to the giving of damages for its breach or non- performance, no matter how uncon- scionable or inequitable it may be to compel a party to accept such redress ; and, it can only give damages for the breach of the contract according to the legal interpretation of the language em- ployed, although it does not in fact express the real intention of the parties, or the contract actually made by them. But courts of equity, taking up juris- diction from the outer limits to which courts of law can go, are endowed with ample power not only to correct any mistakes made by the parties in the contract itself, but also, in a proper case, to compel the parties to perform it, according to its true intention as gathered from the language used, and the subject matter to which it relates. This jurisdiction, however, will only be exercised when, in view of the terms of the contract, and the circumstances surrounding it, equity and good con- science requires that the parties should substantially perform that which they have contracted to perform, and will not compel either party to perform, when such performance would be inequitable or unconscionable. Barnett v. Spratt, 4 Ired. (K. C.) Eq. 171; Kimberley v. Jennings, 6 Sim. 340; Clarke v. Roches- ter, &c., K. K. Co., 18 Barb. (N. Y. ) 350; Gould V. Kemp, 2 My. & K. 308; Cana- day 13. Shepherd, 2 Jones (K. C.), Eq. 224; Wardsworth v. Manning, 4 Md. 59; Round tree I3. McLain, 1 Hempst. (U. S. C. C.) 245; Durall 13. Myers, 2 Md. Ch. 59. And this is so, even though the contract is one that, if exer euted, it would set aside. Barksdale B. Payne, Riley (S. C), Ch. 174; Clith- wall 13. Ogilvie, 1 Dessau (S. C), 250. The court is vested with large discre- tion in this respect, but this discretion must be reasonably exercised, Howard 13. Moore, 4 Sneed. (Tenn.) 317; Hum- bard 13. Humbard, 3 Head (Tenn.), 100; Hester 13. Hooker, 15 Miss. 768; Auter 13. Miller, 18 Iowa, 405; Blackwilder v. Loveless, 21 Ala. 371 ; PuUiam v. Owen, 25 id. 492; Pigg 13. Corder, 12 Leigh (Va. ), 69; Leigh 13. Crump, 1 Ired. (N". C.) Eq. 299; Ash v. Dagg, 6 Ind. 259; McMurtie 13. Bennett, Harr. .(Mich.) 124, and the relief prayed for cannot be arbitrarily (Rogers 13. Saunders, 16 Me. 92; Henderson 13. Hays, 2 Watts (Penn. ), 148; Meeker 13. Meeker, 16 Conn. 403; Broadwell 13. Broad- well, 6 111. 599; Pigg v. Corder, 12 Leigh (Va. ), 69; Leigh 13. Crump, 1 Ired. (K. C.) Eq. 299; Turner 13. Clay, 3 Bibb (Ky.), 52; Tobey 13. Co. of Bristol, 3 Story (U. S. C. C), 800; Rogers u. Saunders, 16 Me. 92; Rudolph V. Covell, 5 Iowa, 126; Seymour 13. De- lancey, 6 John. Ch. (N. T.) 222; Gould 13. Womack, 2 Ala. 83; Smart 13. Rea, 19 Md. 398; Pickering 13. Pickering, 38 K H. 400; King 13. Morford, 1 1^. J. Eq. 274) or capriciously granted or denied. Bowen 13. Irish, &c.. Congregation, 6 Bos. (N. Y. Sup'r. Ct. ) 245; Griffith 13. Frederick Co. Bank, 6 6. & J. (Md. ) 424; Cathcarti3. Robinson, 5 Pet. (U. S.) 263; McWhorteri3. McMahan, 1 Clarke's Ch. (N. Y.) 400; Humbard v. Humbard, 3 Head (Tenn.), 100; Waters 13. Howard, 8 Gill. (Md.) 262; Frisby 13. Ballance, 5 111. -287; Watts v. Rogers, 2 Abb. Pr. (N. Y. ) 261 ; Faure «. Martin, 7 N. Y. 210; Veeder 13. Fonda, 3 Paige's Ch. (N. Y.) 94. A bill for the specific perform- ance of a contract, is addressed to the sound and reasonable discretion of the court, and, while not strictly a matter 27i Specific Peeformancb of damages, affords no objection to the exercise of this jurisdiction, as it is presumed that such compensation will not put him in as beneficial a position as if the agreement y^s performed.^ But, as a condition precedent to the exei-cise of such jurisdiction, the contract must be complete ^ and certain, ^ and susceptible of proof by the writing of right, is neverthelesss so much so, that an error in these respects will be revised by an appellate tribunal. The matter is regulated by certain rules and principles that the court must regard, and any deviation therefrom is error that an appellate tribunal will rectify. Sey- mour c. Delancey, 3 Cow. (N. T.) 345; Meeker D. Meelcer, 16 Conn. 403; Tyson V. Watts, 1 Md. Ch. 13; Cowenhoven ?;. Brooldyn, 38 Barb. {S. Y.) 9; St. John V. Benedict, 6 John. Ch. (N". Y.) 111. 1 Harnett v. Yielding, 1 Sch. & Lef. 5.53. The rule is, that equity will specifi- cally enforce performance when that alone will ansyver the purposes of jus- tice. Stuyvesant v. Mayor, &c., 11 Paige (K. Y.), Ch. 414; and the court will be careful to see that the exercise of this jurisdiction does complete justice. King V. Mumford, 1 N. J. Eq. 274. ^ And the termn of it so precise as that neither- party could reasonably vniaun- derstand it. If it is vague, indefinite or uncertain, or the evidence to establish it is insufficient, this remedy will be with- held. Loclierson v. Stilwell, 13 N". J. Eq. 3-57; Bowman v. Stilwell, 78 111. 48; Colson 1). Thompson, 2 Wlieat. (U. S.) 336; Minturn v. Bayliss, 33 Ciil. 129; Odell D. Morin, 5 Greg. 96; Thynne v. Glengall, 2 H. L. Cas. 131 ; Martin v. HoUey, 61 Mo. 196: Miller v. Cottin, 5 Ga. 341; Burke v. Creditors, 9 La. An. 57; Fitzpatrick v. Beatty, 6 111. 454; and, unless partly performed, the sub- ject matter must be susceptible of identi- fication from the description in the contract, "the 120 acres in Shannon County, Missouri," without any other words of identification, was held insufii- cient, as the land could not be identified without a resort to parol evidence. Miller ». Campbell, 52 Ind. 125. But if ithad been " the 120 acres of lartd owned by me in A — , Shannon County, Mis- souri," it would doubtless have been regarded as sufficient. Lynes ». Hayden, 118 Mass. 482; Lewis ». Reichy, 27 N. J. Eq. i240; Colerick v. Hooper, 8 Md. 316. So when it was sought to have a contract specifically enforced, where the defendant agreed, in consideration that certain land was conveyed to him, to "erect a certain building," it was held too uncertain. Martin ti. HoUey, ante. The bill must set out a contract which is cleai' and definite in all essential details. Wright d. Wright, 31 Mich. 380; Stanton v. Miller, 58 H. Y. 192; Reese v. Reese, 41 Md. 554. Where the contract is incomplete in any es- sential respect, and furnishes no means of identifying the property with cer- tainty, this remedy will be denied. Patrick D. Horton, 3 W. Va. 23; Ham- mer !). McEldowney, 46 Penn. St. 334; Southern Ins. Co. v. Cole, 4 Ela. 359; Ohio V. Baum, 6 Ohio, 383; Jordan v. Deaton, 23 Ark. 704; Prater v. Miller, 5 Jones (N. C), Eq. 153. " The houses in Smithfield St.," without other designa- tion, held too uncertain. Hammer v. McEldowney, ante. AVhen the writing appears only to be the hasis of an agreement and not the agreement itself, there is no binding agreement. Frost ■e. Moulton, 21 Beav. 496; or when it provides that any of the terms shall be afterwards settled. Wood o. Midgeloy, 5 D. & G. M. & G. 41; Honeynian v. Maryatt, 21 Beav. 14; or that further negotiations are contemplated. Strat- ford V. Bosworth, 2 T. & B. 341 ; Taw- ney J). Crowther, 3 Br. & C. C. 318; and if it is doubtful whether a positive agreement exists tlie court will not in- terfere, all the terms must be settled. Huddlestone v. Briscoe, 11 Ves. 592; Jackson v. Oglander, 2 H. & M. 465. But if all the terms are settled and a^'eed upon, the fact that a more formal instrument is contemplated is not suffi- cient to defeat this relief. Skinner v. McDowall, 2 DeG. & S. 265. ^ If there is a doubt as to whether the parties understood the contract alike, fairly arising from the language of the contract, it will not be enforced. Co wles D. Bawne, 10 Paige (N. Y.), Ch. 526; Buckmaster v. Thompson, 36 N. Y. 558. The term or duration of a lease is an essential part of it, and specific perform- ance will not be decreed when the con- tract does not specify the term. Myers v. Forbes, 24 Md. 598. In an agreement to renew a lease at as much rent as any one else would pay, it was left optional with the lessee to accept it or not, and it was held lacking both in certainty and mutuality. Gelston v. Sigmund, 27 Md. .334; Heywood v. Cope, 25 Beav. 140; Taylor b. Partington, 7 DeG. M. & G. 328; Parker v. Taswell, 2 DeG. & J. Ageeembnt for a Lease. 273 itself,' unless in part performed.^ It must also be mutual ' and fair, and just in all its parts,* and otherwise unobjectionable. If there is 659. Where the rent is to be afterwards fixed, and this has not been done, the contract is too incomplete and uncer- tain. Graliam v. Call, 5 Munf. (Va.) 396. When a contract of this character, or any other, is uncertain and vague, the court will leave the parties to their legal remedies. Maddox v. McQueen, 3 A. K. Mar. (Ky.) 400; McKibbin v. Brown, 14 N. J. Eq. 13; Dobson v. Lit- ton, 5 Cold. (Tenn.) 616; Sales v. Hick- man, 20 Penn. St. 180. Thus, a, clause in a lease which reads " and the party of the first part agrees, in case the said parties of the second part shall then be tenants of said premises, to first ofEer the property so demised for sale to and purchase by them for the sum of $2000," was held too uncertain for enforcement, because there was no time fixed within which it was to be performed, nor any agreement that the lessor should convey to them at any time for that sum while they were tenants. Buckmaster v. Thompson, 30 N. Y. 558. So a stipula- tion to renew a lease at its expiration, " the rent to be proportioned to tlie valuation of said premises at said time," and providing no method for determin- ing, the valuation, was held too uncer- tain to be specifically enforced. Pray V. Clark, 113 Mass. 283. 1 Dobson I). Litton, ante, 113; Hammer V. McEldowney, 46 Penn. St. 334. By this, it is not meant that parol evidence to identify the property is never admissi- ble, but that the writing must furnish such a basis therefor that by the aid of parol evidence absolute certainty can be arrived at. Thus, an agreement "for the sale of houses onSmithfield Street" was held too uncertain, because the con- tract furnished no guide by wliich to arrive at a certainty as to what houses were intended. Hammer v. McEldow- ney, ante. But if it had been " for the sale of my houses, &c.," or "houses owned by me, &c.," absolute certainty could have been arrived aft, because the liouses owned by him could have been identified. Colerick n. Hooper, 3 Ind. 316; Lewis v. Eeichy, 27 N. J. Eq. 240; Lynes v. Hayden, 118 Mass. 482; Putt- man V. Haltey, 24 Iowa, 425. The term and duration of the lease, Myers v. Forbes, ante, as well as the amount of rent, must; be definitely stated. Gelston V. Sigmund, 27 Md. 345. 2 Lester o. Foxcraft, 1 Coll. C. C. 108. In an Illinois case an agreement to con- vey a right of way 80 feet wide, was held 18 to have become sufiiciently certain to be enforced, after the grantee, with the acquiescence of the grantor, had entered upoii the land and laid out the way. Purinton v. Northern 111. E. K. Co., 46 111. 297. " And the parties must both be bound by the contract, the one to give and the other to take the lease. Gieger v. Green, 4 Gill. (Md.)472; Hawralty ». Warren, 18 N. J. Eq. 124; Benedict v. Lynch, 1 John. Ch. (N. Y.) 370; McMurtrieii. Bennett, Harr. (Mich.) 124; Jones v. Noble, 3 Bush. (Ky.) 694; Bodine v. Glading, 21 Penn. St. 50. But an agree- ment has been held enforceable in equity, when only binding upon the party sought to be charged, Rogers «. Saunders, 16 Me. 9, and predicated upon a good consideration. Matter of Hunter, 1 Edw. Ch. (N. Y.) 1; Haw- ralty v. Warren, ante. * Muller V. Vettel, 25 How. Pr. (N. Y.) .350. Only those contracts which are fair, just, and reasonable, will be specifically enforced in equity. Andrews V. Andrews, 28 Ala. 432 ; Thompson o. Tod, Pet. C. Ct. .380: Gould v. WomacK, 2 Ala. 83 ; Ellis v. Burden, 1 Ala. S»f. Cas. 458 ; Lucas v. Burnett, 1 Greene (Iowa), 510; Carberryi). Tannehill, IH. & J. (Md.) 224 ; Griffith v. Frederick County Bank, 6 Gill & J. (Md. ) 424 ; Waters v. Howard, 1 Md. Ch. 112; Smith V. Crandall, 20 Md. 482 ; Daniel V. Frazer, 40 Miss. 507 ; Eodman v. Zil- ley, 1 N. J. Eq. 320 ; Stoutenburgh v. Tompkins, 9N. J. Eq. 332; McWhorter V. McMahan, 1 Clark (N. Y.), 400; Leigh V. Crump, 1 Ired. (N. C.) Eq. 299; Cannaday u. Shepard, 2 .lones (N. C), Eq. 224; iTarrw. Glading, 1 Phil. (Penn.) 372; Hall v. Ross, 3 Hayw. (N. C.) 200; Rice V. Eawlings, Meigs (Tenn.), 496;, Eastland v. Tanarsdel, 3 Bibb (Ky.)^ 274 ; Wingate v. Fry, Wright (Ohio), 105; McCarty u. Kyle, 4 Coldw. (Tenn.) .348 ; Smith v. Wood, 12 Wis. 382, but where a contract is fairly made and without mistake, hy competent parties, upon good consideration, and unat- tended with any circumstances which make its enforcement inequitable, a ' mere naked hardness of barr/ain is no valid objection to its enforcement in equity. Morrison v. Peay, 21 Ark. 110, but when it is so hard and unconscion- able as to create a strong suspicion of fraud, it will not be enforced. Perkins V. Wright, 3Har. & M. (Md.) .324 ; Ed- wards V. Handley, Hard. ( Ky. ) 602. ' 274 SpECinc Peefoesiatstce of danger that the defendant will be exposed to expensive litigation to maintain or ascertain his rights under the lease, the agreement will not be enforced,* nor if there is any doubt as to the lessor's title,^ nor if there are two or more lessors, if the interests of some of them would be injuriously affected thereby,^ nor if the building is new, and shown to be in such an unsafe condition that it is likely to subject the tenant to an unreasonable or extraordinary expense for repairs, especially when its condition could not readily have been ascertained by inspeo- tion,^ but it seems that this rule does not apply to an old building or one whose defects are readily ascertainable.^ A decree will not be made for the specific performance of a contract relating to stock or other chattels," nor for the performance of a contract for a tenancy for a single year or from year to year,' nor where the tei-m agreed upon has expired, or would expire before the decree could be carried into execution,' nor where it is shown that the intended lessee has become insolvent and unable to perform the covenants agreed upon.' Nor will it decree the specific performance of a contract for a lease, when one of the conditions is that the lessee shall engage the personal services of ^ Pegler v. White, 33 Beav. 403. ^Owiiigs V. Baldwin, 8 Gill (Md.), 337; Garnett ». Macon, 6 Call (Va.), 308; Creigh v. Shatts, 9W. & S. (Perm.) 82 " Society, &c. v. Law, 19 N. J. Eq. 19. < Tildesly ». Clarkson, 30 Beav. 419. 5 111 Johnson 13. Smart, 2 Giff. 151, the liouse was descrihed as substantial and convenient, and having five bedrooms. It was held, that a specific performance ciiuld not be defeated, although the liouse was out of repair and the wall in some places only a half a brick thick, and some of the bedrooms were ex- tremely small, and without fire-places ; there being no misdescription. See also Coolc V. Waugh, 2 Giff. 201. The fact that the circumstances were such as might easily have led to fraud, in the absence oi experience in such matters, iu the absence of any actual fraud or misrepresentation on the part of the plaintiff, it has been held insufficient to prevent the specific enforcement of the contract, Lightfoot b. Heron, 3 You. & C. 586, and the same rule is held when there is only a misrepresentation as to the legal rights of the defendant. Great Western R. R. Co. v. Cripps, 5 Hare, ill ; Kendall c Hill, 6 Jur. jS'. S. 968. •' The reason being that a complete remedy exists at law, as the party can purchase other property of the same kind and recover the difference. Cud- dee c. Rutter, White & Tudor's L. C. 640; Ross v. Union Pacific K. R. Co., 1 Wood (U. S. C. C), 26. ' Morlat V. Lyons, 8 Ir. Ch. 112 ; Clayton v. Illingworth, 10 Hare, 451. ' N"esbit V. Meyer, 1 Swanst. 226 ; Brassae v. Martyii. 11 W. R. 1020; Wal- ters V. Coal Co., 5 DeG. M. & G. 629. ' Neale v. Mackenzie, 1 Keen, 474. But there must be proof of general in- solvency, and proof of a particulur de- fault in the payment of rent of other premises will not disentitle him to this remedy. See opinion of Lord Lonq- DAi/B, M. R., In the case last cited. " As a lessee remains liable to the deter- mination of the term," said Lokd Ei.- DON, in Buckland d. Hall, 8 Ves. 92, " it is of great importance to the lessor to take care that the lessee shall be a man of substance, and insolvency, there- fore is a weighty objection to a specific performance of an agreement for a lease." And in that case, the plaintiff being already in as assignee under a lease the defendant had agreed to grant him a new lease. But the defendant re- fused to perform, and the plaintiff brought a bill for specific performance and obtained an injunction against the defendant restraining him from main- taining ejectment. Afterwards the plaintiff became insolvent and settled his debts for 9s. on the pound, and upon that and other grounds the Injunction was dissolved. In Price v. Asspeton, 1 Yo. & Call. 441, the court refused to en- Agkbbment foe a Lease. 275 the lessor in the business for which the premises are to be used,^ nor where the party applying, has failed to perform any of the stipulations in the agreement, upon the performance of which the making of the lease was conditional," nor where he has been guilty of fraud in induc- ing the other party to enter into the agi-eement,' or has, through mis- representation and deceit, inveigled him into the contract,* nor where he has been guilty of a fraudulent concealment of important facts/ But, where neither party knows of the existence of objectionable circum- stances, although easily ascertainable by the lessor, as, of the existence of a nuisance in the vicinity of a dwelling that renders it unfit for that purpose, yet, in the absence of any representations as to the condition of the premises or their surroundings that have misled the lessee or thrown him off from inquiry, the existence of such nuisance affords no ground for refusing to enforce the agi-eement.' Even a false statement as to the condition of premises made by the plaintiff will not defeat this remedy, unless the statement was the means of inducing the bar- gain. If, notwithstanding the representation, the lessee examined the premises for himself, and relied upon his own judgment, or if, when made, he knew the statements to be false, he cannot claim that he was misled or deceived thereby.' If the agreement is hard and uncon- scionable the court will sometimes refuse to enforce it.' The power of a court of equity to enforce the specific performance of a contract should be exercised under the sound discretion of the court, with an eye to the substantial justice of the case ; and where a contract is hard, and destitute of all equity, the court will leave the parties to their remedy at law, and if such remedy has been lost by negligence, they must abide the consequences.' But much depends upon the nature of the hardship and when and fiOio it arose.^" If the hardship arises from circumstances that occurred after the contract was entered into, equity cannot relieve the party, as, if after the agreement is made the build- tertain a suit for specific performance of ' EUard ». Lord Llundaff, 1 Ball. & a covenant in a lease for renewal, upon B. 241 ; Buskomb v. Phillips, 6 Jur. N. the ground that the plaintiff had be- S. 363 ; Maxwell v. Port Tenant, &c., come Insolvent, the court holding that it Co., 24 Beav. 495, and where a party is had no power to compel a landlord to induced to take a lease either by mis- take an insolvent person as lessee. representation or a fraudulent conceal- ' Ogden V. Fossick, 82 L. J. Ch. 7^ ment of facts, the court will rescind it. The courts will not enforce the perf omF Ballard v. Way, 1 M. & W. 520. ance of contracts relating to the per- « Lucas v. James, 7 Hare, 410. S. P. sonal services of either party. Sanquiv- Old Colony R. R. Co. c. Evans, 6 Gray ico ». Benedetti, 1 Barb. (IST. Y.) 315; (Mass.), 25. De Rivasinoli v. Corsetti, 4 Paige Ch. ' Phipps ». Buckman, 30 Penn. St. (N. Y.)270. 401. 2 Jones V. Roberts, 6 Call. (Va.) 187 ; » Chubb v. Peckham, 13 N. J. Eq. Harvie v. Banks, 1 Rand (Va.), 408. 207; Reed v. Rudmun, 5 Ind. 409; Per- " Higgins D. Laurels, 2 Johns. & H. kins v. Wright, 3 Har. & M. (Md.) 324. 460 ; Flight v. Booth, 1 Bing. N. C. 370. » King c. Hamilton, 4 Pet. (U. S.) 311. * Willlngham v. Joyc^, 3 Ves. 168 ; " Long c. Bowring, 33 Beav. 585 ; Moxey ». Bigwood, 10 Jur. N. S. 597. Costigan ». Hastier, 1 Sch. & Lef. 166. 2?6 Specific Peefoemanob of ings are destroyed by fire, tempest or fiooil, or oilier casualty, liio con- tract will be enforced.^ So where the tenant at the time of entering into the contract knew that the premises were badly out of repair, but by reason of secret defects did not know the extent of their non- repair, and he stipulated that certain specific repairs should be made, which was done, but afterwards it turned out that one of the walls of the building was so defective as to necessitate its being taken down and rebuilt, which would involve a lai-ge expense, it was held, that not- withstanding this, the contract must be enforced.^ Illegal purposes. Sec. 192. If the agreement contemplates a use of the premises for illegal or immoral purposes, it will not be enforced.^ But the mere fact that it savors of illegality, is not enough. It must, in order to be outside the pale of equitable enforcement, be either legal or illegal,* and it may doubtless be regarded as the rule, that, unless the agree- ment is so tainted with illegality, that, at law, the landlord could not recover the rent, the contract will be enforced. Want of authority by intended lessor. Sec. 193. If the intended lessor had no authority to let the prem- ises, the agreement cannot be enforced, as, if an agent enter into a con- tract to let premises for his principal, which he had no authority to make, or if a company or corporation enters into a contract in that respect which is ultra vires,^ or if a person enters into a contract to lease land to which he has no titte, or to which his title is defective,' or if a trustee enters into a contract to lease certain lands, and the execution of the agreement would involve a violation of his trust, the court will refuse to enforce it, but will leave the parties to their remedy ■" Helling o. Luniley, 3 DeG. & .T. fective and his teaching misleading, he 493 ; Evans v. Walshe, 2 Sch. & Lef. refused to allow the use of the rooms, 419 ; Lewder v. Blackford, Beat. .522 ; but did not give this as a reason for his Eevell 11. Hussey, 2 Ball. & B. 280; Law refusal. In an action against him for a n. Treadwell, 12 Me. 441. breach of the agreement it was held, that 2 Cook B. Waugh, 2 Giff. 201. the purpose for which the plaintiff pro- 8 Bettsworth u. Dean, &c., Sel. Gas. posed to use the rooms was blasphe- Ch. 66, as the law will not give its aid to itfous and illegal, and that the defendant a party to consummate an illegal or im- could avail himself thereof as a defence moral purpose, or one against public pol- to the action, although he did not as- icy. Dumont v. Dufore, 27 Ind. 263 ; sign it as a reason for refusing to per- Dobson u. Swan, 2 W. Va. 511 ; Evans form. D. Kittrell, 33 Ala. 449 ; Parks «. Mc * Aubiu v. Holt, 2 Kay & J. 70. Kaney, SHead (Tenn.), 297. In Cowan i^ ^3;^ of gi^.g^sbury ». No. StaSord- V. Milbourn, L. K. 2 Exchq. 230, the de- shire R. E. Co., L. E. 1 Eq. 593. f endant agreed to let rooms to the plain- ^ Buskomb «. Phillips, 6 Jur. N. S. 363, tiff, but learning afterwards that' they but if the lessee elects to take such title ■\vere to be used for lectures maintain- as the lessor has, he can do so. Wood- ing that the character of Christ is de- bury d. Luddy, 14 Allen (Mass.), 263. Agreement foe a Lease. 277 at law ; ' and the same rule prevails where. the performance of the con tract is impossible,^ or where the lessor, if compelled to perform, is in danger of having his estate in the premises forfeited, as, where the lessor holds under a lease which forbids underletting and provides for a forfeiture for a breach pf any of the covenants.' Surprise, mistake, fraud. Sec. 194. In order to secure the specific enforcement of a contract, it must be free from fraud, surprise and mistake,* for where there is mistake there is not that consent which is essential to a contract in equity ; no7i videntui qui errant consentire.^ A mistake of law, how- ever, is not sufficient to defeat this remedy,^ nor of the legal conse- quences of the contract.' But, where there is a mistake of fact, as where the agreement applies to different premises than those which the defendant supposed they applied to, it is a good defence to a bill for specific performance,* but the burden is upon the defendant to make out the defence.^ , Contract -will not be varied. Sec. 195. The court will not, upon the application of a party, correct a mistake, and enforce a performance of the contract as corrected, unless the mistake is shown to be mutual, and is clearly established / 1 Phillips D. Edwards, 33 Beav. 440; principles of public policy and of morals. Byron v. Acton, 1 Bro. P. G. 186 ; Hay- Aris. Nie. Eth. iii. 1. Pascal Lett. Provin. wood V. Cope, 25 Beav. 153; Hartnell v. Let. 4, and for this reason courts of Yielding, 2 Sch. & Lef. 549; Sueesby v. equity will neither set aside or refuse to Thorne, 7 DeG. M. & G. 399. enforce contracts upon this ground. 2 Green v. Smith, 1 Atk. 572. Marshall v. CoUett, 1 Y. & C. Exchq. "Peacock v. Penson, 11 Beav. 355; 239; Cockerell d. Chalmeley, 1 R. & My. Helling b. Lumley, 3 DeG. & J. 493. 418; Pullen v. Ready, 2 Atk. 587; Bilbie * Fry on Specific Performance, Sec. v. Lumley, 2 East, 469; Ghamplin ». 475; Bradbury v. White, 4 Me. 391; Laytin, 18 Wend. (N. Y.) 409. See cases Mitchell 11. Nicholson, 8 Yerg. (Tenn.) cited in previous note. "Itisadangerous 194 ; King v. Hamilton, 4 Pet. (U. S.) plea," Kent, C. J., in Shotwell v. Mur- 311. ray, 1 John. Ch. 512. The parties, there- ° Dig. Lit. 50, tit. 17, t. 116, fore, will not be permitted to say that the 8 Croombe v. Lediard, 2 My. & K. 251 ; legal result of their contract is different Ghamplin v. Laytin, 18 Wend. (N. Y.) from what they expected or intended. 409; Wintermute v. Snyder, 3 N. J. Eq. Croombe v. Lediard, ante. Thus, where 489; Good v. Herr, 7 W. & S. (Penn. ) it was admitted that the effect of an 253. But see Greer v. Boone, 5 B. Mon. agreement was to give an option to a (Ky.) 554; Trigg s. Read, 5 Humph, lessee as to the duration of the term, but (Tenn.) 529; Lowndes ).'. Chisholm, 2 it was contended that this was not in the McGord (S. G. ), Ch. 255; Lamot c. contemplation of the parties, the defense Rowley, 6 Har. & J. (Md.) 500, where was overruled. Price v. Dyer, 17 Ves. it is held that either a mistake of law or 356. A different doctrine has been held, fact is sufficient. in Kentucky, S. Carolina and Maryland. ' Gt. Western R. R. Co. v. Crippen, 5 Exrs. v. Maryck, 1 Hill (S. C), Ch. 257; Hare, 91. The maxim ignorantia legis Fitzgerald v. Peck, 4 Litt. (Ky. ) 125 ; excusat non, though its operation is Lamot d. Rowley, ante, sometimes harsh, and productive of * Austin c. Ewell, 25 Tex. 403. serious consequences to a party, is never- ^ Western R. R. Co. v. Babcock, 6 theless predicated upon the soundest Met. (Mass.) 346. 278 Specific Pebfoemance of but in the latter instance, our courts will correct a mutual mistake, and enforce the contract as corrected.^ But in England a different rule prevails, and if the contract omits any material term or inaccurately expresses the real intention of the parties, the court will not enforce it with a variation to correct the mistake.^ But it must not be under- stood that a contract with a variation can never be enforced, because the restriction does not affect the case of a subsequent collateral agree- ment in writing, because if the variation be legally agreed for, it is a part of the agreement ; if not legally agreed for, it is no part of the agreement, and consequently no variation. The real meaning of the cases is, that a parol agreement cannot be added to an agreement in writing, and the agreement as amended by parol enforced. But this rule is not inflexible, because if there has been such an actual part per- formance by the plaintiff of a parol variation, that it would be a fraud upon him to execute the written agreement without the parol variation. 1 King ». Ashworth, 3 Iowa, 452 ; Mosby V. Wall, 24Miss. 81 ; Rogers v. Atkinson, 1 Ga. 12; Tilton v. Tilton, 9 N. H. 385; Coles V. Brown, 10 Paige (N. Y.), Ch. 535; Shelley v. Smith, 2 A, K. Mar. (Ky.) 504; Smith v. Allen, 1 N. J. Eq. 562; Rhode Island v. Massachusetts, 15 Pet. (U. S.) 233; Coot b. Craig, 2 H. & M. (Va. ) 618; Chamberlain v. Thomp- son, 10 Conn. 248. ^ Fry on Specific Performance, Sec. 6l9, et seq.; N'urse v. Seymour, IS Beav. 254; Rich v. Jackson, 2 Bro. C C. 514; Davies ». Fitton, 2 Dru. & W. 255; Roberts v. Collins, 7 Ves. 130; Eramelt V. Dewhui-st, 3 My. & Cr. 587. Thus in Woolam V. Hearn, 7 Ves. 211, the plain- tiff alleged an agreement by which the defendant was to grant him a lease of a certain house at £60 rent per annum; but the memorandum of the agreement, either by mistake or with a fraudulent purpose, stated the rent at £73 10s. The plaintiff sought to have the agree- ment corrected in this respect, and en- forced as corrected. The court were satisfied that the plaintiff was right as to the mistake, but held that the evidence could not be itsed to procure a decree. See also to same effect, Higginson v. Clowes, 15 Ves. 516; Winch v. Winches- ter, 1 V. & B. 375; Clinan v. Cooke, 1 Sch. & Lef. 22. In Brodie v. St. Paul, 1 Ves. Jr. 320, a party agreed to take a lease upon certain terms, which were read to hira from a certain paper, con- taininrj others which were not read, but the court refused to admit parol evidence to prove wliicli of the conditions had been read, and whicii liad not. See also similar in effect, Lawson v. Laude, 1 Dick. 346; Marquis of Townsendu. Stan- groom, 6 Ves. .328. The courts proceed upon the ground that the admission of such evidence would open the door to eluding the statute of frauds. Meres v. Ansell, 3 Wils. 275; Seago v. Deane, 4 Bing. 459; Sanderson v. Griffith, 5 B. cS; C. 900; Preston v. Merceau, 2 W. Bl. 1249. But it is held, that the defendant may avail himself of sucli a mistake in defence to a bill for specific perfonuance. Squire v. Campbell, 1 My. & Cr. 480; London, &c., Co. ?). Winter, Cr. & Ph. 57, and that the mistake may be corrected, and contract as corrected enforced, when the answer admits tlie mistake. At- torney-General V. Sitwell, 1 Y. ife C. Excliq. 559. Mil. Fky, in Ivis work on Specific Performance, Sec. 519-34, com- ments severely upon this doctrine, and exposes its absurdity, but, neverllieless, says that the rule in the JSnglisli courts is as stated. Ante. See also Woodfall's L. & T. 593, and cases cited. The reasons for the distinction taken between the situation of a plaintiff seeking the performance of a written contract with a parol variation, and of a defendant offering the variation in defence of the plaintiff's equity, are stated in Townsend V. Stangroom, 6 Tes. 328; Hosier v. Read, 9 Mod. 86; Flood v. Finlay, 2 Ball. & B. 9; Woollara v. Hearne, 7 Ves. 211; Clarke v. Grant, 14 Ves. 519; Garrard v. Grinling, 2 Swanst. 244; Davies v. Fit- ton, 2 Dru. & W. 225. But, as previously stated, these reasons have not generally been regarded as valid by our courts. Kisselbrack ij. Livingstone, 4 John. Ch. (N". Y.) 148, in which Kent, Ch. J., attacks the English doctrine. Also see Story's Eq. Juris., Sec. 161, in which that eminent jurist exposes its absurdity, AGEBBMEkl FOB A Lease. 279 by analogy it would seem that parol evidence of such variation is admissible with a view to its being specifically performed.' Where an agreement in writing l.as been materially varied by parol, and the parol variation has been partly performed, it may be treated as a new parol agreement, and is not obnoxious in equity, to the statute of frauds, because jiartly performed.^ Party vriU. not be compelled to accept less than he contracted for. — May elect to do so. Sec. 196. A court of equity will never enforce an agreement, when the party seeking to enforce it cannot confer upon the defendant all that he contracted for, and all that the contract calls for. Thus, if the defendant has contracted for a term of ten years, he cannot be compelled to accept a lease for nine years, or if he has contracted for a term of sixteen years, he will not be compelled to accept a lease for six years, with compensation for the deficiency ;" nor, if he has con- tracted for a lease in possession, will he be compelled to accept one in reversion,* nor if he has contracted for the assignment of a lease, will he be compelled to accept the assignment of an under lease," and generally, a person can only be compelled to accept such a lease as he contracted for.° But a party may elect to accept a lease different from that named in the contract, and, if he files a bill for the specific per- formance of the contract, the court will not decree it, unless he submits to such changes or compensation as the court, in view of the circum- stances, thinks he ought to submit to,' and, where the plaintiff in a bill for specific performance, alleges an agreement with parol variations in favor of the defendant, the court will decree performance even though the defendant sets up the statute in defence.^ Where the defendant relies on a parol variation of a written contract as a defence, 1 Robson V. CoUiiiiSj 7 Ves. 133; Rich made by parol, which varied from tlie V. Jaclison, 4 Bro. C. C. 519. written agreement, should be carried 2 Anonymous, 5 Vin. Abr. 522, pi. into execution, notwithstanding the 38. statute of frauds, the court held that it ^ In the case last cited from Viner's wsiS a, new agreeiaent, and laying out tlie Abr., W leased a house to N for eleven money was a part performance of it, and years, and agreed that £20 might be laid should be carried into execution, out on it in repairs, and the agreement * Long v. Fletcher, 2 Eq. Cas. Abr. 5. was put in writing and signed and sealed ^ Lineham v. Cotter, 7 Ir. Eq. 176. by the parties. N repaired the house, ^ Darlington v. Hamilton, 1 Kay, 550; and finding that it would take much Madeley v. Booth, 2 DeG. & S. 718 ; more than £20 told W the facts, and Beeston v. Stutley, 27 L. J. Ch. 156. that he would go on and lay out more ' Browne v. Sligo, 10 Ir. Ch. 1 ; Bar- money, if he would enlarge the term to nard v. Cane, 26 Beav. 253 ; Jaynes v. twenty years, or add fourteen, or as Stotham, 3 Atk. 388; Paintor u. Nimby, many as N should think fit. W replied 11 Hare, 20; Hanbury v. Litchfield, 2 that they would n6t fall out about that; My. & K. 629; Cleaton v. Gower, Finch, and afterwards said that he would en- 164. large the term, without mentioning any ^ Martin v. Pycroft, 2 DeG. M. & G, certain term, and, upon a question be- 785; Middleton v. Greenwood, 2 DeG. J ing raised whether this new agreemsnt & S. 142. 280 Specific Pbefoemance of he must prove such part performance of the agreement as altered, as would induce the court to enforce it as an original, independent agree- ment.^ "Where anything remains to be fixed or decided by third persons. Sec. 197. If the amount of premium or rent to be paid, or any other material point, is by the agreement left to be determined by third persons, as by arbitrators or surveyors, and that has not been done before suit, the court will not decree specific performance, having no power to compel such third persons to perform their duty. It there- fore treats the contract as too imperfect to be specially enforced.^ But after such matter has been so determined the contract may be enforced by decree even where the sum fixed appears to be exorbitant, no fraud, mistake or miscarriage being proved.' Thus B agreed to grant a lease to W as soon as W should have built a house with the necessary out- buildings on the land, of the value of 1,400Z. at the least, " according to a plan to be submitted to and approved by B." W agi-eed to build such house and take the lease ; no plan was submitted to or approved by B, but he was ready and willing to approve of any reasonable plan ; under such circumstances, a bill filed by B for a specific performance, was dismissed with costs.* When contract conditional on lessor's ability. Sec. 198. If s contract for a lease is made conditional on the lessor's ability to grant it, a bill for a specific performance cannot be supported without proof of the lessor's ability ; or that he has received part of tl-r agreed premium, and interest on the balance, and so in effect is estopptd himself from relying on the condition.^ But the plaintiff may be entitled to an equitable lien on the land for the sums expended on the faith of the agreement, with interest thereon, and to consequential relief.' ■Where intended lessor has no sufEcient title. Sec. 199. On the other hand, if a party agi-ees to let an estate, and files a bill for the specific performance of the agreement, it will be dis- missed with costs, if, in the course of the suit, it should appear that the intended lessor had a defective title ; even though the objections, on ' Legal D. Miller, 2 Ves. 299 ; Price B. "Collier v. Mason, 25 Beav. 200; Dyer, 17 Ves. 356, .S64 ; Kobinson v. Page, Ormes v. Beaclel, 2 Giff. 166 ; Blackett v. 3 Russ. 121 ; Dart V. & P. 669. Bates, 34 L. J. Ch. 515. ^ Milnes v. Grey, 14 Ves. 450; Darby * Brace v. Wehnert, 25 Beav. 348. T: Whittaker, 4 Drew. 134; Tillett v. "^ Abbott d. Blair, 8 W. R. 672; Bauman Charing Cross Bridge Co., 26 Beav. 419; v. Matthews, 4 L. T. N". S. 783. Fry, ss. 215. See also Collins v. Collins, '' Middleton v. Magnay, 2 H. & M. 233; 28 L. J. Ch. 184; Jackson n. Jackson,! 12 W. R. 706; Hindley v. Emery, L. K Sm. & Gifi, 184. 1 Eq. 52. Ageeement foe a Lease. 281 which the refusal to take the lease was grounded, were fiivolous and untenable.' Where the lessor's consent or license is necessary to an assignment of a lease, it is the vendor's duty to obtain it." If lie cannot do so before the commencement of a suit for a specific performance he cannot maintain the suit,' and, where it appears from the bill that the plaintiff is unable, from causes which he cannot control, to make a good title, the plaintiff cannot bring the cause to a hearing upon the mere chance that he may by that time be in a situation to sue the defendant.^ ■Where the contract is uncertain. Sec. 200. If the contract is uncertain, that is, if it is impossible to say precisely what either party was to do, or whether he has done it, it cannot be specifically enforced. Thus, where an agreement for a lease provided that the defendant would take the houpe if put into thorough repair and the drawing-room was " handsomely decorated according to the present style,'' the court held that it was too uncer- tain to be specifically enforced.'' But if the intended tenant takes possession under the agreement and brings a bill for specific perform- ance, the court will decree performance, with an inquiry as to whether the condition has been performed.^ Common covenants. Sec. 201. The court will not decree the specific performance of common covenants, as husbandry covenants,' or covenants to repair,* ex- cept under peculiar circumstances ; " nor to lay out a certain amount in buildings," such covenants being regarded as too uncertain and indefinite for the court to carry them out." The rule is that specific performance is decreed only where the plaintiff wants the thing in specie, and cannot have it in any other way.'^ Not of part of a contract. — Exceptions. Sec. 202. The court will not decree specific performance of part of a contract,^' unless the residue has been already performed," or the 1 Bascomb v- Phillips, 29 L. J. Ch. 380. « Backett v. Bates, 2 H. & M. 270. 2 Long V. Bowring, 10 Jur. N". S. 668. ^^ Moseley v. Virgin, 191 3 Ves. 184. 5 Beriningham v. Sheridan, 33 L. J. " See ante, See. Ch. 571; Forrer v. Nash, 11 Jur. N. S. i" Paxton v. Newman, 2 Sm. & Giff. 789. 437; Errington v. Ayr»!sley, 2 Dick. 692; * Reeves v. Greenwich Tanning Co., Lucas «. Commerford, 3 Bro. C. C. 166. 2 H. & M. 54. ^^ Fry on Specific Performance, Chap. 5 Taylor v. Partington, 7 DeG. M. & G. XV. ; Ogden ». Fossick, 32 L. J. Ch. 73 ; .328; JefErys v. Stephens, 6 Jur. N. S. Scottish North-Eastern Eailw. Co. v. 947. Stewart, 3 Macq. (So. ) 882. 6 Saumda v. Lawford, 4 Gift. 42; " Hope ji. Hope, 22 Beav. 351. The Faulkner v. Llewellyn, 12 W. K. 193; party seeking to enforce an agreement Norris v. Jackson, 3 Giff. 396. must show that he has performed, or ' Eayner v. Stone, 2 Eden, 128. has offered to do so. Thorp v. Pettit, 8 London v. Nash, 1 Ves. Jr. 12. 16 N. J. Eq. 188; Boone v. Iron Co., 17 282 Specific Peefojrmance of unperformed part is separable and divisible from the rest, and of itself forms a complete contract. Thus, where the owner of a plot of ground agreed to grant a lease of it to A as soon as the latter had erected a villa thereon ; but it was stipulated that if A should not perform the agreement on his part the agreement for a lease was to be void, and that the owner might re-enter : A was to insure in a particu- lar way, and he was to have the option of purchasing the fee within two years, upon certain terms. A erected the villa, but insured in a wrong office and in a wrong name : it was held, that the contract for a lease was independent of the option to purchase, and that notwithstanding the forfeiture of the first, the latter still subsisted, and a specific per- formance of the contract for sale was decreed.^ In such a case the title must be produced &nd proved in the usual, manner, in the absence of any express stipulation to the contrary.^ A tenant for years, with an option of purchasing the fee, must not only give due notice, but also on the proper day pay or tender the purchase money ; that being a condi- tion precedent.^ Such a notice may be given to the infant heir of the lessor, and will constitute a valid contract, which may be enforced in equity, notwithstanding the infant cannot give a discharge for the purchase money.^ After unnecessary delay by plaintiff. Sec. 203. "Where one party to an agreement trifles or shows back- wardness in performing his part of it, equity will not .decree a specific performance in his favor, especially if the circumstances and situation of the other jjarty are materially altered in the mean time.* As a general rule, a party cannot call upon a court of equity for this relief unless he has shown himself ready, desirous, prompt and eager.^ Where there has bsen considerable unnecessary delay on the part of the plaintiff, specific performance will be refused,' especially where the contract is in anywise unilateral.* " It would be dangerous to permit parties to lie by, with a view to see whether the contract How. (U. S.) 340; Tyler ». McCurdle, 17 champ, 6 B. Mon. (Ky.) 422; Nelson o. Miss. 230 ; Vfirnum v. Babcock, 13 Iowa, Hagertown Bank, 27 Md. 51 ; Johnson b. 194; Satterfleld v. Keller, 14 La. An. Hopkins, 19 Iowa, 49; Boston, &c., R. 004 ; or sliow an excuse for his failure. R. Co. v. Bartlett, 10 G-ray (Mass.), 384; Goodell V. Field, 14 Vt. 448; White b. Pickering v. Pickering, 38 N. H. 400. Yaw, 1 id. 357. " Milward v. Earl of Thanet, 5 Ves. 1 Green u. Low, 22 Beav. 625. 720, n. ; 2 Tudor L. C. Eq. 443 (2d 2 Welchman v. Spinks, 5 L. T. N. S. ed.). 385. ' Heaphy u. Hill, 2 Sim & Stu. 29; 3 Weston ». Collins, 11 Jur. N. S. 190; Southcomb v. Bp. of Exeter, 6 Hare, Ld. Ranelagh v. Melton, 2 Dr. & Sm. 213,218; Chesterman v. Mann, 9 Hare, 27S. 206; Eads v. Williams, 4 DeG. M. & G. * Woods V. Hyde, 31 L. J. Ch. 295. 691 ; Walters v. Northern Coal Mining » Hayes v. Caryll, 1 Bro. P. C. 126; Co., 5 DeG. M. & G. 629; Sneesby ». Norris v. Jackson, 1 J. & W. 319; Green Thorne, 1 Jur. N. S. 1058. V. Covilland, 10 Cal. 317 ; Ewing v. Beau- ^ j"ry Specific Performance, 733. Ageebment foe a Lease, 283 will prove a gaining or losing bargain, and, according to the result, either abandon it, or, considering time as having nothing to do with the matter, to claim a specific performance.^ But delay, even for a long period, may be excused, where the tenant has entered into possession and paid rent under the agreement ; ^ or where, under the circumstances, a strict application of the rule would work injustice, the rule would be relaxed ; ' or where the objection on the ground of delay has been waived ;* and, where a person is let into possession under a contract, it is taken for granted that each party is satisfied, until one of them moves towards the complete execution of the contract.' But if a tenant, who has entered into possession under an agreement for a lease, has committed waste, or violated the covenants to be contained in the lease, the con- tract will not be enforced upon his application, particularly if, under the lease, the lessor would be entitled to re-enter." But, in order to prevent a decree in his favor, the breaches must be clearly and satisfactorily established,'' or the court will decree performance by the execution of an ante-dated lease and leave the landlord to proceed at law by ejectment.' Lithe case of an agreement where the jjarties have expressly made time of the essence of the contract,' or where, from the conduct of the parties,^" or from the fluctuating nature of the property, it is evident that the parties so intended, the court will regard time as of the essence of the contract, and will refuse to enforce it upon the application of a party who has been guilty of laches in that respect.-'^ Oral agreements partly performed. Sec. 204. An action at law will not lie in favor of either party, upon an oral contract for a lease for a term exceeding that which by statute may be granted by parol,''^ which in some of the States is one year and 1 Alley V. Deschamps, 13 Ves. 225; 'Pain v. Coomtis, 3 Sra. & GifC. 449; Ferth v. Greenwood, 1 Jur. N. S. 866. Blackett v. Bates, 2 H. & M. 270. ^Sharp?). Milligan, 22Beav. 606; Car- « Lilley v. Leigh, 3 I>e6. & J. 204; ton V. Bury, 10 Ir. Ch. 387; Clarke u. Poyntz d. Fortune, 27 Beav. 393. Moore, 1 Jon. & L. 723. ' Bomier v. Caldwell, 8 Mich. 463; 3 Walker v. Jeffrys, 1 Hare, 353; Primm jj. Barton, 18 Tex. 206. Jones V. Jones, 12 Ves. 188! i» Pennock v. Ela, 41 N. H. 189; Jones * King V. Wilson, 6 Beav. 124; Eu- v. Robbins, 29 Me. 351; Younger ». hank v. Hampton, 1 Dana (Ky.), 343. Welch, 22 Tex. 417; Keller t.'Fisher, 7 5 Miller v. Bear, 3 Paige Ch. (N, Y.) Ind. 718; Walton v. Wilson, 30 Miss.376; 466; Scarlett v. Hunter, 3 JoneS Eq. Hoffman v. Hummer, 17 N. J. Eq. 263. (N. C.) 84; Ashmore v. Evans, 11 N. J. " Macbryde v. Weekes, 22 Beav. 533; Eq. 151; Haffner v. Dickson, 2 H. & J. Potter v. Tuttle, 22 Conn. 512; Steele v. ( Md. ) 42. Biggs, 22 111. 643 ; Baldwin v. Van Vorst, * Weatherall v. Geering, 12 Ves. 504; 10 N. J. Eq. 577; Daloret v. Eothschild, Nuun !). Truscott, 3DeG. & S. 304; Hill 1 Sim. & Stu. 590; 2 Tudor's Leading V. Barcluv, 18 Ves. 63; Lewis v. Bond, Cas. in Eq. 453. 18 Beav. 85; Nesbitt v. Meyer, 1 Swanst. i^ Clarke v. Fuller, 16 C. B. N". S. 24 ; 223. Kelly ». Webster, 12 C. B. 283 ; Savery V. Turnley, 6 H. & N. 239. 284 Specific PEEFOEMAifCE op in others three years. But a court of equity will decree a specific per- formance of such contracts, notwithstanding the statute of frauds, wfien there has been such a part performance of the agreement that, to re- fuse it would work a fraud upon the party seeking its specific execu- tion} But in order to warrant the exercise of this power, the con- tract must be certain and complete, and clearly established by proof, or be admitted by the pleadings,^ and in a case where but one witness testiiied to part performance, and the agreement was denied by the answer, specific performance of a verbal agreement to convey lands was denied.^ But where there is but one witness, yet, if his evidence is supported by collateral circum,stances, it will prevail against a denial of the agreement by the answer ; * but, where there is only the testimony of one witness and no corroboration thereof by collateral circumstances, and the agreement is positively and unqualifiedly denied by the answer, a specific performance of the agreement will not be decreed, ^ and particularly is this the case where the denial in the answer is in any measure sustained by collateral circumstances,^ and it must also clearly appear that the party seeking relief has partly per- formed such agreement.' What constitutes part performance. Sec. 205. Questions of this character frequently arise in contracts for the sale of lands, but may be said to be very unfrequent in the case of agreements for leases. As an invariable rule, it may be said that, in order to amount to part performance, an act m,ust have been done unequivocally referring to, and resulting from, the agreement, and such that an inference that some agreement existed would result from the very fact that the act was done,' and then parol evidence is 1 Dickerson v. Chrisman, 28 Mo. 134; ^ Morpliett v. Jones, 1 Swanst. 172 ; Ham V. Goodrich, 33 N. H. 32 ; Fitz- Lindsay v. Lynch, 2 Sch. & Lef. 1. gerald, &c. v. Britt, 43 Iowa, 498; Goose ^ Id. V. Jones, 73 111. 508 ; Temple v. John- ' Broughton v. Coffen, ante; Nunn v. son, 71 111. 13 ; Keese d. Reese, 41 Md. Fabian, 35 L. J. Ch. 141. 554 ; Smith v. Crandall, 20 Md. 482 ; « Frame v. Dawson, 14 Ves. 387 ; Ex Aday v. Echals, 18 Ala. 353 ; Eyre v. Parte Hooper, 19 id. 479 ; Morphett k. Eyre, 19 N. J. Eq. 102 ; Arquello v. Ed- Jones, 1 Swanst. 181. The acts must he inger, 10 Gal. 150 ; Johnston v. John- such as could have been done with no ston, 6 •Watts. (Penn. ) 370; Steel ij. other view or design than to j^erf arm the Payne, 42 Ga. 207. agreement, and not such as are merely ' Mortal V. Lyons, 8 Ir. Ch. 112 ; introductory or ancilliary to it. Gunter Morphett v. Jones, 1 Swanst. 172; Eyre v. Hulsey, Amb. 586. The act must un- V. Eyre, ante; Smith v. Crandall, 20 Md. equivocally refer to, and result from, the 482 ; Wallace v. Brown, 10 N. J. Eq. agreement. Mohana i-. Blunt, 20 Iowa, 308 ; Bunton v. Smith, 40 N. H. 352 ; 142 ; Rosenthal v. Freehanger, 26 Md. Wilkinson v. Wilkinson, 1 Dessau (S. 75. And they must not only be referable C), 201. to, but consistent with, the contract. 3 Broughton «. Coffen, 18 Gratt. (Va.) Tompkinson v. Straight, 17 C. B. 697 184. Nunn v. Fabian, L. K. 1 Ch. Ap. 441 * Pilling V. Armitage, 12 Ves. 80 ; Powell v. Lovegrove, 8 DeG. M. & G, Toole u. Medlicott, 1 Ball & B. 393. 357; Price v. Salusbury, 32 Beav. 4< Agreement foe a Lease. 285 admissible to show what the agreement is.^ Delivery of the posses- sion of the jiremises by the landlord, and taking possession thereof by the tenant, and payment of rent, has been held sufficient ; ^ so an entry and expenditure of considerable sums in repairs or improvements, with the acquiescence of the landlord, is treated as part performance within the rnle.^ But mere possession by the tenant, standing alone, Faulkner v. Llewellyn, 31 L. J. Ch. 549. 1 See note 8, siipra. 2 In Kine v. Balfe, 2 Ball & B. 343, where a landlord sought specific per- formance of a parol contract for a lea.se, against a tenant who had entered and paid rent under it, LoBD Manners said : " How is it possible to refer this possession Ui any other title but this agreement, and what is the situation in which this nlaintiff is placed by the con- duct of the defendant ? The defendant could at any time enforce this agree- ment against the plaintiff ; he would be protected in this court against an eject- ment, and from being treated as a tres- passer ; and the plaintiff was by this contract and the acts of the defendant, disabled from dealing with any one else for the land." See also, Bowens v. Ca- tor, 4 Vps. 91 ; Boardman v. Mastyn, 6 id. 470 ; Wills v. Stradling, 3 id. 381 ; Pain P. Coombs, 4 DeG. & J. 34. '^ Shillibeer v. Jarvis, 8 DeG. M. & G. 79 ; Dunn v. Spurrier, 7 Ves. 231. In order to brhig a case within the exemp- tion upon this ground, it is not neces- sary that the landlord should have ac- tively promoted the lessee's expendi- tures or improvements. It is enough if he knew oi them and passively encour- aged him in making them under an er- roneous impression that he had title under the contract, when the lessor must have known that the lessee would aot have made them except upon an ex- pectation that no objection would be thrown in the way of his enjoyment of them, and under such circumstances a specific performance will be decreed. D\mn I). Spurrier, 7 Ves. 231 ; Seagood J). Meale, Free. Chan. 561 ; Marshall v. Queenborough, 1 Sim. cfe S. 520 ; Smith V. Turner, Free. Chan. 561 ; Lester v. Foxcraft, Calles P. C. 108 ; Gregory v. Mighell, 18 Ves. 328 ; Whitchurch v. Beris, 2 Bro. C. C. 565, and merely "looking on," is generally as strong a circumstance as active encouragement if the tenant acted upon it. Dunn v. Spurrier, ante. In Sutherland v. Briggs, 1 Hare, 26, the plaintiff was the lessee of a house and some cottages adjoining for a term of thirty-one years, at a rent of 601., and was under a covenant to take down two of the cottages, and build a house upon the site, with suit- able offices. He was also tenant from year to year of an adjoining meadow, belonging to a different proprietor, at a rent of 9;. The lessor of the house be- came the purchaser of the meadow, and a treaty proceeded between him and the plaintiff with regard to certain proposed repairs and alterations in the house, in consequence of which, the house was made to project over the meadow, part of which was attached to the demised premises, the costs and expenses, far ex- ceeding the sum he had originally cove- nanted to lay out, being paid by the plaintiff and lessor in nearly equal moi- eties. The following memorandum was then drawn up by the lessor, and signed by the plaintiff : — "Mr. Frampton hav- ing advanced me the sum of 350^ to- wards the additions and improvements lately made by me to the house and premises at Hayes in my occupation, in addition to 150(. previously allowed me for rebuilding the adjoining cottage, it is agreed that the rent of SQL now paid for the house, &c., and field, shall be in- creased to HOI. a year, clear of all de- ductions whatsoever, commencing from Christmas last, dated the 3d day of February, 1836.— A. Sutherland." An ejectment for the meadow having been brought against the plaintiff, he filed his bill, praying a declaration by the court that he was entitled to the ten- ancy and occupation of it for the resi- due of the term of thirty-one years which he had in the' house, and for an injunction ; and it was decreed accord- ingly. The Vice Chancellor observed, that if the act of extending the house, in which the tenant had an interest for a term of years, into the meadow, with the landlord's consent, were not evidence of a contract between them, he knew not what act on the part of a tenant in possession of property could possibly be so considered ; and he held that, not- withstanding the memorandum of the 3d of February, 1830, did not mention the term during which the plaintiff was to hold the meadow, yet enough was proved to support the allegation in the 286 Specific Pekformance op is not sufficient, because his possession may be referrel to the implied tenancy arising from an entry by the landlord's permission,'' nor does involving a discussion of the question of part performance, yet shows that the landlord cannot tacitly permit the ten- ant to make large outlays for a certain purpose and then seek to prevent him from availing liimself thereof. Malley v. Thalheimer. 44 Conn. 41. In this case a B had a power qf attorney to lease the plaintiff's real estate, collect rents and institute all necessary legal proceedings that he should think necessary. Under this power he had the care of certain premises leased by the plaintiff to the defendant, the lease limiting the use to the keeping of a lager beer saloon, and the lessee covenanting to use the prem- ises for no other jjurpose. During the term the defendant, at a considerable expense, built a small kitchen in the rear and fitted up a restaurant on the premises. B knew of these facts and made no objections until two months after the alterations were completed. He then brought a bill for an injunc- tion against his use of the premises for a restaurant. The court held, that in- asmuch as, if the plaintiff personally had known of these facts, he would have been estopped, he was estopped by the knowledge of B from objecting to the new use. 1 Wills V. Stradling, .S Ves. 378; Mor- phett V. Jones, 1 Swanst. 181. But where the entry is distinctly referable to the agreement, Aylesford's Case, 2 Stra. 783 ; Atwood v. Barham, 2 Russ. 186; Lacon 15. Mertins, 3 Atk. 4; Board- man V. Mastyn, 6 Ves. 470; Morphettj). Jones, 1 Wils. 100 ; Gregory v. Mighell, 18 Ves. 333, it has been held sufficient, and delivery of possession on the one hand and taking it upon the other is a certainly strong and marked circum- stance to take a case out of the statute. Wills 0. Stradling, 3 Ves. 378, because the tenant is protected from liability as a trespasser, and the landlord disabled thereby from dealing with any other person in reference to the land. Klne V. Balfe, 2 Ball & B. 343. But in no case will possession itself be enough, unless taken under the contract and zoith a view to Us part performance, Cole v. Wliite, cited, 1 Bro. C. C. 409; O'Eourke V. Percival, 2 Ball & B. 63 ; Bairdes v. Amhurst, Free. Ch. 402, and merely in- troductory or ancilliary acts, though at- tended with expense, are not sufficient. Whitbread v. Brockhurst, 1 Bro. C. 0. 412 ; Frame v. Dawson, 14 Ves. 388 ; O'Reiley v. Thompson, 2 Cox, 271 ; Lindsay v. Lynch, 2 Sch. & Lef. 1. bill, that the time for which he was to hold it was to be commensurate with his lease of the house ; and that the res- ervation of one entire rent of 80(. for the whole and every part of the consoli- dated property was sufiicient to deter- mine the question, and show that the whole was to endure for the same period ; and he further held, that the justice of the case would not be satisfied by giving to the plaintiif so much of the meadow as the house stood upon, as the act of building part of the house upon it was an act affecting the whole tene- ment, namely, the meadow, and not that part of it only on which the house stood. It is almost needless to observe, that if no expense be incurred by the lessee, a bare promise of a lease, being in direct contravention of the statute, cannot be enforced. Seagood v. Meale, Free. Ch. 501 ; Smith ». Turner, cited. Free. CIi. 561. Although courts of equity are disposed to go every possible length to assist a party in obtaining re- imbursement of expenditure upon an- other's property, of the benefit of which he may have been deprived by the exer- cise of a legal right, as by the determin- ation of a tenancy from year to year, yet there is no case in which a lessee, either of a term, or from year to year, making any improvement upon the es- tate in his possession, thougli with the complete knowledge of the landlord, has bean held entitled, as against that land- lorfl, to have his lease prolonged until he shall obtain reimbursement for the improvements he has made ; for he has a title of which he knows the duration. He is not under a mistake with regard to the nature of his title. He may per- haps be guilty of great imprudence, if the expectation that his lease will be re- newed, or his possession from year to year continued, prove unfounded, but the failure of his expectations gives him no right either to a new lease or the re- newal of an old one. Filling v. Armi- tage, 12 Ves. 85. But if the landlord enters into an arrangement with a ten- ant for improvements, and sanctions them as an advance by the tenant u^on a future term, equity will compel him to keep faith with the tenant. Pilling v. Armitage, ante. And it seems that, even though no specific agreement had been made, one would be implied in his favor until he had had the fair benefit of his im- provements. Sutherland v. Briggs, ante. The effect of acquiescence on the part of the landlord is well illustrated by a Connecticut case, which, although not Agreement foe a. Lease. 287 the expenditure of money upon a farm in the ordinary course of hus- bandry amount to part performance, because it is referable to his implied tenaacy,' nor does mere possession retained by a tenant after the expiration of a former lease, amount to part performance of a parol agreement made by the landlord to renew ; ^ but if the agreement is based upon an increased rent,' or if the tenant goes on and makes extensive improvements that are inconsistent with the old relation, the rule is otherwise.^ And so generally, possession and special ex- penditures by the tenant on the faith of a parol agreement to grant a lease for a term, are sufficient to entitle him to a specific performance of the agreement, although the landlord denies the agreement,^ as, where the tenant enters upon land and clears it up and improves it to an extent exceeding the value of the yearly rent," or if he enters and builds, or causes expensive alterations to be made. Thus, where a tenant under a parol agreement to execute a lease of an unfinished house for ten years, the tenant to complete the house at his own ex- pense, and the tenant entered and completed the house and paid rent for some time, an execution of the lease was decreed by the court.' The ground upon which the court proceeds in these cases is, that after such acts have been done, or expenses incurred, it would be fraudu- lent and inequitable for the landlord to withhold a lease.' But where the acts done by the tenant are of an ordinary character, and such as are incident to an ordinary tenancy, they are referred to that rather than to the agreement. Yet the English courts have gone farther in this direction than our own, and are not entirely harmonious, although both proftess to be governed by the same general rule. In at least one English case," it has been held that, possession of a tenant after the expiration of his terra under an agreement for a renewal lease is a sufiicient part performance of the agreement ; while the American cases hold that such retention of possession is referable to the old tenancy, and affords no ground for the specific performance of an agreement to renew.-"* In an English case,^' something more than a retention of possession under such an agreement seemed to be 1 Brennan v. Bolton, 2 Dru. & W. (Penn. ) 422 ; Surcome v. Peninger, 3 349. Dett. M. & G. 571; Savage v. Foster, 5 2 Because in such a case, his posses- Vin. Abr. 524, pi. 43 ; Toole v. Medli- sion may be referable to the old lease, cott, 1 Ball & B. 393 ; Wills v. Stradling, and does not unequivocally refer to and 3 Ves. 378 ; Mundy v. Joliffe, 5 My. & result from the agreement. Mohanau. Cr. 167 ; Sutherland v. Briggs, 1 Hare, Blunt, 20 Iowa, 142 ; Rosenthal v. Free- 26. burgher, 26 Md. 75. ' Lindsay v. Lynch, 2 Sch. & Lef. 1; ' Nunn V. Pabian, L. E. 1 Ch. App. Frame v. Dawson, 14 Ves. 386. 35 ; "Wills ».. Stradling, ante. « Dowell v. Dew, 1 Yo. & Call. 345. * Spalding v. Couzelman, 30 Mo. 177. ^^ Mohana v. Blunt, 20 Iowa, 142 ; ' Farrello v. Davenport, 3 Giff, 363. Rosenthal v. Freeburgher, 26 Md. 75. « Morrison v. Peay, 21 Ark. 110. " Fabian v. Nunn, L. K. 1 Ch. Ap. ' Farley t. Stokes, 1 Pars. Sel. Cas. 35. 288 Specific Peefoemance of held necessary, but, where the landlord verbally agreed, before tne old terra expired, to grant the tenant a^ renewal term of twenty-one years at an increased rent, but died before the lease was made, and the tenant remained in possession and paid one quarter's rent at such increased rate, it was held such a part performance as entitled him to a specific performance of the contract. In another English case, where an agreement in writing for a three years' tenancy re- served to the tenant the option of requiring a twenty-one years' lease at the expiration of the prior term, the Vice Chancellor appears to have considered that the tenant's verbal notice of an intention to take the new lease, accompanied by retention of possession, was binding upon him.^ The possession of a stranger under an express or implied , agreement for a lease, is a sufficient part performance thereof.^ But the court will not decree a specific performance, although possession has been taken, unless the terms of the contract are clearly proved ; ' nor if any of the terms are uncertain. ■• The doctrine of part jjerform- ance of a parol agreement is not to be extended by the coui't, and it is inapplicable in a case where a trustee has a power to lease at the re- quest, in writing, of a married woman, which has not been made.' After an offer had been made by a plaintiff to take a lease of a farm from the defendant, a draft was prepared by the defendant's solicitors, and approved of by the plaintiff with some alterations, and was after- wards altered by the defendant himself, and left by him with his solic- itors, for tlie purpose of its being ascertained whether the plaintiff would agree to the alterations. On their submitting it to him he agreed to the alterations, but no agreement was signed. A part of the terms was, that the plaintiff should execute certain repairs before the lease was granted. The plaintiff was put into possession by the direction of the defendant's solicitors, and executed some repairs : — held, that although the plaintiff might have been let into possession without authority from the defendant, there was a concluded agree- ment for a lease on the part of the defendant, and a sufficient part per- formance to take the case out of the statute of frauds, and a specific performance was decreed." A agreed to grant to B a lease of a public- house, if he could obtain a retail license to sell spirits in it. B entered into possession of ^the premises, and a license was afterwards obtained, but only on the verbal undertaking of B, that " no excisable liquors should be sold for consumption on the premises." B refused to execute the lease when tendered to him : and it was held, that a bill by A for 1 Beatson v. Niclaolson, 6 Jur. 620. * Reynolds v. Waring, 1 Tou. 346 ; 2 Gregory i). Mighell, 18 Ves. 328 ; Price d. Assheton, 1 Y. & C. 441. Pain i). Coombs, 3 Sm. & Giff. 449. ^ Phillips v. Edwards, 33 Beav. 440. ■' Mortal D. Lyons, 8 Ir. Cla. E. 112. ^ Shillibeer u. Jarvis, 8 DeG-ex. M. & G. 79. Ageeement fok a Lease. 289 specific performance of the agreement must be dismissed, but under tlie circumstances witliout costs, and without prejudice to proceedings at lavv.^ Where tlie plaintiff and the defendant entered into an agree- ment, tliat when a certain house belonging to the plaintiff should be completed and finished fit for habitation, the plaintiff would grant to the defendant a lease thereof for twenty-one years, and the defendant took possession before the house was finished and occupied it for a year, but refused to pay rent or execute the lease until the house was comjjleted and finished fit for habitation ; upon a bill brought for >i]iocific performance it was refused with costs.^ In all cases, in order to secure Iho specific enforcement of an oral contract it must be of such a nature, so definite and certain in all essential details, that, if in writing, the court would decree its performance.* Parties plaintiff in actions for. — Defendants. Sec, 206. The lessor, or his representatives in interest, or the lessee, or his representatives in interest, are the proper persons to bring an action for the specific performance of an agreement for a lease. In the <-ase of a tenant for life, both he and the contingent remainder-man in fee may represent the inheritance in a bill for specific performance, though their interests are merely equitable, provided the issue of the remainder-man will take, if he fails to do so by reason of the contin- gency,'* and, if there are no intervening equities controlling the case, s])ecific performance will be decreed in favor of all claiming under them, in a case where it would be decreed between the original parties ;^ and an assignee of the contract need not join the assignor as a party plaintiff with him." Executore or administrators of the intended lessee or lessor, as the case may be, may be either parties plaintiff or defendant to such proceedings,' or the heirs of the deceased, where the legal estate- vests ill tliem.^ An infant may maintain a bill for specific perform- ance of a contract made for him,^ but cannot be made a party defendant to such a suit.^° A feme covert may bind her sejjarate estate, but not herself personally, by a contract for a lease. She may bring au action 1 Modlen v. Snowball, 29 Beav. 641. 8 House v. Dexter, 9 Mich. 246; Buck 2 Faulkner v. Llewellyn, 31 L. J. Ch. v. Buck, 11 Paige Ch. (N. Y.) 170. Or 649. the devisees and the heirs may be com- ^ Thynne v. Glengall, 2 H. L. Gas. pelled to convey. Jacobs v. Locke, 2 1.58. ■ Ired. (N. C.) Eq. 283. * Sohier c. Williams, 1 Cart. (U. S. C. ^ Van Dyne «. Vreeland, 11 N. J. Eq. €.) 479. 370; Guard v. Bradley, 7 Ind. 600. But ^ McMorris v. Crawford, 15 Ala. 271. contra, and holding that an infant can ^ Miller v. Whittier, 32 Me. 203; Cole- neither sue or be sued for specific per- rick V. Hooper, 3 Ind. 316. formance, see Flight v. BoUand, 4 Euss. 'PhilUps?). Everard, 5Sim. 102;Page 298; Haggart v. Scott, 1 Euss. & My. V. Broom, 3 Beav. 36; Collins d. Vande- 293. veer, 1 Iowa, 593. i" Flight v. BoUand, ante. 19 -00 Agreement foe a Lease. for S])t'cific performance wlien the statute gives her authority to sue or be sued, and she may be coaipelled to jDcrforai when she is given by statute full control over her separate estate.^ A lunatic may be com- pelled to jierform a contract for a lease if it was made during a lucid interval.^ But an agreement to execute a lease to one who has com- mitted a felony, will not be enforced.^ 1 Murray v. Barbe, JMy. & K. 209; ^ p^y o^ Specific Performance, Sec. Gaston v. Frankvem, 2 DeG. & S. 161. 661. 3 Willingham v. Jayer, 8 Ves. 169. Leases. '^91 CHAPTER XXVI. LEASES. What are, and of what may be made. Reversion in lessor. Essential requisites of a lease. Operative words — Description of premises. The premises. What passes as an incident of the property. Appiirlcnances. — What pass as. Formalities required in the several States. Leases not affected by statute of frauds. Leases by deed. — What are. Seal. Signing. Attestation. Delivery. Escrow. Recording. — Acknowledgment. Date. Entry of lessee. Void or voidable leases. License. — Distinction between, and a lease. Leases in reversion. — Interesse termini. Concurrent leases. Estoppel. — Leases by. Effect of estoppels on the lessor. Effect of estoppel on the lessee. "What are, and of vrhat may be made. Sisc. 207. A lease is a contract by which one person divests himselj of, and another takes the possession of lands or chattels for a term, whether long or short} It may be m.ade to commence either fi-om a time past, at the date thereof, oi- from a future day,^ and may relate 1 Addison on Contracts, 334; Bacon's completion of all grants for life or of Abr. tit. Leases, ( K. ) ; Keg v. Morrish, 32 inheritance, but not for mere chattel in- L. J. M. C. 245; Woodfall's L. & T. 82. terests, as estates for years, or less than 2 Addison on Contracts, p. 339; 2 for life. But this distinction does not Piatt on Leases, 50; Enys v. Danne- exist generally in the States of this coun- tliorne, 2 Burr. 1190. By the common try, the common law rule having been law, livery of seizin, or an actual pos- abrogated by statute or custom, and the session of the land, was essential to the estate vests upon the delivery of the Sec. 207. Sec. 208. Sec. 209. Sec. 210. Sec. 211. Sec. 212. Sec. 213. Sec. 214. Sec. 215. Sec. 210. Sec. 217. Sec. 218. Sec. 219. Sec. 220. Sec. 221. Sec. 222. Sec. 223. Sec. 224. Sec. 225. Sec. 226. Sec. 227. Sec. 228. Sec. 229. Sec. 230. Sec. 231. 292 What aee, of What mat eb made. exclusively to real estate, or exclusively to chattels ; •' or it may relate to both, as in the case of a mill and machinery, or of a dvi^elling-house and the furniture,- or a farm and the stock thereon.^ At the common 1 Fawcett's L. & T. 1, 2. - Smith V. Man-able, 10 M. & W. In Ward v. Macaulay, 1 T. E. 480, not only was the validity of leases of chattels recognized, but it was also established that the tenant tooic such an estate therein during the existence of the lease as deprives the lessor of all con- trol thereover during such period, and as destroys his right of action for an in- jury done thereto, or the wrongful taking thereof by a third person during the term, because his right of possession is suspended so long as the term contin- ues under the lease. In this case the plaintiff was the landlord of a house which he let ready furnished to Lord Jlontfort. An execution was issued against Lord Montfort, and the furni- ture belonging to the landlord was taken thereon by the sheriff. The landlord lias held not entitled to recover in tres- pass for the goods against the sheriif, although the sheriff had notice that the furniture was his before he seized it. LoKD Ken VON, Oh. J., said that the plaintiff's remedy was in trover. But, hi a later case, Gordon d. Harper, 7 T. R. 9, where a similar state of facts existed, LoED Kejtyon recalled his dicta in the previovis case, and for the same reason that, in the previous case he had held that trespass would not lie, held that trover would not lie in this. He said: "The only point for the consideration of the court in the case of Ward v. JIacauley was, whether in a case like the present the landlord could maintain an action of trespass against the sheriff for seizing goods, let with a house, under an execu- tion against the tenant ; and it was properly decided that no such action could be maintained. What was said further by me in that case, that trover was the proper remedy, was an extra- judicial opinion, to which, upon further con.i'Ieration, I cannot subscribe. The true question is, whether wlien a pers(5u has leased goods in a house to another for a certain time, whereby he parts with the right of possession during the term to the tenant, and has only a reversionary interest, he can, notwith- standing, recover the value of the whole property pending the existence of the terra in an action of trover. The very statement of the proposition affords an deed or lease, but jjossession does not vest until actual entry; but the right of possession vests upon delivery of the instrument creating the estate, unless the possession, by the instrument, is to commence at a future day, in which case tlie right attaches when the day arrives, or if dependent upon a contin- gency, when the contingency occurs ; and if no definite time for the com- mencement of the tenancy is fixed, it will commence when the occupancy begins. Co. Lift. 40 a; Church v. Gil- man, 1.5 Wend. (X. Y.) 656. In Kemp 1). Derritt, 3 Camp. 510, the defendant took certain premises under an agree- ment tliat " the tenant is always to be subject to quit at three months' notice." Tiie court held that this created a quarterly tenancy, which might be de- termined by a three months' notice to quit, expiring at the same lime of the year it commenced, or any correspond- ing quarter day, and that where the tenant, imder such an agreement, enters at tlie middle of one of the usual quar- ters, if there appears to lie no agreement to the contrary, he will be presumed to hold from the day he oiters, and the tenancy can only be determined by a notice expiring that day of the year, or some other quarter day calculated from thence. This is essentially the case as to parol leases, as no interest exists until the lessee has actually entered into pos- session, because they are regarded as opposed to the spirit, if not the letter of the statute of frauds, especially in some of the States. When the tenant has not entered under a parol lease, it is held that the landlord's only remedy is upon the lease or agreement, and an action fur use and occupation does not lie. The landlord may put an end to the lease, in such a case, by entry, or he may let the premises lie idle and recover the agreed rent. Tully v. Dunn, 42 Ala. 262. But in Indiana it is held that a lease by parol for a term not exceeding one year is valid within the statute of frauds, as well before as after entry, and that the lessee may recover possession according to the terms of the lease. Huffman v. Starks, 31 Ind. 474. And a similar doc- trine prevails in New Jersey, where the statute 29 Car. 2, Chap. :■{, Sec. 1, is adopted as to parol leases for three years, where the rent reserved amounts to two-thirds the improved value of the thing demised. Birckhead u. Commins, 33 N. J. L. 44. ^ " After such time as leases for years began to be looked upon as fixed and permanent interests," says Bacon, 4 What are, of What mat be made. 293 law, not only real estate, but chattels and herpditaments, corporeal or answer to it. K, instead of tlie house- hold goods, the goods here talcen had been machines used in manufacture wliich had been leased to a tenant, no doubt could have been made but that the sheriff might have seized them under an execution against the tenant, and the creditor would have been entitled to the beneficial use of the property during the term : the difference of the goods then cannot vary the law. The cases which have been put at the bar do not apply; tlnrtne on which the greatest stress was laid, was that of a tenant for years of land whereon timber is cut down, in which case it was truly said, that the owner of the inheritance mightmaintain trover for such timber, notwithstanding the lease. But it must be remembered, that the only right of the tenant is to the shade of the tree when growing, and by the very act of felling it, his right is absolutely determined: and even then the property does not vest in his imme- diate landlord; for if he has only an estate for life, it will go over to the owner of the inheritance. Here, how- ever, the tenant's right of possession during the term cannot be divested by any wrongful act. nor can it thereby be revested in the landlord. I forbear to deliver any opinion as to what remedy the landlord has in this case, not being at present called upon so to do: but It is clear that he cannot maintain trover." AsiiHUKST, J., said: "I have always understood the rule of law to be, that in order to maintain trover the plaintiff must have a right of property in the thing and a right of possession, and that unless both these rights concur the action will not lie. Now, here it i.s ad- mitted that the tenant had the right of possession during the continuance of his term, and consequently one of the req- uisites is wanting to the landlord's right of action. It is1:rue that in the present case it is not very probable that the furniture can be of any use to any other than the actual tenant of the prem- ises: but supposing the things leased had been manufacturing engines, there Is no reason why a creditor seizing thein under an execution should not avail himself of the beneficial use of them during the term." ( Continued from p. 292. ) Bac. Abr. tit. Leases, (A.) " and that the lessees were sufficiently provided to de- fend themselves and their possessions against the acts and encroachments, as well of the lessor as of strangers,. men found it their interest to improve and encourage this sort of property, and therefore extended it to all sorts of in- terests and possessions whatsoever, being led thereto by that known rule, that whatsoever may be granted or parted with forever, may be granted or parted with for a time; and therefore not only lands and houses have been let for years, but also goods and chattels, though the interest of the lessee therein differs from the interest he hath in lands or houses so let for years : for if one lease for years a stock of live cattle, such lease is good, and the lessee hath only the use and profits of them during the teim; but yet the lessor hath not any reversion in them to grant over to another, either during the tenn or after, till the lessee hath re-delivered them to him, as he would have of lands in case of such lease for years, for the lessor hath only a possitsility of property in case they all outlive the term; for if any of them die during the term, the lessor cannot have them again after the term ; and during the term he hath nothing to do with them, and, consequently, of such as die, the property rests absolutely in the lessee: so, whether they li^e or die, yet all the young ones coming of them, as lambs, calves, &c., belong abso- lutely to the lessee as profits arising and severed from the principal, since other- wise the lessee would pay his rent for nothing; and therefore this differs from a lease of other dead goods and chattels, for there, if anything be added for the repairing, mending or improving there- of, the lessor shall have the improvf- ments and additions, together with the principal, after the lease ended, because they cannot be severed without destroy- ing or spoiling the principal; neither is the succession of young ones, in case any of the old ones die, to be resembled to a corporation aggregate, whereof when any die, those that succeed shall be said part of the same corporation, for the corporation, in its public capacity, never dies; but this being a lease of such and such individual cattle, when any of them die, the possibility of re- verting' property, which was left in the lessor, is determined and at an end. Litt. § 71; Co. Lift. 57 a. But the lessee in such case cannot kill, destroy, sell or give them away, during the term, without Being subject to an action of trespass, as it should seem ; but in case of a lease of a house, together with goods, it is usual to make a schedule thereof, and affix it to the lease, and to liave a covenant from the lessee to re- 294 Leases. incorporeal, Avere the subject of lease,' including advowsons,'' corodies, deliver them at the end of the term, and without sucli covenant the lessor could have no other remedy, but trover or det- inue for them after the lease ended. If one hath a corody for life, he may let it to another, or to the grantor him- self; so may tlie grantee of house-bote, or hay-bote ; but in case such lease be to the lessor himself, rendering rent, he can only have them by way of I'etainer, being to arise out of his own provision, or his own land. Bro. tit. Leases, 40. But as to lands or other things of inherit- ance, as they may be granted or depart- ed with forever, so they may for a time, and, consequently, may be leased for years in all cases where no inconven- ience or injury to the public is like to ensue; for then men's private interests must give way to the public, and what might otherwise in its own nature be good and allowable, must upon that account be disallowed and stand con- demned; wherefore, it having been settled, that all leases for years were but chattels, and as such should go to executors or administrators." Roll. Abr. S47; 2 EoU. Abr. 15:!; Sir George Reynold's Case, Cro. Car. 687; 9 Coke, 97. 1 Shep. Touch, 208; 1 Piatt on Leases, 24. The objects of dominion or proper- ty are things as contra-distinguished from persons ,• things are two-'old, things real, and things personal ; tilings real are such as are permanent, fixed, and immovable, as lands and tenements; things personal are goods, money, and all other movables whicli may attend the owner's person wherever he tliinks proper to go. Things real are distribu- ted into three divisions or classes, viz. : lands, tenements, and hereditaments. Of these three divisions, the secoiul con- tains the first, and tlie third contains both. Land comprehends all things of a permanent and substantial nature, being a word of a very extensive signifi- cation. Tenement is a word of still greater extenl, and though in its vulgar acceptation it is only applied to houses and other buildings, yet in its original, proper, and legal sense, it signifies 'every- thing tliat may be holden, provided it be of a permanent nature, wlietlioi' it be of a substantial and sensible, or of an un- substantial ideal kind. 2 Blaokstone's Com. 16. A tenement may be said to be any house, land, rent, or other such like thing, that is in any way held or possessed; but being a word of a large and ambiguous meaning, and not so cor- .ain as messuage, therefore it is not fit to be used to express anything which requires a particular descriijtion. 2 Lil. Abr. 566. The word tenement is joined with the adjective frank, to denote an estate in lands, offices, &c., for life or in fee. Kitch. 41. Thus, Hberum tene- mentum, frank-tenement, or freehold, is applicable not only to lands and other solid objects, but also to offices, rents, commons, and the like; and as lands and houses ai'e tenements, so is an ad- vowson a tenement; and a franchise, an office, aright of common, a peerage^or other property of the like unsubstantial kind, are all of theni, legally speaking, tenements. 2 Black. Com. 17. Iler- editament, is anything which may be inherited, or may pass to an heir. Hmreditamenta, signify all such things immovable, be they corporeal or incor- poreal, as a man may have to himself and his heirs by way Of inheritance; — see 32 H. 8. c. 2; or not being otherwise bequeathed, do naturally, and of course, descend to him whicli is next heir of blood, and fall not within the compass of an executor or administrator, as chat- tels do. It is a word of large extent, and much used in conveyances; for by the grant of hereditaments, isles, seign- orics, manors, houses, and lands of all sorts, charters, rents, services, advow- sons, commons, and whatever may be inherited, will pass. Coke on Lit. fol. 6. Hmreditnmentum est omne quod jure hmreditario ad hmredem transeat. Cow. Int. An liercditament, says Sir E. Coke, is by much the largest and most comprehensive expression; for it includes not only lands and tenements, but whatsoever may be inherited, be it corporeal or incorporeal, real, personal, ormixed. Thus, an heir-loom, or imple- ment of furniture, whicli by custom de- scends to the heir, together wiili an liouse, is neither land nor tenement, but a mere movable : yet being inheritable, is comprised under the general word her- editament: and so a condition, the benefit of which may descend to a man from his ancestor, is also an hereditament. 2 Black. Com, 17. Hereditament, tliore- fore, is the most comprehensive ^vord which occurs in the English law or language, as a designatinn or convey- ance of property. Hereditaments mean lands, tenements, and hereditaments, and are considered as having Ih.at cnm- prehending force, not only in pleading and conveyancing, but in those acts of " Anonymous, Dyer, 'Sil h. pi. ■". \ " 4 Bacon's Abr. Tit. Lc:isos, {\.]. WuAT ARE, OF What may be made. 295 estovere,' fen-ies,^ fisheries,' uiinistci-inl oftiees,^ franchises," tolls,^ rights parliament where the word herertitameiit is used alone; in sncU cases it includes everything which can be inherited : that is, which may go to the heir, but not to the executor or administrator, and may be regarded as opposed to chat- tels, and together with chattels, includ- ing all dcscfiptions of property; so that all property may admit of one grand division, namely, either an heredita- ment, or a cliattel. Such is the view of the relali\-e import of these three im- portant words, and more especially hereditament, as laid down in Black- stone, and sanctioned by the previous current of authorities. LoKD Kenyon, however, in Doe d. Small v. Allen, 8 T. K. 497, 503, seems to vary the import of the word hereditament, and consequent- ly to unsettle the definition and classifi- cation as given by Blackstone, wherein he says: " The next point arises on the word hereditament; it is not so strong a word as tenement; it is merely a de- scription of the thing itself, and not of the quality got, or the interest in it; if the word 'estate' had been used, that would have been sufficient to carry the fee." Certainly this distinction of Lord Kenyon accords with the difference taken between the two words licercditafi and hwreditamentum; namely, that the word lucreditas imports the estate which a man has in the lands; but Jiaredita- menimn the land itself, which may be inherited, and therefore cannot be ap- plied to the estate in the land. Hope- well V. Ack, 1 Com. R. 164. But this difference is only taken arguendo, and not noticed by the court, and the anthorities of Coke and Holt are strong with the definition given by Blackstone. Co. Lit. IP, 20; Inst. 6. Goulding, J. — She hath an estate in fee simple, be- cause the Ai'ord hereditament implieth a fee. Holt, C. .7. — She hath a fee simple by reason of the word heredita- ment; for if be had intended to have given her only an estate for life, the words "all my lands and tenements" would have sufficiently implied a free- hold without the word "hereditament," and therefore that word doth make her have estate in fee ; for hcereditas sir/ni- fieth an estate descendible,- as well as that which, hath descended. Smith v. Tyndall, Holt, 2,3.5. These two great atithorities su])port the view taken by Bl.ickstone on the relative classification of these three grand terms in law, " lands, tenements, and hereditaments," with his definition of the last. Her- editaments, then, to use the largest expi'ession, are of two kinds, corporeal and incorporeal: corporeal consist of such as aft'ect the senses ; such as may 1 Bro. Ahr. Tit. Leases, 40; Bacon's Abr. tit. Leases, A. ; 1 Piatt on Leases, 24. 2 Peter v. Kendall, 6 B. & C. 703; Hansen v. Kinl-ley, 11 Iowa, 5C5. 3 Dulve of Somerset «. Fogwell, 5 B. & C. 875. * Veale v. Prior, Hardr. 351. All offices of a purely ministerial character, which did not concern tite administra- tion of justice, and which required only common skill and diligence, and which might be executed by deputy without inconvenience to the public, might be granted at common law. Jones b. Cleric, Hardr. 46 ; Bellamy i'. Burroughs, Farr. 97; Drummond v. Duke of St. Albans, 5 Ves. 436. But an office of trust, or one requiring skill or capacity in its execution, did not come under this head. Meade v. Senthall, Cro. Car. 587 ; Sutton's Case, 6 Mod. 57. But, in Pragers v. Phrasier, 2 Shaw, 171, LoED Hai,e expressed the opinion that an office of trust might be granted; and a similar view was adopted in Jones «. Bird, Hardr. 49; and in the latter case, Baeon Nicholas declared that Rey- nel's Case, 9 Coke, 97 a., holding a contrary doctrine, is iiot good law, be- cause, for the same reason, that the court decided that in that case the office could not be granted for years, it could not be granted in fee. Offices that were purely ministerial, were demisable to women. Lady Russell's Case, Cro. Jac. 17; Spel. Glossary, 497. A woman was appointed governor of Chelmsford work- house, M. 2 Anne. Lady Broughton was keeper of the gate-house. 3 Keb. 321 ; 4 Inst. 221, 415. Lady Packington was the returning officer for members at Alesborough. Brady's History of Bor- oughs. But it will not be profitable to purstie this question here, as there is not much likelihood that offices will ever ' be granted in this country, as the scramble for them by the impecunious friends of leading politicians is so great, that even the original incumbent gener- ally holds by a feeble tenure. '" The Duice of Somerset v. Fogwell, 5 B. & C. 875. Any franchise is demisa- ble, except where it is personal. 2 Inst. 221, 406. ■8 Harris v. Morrice, 10 M. & W. 260; Wallier v. Richardson, 2 id. 882; Brig- hand D. Shatter, 5 id. 375; Aldragd v. Crampton, 4 Bing. N. C. 24. 296 Leases, of common,^ rights of way,^ rights of herbage,^ and tithes.^ So, too, says Mr. Platt,"^ chattels, such as farming implements, and furniture, may also be demised ; ^ so may a flock of sheep or other live animals.' The lessee is entitled to the use and profit of them during the term, but he cannot destro)', kill, sell, or give them away, without exposing him- self to an action of trespass.^ The property of such animals as may die during the term belongs to the lessee, and hence the lessor has not such a reversion as can be granted over, either during the demise or in the interval between its determination and the re-delivery of the sheeji. (Continued from p. 295.) be seen or handled by the body: incor- poreal are not the object of sensation, can neither be seen nor handled, are creatures of the mind, and exist only in contemplation. 2 Black. Com. 17. All corporeal hereditaments may be com- prehended under the word land. Land, in Latin , terra, in French terre, and anciently written with a single r, in that sense included whatever might be ploughed, terra dicitur a terendo, quia vomere teritar, and therefore, in its re- strained sense, extended only to arable land ; but in its general and legal signif- ication, land is a term most extended in its meaning, and includes every sort of ground, as meadow, pasture, arable, wood, lie. Terra est nomen generalis- simuin et comprehendit omnes species terrm. Land, in legal signification, comprehends any ground, soil, or earth, whatsoever ; as, meadows, pastures, woods, moors, waters, marshes, furze, and heath; it includes also messuages (that is, houses,) tofts, (that is, places where houses once stood,) mills, castles, and other buildings, for in conveying the lands, the buildings pass with it. 1 Inst. 4. It is observable that water is here mentioned as a species of land, which may seem a kind of solecism ; but such is the language of the law: and therefore I cannot bring an action to re- cover possession of a pool or other piece of water by the name of water only; either by calculating its capacity, as, for 'so many cubical yards; or, by superfi- cial measure, for twenty acres of water; or, by general description, as, for a pond, a watercourse, or a rivulet: but I must bring my action for the land that lies at the bottom, and must call it twenty acres of land covered with water. 2 Black. Com. 18. So that if a man grants all his lands, he grants thereby his castles, houses, and all other build- ings, "for they consist," saith Lord Coke, "of two things, land, which is the foundation, and the structure there- on; so that if I convey the land or ground, the structure or building pass- eth therewith. Land hath also, in its legal signification, an indefinite extent, upwards as well as downwards. Cujuk est solum, ejus est usque ad caelum, is the maxim of the law, upvp^ards ; there- fore no man may erect any building, or the like, to overhang another's land: and downwards, whatever is in a direct line, between the surface of any land and the centre of the earth, belongs to the owner of the surface; as is everj' day's experience in the mining coun- tries. So that the word land includes not only the face of the earth, but every- thing under it or over it. And there- fore if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters, and his houses, as well as his fields and meadows. ISTot but the particular names of the things are equally suflicient to pass them, except in the instance of water; by a grant of which, nothing passes hut a right of fishing; but the capital distinction is this: that by the name of a castle, messuage, toft, croft, or the like, nothing else will pass, ex- cept what falls with the utmost pro- priety under the term made use of; but by the name of the land, which is nomen generalissimum, everything terrestrial will pass. Co. Litt. 4; 2 Black. Com. 19. 1 Luny V. Brown, Lutoh, 99. 2 Kewmarch ». Brandling, 3 Swanst. 99; Dsborn v. Wise, 7 C. & P. 761. ^ Luny V. Brown, ante ; Hill v. Barry, Hay & Jo., 683. ' 4 Brewer v. Hill, 2 Aust. 413; Wind- sor V. Cover, 2 Saund. 302. ^ 2 Piatt on Leases, 26, 7. " Collins !). Harding, Cro. Eliz. 606 ; Newman v. Auderton, 2 N. E. 224. ' Spencer's Case, 5 Coke, 16 6.; Wood V Foster, 1 Leon, 42 ; Wood v. Ash, Godf. 112; Emmatt v. Cole, Cro. Eliz. 255 ; Billingsley v. Hersey, 2 Eulstr. 5. s See cases cited in last note ; also Lit. Sec. 71. 9 Wood V. Foster, ante; Wood v Ash, ante. Reversion in Lessor. 297 He has only a possibility of property in case they outlive the term. The young belong absolutely to the lessee, as profits arising and se- cured from the principal.^ The sum reserved for the use of chattels is denominated rent, but, strictly sjDcaking, rent cannot be reserved out of an incorjjoreal hereditament ; and, although it may be reooA'ered on the express covenants for payment, or on the reddendum, which amounts to an implied covenant,'^ yet a distress ■will not lie therefor.^ Reversion in lessor. Sec. 208. In order to operate as a lease, the lessor must convey a less estate than he possesses, because if he conveys his whole estate, it is an assignment, and not a lease ; and that is the effect of the instru- ment, whatever may be the form of words used in it,* for where a party, though professedly making an underlease, ^ari* viith his ichole term, that amounts to an assignment, which is, in point of law, merely tlie transferring and setting over to another that interest, however it came, which the party has.^ As between the parties, however, such an instru- ment may, for some purposes, be treated as an underlease, when that is necessary to carr}' into effect the intent of the parties." 1 2 Piatt on Leases, pp. 26, 27. 2 Lovelace ti. Eeynolds, Noy. 59; Co. Lit£. 47 a.,' Gardiner b. Williamson, 2 B. &, Ad. 330 ; Neale jj. Mackenzie, 2 C. if. & R. 34. 3 G-ardiner r. Williamson, ante. * LoKi) TEKTEtiDEiN^, C. J.,in Thorn v. Woolconibe. 3 B. & Ad. 595 : Barrett n. Eolf, 14 M. & W. 348; Cotter v. Richardson, 7 Excliq. 143'; Palmer u. Edwards, 1 Doug. 187 ; Pascoe d. Pascoe, 8 Bing. N. C. 898; Preeee u. Corrie, 5 Bing. 24. The fact that the grantor uses the word " demise," does not change the effect of the instrument, be- cause that word is of general application, and only imparts some species of con- veyance, and is applied to an estate, either in fee simple, fee tail, for life, or for years. 2 Inst. 483. If a lessee for tliree years demises it for four years, it is in legal effect an assignment, and not an uncler lease. Hicks v. Downing, 1 Ld. Rayd. 90. In Palmer v. Edwards, 1 Doug. 187 11.. it is laid down as a rule, that wherever the whole interest is con- veyed and no reversion left, it is an assignment, and this case explains Poultney v. Holmes, 1 Stra. 405, and shows that a reservation of rent to the grantor does not affect the question. A similar doctrine was held in Parrrieter v. Webber, 8 Taunt. 593 ; Preeee i\ Corrie, 5 Bing. 24, and the cases cited at the connnencement of this note. In equity, a merger may be permitted to take effect or not, according to the apparent intent of the parties,and the interests to be affected thereby. Davisthorpe v. Porter, Amb. 600; Thomas v. Kemeys, 2 Vern. 348; St. Paul V. Lord Dudley, 15 Ves. 167. But, at law, the views or beneficial in- terests of parties do not control the operation of a deed creating a merger. Webb V. Russell, 3 T. R. 393 ; Co. Litt. 45 b. ; Utben v. Godfrey, 3 Dyer, 309 h., •n. 78; Lewis d. Bowles, 11 Coke, 83 h.; Threr u. Barton, Moore, 94; Burton v. Barclay, 7 Bing. 7.J0. See also 3 Preston's Conveyancing, Chap. 5, p. 43. ^ 1 Bacon's Abr. til. Assigmnent, 249; McMurphy v. Mirat, 4 N. H. 251. ^ In Pollock V. Stacy, 9 Q. B. , an action for use and occupation was sustained iu favor of a person who had demised to another the whole of his term in certain premises at a weekly rent. Lokd Dbn- MAN", C. J., saying: "The parties in- tended to contract the relation of land- lord and tenant, and to pass the right of possession by a parol lease. This they were at liberty to do by law, and we therefore carry their lawful intention into effect. If we were to decide that the transaction was an assignment, we should at the same time decide that it was no assignment, being by parol only. * « * As important rights and duties arise often from assignments of terms, the law has properly provided that the relation of assignor and assignee shall not be contracted, unless the in- 298 Leases. Essential requisities of a lease. Sec. 209. In ordei- to constitute a valid lease, certain elements must alu'ays concur : 1st. Tliere must be a lessor who is legally oonipt'tent to make a lease.- 2d. A lessee who is competent to take the thing demised. 3d. A subject matter that is demisable. 4th. And in all cases wliere so required by law, as where the thing granted is not otherwise grantable, or where the person granting can only grant by deed, the lease must be by deed containing a certain description of the lessor, the lessee, and the thing demised, the terra granted, the rents and covenants, and all the necessary formalities, as sealing, acknowledgment, delivery, &o. 5tli. If the lease is for years, there must be a certain commencement, at least when it takes effect in interest or possession, and a cei-tain determination, either expressly, by stating the number of years, or by refei-ence to a certainty that is expressed, or by reducing it to a cer- tainty that is expressed, or by reducing it to a certainty upon some contingent event which must happen before the death of the lessor or lessee. 6th. Where required, there must be all needful ceremonies, as livery of seizin, attornment, &c., or if any statutory requirements are imposed, they must also be observed ; and, 7th, there must be an acceptance of the demise, and of the estate by the lessee.-^ Opaiative wordi. — Description of premises. Sec. 210. No particular forni of words are requisite to inake a lease; any wurds that show nn intention on the part of the lessor to divest himsolf of the possession of premises, and confer it upon the lessee for a term, whether long or short, is sufficient, but the lessee also should sign tlie lease, or in some manner become bound by such covenants as it is agreed th.at he shall perfoi'm. Tiie usual words employed, and what may be denominated the operative words, are " demise and lease," "hath leased and hereby doth lease," "grant, demise and to farm let," or " hath let," or awy words that amount to a grant are sufficient,- and tention is proved by deed. But in pro- Jackson v. Hughes, 1 Blackf. (Ind.) 421. tectiii-j against imperfect evidence of Tlie words " I agree to let and liet-eby do assignment, there was no need to alter let" are sufficient. People v. Kelsey, the law of leasing ; and it appears to us 3S Barb. (N". Y.) 269; Bacon ?i. Bowdoin, to remain unchanged, and we see no in- 22 Pick. (Mass. ) 401. "A hath let," convenience in supporting as a lease that held to create a lease. Livingston v. whicli was intended to be so, althouih Kisselbrock, 10 John. (N. Y. ) MSCi. A it may ;> tss ail the tensor's interent." covenant "to stand seized," if made by See also Poidtney b. Holmes, 1 Str. 405; the owner, or a covenant for quiet en- Baker V. GosMing, 1 Bing. N. C. 19; joyment, Pritchard d. Dodd, 5 B. & Ad. Cotter V. Pachavdson, 7 Exchq. 143; 689, is a lease. Bassott v. Thomas, 3 Williams v. Hayward, 1 E. & E. 1040. Burr. 1441, for a covenant accomiianied See past "Assignments" for a more by an entry amounts to a lease, but tha complete review of this subject. covenant merely does not vest the estate 1 Shep. Touch. 267; Woodfall's L. & in the lessee, but only gives him a right T. !-i.!. to enter and possess it; it is only vested •i AVoodf all's L. & T. 87; Co. Litt. 45; by entry, Capley v. Hepworth, 12 Mod. Smith V. Simons, 1 Root (Conn.), 318; 1; Co. Litt. 37, and even a formal lease Opebative Woeds. 299 thnt, even though mere words of license or permission are used, as, in all vases, where a license confers an interest in the land, it amounts to a leiisc.'' A wi-iting as follows: "Received of B three dollars and fifty cents for the rent of my brick house, in, &c., for one month, with the 2y>'ivilege of keeping it six months longer at the same rate^'' and signed by the lessor, was held operative as a lease of the premises for the ]ier;od named therein,^ and a mere license to occupy premises from a certiiin day to a certain day, or for any definite period, and giving exchisiue ]>ossession, is a leiise, and may be plead as a lease, and possibly as a license.* But in order to make any words operative as a lease, it must appear from the instrument that such was the infcyition of the ])arties, otherwise they only amount to an agreement for a lease, even though a specific time when possession shall be given, tlie length of the term, and all the incidents to a tenancy are named therein.'' Thus, where a memorandum of a lease was drawn up, but among the terms agreed upon was one that the tenant should bring a surety on a future dny and sign the lease, he h.aving failed to bring the surety, it wn.s held a mere unaccepted proposal for a lease.^ A lease should con- tain nil the incidents agreed Tipon by the parties, and the covenants, conditions, exceptions or reservations should be clearly stated, so as not to be open to misconception or misconstruction, as nothing can be added to or t.aken from a lease by parol evidence. It will be construed according to the legal effect of the language used, taking it as a whole.^ only creates an inter esse termini before of the close for that period, was held not entry. Liirnctt v. Guilford, 11 Exchq. to be a lease, or to convey an interest in 1!). The woi'ds " shall have and enjoy" the land, and consequently Aias not witli- amnnnt to a present demise, even with- in the statute of frauds. But the doctrine out oilier words to qualify them. Wliit- of this case is -wholly untenable, and lock V. Horton, Cro. .Jac. 01; Muldon's doesnot seem ever to liave been regarded f'ase, Cro. Eliz. .S3; Drake ». Munday, as law, otherwise all leases of premises, Cro. Car. 2(,7: Jackson d. Ashburner, 5 restricted to a pm'iicMlar2nir2)ose,\i'Ould T. I!. Ki.'J; Tisdale v. Esse.x, Hob. 34; be operative only as licenses. Plow den V. Cai'lwright, IBurr. 282. So * Bicknell v. Hood, ,5 M. & W. 104; '•sliall take and have the profits," Eawsonu. Eicke, 7 Ad. & El. 451; Cliap- Anonyinons, .3 Salk. 223, or " shall have man v. Towner, 6 M. & W. ICO; Bur- tlic i..^(' I S. &c.. and may use." Anony- neUs. Curtis, 4 Jur. 490; Scully n. Mur- mcus, 11 Jldd. 42. ray, 34 Mo. 420; Haughery v. Lee, 17 ' In Sinitli r. Simonds, 1 Boot (Conn.), La. An. 22; Brewer v. Hill, 2 A;ist. 413. 318, it ^vas held that a writing wliich, ''Bingham v. Cartwright, 3 B. & Aid. for a vahialile consideration, grants the 826. ri,aTit lo plow a man's land for a certain ^ It is presumed that the writing embod- nvnnlier of years, for a certain considera- ies all the terms agreed upon, and in Ihe tioii, is a lease, and must be recorded as absence of fraud, mistake or surprise, such. verbal or other extrinsic evidence is not " Munson v. Wray, 7 Blackf. (Ind.) admissible to contradict or control it, 488. Gerard v. Frankel, 30 Bcav. 445 ; " Hall V. Seabright, 1 Mod. 42; Anony- Woolam v. Hearn, 7 Ves. 218 ; Omerod m(uis, 11 Mod. 42. But a contrary doc- v. Hardman, 5 id. 730, as that more or trine was held in Wood v. Lake, Say. 3, less rent was agreed upon, Preston v. and a parol license from A to B to slack Merceau, 2 W. Bl. 1249, or that it w.a3 coal on a certain close for the period of agreed that the rent should commence at seven years, B to havei the ejclusive use a time other tlian that named in the lease, 300 Leases. The premises. Sec. 211. The jore;??,i.se,s of a lease — being that part which precedes the hahendian — should rightly name and describe the parties to the loase, tlie consideration and the thing demised.^ An accurate de- scription of thij premises is indispensable, not only for the jjurposss of identification, but also because nothing passes except what is u€med in tlie lease. Therefore, the thing demised should be set fortlii witli certainty, eitlier by express words, or by reference to something, from which it can be reduced to certainty.^ Thus, a description of prem- ises as " being the building now or lately occupied by Richard Roe,'' or " the premises known as the Warren farm," or " the Phelps place," designating the town in which they are located, is sufficient, because the lease furnishes data from which the premises demised can be identified.^ So a description of the premises demised, as those con- veyed to the lessor by a certain person, and referring to the deed, or even without reference to the deed, is good, as, " the premises lying, Hanson v. Cooper, 3 Scott N. E. 48, or that the rent is to be nett rent. Rich v. Jackson, 4 Bro. C. C. 514. But, unless expressly or impliedly excluded evidence of a custom may be admitted to explain a lease, In Re Stroud, 8 C. B. 602, and parol evidence may be given to explain a latent ambiguity. Osborn v. Wise, 7 C. P. 761 ; Doe v. Burt, 1 T. R. 701 ; Coker V. Guy, 2 B. & P. 505; 'Do&v. Hiscock,5 M. ct W. .363. So where technical words are used, which have a peculiar and special or local meaning, understood by a particular class, evidence of such mean- ing is admissible. 3 Starlde on Evidence, 103.!. Thus, evidence has been admitted to show that the word ' ' thousand ' ' i:> a lease, by local usage meant 1200, Smith V. "Wilson, 3 B. & Ad. 728, or, that the word " level " in a mining lease, was not used in the ordinary sense of a horizontal plane, but in a sense peculiar to mines. Doe v. Benson, 4 B. & Aid. 58S. But in all cases it is a question for the jury whether the word was used in its ordinary, or iu its Iccliiiical sense. Clayton ii. Gregson, 5 Ad. & El. 302; Smith r. Wilson, 3 B. & Ad. 733; Doe v. Lea, 11 East, 312. But where the words used have afixed legal signification as to quantity, quality or time, when used in a lease with no qualifying words, it is pre- sumed that they were used in their IclmI sense. Smith);. Wilson, ante. Sosoiiio- times parol evidence is admissible to show the state of the premises when I lie lease was made, and the cliaracter of the former occupancy. Hall v. Lund, 1 H. & C. &16; Osborne v. Wise, 7 C. & P. 761. ^f the construction to be given to a deed or lease is doubtful, the circum- stances connected with its execution, and the subsequent conduct of the parties as to occupation under the deed, may be properly considered iu deter- mining what was intended by the parties. Bradford v. Cressey, 45 Me. 0. All the parts are to be considered and construed together. Every part should, if possible, be made to take effect, and every word to operate, if bylaw it may, according to the intention of the parties. If a deed, or any portion of it, cannot operate in one form, it shall operate in that which by law will effectuate the intention of the parties ; and every deed is to be con- strued with reference to the actual rights ful state of the property conveyed by it, at the time of its execution. Richardson V. Pahner, 38 N. H. 212. As a general rule, the express mention of one thiflg in a grant implies the exclusion of an" other. Pray v. Great Falls, &c., Co., 38 N. H. 442. 1 Farquhai-son v. Eichellberger, 15 Md, 63. And a lease omitting the name of either the lessor or lessee, is void. Wliittaker v. Miller, 73 111. 381. » 2 Camley ». StanfieM, 10 Tex. 546 ; Vose t). Bradstreet, 27 Me. 150. Where a lot is accurately described by its num- ber, as, lot No. 2, the fact that the metes and boimds given are applicable to another lot (No. 4), which the lessor did not own, is valid as a lease of No. 2, especially if possession of No. 2 is taken under it. Lusk d. Druse, 4 Wend. (N. T.) 313. ' 2 Preston's Conveyancing, 449 ; 2 Piatt on Leases, 28. The PiiEjiisEs. 301 &c., which were convey ed to me by John Doe," is good. But such descriptions in such general terms are dangerous, as, if John Doe had conveyed several parcels to the lessor by separate deeds even, the title to which still remained in him, all the parcels lying in the town named wonld pass to the lessee, unless restricted by the words of the grant, although it was not the intention of the jsarties that more than one of them should pass, and upon the other hand if there are any words of restriction, although not so intended, they will so operate, as, if A leases to B all the premises conveyed to him by C, lying in the town of Woodstock, when a part of the land lies in Pomfret, only the land lying in Woodstock will pass, although it was the intention of the parties to embrace the premises in both towns, in the lease ; ^ but if the land is described as being in two towns, when it is really in but one, the lease will be good, and all the land in either of the towns will pass, upon the principle that the greater includes the less.^ If a lease is made of a farm now in the possession of A, the lease will pass no more of the estate than A was in possession of when the lease was made, and if any part of the farm was reserved from A's lease, it will not pass to the lessee, although no such reservation was made in the lease to him, and although no such reservation was intended by the parties.^ It is a general rule that there m-ust be sufficient certainty of the jDremises granted, and if there is an uncertainty respecting the parcels, the lease, as to such parcels, will be void ; * but it is immaterial whether the certainty is in the deed, as a substantial or independent description, or depends ujion some other deeds or facts refen-ed to therein,'' for in such cases, the maxim id certum est quod certuni reddi potest justly applies.' Another well settled general rule is, that I Hall B. Combs, Cro. Eliz. 368. A the parties to relate tn it. Peck v. Mal- conveyance of lands supposed to lie in lams, 10 N". Y. 509. Where llie descrip- H county, described as beginning on tlie ti&n clearly designates a piece of laud as G county line but in fact beginning a that conveyed, the description cannot be half mile within G county, passes all the changed by parol evidence of intent, or lands lying in H couiity. Hale v. Hord, of acquiescence in another boundary 11 Hink. (Tenn.) 232. line, unless such an adverse possession ^ Anonymous, Clayt. 123, pi. 218. he shown as is in itself a bar to an eject- 3 Bartlett v. Wright, Cro. Eliz. 299. ment. Emerick v. Kohler, 29 Barb. {N. * 2 Preston's Conveyancing, 451. De- T.) 165. scriptions of premises in deeds or leases ^ ]^ Preston on Conveyancing, 184 ; 2 are to be construed liberally, according id. 448, 461; Shep. Touch. 244; Bacon's to the intent of the parties, and it is Tracts, 102, 105 ; 4 Cruise's Dig. 317 ; only necessary to the validity of a de- Bacon's Maxims, No. 13, p. 25 ; Peyram soription, that after .subjecting it to v. Newman, 54 Miss. 612. every modification which the actual con- ^ Cam ley v. Stanfield, 10 Tex. 546, dition o!' the premises may require, there and an evident omission may sometimes must he left some substantial designa- he supplied by construction, but only tion of the thing to be conveyed, so that when the words used warrant it, Hoff- the court can .see, looking at the prop- man v. Eiehl, 27 Mo. 554, or inconsist- erty in the condition in which it loas at ent matter may be rejected. Prescott v. the time qf tlie deed, that the description Hayes, 43 N". H. 593. When the court, can he fitted to it, and was intended hy by a knowledge of the facts existing. 302 Leases. where the first words of a grant are sufficiently certain in themselves, words of additional erroneous description will not Aitiate the grant,' but will be rejected as surplusage ; and if, after such rejection, enough remains to point with reasonable certainty to the estate granted, the anil the situation of the parties at the time when a deed was made, can ascer- tain the intention of tlic grantor, they will construe the deed so as to give ef- fect to that intention, when they cau iiud enougli iu tlie description, after re- jecting all the pai'ticulars in wliich it is false or mistaken, to identify the land. Lane c. Thompson, 4.3 N. H. ;W(J. And Avhere the intention is apparent any er- ror in the jiarticulars or details of a de- scription will be disregarded, Prescott V. Hayes, ante, and this applies to any part of an instrument. Thus, if in a deed purporting to be executed by the agent of a corporation, the general in- tention is apparent that the corporation make the grant or contract, and any ex- pression is used wliich is inconsistent with that intention, and if literally eon- sti'iied would defeat the deed, it is to be rejected. Tenney v. East Warren, &c., Co., 48 N'. H. 343. See also upon the rejection of erroneous description and holding tliat the court will uphold the conveyance if practicable by reconciling or rejecting erroneous particulars. Wing V. Bnrsiis, 12 i\[e. Ill ; Hall v. Foster, 7 Vt. 1.0; Harvey B. Mitchell, 31 N. H. .57.5 ; Wright r. Cochran, :! Iowa, 507 ; Smith I). Chatham, 14 Tex. 322. A deed describing lands as " adjoining the lauds of A and B, containing twenty acres more or less " was held to be void for nncertaiiily. Dickens o. Barnes, 70 N. C. 4S0. 1 See previous note, also Jackson v. Delaney, 11 John. (K. Y.) 3(i5. The g(;ncrai rule is, that if the description of the premises given in a deed affords suf- ficient means of ascertaining and iden- tifying the laud intended to be con- Vv'yed, after reji.'Cting that which is false, this is suiBcient to sustain the convey- ;;nce, notwithstanding there may be er- ror or inconsisteiicy in some of the par- ticulars. Vose V. Bradstreet, 27 Me. 155 ; Bosworth v. Sturlevant, 2 Cush. (Mass.) 3;)2; Lvmau v. Loomis, 5 N". H. 4'i8 ; 3Iasjn v. White, II Barb. (N". Y.) 173; Egglcston i;. Braford, 10 Ohio, 312; Andrews o. Murphy, 12 Ga. 431 ; Berry B. Wright, 14 Tex. 270 ; English c. Roche, G Ind. 02 ; Cambey v. Sianfleld, 10 Tex. 540 ; Bird v. Bird, 40 Me. 398 ; Banks v. Ammon, 27 Pemi. St. 172. It is a sound rule of construction that in the construction of a deed, a descrip- tion which fully ascertains the corpus of the property is not defeated by the addition of a further false description. Uncertainty and defects will be rejected, and then, if enough remains to point with reasonable certainty to the estate granted, the conveyance will be upheld. Iu Hall V. Foster, 7 Vt. 100. the descrip- tion began: " On the north of a certain streaili, and by following the courses and distances to another point on the same side of the stream," concluded, " thence on the south side to the bounds begun at." It was held, tliat the words "on the south side," being inconsistent with the intent of the parties gathered from the rest of tlie deed, should be rejected. Johnson c. Simpson, 30 N. H. 91; Bond-o. Fav, 12 Allen (Mass.), 86 ; Crosby v. Bradbury, 20 Me. 01 ; Myers v. Ladd, 20 111. 415 ; White ». Guy, 9 N. H. 126. A soldier indorsed a conveyance on his discharge, in which he described the premises as follows : "The six hundred acres of land, due from the public, as a soldier, in Colonel Lamb's regiment of artillery," when in fact he was not in that regiment. It was held, that the words, " iu Colonel Lamb's regiment of artillery," might be regarded as surplusage, the description being sufHcient withmit them. Jackson V. Root, 18 Johns. (N. Y.) 00. See Jack- son V. Loomis, id. 81 ; Jackson v. Ran- som, id. 107. Where the premises in a deed were described, as lot No. 51, in the second division of a patent, " as fol- lows," ifec, and it was proved that the grantor at the time owned lot N"o. 50, in tlie same patent, the boundaries of which exactly corresponded with those in the deed,— Held, that "lot No. 51" might be rejected as surplusage, tlie de- scription being sufficiently certain with- out those words. Loomis b. Jackson, 19 Johns. CN. Y. ) 440, and generally, an erroneous description of lands by num- bers, will not vitiate the lease, if there are other sufficient descriptive particu- lars to identify the property intended to be demised. Bradshaw v. Bradbury, 64 Mo. 334 ; Montgomery v. Johnson, 31 Ark. 62. The Pbemtses. 303 conveyance will be upheld/ otherwise it will be wholly void.^ Wliere the description of premises is certain, it will coiitrol a statement as to the quantity. Thus, if a lease is made of " my farm in, &e., contain- ing ten acres," tlie whole premises embraced in the farm will be con- veyed, although the number of acres is largely in excess of ten,'' and the same rule prevails although the quantity stated is much less.'' The words more or loss in a deed or lease must be confined to a rea- sonable quantity.'^ As to the proper mode of describing the premises, it may be said that "corporeal hereditaments consist wholly of substantial and per- 3 Kruse v. Wilson, 79 111. 233 ; Weill u. Lucerne Mining Co., 11 JSTev. 200 ; Ex Parte Branch, 72 N. C. 106; Tliayer V. Torrey, 37 N. J. L. 339 ; Armstrong ■B. Colliy, 47 Vt. 300, and wliei'e i\'ords of addition are mistaken, and contrary to tlie near fact, they will not even op- erate as a restriction on the preceding words. Swift ti. Eyres, Cro. Car. .546. But, wliile it is true that where a thing is certainly described at first, the addi- tion of anotlier certain description will be rejected, Tjetit in otherwise where tlie thinr; first described is uncertain, and in the latter case, it lias been held that the conveyance is void. Dowtie's C'ase. 3 Coke, 9 b. ; Harris v. Greatliead, 8 East, 91. Except where the case abso- lutely requires it, it Is not best to accu- nuilate description upon description, or to particularize too minutely all the various circumstances of name, i^lace, .ocality, boundaries and occupation ; such only as are sufficient for the pur- poses (if identification should be intro- duced. If, for instance, the identity can li!' perfectly established by insert- ing the name of the premises, and the town and comity, the other particulars should be omitted. Where numerous circiuiistances are referred to, questions frequently arise how far they nmst con- cur in dislinguishing the demised prem- ises, and to, what extent words of par- ticular explanation may qualify words of genoi'al description, and needless and expensive liiigation is thus entailed upon tlie parties. Bartlett v. Wright, Cro. Eliz. 299 ; Dowtie's Case, 3 Coke, 9 b. See (qjinion of 1'arke, J., in Smith r. Galloway, .5 B. & Ad. 43, as to the rule In cases of partial false descrip- tion. But, when there is nothing that can be fixed upon with certainty, from the description itself, the conveyance is void. Dickens v. Barnes, ante. 2 Froctor v. Pool, 4 Dev. (IS'. C.) L. 370. 3 Dawson v. Bell, 3 Ir. L. Kep. 140 ; Large v. Pcnn, 6 S. & R. (Penn.) 488 ; Piene v. Faunce, 37 Me. 03 ; Halch v. (jiirza, 22 Tex. 170 ; Hack v. liiinka, 47 Md. ; 68 Tex. 379; Mizell v. Simmons. 70 N. C. 182; Lewis v. Oakley, 10 Hick.' (Tenn.) 483. * Allen V. Allen, 14 Me. 387. It is a general rule of construction of grants and devises that, where tliei'e is suffi- cient certainty befiu'o, by way of de- scription of the thing granted, as by giviiigto a close a particular name, etc., a subsequent mistake, as in the tenant's name, the number of acres, ,cS:c., will not restrict or invalidate It. 2 Rolle's Abr. .52, 54. But where the description is general, and afterwards a ■purl irular description is added, it will restrict the general deso'iption. 1 Inst. 6 ij. ; 2 id. 240. In Fletcher v. Clark, 48 \t. 211, the rule generally recognixed was aptly expressed, that when a general descrip- tion is followed by a pari irular one, the latter must control, and that parol evi- dence that gives to the general descrip- tion a more comprehensive extent than the particular description is not admis- sible, because it tends to contradict the deed. Gaiio v. Aldridge, 27 Ind. 204 ; McEowen v. Lewis, ^0 N. .J. L. 541. But where premises are descrilied as '• all the gleble land lying in A, viz. : 78 acres of land, all which was lately in the possession of B," the descripfion is good, even though the lands ^^ere ilever in B's possession ; for the words rdl whirh are not words of restriction, but of explanation only, unless the clause is general and the sentence entire. Swift V. Eyres, Cro. Car. .548. So a convey- ance correctly describing land by its quantity and occupiers, has been held sufficient, althoinrh described as being in a town or parisli in which no part of it was situated. Lamb v. Reaston, 5 Tamit. 207 ; 3 Preston's Abstracts, 206, 210. ^Davf). Fynn, 1 Esp. 229 ; Cross ». Eglin, 2 B. & Ad. 100. 304 What passes as Incident to. luanent objects, and may all be comijvehended under the general de- nomination of land only; for land comprehends, in its legal sense, any ground, soil or icarth whatsoever so the word land includes not only the/ace of the earth, hut everything over or under it; ^ and therefore if a man grants all his lands, he grants thereby all his mines of metal and other fossils, his woods, his waters and his houses, as well as his fields and meadows; not but that the particular name of the things is sufficient to pass them, except in the instance of water, by a grant of which nothing passes but a right of fisljing ; and to recover the land at tlie bottom of which, it must be called so many acres of land covered M'itli water. But the capital distinction is this, that by the name of a castle, messuage, loft, croft or the like, nothing else will pass, except what falls with the utmost propriety under the term made use of (though, indeed, by the name of castle one or more manors may be con- veyed ; and e converso by the name of the manor the castle may ])ass) ; but by the name of land, which nomen generalissimum, every- thing terrestrial will pass." ^ But if a particular kind of land is con- veyed, as " meadow land," " tillable land," "mining laud," " pasture land," &c., the lease or conveyance will be confined to land of the de- scription named, and in general, where meadow land, pasture land, tillable land, &c., is described, it must be understood as referring to land that were devoted to such purjjoses at the time when the lease was made.' What passes as an incident of the property. Sec. 212. Whatever constitutes the essence of the thing granted, or is parcel of it, will pass with it, although at the time of the making of the lease it is accidentally severed. The word '■'•furniture " employed in a lease of " a hotel with the furniture therein," includes that which furnishes, or with which anything is furnished or supplied. Whatever 1 But the maxim cujus et solum, &c., ent people. This is the case in the inns like all other maxims, is subject to many of court now it would be very extraor- cxceptioiis, and a failure to bear this dinary to contend that if a person pur- fact in mind often leads to serious er- chased a set of chambers, then leased rors, and its application is often mis- them, and afterwards purchased anoth- taken, and especially is this the case in ar set under them, the after-purchased populous towns and cities. "It seems chambers would pass with the lease. to me." says AsnuKST, J., in Freeland In the present case, considering the na- V. Burt, 1 T. 11. 7i)-'3, " that the construe- ture of the property, it wa^ proper to tion of all deeds must be made with ref- let in evidence to show the state and con- erence to their subject matter, and it dition of it, at the time ^i:Jicn the lease may be necessary to put a different con- was granted. Prima faciiB indeed, the struction on leases made in populous property in the cellar would pass by the cities, from that on those made in the demise, but that mUiht be rer/ulated and country. We know that in London explained hy circumstances." dift'ei'ent persons may have several free- '■' 2 Blackstone's Com. IS. holds over the same spot, different parts ' Gunning v. Gunning, 2 Shaw, 8 ; of the same bouse are let out to differ- Tresham v. Lamb, 2 Browal, 46. What Passes Undeb. 305 must be supplied to a house, a room, or the like, to make it habitable, convenient or agreeable ; goods, vessels, utensils and other append- ages necessary or convenient for housekeeping; vs^hatever is added to the interior of a house or apartment for use or convenience ; ' and the same definition is applicable to the word as applied to a dwelling- house, office, store, &c., reference being had, in its apjalication, to the nature of the thing demised, the use to which it is to be applied, the social condition of the tenant and all the attendant circumstances, to ascertain the quality and character of the furniture intended to be sup- plied, if any, as well as what is included in .the term in the particular demise, and the rights of parties under a lease, and the effect that is to be given to the language used, so far as the incidents of the estate are concerned, are to be ascertained as well from the language used as from the manner in which the property is occupied. Thus, a tenant of the whole of an upper floor of a building would have an exclusive right to the use of the stairs, as an incident of the estate demised ; but the tenant of one room, or of only a part of an upper floor, would not take such an implied right, because, unless expressly granted, the res- ervation of a right to use the stairs for access to, and the convenient occupancy of, the remaining portion of the upper floor, is implied. So where there are several tenants in a building, entrance to which is ob- tained through a single door and hall, although the lease is silent upon that point, each by implication has, as incident to the estate demised, a right to use the door and hall as a means of access to his part of the building, but no one of the tenants has an exclusive right to such use.^ So where a house is demised bounded upon a public street, tlie lessee, by implication, and as an incident to the estate, acquires an exclusive right to the use of all the lands in front of the house and between it and the street, and an exclusive right, except so far as it is qualified by the right to its reasonable use for the purposes of public travel, to all such land, to the centre of the street, if the title thereto is in his landlord. So where lands bordering on an unnavigable stream are leased, the tenant, in the absence of restrictive word, impliedly takes' to the centre of the stream,' but if the estate borders upon a navigable stream, in which the tide ebbs and flows, he takes only to high water mark, because by law the landlord's title ends there.^ The demise of a " honse" without the use of words to qualify or extend the meaning of the parties, will pass no more land than is necessary ior its complete enjoyment,'' including, however, all the land that is covered by the 1 Bell V. Golding, 27 Ind. 173. < Gould ». R. E. Co., K. T. 522 ; 2 Perry v. Skinner, 116 Mass. 129. Wiswall v. Hall, 3 Paige Ch. (N. Y.) 8 Jacksoni). Lann, 12 John. (N. T.) 313. 252 ; Halsey o. McCormick, 13 N. Y. * Bennett v. Blttle, 4 Eawle (Penn;), 296. 339. 20 306 Leases. building .ind the eaves thereof if the landlord o^TOS the land/ but not adjoining buildings, although necessary, and used with the building." But, as buildings are an incident of land, a lease of land will carry with it all the buildings thereon, whether necessary to its enjoy- ment or not, and, although it describes the premises as a certain farm, and the farm house thereon.' So by the grant of a mill the mill- stones pass, although severed at the time of the grant. So by the grant of a house the doors, windows, sashes, locks, keys, bolts, and all fixtures pass, although not in their proper places ; ' but, generally, unless they have previously been annexed to the freehold, they have not be- come a part thereof, and do not pass. Thus, materials collected for llie ])urpose of building, but which have not been actually used for that purpose, do not pass.^ In determining Avhether or not a chattel is so annexed to the freehold, or has been so annexed thereto as to become a fixture, reference must be had to the nature of the chattel itself, the positioTi to the premises of the party placing it there, and his prohahle intention in doing so,^ and, therefore, is always a matter of evidence.' ^ Slierman ;;. Wilkins, 313 Mass. 481. - OKtlcn r. .Jennings, 62 N. Y. 5.3. •■' flay V. Cumberland, 25 Barb. (N". T. ) 5!14. * C;hanibers, .300. An iron grating it\ front of a city building which protects tlie windows, and admits ligVit and air into tlio basement, is an incident of tlio tenancy of the basement, and necessary to the beneficial enjoyment of it, and if it is obstructed, an action lies in the name of the tenant, therefor. Spies r. Dnmm. .54 How. Pr. (N". Y.) 293. The rule as stated in the text has been adopted in construing and applying a policy of insurance on machinery, and the same rule prevails in the construc- tion of a lease. As to what constitutes r.iarhinery is a question of law for the court, and not a question of fact for the jury. Buchanan o. Exchange Ins. Co., (il N. Y. 26. A policy covering " ma- r!iinery " will be construed to cover all instruments used, or intended to be op- crated exclusively by machinery ^in the business of the assured, and which are so operated from time to time in the regular and ordinary prosecution of the business described or referred to in the policy, although such instruments are not a part of any particular machine, "nut are used in connection with the machinery as occasion requires, in the prosecution of the business. Thus, wh the plaintiffs procured a policy upon " their engine and machinery * * (;)r the manufacture of tin-ware, sheet- iijii, j.appaned ware, and fancy plated ware," it was held that the policy cov- ered dies (642 in number) which were used to give form to various utensils manufactured in the prosecution of the business, although such dies were not a part of any particular machine, and when not in use were deposited upon shelves apart from the machines or presses in which they were used. Sea- vey v. Central M. F. Ins. Co., Ill Mass. 540. So the wheels of a polishing ma- chine, although detached therefrom, are treated as machinery within the mean- ing of tlie term, and generally it may be said that any implement or contrivance used in connection with machinery, al- though not a part of it, in the prosecu- tion of the business, is covered by a policy upon machinery used in that business. Pierce v. George, 108 Mass. 78. In Thropp d. Field, 26 N. .J. L. 82, it was held that where, by the terras of a lease, the landlord is to furnish power for machinery used in a leased build- ing, a blast on the lessor's premises and connected with the machinery is em- braced in the demise. ^ Beard v. Durald, 22 La. An. 284. " Richardson v. Borden, 42 Miss. 71 ; Voorhees v. McGinnls, 48 IST. Y. 278; Piatt V. New Jersey, &c., Arms Co., 14 N. J. L. 395; Perkuis v. Swank, 43 Miss. 349; Brown v. Lillie, 6 ISTev. 244. Whether the thing claimed as appurte- n ant be parcel or not, and the intention of the parties, are the rules by which to judge in such cases. Bryan v. Weather- head, Cro. Car. 17. ' Doe 1). Burt, 1 T. R. 700. What Passes Under. 307 A demise of premises described as premises "late in the occupation of A," part of which is a yard, will not pass a cellar under that ). ard, which was then in the occupancy of B, another tenant of the lessor ; because, although prima facicB, the property in the cellar would pass by the demise, yet, the demise is liable to be regulated and explained by circumstances showing the situation of the pi-emises and the parties at the time when it was made.^ A person may demise a farm, which may comprehend a messuage, and all the land and buildings connected or used therewith, and this, even though the land is detached and con- sists of several parcels not adjoining. Thus, if A lets to B a farm, as follows : " My farm situate in, &c.," this will pass all the land, where- cver situated in the town named, occupied and used by A at the time ^vhen the lease was made, as a part of his farm. The word farm properly signifies a capital or principal messuage, and a quantity of land thereto appertaining.^ So, by the name of messuage,^ only the dwelling-house and outhouses immediately adjoining ; and the orchard, garden or cur- tilage, a dove house, and a shop or mill, lying near and usxcally enjoyed with the messuage, will pass,* or anything that would ordinarily pass by that name.^ By the demise of a dwelling-house, together with all the rooms and chambers thereto belonging or appertaining, is to be understood only lohathas been occupied together as the entire dwelling- house at one time. Where, therefore, the lease was of a house, with all rooms and chambers thereto belonging and appertaining, it was held not to comprehend a room which had been separated from it by means of a partition, and had not been occupied with it for many years previous to the demise.' A lease of a " dwelling-house " or other '■'■bxnlding^'' carries with it the land under the eaves and projections, if 1 Doe V. Burt, 1 T. E. VOL and it is said tliat a grant of a cottage ^Sliep. Touch. 9.S; Portman v. Mill, 3 may include a curtilage and a garden. Jur. 356; Goodtitle v. Paul, 2 Burr. Finlay's L. &T. 31. A cotta.r/e was form- 1089; Goodtitle v. Southern, 1 M. & S. erly regarded as a nest for idle persons, 298. thieves, stealers of wood, (fee, and so * There is no distinction between a prejudicial to public morals, that, by the messuage and a dwelling-house, and statute 13 Eliz., chap. 7, their erection whatc^'er will pass by the use of the term v,as prohibited, unlessybw?- acres of land messuage will also pass by the use of the were annexed to, to be used with it, and word dwelling-house. Uoe v. Collins, heavy penalties were provided for a vio- 2 T. R. 498. lation of the statute. So by the same * Smithson v. Cage, Cro. Jac. 526; statute the occupancy of a cottage by Shep. Touch. 112; Norton v. Webster, more than ojie family was prohibited. 12 Ad. & El. 442; Cole v. West London, Prior to that statute, the legal significa- &c., Co., 27 Beav. 242. tion of the term was "a little house or ' Grosvenor B. Hampstead, &c., R. R. habitation witliout any land belonging Co., 1 DeG. & J. 446; Steele v. Mid- to it," but after the statute came into land, &c., E. E. Co., L. R. 1 Ch. App. force, its legal sense was, a small house 275; Hunson ti. South-Wostern R. Co., 8 with four acres of land belonging there- W. R. 467, including a cellar, chamber, a to. Wood's Inst. 468. Hence arises the cottage or taft. Shep. Touch. 94. A distinction between the incidents of curtilage is defined to be a little the demise of a cottage and a dwelling- garden yard, field, or piece of void house, ground, lying near a dwelling-house, ^ 2 Starkle's Nisi Prius. 308 Leases. the land is owned by the lessor/ upon the principle that a gi-ant of the principal carries all the incidents by implication, whether they are named or the word appurtenances is used or not, unless expressly re- served.^ Where a tenant has previously occupied the premises under a lease from the lessor for the same purposes, and with same privileges, demised to him by the new lease, the character of his former occupancy may be shown, for the pui-pose of determining whether a certain privilege passes as an incident of the grant. Thus, where a landlord leased by indenture to his tenant a portion of a building, a part of which was occupied by himself, and in which was a steam engine, and agreed to give to the lessee one-half of the steam power ; and it appeared that the tenant had occupied the same premises previously, under Avritten and oral leases, and had used the exhaust steam from the engine, by means of a pipe connected with the exhaust pipe to a steamer, used in and necessary for carrying on his business, and was so using it when the lease was executed ; it was held, in an action against the lessor for cutting away this pipe, and depriving the lessee of the exhaust steam, that the right to use such steam passed to the lessee as an " appur- tenant." ' Where a lease is made of certain lands, "being all that part of the park called B, situate and being in the county of O, and now in the occupation of S," lying within certain specified abuttals, " with all houses, &c., now in the occupation of S," a house within the abuttals, but not in the occupation of S, passes under the lease ; * but, where lands are described generally, as being in the possession of a certain person, and there is no other or more particular description, no more of the premises will pass than wei'e in such person's possession, although a part, not in his possession, had, from time out of mind, been parcel of the land.^ But, under such a description, land and houses will pass, although at the time when the lease was made a part of the premises were in the possession oi an under-tenant, under the person in whose iSlierinan v. Williams, 113 Mass. 481, (N. Y.) Pr. N. S. .311, and a\\ necessary and if the lessor consents to the erec- casements, such as rights of way, Breed tion of a wall thereon , or any use there- v. Cunningham, 2 Gal. ."131; Grant v. of by another, it is a breach of the cov- Chase, 17 Mass. 443; Walker v. Pierce, enant for quiet enjoyment. Id. 38 Vt. 94 ; Brown v. Thissell. Cush. 2 Skull V. Glenister, 16 C. B.N. S. (M.ass.) 254, and all other necessary iu- 61; Road b. N. Y., i&c, R. R. Co., 18 cidenls, as a right against the lessor to Barb. (N". Y. ) 80 ; Pattlson v. Hull, 9 have the light and air come through a Cow. (N. Y. ) 747. Thus all deeds, war- certain window which was unobstructed ratities, covenants and muniments of when the lease was made. Doyle ». title. Redwine u. Brown. 10 G-a. 311, Lord, 64 N. Y. 4:32. See Bean v. Cole- unaccrued rents, and incomes not dis- man, 44 ISf. H. 439, as to what passes as connected from the estate so as to be- an incident to the grant of an easement, come personalty, and all remedies to re- ^ Thomas v. Wiggers, 41 111. 471. Cover the same, pass under a convey- ' Jack v. Mclntyre, 12 CI. & F. 151 ; ance of the land, Winslow ji. Rand, 29 Hay v. Cumberland, 25 Barb. (K. Y.) Me. 362 ; Van Wagner b. Van Nostrand, 504. 19 Iowa, 422 ; Roberts v. Levy, 3 Abb. ' Bartlett b. Wright, Cro, Eliz. 299. What Passes Under. 309 possession the premises are described as being.' The fact that in a lease of a farm or of land generally certain buildings are specified, does not exclude from the lease other buildings upon the premises leased, but not named therein.^ Parol evidence is not admissible to show that land which, according to the description of the boundaries in the lease, is included in the demise, is not so in point of fact.' There are some woi'ds which signify more than at first sight they seem to import. By the demise of a house, for instance, a garden will pass, as it is con- sidered to be parcel of a house. So, a demise of a house, together with a garden and shed or privy at the further end thereof, passes the use of all the garden, and not the use only to pass to the shed or privy ; and, therefore, the lessor cannot build on part of the garden.* Improve- ments of, and additional buildings on, the premises instantly become parcel of the property demised.* Generally speaking, a demise of the use of a thing is a demise of the thing itself; but where certain parts of a house, divided from a portion occupied by the lessor, were leased by him with cei-tain easements belonging to the same ; with a covenant, during the term, to permit the lessee to have free ingress, &c., through the gate at the bottom of the yard, and the use of the pump in the said yard jointly with the lessor, while the same should remain there, paying half the expenses of keeping it in repair ; it was held, ' In Burton d. Brown, Cro. Jac. 643, a or in any manner belonging," will not piece of ground, or a garden plot, was pass land at a distance, though used and let to one Juxon, who assigned it to occupied by the grantor or testator with one Ireland who built two houses upon the lease. Heam v. AUeji, Cro. Car. 57. a part of it, leaving the rest as a garden. But the question as to what shall be The landlord subsequently leased the said to pass under such general terms as premises to the plaintiff, describing them " house" or " messuage " is purely one of as "all that garden plot or piece of intention to be collected, as in other cases ground late in the tenure of Juxon and of intention, from the whole instrument., now in the tenure or occupation of Gulliver ». Poyntz, o Wils. 141. '\Vhere Ireland." The court held that all the a testator being tenant for years of a garden plot, Ss it was in the tenure of house, gardens, stables and coal bin,- Juxon, although it was afterwards bequeathed them as follows : "I give built upon, passed under the lease, for the house I live in and garden to B," it the lessor did not take knowledge of was held that the stables and coal bin what was done by an assignee, and occupied by the testator, together with therefore, by intendment, leased it as the house, passed, though not expressly entirely as he first demised it to Juxon, named, and although the testator used and therefore that all the lands and the them for the purposes of trade, as well two houses *ere included in the lease. - as for the convenience of his house. 2 Hay 15. Cumberland, 25 Barb. (N. Y. ) Clements b. Collins, ante; Doe v. Mar- 594. tin, 2 Bl. 1148. But, unless it clearly ' Shee V. Burtchell, Arms, Mac. & Og. appears that the testator or grantor in- 95; Birch 0. Stephenson, 3 Taunt. 469. tended to extend the word " appurte- ■• Kidder v. West, 3 Lev. 167 ; Smith nances " beyond its technical sense, lands n. Martin, 2 Saund. 400 ; Bettisworth's usually occupied with a house will not Case, 2 Co. 32, a; Co. Lit. 5 6. A passunder a devise or demise of a house garden is parcel of a house, and will " with the appurtenances." Buck v. pass by grant either with or without the Norton, 1 B. & P. .'53; Dell v. Pigott, 1 useof the word " appurtenances." Shep. Moore, 274; Belaryse u. Lucan, 9 East, Touch. 94; Clements v. Collins, 2 T. E. 458. 502. But a demise or devise of a * Hoby v. Koebuck, 7 Taunt. 157 ; house "with the appurtenances thereti, S. C. 2 Marsh. 433. 310 Leases. that an action would not lie against the les6or for removing the pump, however capricious or unreasonable his motive might be for doing so ; for the pump itself was not a specific subject of the demise, and the words " whilst the same should remain there " gave the lessor an option of removing it ; nor did the court think such a construction inconsistent with the provision that the lessee should bear a moiety of the charge for repairs.^ A lease of the products of land will sometimes pass the land itself, as a lease of "the issues and profits."^ So a grant of a forest, chase, or warren, carries the land with it.^ So, by the custom of tlie country, the soil may pass with the grant of a sheep-ivalk, or a fold course.'' So, the lease of a fishery of a pond, with the spear sedge and the flags and rushes growing in and about the same, has been held to pass the soil.'^ Appurtenances. — 'What pass as. Sec. 213. The word " appurtenances " so generally used in deeds and leases, is derived from the French word appartenir, to belong to, and signifies anything corporeal or incorporeal that is an incident of, and belongs to some other thing as principal. It was foi-merly thought that this word was of great importance in a conveyance, and that, 'without its use, the principal, only, would pass ; but, latterly, it has been held that its presence or absence in a deed or lease will not materially affect the grant, and that, as well without as with it, everything that apypevr tains or belongs to the principal will pass," and the true test as to 1 Rhodes v. Bullard, 7 East, 116; mesne laud passes ; l)iit notliing but the Pomfret v. Ricroft, 1 Saund. 321. manor place passes when the words are, ^ " Because," as the courts say, " to " with all the lands appertaiuiug to the have the profits of land, is the same said site." So. an advowson appendant thins iis to have the land itself." Par- to a manor will pass under a demise of ker V. Plummer, Cro. Eliz. 190. a manor, with the appurtenances. ^ "Unless the soil and tlie privilege Higgins v. Grant, Cro. Eliz. 18; Hurle- have been disconnected so that the title ston t. Woodrosse. Cro. Jac. 519. 18 not in the grantor. Cromwell's Case, Though by the demise of a prebend, to- Dyer, 169 6. gether with all commodities, emolu- * Huddlestone v. Woodrosse, 2 Eolle, ments, profits, and advantages, with the 01. appurtenances, an advowson belonging ° Rex V. Old Arlesford, 1 T. R. .558. to tlie prebend will not pass, as the " Ogden V. Jennings, 62 N". Y. 526; wordscommodities, emoluments, profits, Pyer v. Carter, 1 11. & N. 916 ; and advantages, imply thhigs gainful, Pearson v. Spencer ; Worthington v. "\Vhich are contrary to ithe nature of an Gimson, 2 E. & E. 018; Poklen v. Bast- advowson generally. London v. The ard, 4 B. & S. 2.53. Yet, it is a word of Chapter of the Virgin St. Mary of South- large signification, and it would be im- well, Hob. o03. It is observable, that practicable to omit it from a grant, as it the court made no allusion to the effect may sometimes be regarded as showing of the word " appurtenances." A way an intention to extend and enlarge its not strictly appurtenant will not pass by meaning and scope beyond its usual the words " with all ways, roads, rights signification. Higgins v. Grant, Cro. of road, paths, passages, &c., to the Eliz. 18 ; Hurleston v. Woodrosse, Cro. premises belonging, or in anywise ap- Jac. 579 ; Anonymous, Owen, 31. In pertaining " unless the parties appear the case last cited, it was held that by a to have intended to use those words in lease of a manor, " with all the lands to a sense larger than their ordinary legal the said manor appurtenant," the de- import. Barlow v. Rhodes, 1 Crompt. Appuetenances. 311 whether a thing is an incident or appurtenance, seems to be the pro- priety of relation between the principal and the adjunct, wliich is to be ascertained by considering whether they agree in nature and quality, so as to he capable of union, loithout incongruity,'^ and is actually and directly necessary to the full enjoyment of the property. " Upon the grant of a mill, every right necessary to its free and full enjoyment, jiassea as an incident of the grant, and the necessity measures the extent and duration of the right. When the necessity ceases, the rights resulting from it cease. A mere convenience is not sufficient to convey a right or easement, or impose burdens upon land other than those granted as incident to the o-raut." ^ & Mees. 439; see also HincliclifEe v. Earl of Kinnoul, 5 Bing. N. C. 1. Hence it lias become usual to insert the words " tlierewitli used and enjoyed," Morris ». Edgiiigton, 3 Taunt. 27 ; Bar- low V. Rhodes, 1 Cr. & M. 439, which, according to Kooystra v. Lucas, 5 B. & Aid. 830; Harding v. Wilson, 2 B. & C. 96, would pass a right of way used, at the time of granting the lease, with any part of the demised premises. The word belonging " is construed as having the same sense as the word " appertaining" when it immediately precedes or follows it. Barlow ». Rhodes, 1 C. E. & M. 439, 445. But where a lease was made of a building, with all the rooms and chamb- ers, with the appurtenances belonging, or in anywise appertaining thereto, it was held, that a room formerly occupied with the rest of the house, and with which it had communicated by means of a door, but which communication had been stopped by a wooden partition for many years before the time of the demise, did not pass. Kerslake v. White, 2 Stark. 508 ; "Pattison ti. Hall, 9 Cow. (N. Y.) 747; Rood v. N. T. & Eiie E. E. Co., 18 Barb. (N. T.) 80. 11 Inst. 121 b. (7); 1 id. 207, (17). The word "appurtenances" will pass only things which have been used together with the house or land demised, or which are reputed or accepted as parcel tliereof. Smith v. Ridgoway, 4 H. & C. 37; Bryan v. Weatherhead, Cro. Car. 17; Maitland v. Mackinnon, 1 H. & C. 607. But the mere fact that a thing, as a stable, which has no open communication with any other premises, has been used in connection with certain premises for a great number of years, does not necessarily make it a part of the premises so as to pass as an appurte- nance, nor under the words "stables belonging." In order to have that effect, it must distinctly appear that the stables are parcel of the estate. PoL- I OCK, C. B., in Maitland v. Mac- kinnon, ante. Laud cannot be appur- tenant to a building, in the strict sense of the term, but the woi'd appUrtenanct! may, iir some cases, when used in a de- vise or lease, be read as "usually held, usually occupied or enjoyed there- with," when necessary to cany the in- tention of the parties into effect. Hill D. Grange, Plow. 170: Morris ■«. Edijiiig- ton, ante; James c. Plant, ante; 1 Shep. Touch. 94; Ongley v. Chambers, 1 Bing. 483. In Higham v. Baker, Ci-o. Eliz. 16, AndeksoV says: "That land shall pass as pertaining to a house which has been occupied with it for the space of ten or twelve years, /or by that tinif it has gained the name of parcel or be- longing, and shall pass with the house by that name in a will or lease." See, also, Norton v. Webster, 12 Ad. & El. 442. But where there is any restrictimi of the application of the general words, the rule is otherwise. Meyrick u. Mey- rick, 2 C. & .J. 283; Gore v. Langtoii.'l! B. & Ad. 680. Really, whether or not,, anything is an appurtenance, is a niatlcr of evidence. Clement v. Burt, 1 T. II. 704. So, a house, a curtilage, and a garden; may pass as appurtenant. Bettis- worth's Case, 2 Coke, 32 a., or a right of turbary, Salme v. Bullock, 3 Lev. 165, but, generally, land will not. Hearii i\ Allen, Cro. Car. 57; Buck v. Norton, 1 B. & P. 53. With land, a sheep-walk, Hurleston v. Woodrosse, Cro. .lac. 519, aright of way, &c., Morris v. Edgington, 3 Taunt. 30; Harding v. Wilson, 2 B. & 0. 96; Hinchcliife v. Kinnoul, 5 Bing. N. C. 1; Skull V. Glennister, 16 C. B. N. S. 81, but not an easement that lias be- come extinct or which does not exist in point of law, by reason of unity of ownership. Plant v. James, 5 B. & Ad. 794; Barlow d. Rhodes, 1 Cr. & M. 439; Grymes v. Peacock, 1 Bulstr. 17; Clem- ents V. Lambert, 1 Taunt. 205; Saunders V. Oleife, Moo. 467. 2 Ai.LKN, J., in Ogden r. Jennings, 62 N. Y. 531; Holmes v. Seeley, 19 Wend. 312 Leases. A demise of a house and garden described the premises by bound- aries which strictly would include a portion of a piece of ground at right of common cannot be appendant to a church or chapel, for they are of several natures, and so, generally, as stated in the text, there can be no ap- purtenance to a thing unless the thing and the appurtenance agree in nature and quality; and not only must they agree in quality and nature, but there must also be a necessity for the appur- tenance, to the comfortable or proper enjoyment of the premises granted, and they must also be connected with each other. The fact that a certain thing is jiecessary to the full enjoyment of the premises, arid has always been used as a part of them, will not make it an ap- purtenance to the premises, unless it is parcel thereof. Thus, in Ogden v. Jennings, 62 N". Y. 526, which is a well considered case, an action of trespass was brought against the defendants for tearing down a fence, under the circumstances hereafter detailed. The defendants set up title to the locus in quo, in the trustees and inhabitants of School District No. 14, in the town of Virgil, and that they entered and tore down the fence by order of one of the trustees. It appeared that prior to 1839, the school-house had been erected, adjoining a highway. A rail fence had been constructed, commencing on the line of the highway, thirty-five rods north of the school and gradually di- verging from the high"way, passing in the rear of the school-house to a point ten rods south of the school-house. At the north end of the school-house this fence was thirty-two feet distant from the line of the highway. This strip of land between the highway and the fence "was unenclosed. In 1839, one Jennings, who owned the land, executed to the trustees of the district a lease, a perpetual lease, of " all that certain piece or parcel of land, situate and being on lot 597, in the town of Virgil, and on the ground now occupied liy the present school-disti'ict, for the sole and express purpose of a school-house, to have and to hold the said piece or parcel of lanil unto the said trustees." etc. In 1864, plaintiff, owning the adjoining land, and claiming to own the unin- closed strip north of the school-house, built a fence along the line of the high- way to near the north line of the school- house, and from that point to the old ' fence. The defendants, inhabitants of the district, by the direction of one of the trustees, tore down this fence, which was the trespass complained ot, (N". Y. ) 507; Nicholas v. Charuberlain, Cro. Jac. 121; Pierce v. Sellick, 18 C. B. 321 ; Oakley u. Stanley, 5 Wend. (N. Y.) 523; Voohees v. Burchaud, 55 N. Y. 98; Tabor v. Bradley, 18 id. 109; Wilson v. Hunter, 14 Wis. 683. In Tyrringham's (;ase, 4 Coke, 37 '(., the rule in such eases was aptly expressed in the first res(j|iition of the coiirt, that " prescrip- tion doth not make a thing appendant, unless the thinj which shall be append- ant a-jrees in quality and nature to the Ui.uvi to which it shall be appendant, as a thing corporate cannot be appendant to ;i thin^ corporate." Hill's Case, Plowd. 16S ((. And, under this rule, land can- not be appendant to land, or meadow, to a messuage. Rolle's Abr. 230; Cole o. Haynes, 22 Vt. 588; Smith v. Martin, 3 Saund. 400; Ogden v. Jennings, ante. Neither can a meadow be appurtenant (o a pasture, Comyn's Dig. tit. Append- ant, (C. ); Rolle's Abr. 2.30, nor a past- ure to a wood or forest. Id. But a thing incorporate, as an advowson, may be appurtenant to a thing corporate, as, to a manor, but it is appendant to the demesnes of the manor, and not to the rent or service. Dyer, 70 b. ; Comyn's Dig. tit. Appendant, B. 1, 3, and a thing corporate may be appurtenant to a thing incorporate. Viner's Abr. tit. Append- ant (B. ) pi. S. Thus, if a grant is made of an office, to which a house or lands belong, the house or lands pass with the office. 1 Inst. 49 a. ; 2 id. 354; Comyn's Digest, Appendant (B. ); Viner's Abr. Appendant B. pi. 8. But from this, it must not be understood that everything incorporate can be appendant to a thing corporate. Thus, common of turbary, (the right of digging turf from a com- mon, or another's land,) cannot be ap- pendant to land, but only to a house, "for," say the court, iti Tyrringham's Case, 4 Coke, 37 a., " the thing which is appendant ought to agree with the nature and quality of the thing to which i: is appendant, and tnrf a,re to be spent in an house," and not upon land, Wil- son 0. Willis. 7 East, 124; Comyn's Di- ges;. Appendant (B. ), 1; 2 Chitty's Pleading, .'iiU n., and is confined to such a quantity, as is sufficient for the house to which the I'ight is appendant, and it cannot be dug for sale, Valentine «. Penny, Noy. 145, or to repair banks, Wilson V. Willis, ante, or for making gi-ass plots, Wilson v. Willis, ante; and by a grant of a house to which a right of turbary is annexed, the turbary passes. Bacon's Abr. Common, (A). A Appurtenances. 313 the back and adjoining the garden, which was laid out as a common walk for a row of houses ; it was held, that this portion of the com- It appeared by the evidence that the school children had been in the habit of using the unenclosed strip, or portions thereof, as a play-ground. The court charged the jury, in substance, that it was for them to determine whether the locus in quo was intended to be con- veyed, or was conveyed, as a necessary incident to the conveyance f)f the site of the school-house. That, if the property was necessary to the ordinary and rational use of the property actually conveyed, and is clearly within the de- sci-iption, then it went with it and be- longs to the school-house. The court declined to instruct the jury, as a matter of law, that the conveyance passed only the land on which the school-house stood, and the other buildings belonging thereto, and not the land in quo, or the use of it as a play-ground. The defend- ants had a verdict, which was sustained in consequence of the plaintiff's title, under the evidence, being insufficient to enable him to maintain the action. Otherwise the judgment would have been reversed, as is evident from the opinion of Allen, J., the portion of which bearing iipon this question is subjoined. He said: "If this play- ground loas not included within the de- scription of the premises granted, the grant could notbe enlarged by the neces- sities, actual or supposed, of the grantee. It is urged that if the reasonable necessi- ty of these grounds was established, the case would be within the familiar rule, that by the grant or demise of a hoiise or messuage, without further descrip- tion, the curtilage and garden belonging tt) it passes with it as part and parcel of it, and as embraced within the more worthy name of the principal thing granted or demised. But only the garden, curtilage and close, adjoining to the house, and on which the house is built, passes under the general descrip- tion. Other lands, although' occupied with the house, will not pass except par- ticularly described. Smith v. Martin, 2 Saund. 400, and n. 2. A devise of a house, with its appurtenances or lands appertaining thereto, may have a more extensive effect and carry other land, depending upon the intent of the testa- tor, as manifested by the entire will. Blackburn v. Edgley, 1 P. Wm. 600; Doe V. Collins, 2 T. E. 498; Buck v. Newton, IB. & P. 53; Bodenham v. Pritchard, 1 B. & C. 350. In a grant or demise, the addition of the word " ap- purtena;ices " will not vary the effect of the grant or extend it so as to include other lands not parcel of the house and close mentioned. Bettisworth's Case, 2 Coke, 610. The rule stated does not result from the necessity of a garden or curtilage to the reasonable occupation and enjoyment of the house, but from the fact that they are regarded as in fact and in law parcel of it, and as technically within the grant and the description of the thing granted. If a grant is made of a house, and there is no garden, curtilage, or close, annexed to and a part of it, the grantee cannot claim, as incident to the grant, a garden and curtilage, such as twelve men may say is reasonably necessary to the proper occupation and enjoyment of the house as a dwelling. Whether a garden is or is not necessary to a dwelling is wholly inmiaterial in interpreting and giving effect to a grant of the messuage, and determining what lands pass by the con- veyance. So liere, whether any or what extent of play-ground was convenient ornecessary in connection with a school- house, was entirely immaterial in con- struing and determining the boundaj-ies of the grant. It is also urged that, by reason of the reasonable necessity for these lands as a play-ground for the pupift, the title passed as " appur- tenant," and under the clause " cum pertinantes," in the deed; and the cases in which easements " of necessity "have been sustained, are referred to by the court below, and the learned counsel for the respondents. The principle was carried in this case beyond the creation of a mere easement, and was made to 'effect a change of title to lands other than those included within the grant. It is well settled that, in a deed, the word appurtenances will not pass any corporeal real property, or title to lands, but merely incorporeal easements, or rights and privileges. It cannot include a strip of land adjacent to that granted. A title to land will not pass by implica- tion, .lackson v. Striker, 1 John. (N. Y.) Ch. 284; Jackson v. Hathaway, 15 John. (N. Y.) 447; Buszard v. Chapel, 8 B. & C. 141 ; S. C. 6 Bing. 150. The necessity of a proper head of water for the profitable operation of a mill, a mill- yard to a saw-mill, of a way of access in order to the occupation of any granted premises, is palpable, but the necessity of a play-ground or an open court, ex- cept for light and air, about a school- house, is not apparent. There was no evidence that appurtenances of that 314 Leases. mon walk was included in the i)remises demised, though by the lease a right was granted to the lessee of the use of the whole of the common walk.i The demise of a house "with the appurtenances" will pass the house, with the orchards, yards and curtilage and gardens, but not the laud , especially if it be at a distance, though occupied with the house : so the demise of a house " and the apjDurtenances " will not pass an adjoining building not accounted parcel of the house, although held with it for thirty years.^ So a stable wall not pass under the renewed lease of a messuage with the appurtenances, which was 'not originally demised therewith and actually forms no part thereof.^ In one case it was held, that a grant of a house with the appurtenances would pass l.;ud tliat was occupied with the house ; it should not, however, be overlooked that the point arose on a special verdict, in which the house and land were found to be all one* Generally speaking, land will not pass as appurtenant to a house, but it may sometimes do so, to effect- uate the obvious intention of the parties.^ Whether the thing claimed as ajipurtenant is a part of the premises or not must be gathered from the evidence : thus, where there is a conveyance in general terms of all that acre called Blackacre, everything which belongs to Blackaci'e passes with it ; but whether parcel or not of the thing demised is always mat- ter of evidence: '^ so a demise of premises, late in the occupation of A (particularly desoribina; them), part of which was a yard, was held not to pass a cellar situate under trie yard, whiclj was then occupied by B, another tenant of the lessor; for though prima facie the pro])erty in the cellar would pass by the demise, yet that might be regulated and ex- plained by circumstances.' Under a demise of a building, with all rooms and chambers, and the appurtenance? thereto belonging, is to be understood all that is occupied together as an entire building at character were either usual or necessary such an adjunct, and it would require for any purpose connected with the very cogent evidence to establish a right proper conduct of the school, or to the to such grounds, as passing by implica- health or welfare of the children. That tion, and as an incident to a conveyance such appendages are not a universal of a school-house." necessity is very evident. Indeed, there i Curling v. Mills, 6 M. & G. 173. was no evidence that a space for a play- ^ Bryan ^. Wetherhead, Cro. Car. 17. ground was even a convenience for any » Maitland v. Macldnnin, 1 H. & C. proper school purpose. It, doubtless, 607. may be a source of pleasure to the * Gennings ». Lake, Cro. Car. 1(19. children, but that will not suffice to ^ gill d. Grange, Dyer, 130 b ; Uaude- create an easement by implication, or as ley v. Brook, Cro. Jac. 189 ; Hearn appurtenant to the granted lands. The v. Allen, Cro. Car. 57 ; Walker b. law will not imply that a space of Walker, 3 B. & P. 37-5 : Buck d. Whal- ground set apart for the exercise and ley v. Nurton, 1 B. & P. 53, cited 5 C. diversion of the children, is a necessity B. N. S. 463. There are cases both for a country school-house, or that for ways, per Wili,iams, J., 7 C. B. 714. all recognized school purposes the ^ Cole Ejec. 240. district may not have and enjoy the ' Freelaud v. Burt, 1 T. E. 701 ; Press school-house and premises fully without v. Parker, 2 Bing. 456. Appurtenances, 315 one and the same time ; therefore, such a demise will not comprehend ji room which had once formed Tp&vt of the building, hut which had been sejjarated from it by means of a wooden partition, and had not been occupied with it for many years previously to the demise.^ A right of way or other easement (as to cut turf, &c.), will pass by a demise with the appurtenances.^ Where premises are gi-anted or leased,'* with windows opening out upon a vacant lot detached from 1 Kerslake v. White, 2 Stark. 508. 2 Dobbyn «. Somers, 18 Ir. C. L. 293 ; Skxill V. Glenister, 10 C. B. N. S. 81. 8 Myers v. Gemmel, 10 Barb. (IST. T.) 5.37 ; Mullen b. Strickler, 19 Ohio St. 135; Wood on Nuisances, p. 153, et seq. There are instances in which a" right to have the light and air enter the windows of a building over an adjoining lot, may exist : llrst. by express grant, Hills v. Miller, 3 Paige's Ch. (N. Y.) 254; West- urn V. McDermott, 1 L. E. (Eq. Ca.) 499; Jones v. Jenkins, 34 Md. 1; Thurs- ton V. Mink, 32 id. 487 ; Brooks v. Rey- nolds, 106 Mass. 31 ; Morrison v. Mar- quardt, 24 Iowa, 35 ; Boyce v. Guggen- heim, 106 Mass. 201 ; United States v. Appleton, 1 Sumn. (U. S.) 492 ; Kent's Com., vol. 3, p. 448, and secondly, by implied grant. Thurston v. Mink, 32 Md. 487; Jones v. Jenkins, 34 id. 1 ; Lamp- man V. Wilks, 21 K. Y. 505 ; Oregon Iron Co. V. Trullinger, 3 Oregon, 1 ; Stoiy V. Odin, 12 Mass. 157 ; Morrison r. Marquardt, 24 Iowa, 35. Where a landowner erects a house with windows opening upon the portion of his lot ad- joining, and sells the house and the lot upon which it stands, and by the terms of the conveyance covenants not to make any erection upon the adjoining lot tliat will hide either the light or (jrospect, this will create a right in the owner of the house and his grantees against the grantor and his grantees to such light and prospect, and any in- fringement thereof would be a nuisance. Hills r. Miller, 3 Paige's Ch. (N. Y.) 254. So, too, when the grant by fair construction can be extended to cover such rights. In Hills b. Miller, ante, the plaintiff i^urchased of the defendant a part of a village lot of four acres in the village of Auburn, and erected a valuable dwelling-house thereon. The defendant Miller retained the balance of the lot. Miller purchased the premises cf one Bostwick, and at the time of the ciiUA'cyance to Miller, Bostwick agreed with him that no building should ever Yh: erected upon a small triangTilar piece of land owned by him on the east side of Hotel street, at the junction of that ami South street, and directly opposite the lot conveyed, and executed a bond to Miller with a penalty, for the faith- ful performance of the agreement. Mil- ler caused both the deed and bond to be recorded, and afterward sold a part of the premises to the plaintiff, infonning him, before the I'urchase, of the exist- ence of the bond and its provisions. Eight years after the purchase by the plaintiff, the defendant, and the execu- tors of Bostwick's estate, gave a quit- claim deed of this triangular piece of land to the Baptist Chui-ch and Society, who proceeded to extend their cliui'cli over the same. Walwouth, C, in dis- posing of the question, held that the ex- ecution of the bond at the same time the deed was executed was, to all in- tents and purposes, one transaction, and had the same effect as though expressed in the same conveyance, and, that there- by a servitude was imposed upon the triangular strip of land, which inured to the benefit of any purchaser under Mil- ler's title, and that this servitude could not be removed by Miller, as against liis grantees. Easements to light, by im- plied grant, may be acquired, but the doctrine, in the different Slates, seems to be very conflicting. In some States the right is wholly denied, Mullen b. Strickler, 19 Ohio St. 135, while in oth- ers it is made to depend upon tlje ques- tion of necessity, Oregon Iron Co. v. Trullinger, 3 Oregon, 1 ; Morrison v. Marquai-dt, 24 Iowa, 35 ; Lampman v. Milks, 21 N. Y. 505 ; Story v. Odin, 12 Mass. 157, and in none of them is the right upheld as a mere convenience of the granted premises. Washburn on Easements, 618. The weight of aufjior- ity would seem to support the doctrine, that, where A, being the owner of land, erects a house thereon with windows opening upon his vacant land adjoining, and sells the house, reserving the ad- joining lot, that this does not create an easement in the purchaser of the house to have the light and air come through those windows, unless the easement is necessary to supply the building with light, and to its comfortable enjoy- ment. Currier's Co. o. Corbet, 2 D. & S. 360; Biddle b. Ash, 2 Ashm. (Penn.) 316 Leases. the premises, a grant of the right to have the light and air enter the premises through them, is not implied ; but it has recently been held 211; Booth V. Alcock, 8 L. R. (Eq. Ca.) 663 ; Durel v. Boisblauc, 1 La. An. 407 ; Jackson v. Duke of Granville, 3 DeG. J. & S. 275. The groiuid upon which this easement by implied grant is pred- icated, is analogous to that by which a right of way by necessity is created. If there is no other mode of supplying light to the building, as constructed by the vendor, e.vcept through those win- dows, aiul it is essential to its reason- able enjoyment that the light and air should come through them over the ad- joining lot, the law will raise an ease- ment to that extent in favor of the grantee of the house, against the grant- or and his assigns. U. S. v. Appleton, 1 Sumner (U. S.), 492. So, too, where from a fair construction of the grant, sucli an easement can he implied, the law will sustaiu it as incident to the land, but the mere fact that the grantor of premises is also the owner of the ad- jacent land ui:)on which the windows of ■ the granted premises open, is not, of it- self, sufficient to create or uphold such an easement, unless it is necessary to the comfortable and reasonable enjoy- ment of the premises. Paine o. Barton, 4 Allen (Mass.), 169 ; Brooks b. Rey- nolds, 106 Mass. 31 ; Carrig v. Dee, 14 Gray (Mass.), 583 ; Curry ». Stein, 11 Md. 1 ;, jSTapier v. Bulwinkle, 5 Rich. (S. C. ) 311 ; Lampmau v. Milks, 21 N. Y. 505 ; Biddle i;. Ash, 2 Ashm. (Penn.) 211. As to what language or condition of things will raise such an easement by implication, mtist necessarily depend upon the circumstances of each case. In CoUier v. Pierce, 7 Gray (Mass.), 18, the premises of the plaintiff and defend- ant wei'e sold at auction the same day. The plaintiff's lot was bid off first, and his deed was prior in point of time to that of the defendant. The piece pur- chased by the plaintiff had a house up- on it, with windows opening upon the lot purchased by the defendant, and re- ceived light and air over that lot. There was no reservation of, or reference to, light and air in either conveyance. The defendant darkened, the plaintiff's win- dows. In an action therefor the court held that the sale by auction could not be treated as a grant by a proprietor of a part of his estate, retaining to himself another part, but was rather in the na- ture of a partition, and, as it did not ap- pear that the light through the windotos in quesiionwas necessary to the conven- ient enjoyment of the plaintiff's prem- ises, the easement could not be regarded as ijassing by construction. See Royce V. Guggenheim, 106 Mass. 201. In Myers v. Gemmel, 10 Barb. (N". T.) 537, the defendant leased to the plaintiff a dwelling-house opening out upon a va- cant lot, also belonging to him, over which tlie light and air had been accus- tomed to come to the house. Wliile the tenant was in possession of the prem- ises, the defendant erected a building upon this vacant lot, occupying the whole space between the lot and the dwelling, and darkening all the windows on that side of the house. The court held that this was not an actionable in- jury, and was not in derogation of the defendant's grant, because the law does not attach a right of enjoyment of light as an incident to the occupation of a house, unless it exists in the form of dedication to groups or collections of houses so as to partake of the nature of a public easement. But the court inti- mate tliat if houses were erected around a court, with an open space for light and air, with a common entrance, and open for all the tenants, that this would be held as a dedication for tire benefit of all the tenants. In Maynard v. Eshler, 17 Penn. St. 222, the court held that where two estates are conveyed at the same time, to different purchasers, no easement is acquired in favor of either estate for the passage of light and air ; but, that a person selling a house which opens out upon a vacant lot, also be- longing to him, would be estopped from making an erection upon the lot that would obstruct the passage of light and air to the dwelling. In Morrison ■ v. Marquardt, 24 Iowa, 35, the court held that an easement of this character can- not be imposed upon an adjoining lot of the grantor by implication. That in or- der to set up such an easement, it must arise from express grant, yet, the court intimated that a condition of things might exist, from which such an ease- ment might be implied. In Mullen v. Strickler, 19 Ohio St. 135, the plaintiff and defendant were the owners of ad- joining houses separated by a naiTow strip of land five feet in width, both de- riving title from tire same source, and upon the same day, the plaintiff's con- veyance being first in point of time. The windows of the plaintiff's house opened out upon this space, and the house received all its light therefrom, although it appeared that windows might be placed in other parts of the house, and light thus obtained, but that Appuetejtanoks. m: by the Couri of Appeals in New York, that, where a lease is made of a part of a building, with a window opening into a yard connected with the building, so that if the lessee had leased the whole building the yard would have passed as an appurtenance to the building, the tenant acquires a right to have the window left unobstructed, at least when it is necessary for the use of the premises for the purposes for which they were let.^ tlie expciisp would be considerable. The plaintiff's title only extended to the outer edge of the wall of his house on this space, and the defendant proceeded to lill in the space and completely shut off the light from the plaintiff's win- dows, and davkcTied his house. In an action to recover for the injury, the court held that no action would lie. That in the absence of an express grant, no easement existed in favor of the plaintiff's house to the light and air over this space. That such an easement could not be implied. In Maryland, Jones V. Jenkins, 34 Md. 1 ; Thurston V. Mink, 32 id. 487, such an easernent is raised by implication, and the rights of the parties are treated as fixed at the time of severance, and all apparent and continuous easements of whicli light is held to be one, are treated as passing by implication, unless excluded in the grant itself. From what has been said, it will be seen that the question as to whether a right to have the light and air enter through the windows of a house passes by implication is not uni- fonnly settled. 1 Doyle V. Lloyd, 64 N. Y. 432. In this case it appeared that on the 26th day of July, 1870, Ann Gillett owned a building. No. 85, on Forsyth street, in the city of New York, five stories high, twenty-five feet wide on the street, and fifty-one feet deep, upon a lot twenty-five feet wide and seventy feet deep. The lower story was then occupied as a store, and the upper stories by families. The space of nineteen feet in the rear of the build- ing was a vacant yard, with the excep- tion of privies thereon, having no com- munication with any street, and then, apparently, useful for no purpose ex- cept as appurtenant to the building. There was a hall-way on the southerly side of the building, extending the whole length thereof, with a door at each end, giving access to the yard ; and there was then a door front the Inwer story into this hall-way, and also in the rear of the store into the yard. Tliere were also two windows in the rear of the store, from which light and air entered the store. The privies were manifestly built to be used with the building, and for the accommodation of its tenants ; and we must assume, if it is material, as plauitiffs offered to prove it upon the trial, that the tenants had access to the vacant space and to the privies. While the privies were in this condition, on the day above mentioned, Mrs. Gillett rented the store on the first floor, with the appurtenances, to the plaintiffs, to be occupied as a dry-goods store for the teim of five years from the 1st day of May, 1871. The plaintiffs tlieu bought out the prior tenant, and immediately took possession, and con- tinued in the possession of the store down to the trial of this action. At the time of the lease, the plaintiff's occupied a store on the southerly side of Grand street, a street riuming east and west, at right angles with Forsyth street, and the rear of that store butted against the rear half of the northerly wall of the Gillett store, and it was agreed that the doors opening from the store into the hall-way and yard should be bricked up to make place for shelves in the store, and that an opening should be made in the northerly wall of the Gillett store and the rear wall of plaintiffs' store, so as to make a communication between the two stores. The plaintiffs did not use the privies on the Gillett lot, as they had one in their own store con- venient for use for both stores. On the 1st day of May, 1874, the defendants took a lease of the whole building and lot No. 85, Forsyth street, for ten years, subject to plaintiffs' lease, and com- menced to excavate in the yard for the puriE-ose of building thereon, and then plaintiffs commenced this action to re- strain them. "If," said Eaui,, J., in a very able opinion, "the plaintiffs had hired the whole building with the ap- purtenances, their right to the yard could not have been questioned. The yard belonged to the building and was appropriated ito its use, and would pass under a lease of the building as a part of the premises demised. The lease would have such effect, because it would be the presumed intention of the par- tif s. In Sheppard's Touchstone {941 it 318 Leases. When the right to have the light and air enter the premises throngh certain windows exists, any interference therewith or obstniction that is said tliat the grant of a messuage, or a messuage with tlie appurtenances, will pass the dwelling-house, barn, adjoin- ing buildings, orchard, curtilage and garden. In Comyn's Digest (title, Grant, E. 6) it is said 'by the grant of a niessuage or house, the garden, orch- ard or curtilage pass.' In Whitney t). OIney, 3 Mas. (U. S. C. C.) 208, it was held that a devise of a mill with appur- tenances, conveyed not the buildings merely, but the land' under and adjoin- ing which is necessary to the use, and actually used with it. In United States V. Appleton, 1 Sum. (U. S.) 402, Judge! Story said : ' The general rule of law is, that where a house or store is con- veyed by the owner thereof, everything then belonging to and in use for the house or store, as an incident or appur- tenance, passes by the grant. It is implied froiji the jiature of the grant, unless it contains some restriction, that the gran- tee shall possess the house in the manner and with the same beneficial rights as were then in and belonged to it.' In the case supposed, the yard would have passed with the store, not by force of tlie word ' appurtenances,' but af: por- f.!n->M of the premises demised. Riddle v. J.ichfield, 53 N. H. 503. If all the r lyms in the building had at the same tiu;a been rented to different tenants, eacli taking his room with the appur- tenances, and no mention ha"d been made of the yard, a different case would have been presented. The demise of a room in the building would pass no por- tion of the yard. Each tenant would take only the room which he hired, and would take no other portion of the premises. Whatever else he took would he by virtue of the word ' appurte- nances.' That word would give him whatever was attached to or used with the premises, as incident thereto, and convenient or essential to the beneiicial use and enjoyment thereof, and he would take any easement or servitude used or enjoyed with the demised prem- ises. 2 Wash, on Real Prop. 067 ; Wash, on Eas. 32 ; Sheets v. Selden's Lessee, 2 Wall. (U. S.) 177 ; Riddle d. Litchfield, supra ; Voorhees u. Burch- ard, 5.3 N". Y. 08 ; Huttemeier v. Albro, IS id. 48. It would not give him an in- terest in the yard as a portion of land demised, because land cannot pass as appurtenant to land, but it would give him an easement in the yard in com- mon with all the other tenanls, for all purposes for which it could be used in common — for access to the privies, for play-ground for children, and for light and air for rooms in the rear of the building. If the different rooms in the building were leased at different times with the appurtenances, the same result would follow. Each tenant would have an easement in the yard. Such, in the absence of restrictive words, would be the manifest intention of the parties, and no rule of law stands in the way of giving effect to such intention. The yard was attached to and appropriated for the use of the building. The privies were built for the use of the oc-cupants of the building, and the yard was essen- tial to the beneiicial use thereof, and as the building was occupied w'hen plain- tiffs took U\e lease, no tenant thereof could well dispense with the use of t&e yard. Tlie building was so constructed and arranged that all the tenants had access to the yard, and there was no other apparent purpose to which the yard could be subjected. Hence, within every authoi-ity to which our attention has been called, the plaintiffs, when they took their lease, acquired an ease- ment in the yard, unless facts to which I will now call attention, deprive them thereof. It was agreed between them and their lessor at the time they took their lease, as above stated, that the doors leading from their store into the yard and into the hall-way should be closed up at the expense of the lessor. This agreement was not for the benefit of the lessor, and was not made to cut off any rights which the lessees would otherwise have, but it was made at the request of the lessees and for their ben- efit, to give them more room for shelves. Having a privy in their own store on Grand street, so long as they used the two stores together, they did not need the use of a privy in the yard. But they did nothing and agreed to nothing de- priving themselves of the right to use the privies. They still had access to the yard. There was the hall running the whole length of the south side of the building, with a door opening into the yard at the rear end. This was a way leading into the yard, and in the absence of any restriction all the ten- ants had the right to use it for access to the yard. The plaintiffs could at any time have had access to the yard and privies through tliis hall, and could have used them in common with the other tenants. But even if It should be held that the fact of closing up the doors, Appuktenancbs. 819 causes material inconvenience to the lessee, in the ordinary occupations of life, is actionable.^ Under a lease of premises, " together with all ways appertaining or with any parts thereof used or enjoyed,^'' any way used ioith the premises will pass, whether expressly mentioned or not.^ But, generally, a right of way does not pass under the word and the fact that plaintiffs had a privy of tlioir own, showed tliat it was not the intention by the lease to give tliem ac- cess to the yard, yet, tliere is nothing to indicate tliat they were to be deprived of the Uglit and air from the yard. They hired the lower story for a store and the icindows were the only means to procure light (except artificial) for the pj-bper transaction of ttie business of the store. The light passing into the win- doicsfrom the yard, was essential to the beneficial use of the store, and it was clearly the intention at the time th^ le#se was made that the plaintiff should have it. 2'o this extent, in any view of the case, ilie plaintiffs loere entitled to enjoy an easement in the yard." ' Clarke v. Clarke, L. K. ,1 Eq. Cas. 295 ; Johnson v. Wyatt, 'A DeG. J. & S. 18; Isenberg u. East India Co., 12 W. E. 460. Slight inconvenience is not action- able. " L should not think," says Ckan- WOETH, L. C, in Yates v. Jack, L. E., 1 Kq. Cas. 298, " tliat the defendant had e.stablished his defence, unless he had shown that for whatever purpose the plaintiff might wish to employ the light, there would be no material interference wiVi it." Where, however, such a right is acquired, whether by grant or other- wise, the fact that, by reason of changes in the situation of surrounding property, enough light is received, so that the light coming over the servient estate can be dispensed with, does not in any measure affect the right of the owner of, the dominant estate to have the light come to him over the servient estate. Wood on Nuisances, 159. He is en- titled to the light) from that point in addition thereto. The rule is, that the owner of the servient estate cannot in- terfere with the rights of the owner of (he dominant estate in any manner so that the light will be essentially dimin- ished from that quarter, without any reference to the increase of light by changes in other surrounding property. Dyer's Co. v. King, L. E., 9 Eq. Cas. 438; Staigliti). Burn, L. E., 5 Eq. Cas. 16. See Wood on Nuisances, pp. 151- 159, for a full review of the cases. 2WhalIey v. Thompson. 1 B. & P. 871 ; Barlow v. Khodes, 1 Cr. & M. 430; Koagstree v. Lucas, 5 B. & Aid. 830; Breed j). Cunningham, 2 Cal. 361 ; Ker- muller v. Pratz, 18 Iowa, 352 ; Brown v. Thissell, 6 Gush. (Mass.) 254; Gayetty V. Betlmne, 14 Mass. 49; Grant u. Chase, 17 Mass. 443; Combs v. Stewart, 10 B. Mon. (Ky.) 463; Dubuque v. Maloney, 4 Iowa, 4.50; Wilson v. Bagshaw, 5 M. & K. 448; Morris D. Edgington, 3 Taunt. 24; Worthington v. Gimson, 2 E. & E. 624; Crisp V. Price, 5 id. 548; Staple v. Hey- don, 6 Mod. 1. In James v. Plantf-. 4 Ad. & El. 749, the court held that %e words "belonging or appertaining or therewith usually held, used, occupied or enjoyed, * * and their appurte- nance," were sufficient to embrace and convey a right of way which had been usually held, &c., with the principal estate. See Bro. Abr. tit. Extinguish- ment, pi. 15, as to the revival of an ease- ment that has been extinguished by a unity of possession of the dominant and servient estate in the same person, upon severance; also Thompson r. Wballey, 1 B. & P. 371, where a way bad been en- joyed from close A over close B, the same person being seized of both. lie de- vised his estate in close A " with the ap- purtenances; " and it was held that the right of way did not thereby pass, for that the word " appurtenances " in the will had nothing to operate upon. The words of the will there did not testify the intention to pass the right of way. But, "if a man seized of Blackacre and Whiteaere, uses a way through White- acre to Blackacre, afterwards grants Blackacre, with all ways, &c., this way through Whiteaere shall pass to the gran- tee." Com. Dig. Chimin (D. 3). In Clements v. Lambert, 1 Taunt. 205, where common appurtenant to prem- ises had been extinguished by unity of possession, the party seized conveyed the premises with all commons and ap- purtenances thereto belonging or in any- wise appertaining ; and this was held not to convey a new right of common; but it seems admitted there that, if the deed had contained such words as " used with the said messuage," the common, if shown to have been in fact so used, would have passed. Morris v. Edgington, 3 Taunt. 24. Where the landlord demised part of his premises, with certain rights of ingress, &c., and " all other ways and easements to the said demised premises belonging and appertaining ;" and these 320 Leases. "appurtenances,"-' except it be a way of necessity.'' Under an under- lease wliich described tlie road demised and the ,ways demised as " all ways thereunto appertaining," it was held, that this did not pass a right of way over the original lessor's soil.^ There is a distinction be- tween easements that are continuous in their nature and apparent, and those which are not so. The former pass by a demise or conveyance, whether named or not, while the latter do not.^ Thus the right to use latter words were held to pass a right of way on thegrantor's own premises, which the grantor had himself used for access to the premises demised, Mansfield, C. J., relying upon the intent of the grantor as shown by the circumstances of the case. The principle, that in such a .case the intent must he consulted, was recognized in Barlow v. Rhodes, 3 Tryw. 280. In Thompson v. ^¥'ater- low, L. R., 6 Eq. Cas. 36, the doctrine of James v. Plant, ante., was reviewed by the Master of the Rolls under the following state of facts : The grantor owned two adjacent lots, A and B, and had been accustomed to cross B for agricultural purposes to reach A, in a way which was indicated by use, and had gates for entering and leaving the close B. He then sold A, " with all ways now or heretofore occupied or en- joyed," &c. The purchaser, under the ruling in James v. Plant, claimed a right of way across B as appurtenant to the close A. But the court held that, in the present case, as both lots had always belonged to the grantor until the sale made, there never could have been a technical right of way in favor of one lot over the other. And the distinc- tion between the cases was, that, in the one, there had once existed a right of way in favor of one parcel over the other, which had been sitspended or merged by the unity of both parcels in the same owner, and when he conveyed the former dominant parcel with " ways heretofore occupied, &c. ," he spoke of something which had existed, and in- tended to revive it by his grant. Where- as in the present case, if these words were held to create a new right, and such a right as the grantor himself had, it would give the owner a right to go wherever he pleased' over and across the close B. But where the easement of a way over an estate in favor of another is extinguished by the unity of title of the two in the same owner, and he then devised what had been the dominant estate, " with iU appurtenances," it was held not to revive the way over the other estate, because by " appurte- nances " must b« understood existing rights. 1 Plimpton V. Converse, 42 Vt. 712; Worthington v. Gimson, 2 E. & E. 618; Clements v. Lambert, 1 Taunt. 205 ; Grants. Chase, 17 Mass. 443; Pheysey V. Vicary, 16 M. & W. 448; Ackroyd v. Smith, 9 C. B. 689. ^ Pheysey r. Vicary, ante; HinchclifEe B. Kinnoul, 5 Bing. K. C. 1. " The only thing that would pass," said Pakke, B., in the case first cited," by the word ap- purtenances, as used in this will, would be a way of necessity," and on a previous page, 494, he 6ays : " I find n'o authoMty to show that the word appurtenances in a will has a different meaning from that term in a deed." See also Plimpton v. Converse, ante ; Piatt v. James, 5 B. & Aid. 830. Appurtenances as applied to easements, which pass by grant as an ad- junct of the principal estate, are either old existing rights or such as have been created by express grant. In Polden v. Bastard, 4 B. ife ,S. 264, Cbompton-, J., in reference to a claim of an easement in a pump upon one estate in favor of another, said: " This is not a continuous easement, nor an easement belonging to the cottage, but a mere enjoyment for two years by the tenant, of the privilege o'f using the pump. If this had been an old easement attached to the cottage it would pass by the words " appertaining and belonging," otherwise, in order to pass it, it should have been expressly conveyed. See also Cocheco Mfg.Co. «. ■ Whittier, 10 N. H. 305. 3 Harding v. Wilson, 2 B. & C. 96. * Pearson v. Spencer, 1 B. & S. 571; Polden D. Bastard, 4 B. & S. 253. In the one case, the right depends upon a positive grant of the soil, and in the other upon a presumed grant. In the case of a grant of the soil, the convey- ance, if unqualified, carries with it all that is annexed thereto, as well as all easements necessary to the proper en- joyment of the property, which are ap- parent, or of such a character as to be discerned upon an inspection of the prop- erty, while in the case of a presumed grant, nothing is acquired except what is strictly in accordance with the uses under which it is claimed, and this pre- sumption never attaches, except when it finds reasonable support from all the Appurtenance s. 321 a drain, or a pump upon the premises, passes without any words conveying the right, but the riglit to use a j)ump, or a way on adjoin- circumstanees attendant, not only upon the user, but upon the thing claimed. In Pyor v. Carter, 1 H. & N. 016, the plaintiff and defendant were the own- ers of adjoining tenements which had formerly belonged to one person, and been used as one house, but which he divided and made into two. In July, 1853, the owner of the whole tenement conveyed the defendant's house to him in fee, and in September of the same year conveyed the plaintiff's house to him. No reservation of an easement was contained in either conveyance. 4t the time of the conveyances a drain or sewer ran under the plaintiff's house and thence under the defendant'shouse, and discharged itself into a common sewer. The defendant obstructed this drain, and wholly prevented the flow of waters through it where it entered his house, and as a consequence in every rain storm the defendant's house was flooded. The defendant was not aware of the ex- istence of the drain at the time of the conveyance to him, and the plaintiff might have constructed a new drain from his house to the common sewer for a small cost. Upon these facts a verdict was entered for the plaintiff by the direc- tion of the court, and upon hearing in exchecxuer the verdict was sustained, and as the case is one of importance and of general interest to the profession, and not readily accessible, I give the opinion of WATSOJf, B., in full. He said : " This was an action for stopping a drain that ran under both the plain- tiff's and defendant's houses, taking the water from both. The cause was tried at Liverpool, before Baron BiiAirWELL, when a verdict was entered for the plaintiff, and a motion was made to enter a verdict for defendant in pursu- ance of leave reserved at the trial. The plaintiff's and defendant's houses ad- joined each other. They had for- merly been one house, were converted into two houses by the owner of the whole property. Subsequently the de- lendant's house was conveyed to him, and after that conveyance the plaintiff took a conveyance of his house. At the time of the respective conveyances, the drain ran under the plaintiff's house and then under the defendant's house, and then discharged itself into the com- mon sewer. Water from the eaves of the defendant's house fell on the plain- tiff's house, and then ran into the drain on plaintiff's premises, and thence through the drain into the common 21 sewer. The plaintiff's house was drained through this drain. It was proved that by the exi;)enditure of U. the plaintiff might stop the drain, and drain directly from his own land into the common sewer. It was not proved that the de- fendant at the time of his purchase knew of the position of the drains. Under these circumstances we are of opinion, upon reason and upon au- thority, that the plaintiff is entitled to our judgment. We think that the owners of the plaintiff's hfluses are, by implied grant, entitled to have the use of this drain for the purpose of convey- ing the water from his house, as it was used at the time of tlie defendant's pur- chase. It seems in accordance witli reason that where the owner of two or mo7-e adjoining houses sells and conveys one of the houses to a purchaser, that such house in his hands should be en- titled to the benefit of all the drains from his house, and subject to all the drains thus necessarily used for the en- joyment of the adjoining house, and that without express reservation or grant, inasmuch as he purchases the house such as it is. If that were not so, the inconveniences and nuisances in towns would be very great. Where the owner of several adjoining houses con- veyed them separately, it would enable the vendee of any one house to stop up the system of drainage made for the benefit and necessary occupation of the whole. The authorities are strong on this subject. In Nicholas u. Cliamber- laine, Cro. Jac. 121, it was held by all the court that ' if one erects a house and builds a conduit thereto in another part of his land, and conveys water by pipes to his house, and afterward sells the house with the appurtenances, ex- cepting the land, or sells the land to an- other, reserving to himself the house, the conduit and pipes pass with the house, because it is necessary and quasi appendant thereto, and he shall have liberty by law to dig in the land for amending the pipes or making them new, as the case requires. So if a lessee for years of a house and land erect a con- duit upon the land, and after the term the lessor occupies them together for a time, and afterward sells the house with the appurtenances to one, and the land to another, the vendee sliall have the conduit and the pipes, and the liberty to amend them.' Shury v. Pigott, Pop- ham, 166; S. C, 3 Bulst, 3.39: and the case of Coppy b. I de B., 11 lien. 7; 25 mi Leases. ing grounds, does not pass unless expi-essly named.^ As to easements, what are, and what pass under a lease, see " Easements." Formalities required in the several States. Sec. 214. In most of the States, provision is made by statute for the leriing of lands, both as to the necessity of a deed or other writing and the formalities to be observed in their execution, and in all cases these requirements must be observed or the lease will be inoperative to convey the estate designated. But, even where an instrument is inop- erative, or void as a lease, it may operate in equity as an agreement PI. 6, support this view of the case, that where a gutter exists at the time of the unity of seizin of adjoining houses it re- mains wlien they are aliened by separate conveyances, as an easement of necessity. It was contended, on the part of the de- fendant, that this pipe was not of neces- sity, as tlieplaintiif might liave obtained anotlier outlet for the drainage of his house at an expense of 61. We thinlv tliat the amount to be expended in tlie alteration of the drainage, or in the con- structing a new system of di'ainago, is not to be taken into consideration, for (lie meaning of the word 'necessity ' in the cases al)ove cited and in Pennington I'. Gallaud, 9 Exch. 1, is to be under- stood the necessity at the time of the conveyance, and as matters then stood, witlioiit altoi-ation; and whether or not, at the time of the conveyance, there was any other outlet for the drainage water, and nuitters as they then stood, must be hiolvcd for at the necessity of the drain- age. It was urged that there could be no implied agreement unless the ease- ment was apparent and continitous. The defendant stated he was not aware of this drain at the time of the convey- ance to him; bitt itis clear that he must liave known or ought to have known that some drainage then existed, and if he had inquired, he ^vould have known of this drain ; therefore it cannot be said that such a drain could not have been supposed to have existed ; and we agree with the observation of Mr. Gale (Gale on Easements, p. 53, 2d ed.) that by 'apparent signs' must be understood not only those which tnust necessarily be seen, but those which may be seen or known ou a careful inspection by a person ordinarily conversant with the subject. We think that it was the defendant's own fault that he did not ascertain what easements the owner of the adjoining house exercised at the time of his pur- tliase; and therefore we think the rule must be discharged." The doctrine an- nounced in this case, is a marked in- novation upon the law of easements by implied grant. Yet its apparent equity commends it, and it has been favorably commented upon in numerous cases both in this coimtry and England. Curtis v. Ayranlt, 47 N. Y. "70; Huttemier v. Al- hro, 18 id. 52; 51cC;arty v. Kitcheuman, 47 Pinn. St. 24o; Do'dd v. Burchell, 1 II. iVr C. 121; Glove v. Harding, 3 H. & N. 944; Crossly?'. Lightower,. L. R., 2 Ch. Ap. 47S; Poldeni). Bastard, 4 B. & S. 258; Ewart v. Cochrane, 1 H. & C. OSl; Wiii-lliington v. Gimson, 2 E. & E. OlS; Bntterworth ti. Crawford, 46 N. Y. 349; Seymour v. Lewis, 13 N. J. Eq. 439; Dunklee ». WiltonR. It., 24 K. H. 489; Hall v. Lund, 1 11. * C. 67«. Questioned iu Pliillhrick v. Ewing, 97 JIass. i:j3; Carbray v. Willis, 7 Allen (Mass.), 3i'i9; Ilandall v. McLaughlin, 10 id. 300; Warren v. Blaise, 54 Me. 276; and conditionally in Bntterworth •!!. Crawford, ante; and in Scott r. Bental, 23 Grat. ( Va. ) 1. But it should be borne in mind that the largest latitude given, as aimounced in this case, only includes those easements " which may be seen or known upon a careful inspection by a person ordinarily conversant with the subject." Indeed, the court say, in justification of the judgment, that " it is clear that he imfsf have known, or ought to have known that some drainage then existed, and if he had iuqiured ho woujd have know^n of this drain." Thus it will be seen that the doctrine is only in- tended to apply to such necessary case- ments as, although not apparent, xoould naturally be the subject of inquiry. 1 Pyer v. Carter, 1 H. & N. 910. See also as to a way. Grant v. Chase, 17 Mass. 443. Unless it is an old ease- ment, in which case it seems it would pass under the words " appertaining and belonging," Ckompton, J., in Bastard v. Polden. 4 B. & S. 264. Formalities. 323 for !i lease.,^ and even at law it may operate as a contract with respect to any stipulations contained therein,^ as, except in Maine and Mass- achusetts, where a tenancy from year to year, except when expressly created in writing, is unknown, if the tenant enters into possession and pays rent under a void lease, he becomes a tenant from year to year, subject to all the terms of the lease applicable to such a tenancy,^ and determinable only by six months' notice to quit, at the end of any year of the time, except where otherwise provided by statute ; ^ but, upon the expiration of the terra named in the lease the term expires by its own limitation, and without any previous notice to quit.' But, unless the tenant enters into possession under the lease, he will not be liable for the rent of the p>reniises, nor for not. taking possession," nor will the lessor be liable for not giving possession.' Leases not affected by statute of frauds. Sec. 215. In all the States except Maine and Massachusetts, a parol lease for one year is good, and in many of the States for three years, and in some for seven, but leases for a longer term are generally re- quired to be by deed, executed according to the direction of the statute. Leases by deed. — 'What are. Sec. 216. A deed is a writing sealed and delivered by the parties thereto, and is either an indenture or a deed poll. An indenture is an instrument, or rather a series of instruments under seal, of which each party holds a copy, executed the same as the original, and which is cut or indented on the top or side to correspond with the other,* and unless 1 Parker v. Taswell, 2 DeG. & J. 559 ; Lesley v. Randolph, 4 Eawle (Pann.), Oowen V. Pliillips, 33 Beav. 18. 123. 2 Ilayne r. Cnminin^s, 16 C. B. N. S. ' ^ress "-Savage, ante ; Cole on Eject- 421 ; Bond V. Roslliig, 1 B. & S. 371 ; Tidey "^T^^^tf; sLfiovd 1 C & J 391 • In V. Mallett, 10 C. B. N. S. 298; KoUason ,^,,r,,^-tl' ,„ i Qt. V Vq ' tj. Leon, 7 H. & N. 7^. ' Drury b. Maciiamara, 5 E. & B. 612; 3Coocli V. Goodman, 2 Q. B. 580; Jinks «. Edwards, 11 Exchq. 775. Rigge !). Bell, 5 T. E. 472; People «. si Inst. 171; 2 Blackstone's Com. 295; Eickert, 8 Cow. (N. Y.)226; Taggard b. styles, 459. An indenture is prefera- Rosevelt, 2 E. D. S. (N. Y. C. P.) 100; ble to a deed poll because it possesses Strong V. Crosby, 21 Conn. 398; Scliuy- many ad^■antages over the latter, as it leri!. Leggett, 2 Cow. (Js.Y.) 060; Thorn- may operate by estoppel, and contain as V. Wnght, 9 S. & R. (Penn.) 87; covenants on the lessee's part wlilch Richardson v. Gifford, 1 Ad. & El. cannot be attained by a deed poll, which 52; Warner v. Browne, 8 East, 16o; is, strictly speaking, a unilateral deed. Thompson v. Amey, 12 Ad. & El. 479; indeed, it was formerly called Charta de Pistori). Cator, 9 M. &W. 315; Berry „„^ parte. Locke v. -Wright, 1 Stra, !). Lindley, 3 M. & Gr. 498; Tress v. Sav- 571 . Pordage v. Cole, 1 Saund. 319. It age, 4 E. & B. 36; Lee v. Smith, 9 (a deed poll) may be said to be a decla- Exchq. 662 ; Pennington v. Taniere, 12 ration by the party executing it of an act Q. B. 998; Loughran v. Smith, 11 Hun ^one, or intended to be performed by (K. Y. S. C.) 311. ])i0i for a third person. The lessee's ^ Hager v. Dibble, 8 Rich. (S. C. ) 222 ; acceptance of an interest under the deed 324 Leases. the paper or parcliment is cut or indented as previously stated, except where the statute has done away with this formality, the fact that it beoins " This Indenture," &c., does not make it an indenture, because no words of the parties can dispense with this formality; for, although there may be an indenture where there are no words declaring it so, yet without indenting no words can make it an indenture.^ The pe- ciiliarity of an indenture is, that all the parts make but one deed, and each part has the same effect and force as all the parts together, as they are regarded as the mutual acts of the piarties thereto, each of whom is bound by either part of the same, for the words of the indenture are ihe words of each party .^ In legal effect, each part is an original, but in practice, the part executed by the grantor is called the original, and the rest are duplicates or counterparts,'' and these counterparts cannot be disputed or impeached by the lessee, and are primary evidence against him and his grantees or assignees of the execution and contents of the lease.'' Every lease is presumed to be by deed iintil the contrary is shown, and whenever a deed is referred to in the pleadings it is pre- sumed to be a deed poll, unless it is alleged to be indented.^ Leases re- quired to be by deed must be written or printed upon parchment or pa- per, and they cannot be exemplified upon cloth, leather, wood or the like, for the reason that parchment and paper are regarded as most durable, and the writing or printing upon them is less liable to be vitiated, altered or corrupted, or become illegible, than upon other substances. It may be in any character or language which is suscejjtible of translation or ac- curate interpretation." The estate or interest in the land is derived from the lessor, and the lease is only evidence of the legal conveyance of the estate or interest. Therefore, if, after the lease has been exe- cuted and tlelivered it is lost or cancelled, if the lessee can prove the existence of the term he does not lose his estate in the land.' If the lease is required to be, and has been, recorded, provision is generally — which is implied until he expressly also Brown v. McFarren, 5 Ir. Rep. dissents — Thompson v. Leach, 2 Vent. 212. 198; Gorton ii. , 2 KoU's Abr. 787, ^ Co. Litt. 229. may render him liable to a distress, or ^ lj^ gg{,_ g-jg . piowden, 134, 421. an action of debt, for non-payment of ^ 2 Blaekstone's Com. 290. rent ; but not to an action of covenant, ■> Paul r. Meek, 2 Y. & J. 116 ; Huaihes Michel I). Dunton, Dev. 54; Cross m. r. Clark, IOC. B. 995: Burleigh u. Stibbs, Powell, Cro. Eliz. 483; Chancellor v. 5 T. K. 465 ; Homes r. Pearce, 1 F. & P. Poole, 2 Doug. 704; Wilkins u. Fry, 1 2S:_!; AVest «. Davis, 7 East, 30;i. Mer. 266, as a covenant cannnot gener- '-' Spark w. Sparlc, Cro. Eliz. 638. ally be created except by deed executed " 2 Blackstone's Com. 297. by the covenantor. By the custom of ' Ward v. Ijumley, 5 H. & N. 87; London, Fitzherbert's Naturje Bre- Reed v. Brookman, i! T. 11. 151. The vium, 146; Comyn's Dig. tit. London cancellation of a lease does nut operate (N. ) 1 of Bristol; Wade v. Beiiham, 1 as the surrender of it. It destroys the Leon, 2, and in the case of a lessee of deed and avoids the covenants, but it the government, by patent, it is held that does not divest the estate. Actions ■ the acceptance of a lease by a deed binds founded on the privity of contract are the lessee to the covenants therein, gone, but actions founded on the priBJAy Ewre V. Strickland, Cro. Jac. 240. See of estate remain so long as the terra FoKMAtlTIES. 325 made by statute that it may be proved by a copy from the records, duly certified by the proper recording officer. If the other party has a counter part of the lease, the jjlaintiff, in an action jjredicated thereon, may compel its production, or, in default of its production, may prove its contents by parol. Seal Sec. 217. At the common law all freehold estates were required to be conveyed either by deed or by livery of seizin without writing, but by the statute of frauds jn England, and in most of the States of this coun- try, the only mode of conveyance of a freehold is by deed. In Vermont, Massachusetts, and South Carolina, all conveyances of freeholds are required to be by deed. Even though conveyances by statute are not lasts ; and so long as a reversion remains in tlie lessor, the rent continues as an in- cident thereof. At the common law, an assignee of the reversion may sue the lessee in debt upon the demise, bccaune of hisprimty of estate, but he cannot sue upon the covenants, because there is no privity of contract. See Strong v. Cros- by, 21 Conn. 39S. It may be said that, where an estate has actually passed under a deed, the cancellation or de- struction thereof does not divest the es- ta.tr, although, the parties, by parol, har.e nnrecd to that effect. In Bolton r. Carlisle, 2 H. Bl. 260, Eyke, C. J., said, " I hold clearly that the cancelling of a deed will not divest property which has once passed by transmission of pos- session; audi woitld go further and say that the law is the same as to things which lie in grant." Berkley v. York, 6 East, 86 ; Lewis v. Bingham, 4 B. . liaight, 3 id. 493 ; and a scroll of ink or other device is not suflicient. Warren V. Lynch, ante: Perrine v. Cheeseman, UN. J. L. 174. But see Force v. Graig, 7 id. 272, where a flourish or scroll against the signature of a signer to a note was held sufficient to enable the jury to fiud that he intended to e.xecute a sealed instrument, and that it was sealed and delivered. 3 G-illespie d. Brooks, 2 Eedf. (N. Y. Surrogate) 349; Turner v. Field, 44 Mo. 332. * And this is the rule even in those States tt'here a scroll is treated as a seal. Therefore, unless an instrument is sealed according to the method adapted in the State where executed, or where the land lies, it is not a deed, .Jones v. Craw- ford, 1 McMull. (S. C.) :!73; Taylor v. Morton, 5 Dana (Ky.), 365; Davis v, Brandon, 2 Miss. 154; Arms v. Burt, 1 Vt. 306; Killman v. Brown, 4 Mass. 443, and passes no title. Shortridge v. Catlett, 1 A. K. Mar. (Ky.) 5S7; Hiu-ley V. Ramsey. 49 Mo, 309; Pratt v. Clem- ens, 4 W. Va. 443. But if an instrument has once been sealed, it is not avoided by a removal of the seals by the obligor or by their accidental removal. Colts v. United States, 1 G-all. (U. S.) 69. An agent who executes an instrument under seal must be authorized under seal. Worrall ti. Munn, 5 J^. Y. 229. lu Mississippi, however, it is held in equity that a deed executed and signed by a person as agent is good as a deed, even though the deed is not sealed by him. McCaleb v. Pralat, 25 Miss. 257. Where an instrument is required to be recorded, and the law provides that none but sealed instruments shall be recorded, the fact that the record fails to show that a seal was attached to the instrument, will not overcome the pre- sumption that the law raises that the instrument was sealed, or the recording officer would not have record- ed it. Starkweather v. Martin, 28 Mich. 471. "Relph V. Gist, 4 McCord (S. C), 267; Jones v. Logwood, 1 Wash. (Va. ) 42; Stahter o. Cowman, 7 G. cfc J.(Md.) 284; Bohannan w. Hough, 1 Miss. 401; Long V. Ramsay, 1 S. & R. (Penn.) 72 ; Fleming v. Powell, 2 Tex. 225; Smith I). Baker. Ga. Dec. Part I., 126; Scruggs V. Brackin, 4 Yerg. (Tonn.) 528; Lindsay x>. State, 15 Ala. 43; Ber- trand v. Burd, 4 Ark. 195; Hastings V. Vaughn, 5 Cal. 315 ; Gomerford v. Cobb, 2 Fla. 418; Bradfield v. McCor- mick, 3 Blackf. (Ind.) 161. The word seal written against the signature of a l)arty to an instrument is treated as a seal in Mississippi, Hudson ji. Poin- dexter, 42 Miss. 334; Whittington v. Clarke, 16 Miss. 480; and it would seem that it should be so regarded in all those States where a scroll is treated as a seal, because the word clearly imports the intention of the party to execute a sealed instrument. AVliittey v. Davis, 1 Swan (Tenn. ), 33.3. But in Virginia and Indiana this has been held insufficient, and an instrument concluding " witness our hands" with a scroll annexed, and the word " seal " written therein, was held to be only a simple contract. Jen- kins V. Hart, 2 Rand. ( Va. ) 446 ; Deming ». Billit, 1 Blackf. (Ind.) 241. See also post p. 328 for instances where a similai rule is held in other States. Formalities. 3:27 cannot dispense with a seal, as "witness my hand and seal," when no seal or scroll is appended to the signature ; ^ and in Virginia, Indiana, Louisiana, Missouri, Iowa, Delaware and Alabama, it is held that a writing with a scroll annexed and the word " seal " written therein, but having no expression in the body of the instritment denoting that it is sealed, is not a sealed instrument.^ But in Ten- nessee and Mississippi a contrary doctrine is held, and a scroll is treated as a seal whenever, from the body of the instrument or the word "seal" written in the scroll, it appears that the parties intended to execute a sealed instrument ; ^ and in Missouri the word " seal " written at the end of the name of the party, and referred to and adopted in the testimonium clause, is held to be a sufficient sealing ; ■• and in Pennsylvania an instrument with the attesting clause " wit- ness my hand," signed by the party sought to be charged with a seal annexed to his name, is held to be evidence from which a jury may presume a sealing and delivery ; ^ and in all cases where a seal, within the common law rule, is annexed to the name of a party to an instru- ment, although the word "seal" is not used in the instrument, the instrument is a specialty.^ A slit in a parchment with a ribbon thi-ough it is not a seal,' nor does a mere impression or stamping upon the paper upon which the instrument is written,* except in the case of corporations where the statute so jirovides, or a different rule has been established by custom.^ Whether a seal printed, but not impiressed upon the paper upon which the instrument is written, is sufficient in the case of a corporation is not clear. It has been held sufficient in Maine,^" and not sufficient in Massachusetts." In the case of a corpo- ration when the common seal appears upon an instrument it is presumed to have been placed there by authority,-'^ and in Ohio a conveyance by a corporation under the corporate seal is valid without signature, and the seal is presumed to have been affixed with authority .^^ Several persons may bind themselves by one seal if there is nothing to indicate 1 Vance v. Funk, 3 111. 263; Williams the seal is not mentioned in it. Taylor u. i). Toimg, 3 Ala. 145; Moore v. Leseur, Glazer, 2 S. & R. (Penn.) 502; Wing v. 18 id. 606. Chase, 35 Me. 260; Ashman v. Ayers, 4 2 Moore v. Leseur, 18 Ala. 606; Bell v. Gratt. (Va.) 283. Keete, 13 La. An. 524; Boynton v. 'Duncan jj. Duncan, 1 Watts (Penn.), Reynolds, 3 Mo. 79; Long !j. Lonji, 1 322. Morr. (Iowa) 43; Walker D. Keile, 8 Mo. ^Bank of Rochester v. G-ray, 2 Hill 301 ; Armstrong v. Pearce, 5 Harr. (Del. ) (N. Y. ), 227. 351; .Jenkins v. Hunt, 2 Rand. (Va.) ^Hender v. Pinkerton, 14 Allen 446;Deming«. Billit, 1 Blackf. (Ind.) (Mass.), 381; Curtis u. Leavitt, 15 N. Y. 241. 89. ^Hudsonj). Poindexter, 42 Miss. 304; i" Woodman e, York, &c., E. R. Co., Whittey v. Davis, 1 Swan (Tcnn.), 50 Me. 549. 333, "Bates v. B. & N. Y. R. R. Co., 10 * Gorner v. Smith, 49 Mo. 318. Allen (Mass.), 251. 5 Miller c. Binder, 28 Penn. St. 489. i^ji^sser u. Johnson, 42 Mo. 74; ® An instrument having a seal affixed Sheehan «: Davis, 17 Ohio St. 571 thereto is a deed, though the affixing of i^ Sheehan v. Davis, 17 Ohio St. 571. 328 Leases. that such was not their intention.^ Prima facice, where several names are signed to an instrument, and a seal is affixed to but one, it will be presumed to be the seal of the party to whose name it is affixed, but this presumption may be overcome by jjroof that it was attaclied by the authority of the others, in which case it will be the seal of all.^ An endorsement upon a sealed instrument made at the tiine of its execzt- tion becomes a part thereof,^ and does not change the character of the instrument; but an endox'sement not under seal, subsequently made, I'eferring to the lease for an explanation of its terms and varying any of the terms of the instrument, reduces it to a parol contract, so that assumpsit and not covenant becomes the proper remedy for the re- covery of rent under, or for the breach of any of its conditions.^ Signing. Sec. 218. A lease or deed may be signed for the grantor by a third person in his presence and by his direction,^ and this is frequently done when the lessor or grantor is an illiterate person, and unable to write his name, but in such cases the instrument must be sealed and delivered by the grantor,^ and, although in the case last cited it was held that the instrument need not be read over to him unless he re- quired it, yet it is more prudent to do so, and in some of the States, at least, it is held to be indispensable, when the grantor cannot read.' A lease or other conveyance may be executed by the grantor making his mark, the practice being in such cases for some third person to write his name and for the grantor to make a cross either between the names or at either end thereof ; but any mark made by him, which is intended as a signature hy him, is sufficient,' but the signature so made should be witnessed, even though the execution of such instruments is not required to be witnessed by statute. A lease maybe signed by a third person for the lessor as follows : John Doe by Richard Roe, and if done in his presence, and by his direction, and attested by a witness, ^Tale ». Flanders, 4 Wis. 96; Mackay Hetts v. Miller, ?> Paige Ch. (N. T. ) 2.54- ■0. Bloodgood, 9 .John. (N. T.) 285; Emmerson v. Mui-ray, 4 N". II. 171 '• Larsden «. Sharp, 9 Humph. (Tenn.) Flint v. Brandon, 4 B. & V. 7:1; Lyman 224; Carter i'. Chardron, 21 Ala. 72; v. Warrington, 1 Starkie, 1R2. Bank!). Bugbee, 19 Me. 27; Williams ». * Hydeville Co. v. Eagle R. R. & Greer, 12 Oa. 459; Banks. Bailey, 4 Slate Co., 44 Vt. 395. But see Williams Ark. 45:j; Bowman u. Robb, 6 Penn. St. v. Handley, 3 Bibb (Ky.), 10; Russell » 3',12; Flood c. Yandee, 1 BlacM. (Ind.) Scott, 4 Cow. (N. T.) 279; Goodri"-lii, 102; Banhaimou n. Lewis, .3 T. B. Mon. v. Mark, 4 M. & S. 30, where snch anln- (Ky.) 376. dorseraent was held inoperative to con- ■•'Lunslord v. La Motte Lead Co., 54 vey any interest. Mo. 426; Van Alstyne v. Van Slyck, 10 * -Jansen ». MoCahill, 22 Cal. 563. Barb. (W. Y.) 883; Davis d. Burton, 4 e Rgx b. Longnor, 1 IST. & M. 577. 111. 41; Youngborough ^. Mondey, 2 ' Sufeeni .;. Butter, 18 N J Eo Dev. (K. C.) L. 3. 220. ' ^" ^Linsley u. Tibbals, 40 Conn. 522; s ^_ , 3 Atk. 369. FOKMAHTIES. 329 it is valid to pass the estate.* A deed or lease executed by an agent or attorney in this form, " John Doe for Richard Roe," is sufficient, if John Doe was duly authorized to execute such instruments for Richard Roe.^ But, when a conveyance is executed by a third person, it must be shown affirmatively that he had authority to do so, and in some of the States his authority must not only be in writing under seal,^ but must also be recorded with the instrument.* The fact that the name of the grantor is mis-spelt does not invalidate the deed,^ and, even though he signs by a different name than that recited in the instru- ment his identity may be jsroved, and the deed thereupon is opera- tive," and where he signs by a wrong name, yet, if he is designated by his true name in the lease, it will be good ; ' but a deed executed with- out the name of a grantee is void.^ A lease or deed by a corporation should be in its corporate name and. under its corporate seal,' although it has been held in Ohio, that a conveyance by a corporation under its corporate seal is good, although not signed,*" and in England it is doubted whether, under the statute of frauds, leases by deed are re- quired to be signed." When a lease or deed is executed by a third person without authority, it may be validated by a subsequent oral ratification.*^ But, unless ratified by the principal, a lease executed without authority, or in the name of the agent alone, are void, and in- 1 Gardner 13. Gardner, 5 Cnsh. (Mass.) e Tustiii v. Faut, 23 Cal. 2.37. The 483. But wliere a deed purports to be rule is, in accordance witli tlie maxim or is made by an agent or attorney it nihil facit error ■nominis cum de corpore, must be made in tlie name of the prin- constat that mistakes in the description cipal. Lore D. Sierra Kevada, &c., Co., of the parties, unless very gross, will 32 Cal. 639. But, if it is signed by the not vitiate the deed. If the description, agent or attorney in his own name only, however imperfect, clearly distinguishes yet, if enough appears upon the face of the person described from all others, it the instrument to show that he was act- is sufificient, Shep. Touch. 233 ; unless, ing as attorney and not as principal, it however, the lessor signs the instru- is a good execution, Tenant v. Blacker, nient, it will not amount to a lease, 27 Ga. 418 ; Videau v. Griffin, 21 Cal. Marlow v. Wiggins, 4 Q. B. 367 ; and if 389 ; and when there has been such a there be two or more granting parties, lapse of time as will bar a writ of right, all should sign, and if only one of t'wo it will be presumed that the attorney or more joint tenants or tenants in com- was authorized to make the conveyance, mon sign, no more than the interest of Goodwin o. McClure, 3 Gratt. (Va.) the one signing will pass, Jackson v. 291. Stanford, 19 Ga. 14; Co. Lit. 192 a, and 2 Mussey v. Scott, 7 Cush. (Mass.) if, in an action upon the lease, it is al- 315. ■' leged that all demised, and upon its " In Vermont, by statute, the instru- production it appears that it was only ment must be recorded, and in New executed by one, the variance is fatal. Jersey and Tennessee the authority Wilson v. Woolfryes, 6 M. & S. 341. must be conferred by deed. Tappan v. ' Middleton v. Findla, 2.'3 Cal. 76. Eedfield, 5 N. J. Eq. .339 ; Smith v. « Chase o. Palmer, 29 111. 306. Dickerson, 6 Humph. (Tenn.) 261. ^ Hitch v. Barr, 1 Ohio, 390. * Videau v. Griffin, 21 Cal. 389; Wag- *» Sheehau v. Davis, 17 Ohio St. 571. gener v. Waggener, 3 T. B. Mon. (Ky.) ** Cooch v. Goodman, 2 Q. B. 580 ; 542. Aveline v. Whisson, 4 M. & Gr. 801. 5 O'Meara v. No. American, &c., Co., ^ Mclntyre ». Park, 11 Gray (Mass.), 2 Nov. 112. 102; Gunter v. Williams, 40 .A.la. 561. 330 Leases. operative to convey auy estate or interest in the premises demised.^ Indeed, an instrument purporting to convey a term, by one not having apparent authority to make it, is not, and cannot be a lease,'' unless the princijDal afterwards delivers it, in which case he thereby adopts the sealing and makes it his own deed.^ A lessee entering and hold- ing under a lease not executed by his landlord, is not estopped, in ah action by the assignee of the lessor, from showing such non-execution ; ' and under s.uch circumstances, although the lease is executed by the lessee, if it is not executed by the lessor the lessee is not liable upon the covenauts therein, for, the lease being void, there is no consideration for his covenants,'' even though he occupies during the entire term.'' But, although not liable in covenant, upon the covenants, he is liable upon an implied tenancy subject to the like terms and conditions con- tained in the lease, so far as they are applicable to a tenancy from year to year.' Attestation. Sec. 219. In all the States except New York, Massachusetts, Penn- sylvania, Kentucky and Arkansas, one or more subscribing witnesses are necessary to the valid execution of a deed, but in those States where the deed is projjerly acknowledged no attesting witnesses are necessary, but, where it is not acknowledged before delivery, at least iPost V. Martius, 17 Barb. (N. T.) inoperative both as regards the interests 149 ; Commercial Banlv v. Warren, 15 and tlie covenants, because the cove- N. T. 577 ; Dean ». Eaesler, 1 Hilt. (N. nants dejDend upon the lease, and if Y. C. P. ) 420. there be no lease there can be no cove- ^ Hayward v. Haswell, 6 Ad. & El. nants. But this proposition was over- 26.5. ruled in Cooch v. Goodman, 2 Q. B. » Tupper V. Foulkes, 9 C. B. K. S. ^^0- ^^ which the court were clearly of 797. opinion that if a lease be executed by 4 Rose 13. Poulton, 2 B. & Ad. 822 ; the lessee, and he enters and enjoys the Cardwell v. Lucas, 2 M. & W. Ill ; ^^J^"- demised, he is liable to an action Soprani v. Skurro, Yelv. 19. ?7 covenant by the lessor, though he, 6 Swatmin v Ambler S TTxphn 79 • S"^ ''^^^™'' "^^"^ "°' execute the deed, hitman Twoodbiirv' f Fxchn 4 ■ ^^"^ consider the case as falling within Pitman v. Woodbury, ^ iixchq. 4 , tj^g general rule laid down in Oomvn's Knipe V. Palmer, 2 Wils. 132: Waller?). ri!n.„ot -pa^t ,n \ q +i,nV -f '^"'"J" *> Dpnri -/ w .11 i c . a contrary doctrine is held in Pitman 1). 6 Pitman ij. Woodbury, ante; Swat- Woodburv, 3 Exchq. 4, and in Swat- man V. Ambler, ante. i„an v. Ambler, 8 Exchq. 72 Espe- ' Loughran v. Smith, 11 Hun (N". Y. cially is it obnoxious to criticism, when S. 0.), 313. In this case Gilbekt, J., the agreement is for a term within the says: "It is laid down in Soprani v. statute of frauds, and, consequentlv Skurro, Yelv. 18, that a lease executed not binding upon the lessor. Lou^braii by the lessee and not by the lessor is v. Smith, ante. ° FOKMALITIES. 331 one attesting witness is necessary in 'New Yorlj.^ In South Carolina, Now Hampshire, Georgia, Mississipiji, Vermont, Maryland, Rhode Island, Tennessee, Ohio, Delaware, Illinois, Indiana and Connecticut, two attesting witnesses are necessary where the deed is to be proved by witnesses, and in all the others, one. The subscribing witnesses are necessary to enable the other party thereto to inquire into the circum- stances of the sealing and delivery,'' consequently they should be per- sons who are comjjetent to testify to the facts, and who labor under no disability that disqualifies them from testifying to the facts, in an action between the parties thereto, or generally. Thus, neither the wife of the grantor or grantee are competent, nor can one grantor or grantee be a witness to the signature of a co-grantor,^ nor, in those States where interest disqualifies, can an interested j^ai'ty be a wit- ness,'' but if the witness had no interest at the time when the deed was executed, the fact that he subsequently acquired one does not in- validate the deed.^ No witnesses are required to a parol lease. Delivery. Sec. 220. Delivery is essential to the validity of a deed, and proof of execution, without delivery, is of no avail,^ but it may be actual or verbal. If it is shown that there was an itUeniion or assent of the mind of the grantor to treat the instrument as a deed, it is sufiicient to clothe it with the attributes of a valid legal instrument.' But it is necessary that the grantor should put himself in such a position in ref- erence to the instrument that be cannot recall it, and that all the legal formalities should have been complied with,* or it will not be opera- tive.' The grantor must do some act putting it beyond his power to revoke it. There can be no delivery so long as it is in his custody or subject to his control;" until he has parted with the instrument, or the 1 Center d. Morrison, 31 Barb. (N. Y.) (Tenn.) 44; Crawford ». Berthalf, 1 N. 155. J. Eq. 458; Byers D. McClanahau, 6 G.» ^ Moi'ldey ». Swartzlander, S W. & S. . Nieley, 4 Siieed. (Tenn.) Corbett d. Norcross, 35 N. H. 99. 324. It must be understood by tbe par- ■• Winsted, &c., Bank v. Spenser, 26 ties tbat the instrument is eompleted Conn. 195. and ready for delivery, in order to have ^ Carley v. Carter, 23 Ala. 612. a placing of it in the hands of the " Armstrong u. Stovall, 26 Miss. 275; grantee constitute a delivery. If it is Oliver n. Stone, 24 Ga. 63 ; Stiles b. merely left with him for examination, or Bi'own, 16 Vt. 563; Hatch d. Hatch, 9 if anything more remains to be done to Mass. 307 ; Porter u. Buckingham, 2 perfect it, it is not a delivery. Stiles ». Harr. (Del.) 197; Herbert u. Herbert, Probat, 69 111. 382; Graves r. Dudley, 1 111. 278 ; Clarke u. Eay, 1 H. & J. 20 N. Y. 76. (Md.) 318; Jackson -o. Sheldon, 22 Me. " Eeid d. Bntt, 25 Ga. 28. .5{;9. " Duer v. James, 42 Md. 492; Jackson ' Thompson ». Hammond, 1 Edw. (IS", v. Dunlap, 1 John. (N. Y. ) Cas. 114; Y.) Ch. 497; Farrarv. Bridge, 5 Humph. Fisher v. Hall, 41 N. Y. 416. 332 Leases. right of control over it, he may recall or destroy it.^ It is not necessary to prove a formal delivery: it may be inferred from the acts of the party without words, or from words alone, or from both com- bined.^ The question of delivery is one of intention,' therefore, although possession thereof by the grantee, or the fact that it has been recorded, is, prima facie evidence of a delivery ; * yet, this presumption may be overcome by proof that there was no intent to convey, and that the lease was to be returned to the grantor again ; ^ but the grantor or those claiming under him take the burden of proving non-delivery," which he must show affirmatively and beyond a reasonable doubt, and if the matter is left in doubt upon the tohole proof, the doubt will be re- solved in favor of delivery.' The delivery of a deed to a stranger for the grantee is a good delivery if the grantee subsequently assents thereto,* or if it be left with such third person at the grantee's request.^ But, in order to make a delivery to a third person ojserative, it must either be shown that it was left with him at the grantee's request, or that he sub- sequently assented thereto.^" The acceptance of the conveyance by the grantee is an indispensable requisite, and a deed executed and pro- cured to be recorded by the grantor is inoperative as against third lEeid V. Butt, 2.5 Ga. 28; Cook u. Brown, 3i N. H. 460; JoUnson u. Far- ey. 45 id. 595. '^ Duer V. James, 42 Md. 492. In Far- rar ^j. Bridstes, ante, the court say :" A formal delivery of a deed is not neces- sary to give it effect ; and, tliougli left in the possession of the grantor, it will pass the property embraced by it, if it appeal's that it ions executed with that intent. But in such a case, it is appre- hended that the grantee must be shown to have had possession of the instru- ment, fully executed, and with the as- sent of the grantor, and tliat it was left with the grantor by him for safe keeping or other purpose, so that the power of ^recalliny it by the grantor is lost, Ham- 'mell V. Hammefl, 19 Ohio, 17; Clark u. Gifford, 10 Wend. (N. Y.) 310; Sau- verbye B. Arden, 1 John. (W. T. ) Ch. 240; Austin v. Feridall, 2 McArthur (U. S. C. C), 362, or that a fixed inten- tion should be shown on the part of the grantor, that the title under the convey- ance should vest in the grantor. Newton V. Bealer, 41 Iowa, 334; AVard v. Ward, 2 Hayw. {N". C.) 226. But if the grantor holds the deed until some condition is performed by the grantee, there is no delivery, and the deed is inoperative ; and especially is this so if tlie grantor subsequently deals with the land in a manner inconsistent with the idea that he intended the deed to be operative, Jackson jj. Dunlap, 1 John. (JST. T. ) Cas. 114. =* Steele v. Miller, 40 Iowa, 402; Harris V. Sanders, 2 Strobh. (S. C.)Eq. 370; Me- Clure ». Calcloiigh, 17 Ala. 89; Dayton V. Newman, 19 Penn. St. 194; Rlvard i;. Walker, 39 111. 413; Floyd v. Taylor, Ired. (N". C. ) L. 475; Warren v. Sweet, 31 N". H. .332; Stevens v. Hatch, 6 Minn. 04. ■* Billings V. Stark, lo Fla. 297; Kille !). Ege, 79 Penn. St. 15; Gould v. Day, 94 U. S. 405 ; Carnes v. Piatt, 41 N. Y. Superior Ct. 435. * Steele v. Miller, 41 Iowa, 402, as that it was delivered to a straTiger in escrow, and wrongfully delivered to the grantee. NiclioUs v. Nicholls, 28 Vt. 228. " Black V. Shreens, 13 N. J. Eq. 455. ' Carnes v. Piatt, 41 N. Y. Supr. Ct, 435. * Brown v. Austin, 35 Barb. (iS'. Y. ) 341 ; Fisher v. Hall, 41 N". Y. 416. ^ Eckman v. Eckman, 55 Penn. St. 269; Hatch v. Bates, 54 Me. 130; Mor- rison V. Kelly, 22 111. 010; Peavey v. Tilton, 18 JST. H. 151; Cincinnatti, &c., R. , E. Co. !). Iliff, 13 Ohio St. 235; Church V. Gilman, 15 Wend. (N". Y.) 656; Guest v. Buson, 2 Houst. (Del.) 246; Fewell v. Kessler, 3D Ind. 195. " Cones V. Piatt, 38 How. Pr. (N. Y.) 100; Fewell v. Kessler, ante. PORWALITIER. 333 persons unless the grantee's assent is established.^ But such assent is established by showing that he subsequently had possession of»the con- veyence ; ^ and, where the deed is beneficial to hira, from that fact as- sent is presumed, although recorded without his knowledge.^ Send- ing a deed by mail, or depositing it in the post-office,* or leaving it in the recorder's office by direction of the grantee, is a delivery .° Escro'w. Sec. 221. A deed may be delivered in escrow. That is, delivered to a third person, to be held by him until some condition is performed, and, until such event occurs, the title remains in the grantor ; " but upon performance of the condition the title vests in the grantee.' But, where a deed or other conveyance is left in escrow, if the depositary delivers it before the condition upon which delivery is predicated is performed, it is a nullity in the hands of the grantee.' The general rule is, that an instru- ment delivered as an escrow does not take effect so as to divest the title until the delivery to the grantee, but that the second delivery derives its validity from the first, of which it is the full execution and con- summation. But if a strict equity requires it, the second delivery will be made to relate back to the first, so as to protect the grantee against intervening claims." A deed cannot be held as an escrow, either by the grantor or grantee. If it is intended to operate as such, it must be de- livered to a third person, to be delivered to the grantee, when a certain condition is performed.-'" But if it is delivered to the grantee to be de- livered to a third person to be held until the grantee performs certain conditions, it operates as an escrow, whether he delivers it to such third person or not.'^ Recording. Ackno'wledgnient. Sec. 222. In all the States, leases for a term exceeding that which, - Maynard ». Maynard, 10 Mass. 456; Bradshaw, 23 Cal. 528; Smitli v. So. Derry Bank ». Webster, 44 N". H. 264; Eoyalton Bank, 32 Vt. 341 ; Carr ». Jones ». Bush, 4Harr. (Del. ) 1. It will Hoxie, 5 Mas. (U. S.) 60; Jackson ». be good against the grantor. Kerr v. Rowland, 6 Wend. (N. T. )666. And it Birnel, 25 Ark. 225. makes no difference wlietlier the parties " Maynard v. Maynard, ante; Dawson call it an escrow or not. State Bank v. V. Dawson, Rice (S. C), Eq. 243; Wood- Evans, 15 M. J. L. 155. bury V. Fisher, 20 Ind. 3S7. ' Peck v. Goodwin, Kirby (Conn.), 64; 3 Tibbals v. Jacobs, 31 Conn. 428; Beekman ». Frost, 18 John. (N. Y.) Church 1). Gilman, 15 Wend. (IS". Y.) 544; Eeyan v. Howe, 121 Mass. 424. 056; Renfro v. Harrison, 10 Mo. 411; * Everts B.Agnes, 4 Wis. 343; Dyson Mitchell V. Ryan, 3 Ohio St. 377. ». Bradshaw, ante; Abbott «. Alsdorf, ^ McKinney v. Ehoades, 5 Watts 19 Mich. 157. . (Penn. ), 34. ' Simpson v. McGlatheny, 52 Miss. 723. s Kemp V. Walker, 16 Ohio, 118. I'Hapgood v. Harley, 8 Rich. (S. C.) "Johnson v. Branch, 11 Humph. 325; Jordan v. Pollock, 14 Ga. 145; (Tenn.) 521; Louhat v. Kipp, 9 Fla. Braman «. Bingham, 26 N. Y. 483; 63; Millett v. Parker, 2 Met. (Ky.) 608; Granes b. Tucker, 18 Miss. 9. Hathaway v. Payne, 34 N". Y. 92; "Browns. Reynolds, 5 Sneed (Tenn.), Granes B. Tucker, 18 Miss. 9; Dyson o. 389. 334 Leases. under the statute, may be granted by parol, must be acknowledged or proved and recorded in the county, and in some of the States, in the town where the premises are situated, or it is inoperative, except as against the grantor, and those having notice of the lease, and subsequent bona fide purchasers of the premises, or persons taking mortgages upon, or leases of them, or creditors attaching them, will, as against the grantee or lessee, acquire a good estate.^ But actual notice by a subsequent pur- chaser or attaching ci-editor is equivalent to registration,^ and the same 1 Mallory u. Stodder, 6 Ala. 801; "Wal- lis ». Rhea, 12 id. 646; Scott d. Doe, 1 Hempst. (Ark.) 275; Statlord b. Lick, 7 C'al. 479; Bissell -o. Kooney, ?S> Conn. 411; Herndon v. Kimball, 7 Ga. 4.32; Doe v. Eeed, :3 111. 315; Ortli d. Jen- nings, 8 Blackf. (Ind.) 420; Chiles c. Coaley, 2Dai]a (Ky.),21; Moore B. Jour- dan, 14 La. An. 414; Curtis v. Deeviny, 12 Me. 409; Salmon m. Claggett, 3 Bland Ch. (Md.)125; Somes v. Skinner, 3 Piclv. (Ma.ss. ) .52; Bloomer d. Hender- son, 8 Mich. :j9.5; Wilder v. Brooks, 10 Minn. 50; Parmalee v. Simpson, .5 Wall. (tJ. S.) 81; Whittemore r. Bean, 6 N. II. 47; McCamont -o. Patterson, 39 Mo. 100; Den «. Kichman, 13 jST. J. L. 43;. Jackson o. Walsh, 14 John. (N". T.) 407; Blalve v. Graham, 6 Ohio St. 580; Thompson v. Bullock, 1 Bay (S. C), 364; Harris u. Arnold, 1 R. J. 126; Mc- Cullough r. Endlav, 3 Yerg. (Tenn. ) ■346; Ayres v. Duprey, 27 "Tex. 593; Morrison -o. Shattuck, 1 IST. Chip. (Vt.) 42; Hart u. Farmers', &c., Bank, 33 Tt. 252: Wilcox D. Calloway, 1 Wash. (Va.) 38; Casgray ». Core, 2 W. Va. 353; Ely t. Wilcox, 20 Wis. 523. In some of the States a certain period is allowed, as thirty days in Alabama, Wallis B. Rhea, 12 iVla. 640; twelvemonths in Georgia, Delaware and Tennessee and Indiana, Anderson b. Dugas, 29 Ga. 440; Cains B. Jones, 5 Yerg. (Tenn.) 249; and eiglit months in Virginia, Eppes b. Randolph, 2 Call (Va. ), 125; six months in New Jersey, Den r. Richman, 13 N". J. L. 43, Pennsylvania, Maryland, Ridgeley b. Mc- Laughlin, 3 II, &ja. (Md.) 220, Illinois, Ohio, North Carolina and South Caro- lina, Leger b. Doyle, 11 Rich. (S. C.) 109 ; and three months in Mississippi and Missouri, and in the others, no time is limited, but instruments requiring to be recorded become operative according to the order in Mhich they are "filed" in the recorder's office, or "recorded" ac- cording to the language of the statute. ^ Corliss B. Corliss, 8 Vt. 473; Smith B. Hull, 28 id. 364; Jackson b. West, 10 John. (N. Y. ) 466; Newman B. Chap- man, 2 Rand. (Va.) 03; Watkins b. Ed- ward, 23 Tex. 443; Knots ». Geiger, 4 Rich. (S. C.) 32; Blake b. Graham, .6 Ohio St. 580; Schutt b. Lang, 6 Barb. (N. Y.) 373; Den b. M'Knight, 13 N. J. L. 43; Rogers b. .lones, 8 N. H. 264; Trull B. Bigelow, 16 Mass. 406; Hudson B. Warner, 2 H. & G. (Md.) 415; Porter B. Seavey, 43 Jfe. 519; Stewart v. Hal), 3 B. Mon. (Ky. ) 218. In Missouri, Waldo B. Russell, 5 Mo. 337, and in Tennesse, Butter b. Mauray, 10 Humph. (Tenn.) 420, and Virginia, actxaal notice to subsequent attaching creditors does not affect prior rights nor defeat their attachment or liens. Guerrant B. Ander- son, 4 Rand. (Va. ) 208. When a party is put upon inquiry as to the exist- ence of a prior unregistered deed, the question whether he has made due in- quiry is one of fact, i,l> be determined by the jury under the instructions of the court ; the information obtained by him from proper sources may be proved, though it cannot be used to bear upon the question whether or not there has been such a deed. Nnte b. Nute, 41 N. H. 60. Mere rumor or suspicion of de- fect in the title, or an outstanding inter- est in a third person, is not sufBcient to operate as constructive notice; but where the land is claimed under a deed, the grantee in which openly affects to cotrol it as his property, and pays the taxes assessed upon it, one buying the property \\'ith knowledge of tlicso cir- cumstances, is chargeable with notice. The presumption of notice is an infer- ence of fact merely, and may be repelled by proof that the purchaser, exercising proper diligence, failed to discover the prior right. Williamson b. Brown, 15 N. Y. 354. Pos^session is such notice of title in land that an adverse claimant gains no advantage over him in posses- sion,, by getting his deed first on record. Wyatl f. Elam, 19 Ga. 335. It is not in law actual notice of title to land as an equivalent for registry of the deed, but evidence of notice, to be referred to the jury. Vaughn n. Tracy, 22 Mis. 415. The notice is merely an inference which may not arise in some cases, and in others may be repelled or restricted to some particular title or claim. Where FoilMALITIES. 335 rule applies where the purchaser or creditoi has knowledge of such facts as ought to put him on inquiry; ^ and whither possession by a ten- ant is of such a character as ought to put a subsequent purcljaser upon inquiry is a question of fact for the jury." As between the lessor and lessee, an unrecorded lease is as valid as though recorded.^ T)ie ac- knowledgment of a deed must be substantially in conformity to the statute, or the instrument will not be operative as against third per- sons. Slight and imniaterial variations will not affect the validity of the instrument ; but material variations will be fatal,^ even though the instrument is recorded,^ but it is good between the parties.^ Date. Sec. 223. The date of a-lease is not material, as, unless otherwise expressly provided in the instrument itself, it takes effect frotn its de- livery, but the date is, prima facie evidence of the time when it was executed.' And it will be j)resumed that it was delivered at that time, unless the contrary is j^roved.^ The date is not essential to its validity tlie entire estate and title of the owner in fee of certain lands had been sold under a judgment, and he remained in possession as befoi'e, without any ap- parent change in the character of his possession, it -n-as lield that the legal presumption was that he was in by a title derived from the purchaser under the judgment, and that he and those claiming under him were estopped from setting tip another title to the premises. Cook V. Travis, 22 Barb. (N. Y.) 338. [f the purchaser of lands know that they ai-e in possession of a third party, and is shown certain agreements respecting the land between the vendor and occupant, and is assured by the former that the latter has no claim to the land in law or equity, those facts will in equity amount to full notice of any claim which such occupant really has. Hull v. Noble, 40 Me. 4.59. 1 Parks B. Willard, 1 Tex. .350; Wat- kins B. Edwards, 'Si Tex. 619; Coleman t'. Barklew, 27 N. J. L. .357: Emmons v. Murray, 16 N. H. 385; Harper v. Eeno, 1 Freojn. Oh. (Miss.) 323; Sigourney b. Munn, 7 Conn. 324. 2 Ponton B. Ballard, 24 Tex. 619; Wat- kins B. Edwards, ante ; Traup b. Hurl- btirt, 10 Barb. (N. Y.) 3.54; Jacques b. Short, 20 Barb. (N. Y.) 269; Stock- ton B. Briscoe, 1 La. An. 249; Morgan B. Morgan, 3 Stew. (Ala.) .383; Taylor B. Eckford, 19 Miss. 21; Murrill b. Ire- land, 40 Me. 569. Implied notice of a prior unrecorded deed may be equally effective with direct and positive notice. Possession of the grantee may be con- structive notice. But it must be actual, distinct, and unequivocal, visible and manifested by notorious acts of owner- ship, such as would naturally be known and observed by others. The mere using, for pasture by the grantee and others of land on whicli tliere are no buildings, is not such possession. Cole- man B. Barklew, 27 N. ,J. L. 357; Holmes b. Stout, 10 M". .J. Eq. 419. ^ Culeson b. Blunton, .'3 Hayw. (Tenn.) 152; Turner B. Stip, 1 Wash. (Va.) 38; Cooper B. Day, 1 Rich. (S. C.) 26; Stearns b. Morse, 47 N. H. .032. The purpose of the registry laws is, to give notice as between- prior and subsequent purchasers frma the same yranlor, and not for the purpose of notice to the grantor and grantee. G-alpen v. Abbott, 6 Mich. 17 ; Lawry b. Williams, 2 Me. 281. •* Henderson b. Grewell, 8 Gal. 581 ; Fipps B. McGehee, 5 Port. (Ala.) 413; Stanton r. Button, 7 Conn. 527; Vance, B. Schuyler, 6 111. 160; Dauar b. Card- weU, 27 Ind. 478. 5 Van Cortland B. Tozer, 20 Wend. (N. Y.) 423; Allen B. Moses, 27 Mo. 354; Odiorne b. Mason, 9 N. H. 24. ^ Odiorne v. Mason, ante. ' Colquhoun b. Atkinson, 5 Munf. (Va.) 5.50; Meech b. Eowler, 14 Ark. 29; Newlin B. Osborne, 4 Jones (N". C), L. 1.57; CosligauB. Gould, 5 Den. (N. Y. 290. 8 Co. Litt. 36; 2 Blackstone's Com. 307; Harris v. Norton, 16 Barb. (N. Y.) 264; Jayne b. Gregg, 42 111. 413; Ford B. Gregory, 10 B. Mon. (Ky.) 175; Kob- 336 Leases. and may be contradicted.^ If the date is false or impossible, proof of the delivery ascertains the time of it.^ If there is no date, it may be shown by parol that it was not to take effect from delivery, but from a future uncertain period.^ An actual manual investiture is not necessary in order to constitute a delivery, but the due execution of the lease and delivery to a third person for the use of the lessee,^ or any words or acts that evvice an intention that the lease shall be con- sidered as executed and the title parted with, is sufficient.' Entry of lessee. Sec. 224, By the common law, livery of seizin or an actual pos- session of the land, was necessary to complete every grant of an estate of inheritance, or for life ; but in England,-^ as well as in most of the States of this country, a lease duly executed, acknowledged and re- corded, is equivalent to, and dispenses with, livery of seizin.' Before entry, a lessee at common law^ has only an interesse termini, and no possession, and, before entry, cannot maintain trespass ; " but he may inson v. Gould, 26 Iowa, 87; Sweetsers. Lainell, 33 Me. 446; but delivery is a question of intention, and almost any manifestation of the party's intention to deliver, if accompanied by an act im- porting tie same, will constitute a de- livery, Woodfall's L. & T. 140-1, and is essentially a question for the jury. Lindsay v. Lindsay, 11 Vt. 621; Dear- mond V. Dearmoud, 10 Md. 19. If the lease is executed by several lessors upon different dates, the presumption that it was delivered on the day of its date is destroyed. Henderson v. Mayor, &c., 8 Md. 352. 1 Blake v. Fosh, 44 111. 302. '■^ Carter o. Strapham, Cowp. 201 ; Murray «. Stair, 2 B. & C. 82; Hare v. Hen-ton, 5 B. cfe C. 671 ; Bawker v. Bur- dikin, 11 M. & W. 128. 8 Davis V. Jones, 17 C. B. 625. ^Stephens v. Huss, 54 Penn. St. 20; Turner v. Whidden, 22 Me. 121 ; Eeid v. Marble, 10 Paige Ch. (N. Y.) 409; Kane V. Machin, 17 Miss. 387; R. r>,. Co. v. Iliff, 13 Ohio St. 235. ° McClure i). Colclough, 14 Ala. 89; Floyd V. Taylor, 12 Ired. (N". C.) L. 47; Rinard v. Walker, 39 111. 413. A formal delivery is not necessary to give effect to it ; and though left in the possession of the bargainer, it will pass the property embraced by it, if it appear that it was e.Kecuted with such intent. Farrar v. Bridges, 5 Humph. (Tenn.) 44. In Ward V. Ward, 2 Hayw. (N". C.) 226, a father, in his lifetime, made a deed' of land to liis son, but it did not appear that the deed was ever delivered, and it remained in the possession of the father until after his death, when the grantee therein obtained possessioTi of it. The father, by his will, disposed of the same land, and those claiming under the will filed their bill to have the deed delivered up to them by the son, and it was so de- creed. A delivery to the grantee is not essential. It may be delivered as an es- crow, and will take effect on the per- formance of the condition ; and, to pro- tect tlie grantor against intervening rights, relates back to the time of the first delivery. Shirley v. Ayres, 14 Ohio, 307. « By 8 & 9 Vict. Chap. 106, Sec. 2. 'Flint V. Sheldon, 13 Mass. 443; Higher d. Rice, 5 id. 344 ; Matthews v. Ward, 10 G. & J. (Md.) 443 ; Bryan o. Bradley, 16 Conn. 474. 8 Co. Litt. 296 b ; Harrison r. Black- burn, 17 C. B. N. S. 678 ; Wheeler v. Moiitefiore, 2 Q. B. 133. In Co. Litt. 296 b; Comyn's Digest, Trespass (B.), and in 4 Bacdn's Abr. tit. Leases, &c., (M. ) it is laid down as a settled rule that a person cannot maintain trespass qiiare clausum if lie has not the actual posses- sion, even though he has the freehold. Therefore neither a grantee, bargainee or lessee of lands, not in possession, can maintain the action. See also Cook v. Harris, 1 Ld. Rayd. 367 ; Partridge v. Bere, 5 B. & Ad. 604 ; Hitchman v. Walton, 4 M. & W. 409. There must be possession and a right of possession as against the defendant. Shepard v. Pratt, 15 Pick. ( Mass. ) 32 ; Austin v. Sawyer, 9 Cow. (N. Y.) 39 ; Bigelow v. Lehr, 4 Entey Undee. 337 maintain ejectment whenever the legal estate vests in him with a right to immediate possession,-' or he may assign his interest, and thus invest his assignee with this right, as the person having the better title can put the other on his defence.^ If the lessor had not the right to the possession of all the premises demised so that the tenant could get possession of only part, as, if he had previously sold a part of them, or leased them for a term then unexpired, the lease, as to such part, is wholly void, and, although the tenant enters and enjoys the part there- of which the lessor had the power to lease, the rent is not apportion- able, and cannot be distrained for, the impediment of the lessee to get- ting possession being analogous to an eviction from a part by an elder litle,' nor will covenant lie against him for the rent because it cannot be apportioned.* But it would seem that if a lease is made of premises by deed poll or indenture, for five years, and there is an out- standing term of a part of the premises for two years, the lease will be void as to the two years, and valid for the remaining three years, if the lessee so elects to treat it."" The tenant's remedy in such a case is Watts (Penn.), 377; Chatham v. Brain- erd, 11 Conn. 60; Brandon b. Grimke, 1 N. & Mc. (S. C.) 356 ; Rowland v. Row- land, 8 Ohio, 40; Richardson o. Milburn, 11 Md. ,340; Cann v. Warren, 1 Houst. (Del.) 188; Bartlett d. Perkins, 13 Me. 87; Payne ». Clark, 20 Conn. 30. 1 Laurissini v. Doe, 25 Miss. 177; Pars- ley B. Day, 2 Q. B. 156 ; Ryan v. Clark, 14 id. 73 ; Cole on Ejectment, 72, 287. To entitle the tenant to maintain the ac- tion, however, his lessor must have had title at the date of the demise, Whitney V. Bramble, 9 B. Mon. (Ky.) 143 ; Bux- ton V. Carter, 11 Mo. 481 ; Wood v. Mor- ton, 11 111. 547 ; Smith v. McCaiin, 24 How. (U. S. ) 398; Jackson v. Hughes, 1 Blackf. (Ind. ) 421; Scissor v. McLaws, 12 Ga. 166, and the lessee must establish his title and right of possession at tlie time when the action was commenced. Layman v. Whitney, 20 Barb. (N. T.) 559 ; Pitkin v. Yaw, 13 111. 251 ; Burton u. Austin, 4 Vt. 105; Kite?;. Tables, 32 Cal. 332. Title and seizin are presumed' to be united until the contrary is shown. Doe ». Butler, 3 Wend. (N. Y. ) 149. A legal title, unless this person in whom it is vested is estopped from asserting it, en- titles the plaintiff to recover, whatever may be the equities of the parties, Mitch- ell V. Robertson, 15 Ala. 412 ; Winn V. Cole, 1 Miss. 119; Clarke. Loolcwood, 21 Cal. 220; Allen v. Smith, 6 Blackf. (Ind.) 527. no matter how it was ac- quired. N. Y. Dry Docks Co. v. Hicks, 5 McLean (IT. S.), 111. 2 Busenius v. Caffer, 14 Cal. 91 ; Mather v. Munster, 3 S. & R. (Penn. ) 22 509. Only a title superior to the de- fendant's is required, Garrett v. Lyer, 27 Ala. 586 ; Cancey v. Cumraings, 12 La. An. 748, witli an immediate right of pos- session as against him. Batterton v. Yoakum, 111. 288. ' Neale v. Mackenzie, 1 M. & W. 747. * Holgate V. Kay, 1 C. & K. 34. ^ In 4 Bacon's Abr. tit. Leases (N"), which is said to have been written by LoED Chief Justice Gii,beet (see opinion of Lord Kenyon, 1 M. & W. page 759), that learned jurist says : " If one makes a lease to A for ten years, and the same day makes a parol lease to B for ten years of the same lands, tliis second lease is absolutely void, and can never take effect either as a future in- teresfie termini, or as a reversionary in- terest, though the first lessee should for- feit or otherwise determine his estate, or though the first lease were on condition, and the condition broken witliin the ten years; neither shall the lessor have the rent reserved upon such second lease, but such second lease is, absolutely void, as if none such had been made. Plow. 421 b, 422 6 ; Bendl. pi. 246; Cro. Eliz. 160; Plow. 4.32, 521; Hut. 105; Bro. tit. Leases, 48; Moor, 185, pi. 329; Dyer, 112, pi. 49. The reason whereof is, be- cause the first lease being made for ten years, the lessor during that time had nothing to do with the possession, or to contract with any other for it ; and the second lease being made the same day, and for no longer term than the first ten years, could not pass any interest as a future interesse termini certainly; for 338 Leases. against the landlord for not giving him possession of the premises, and although he is not liable upon his covenants in the lease, for the rent, he is liable for use and occupation.' The rent may be released by the lessor before the lessee has entered, and the lessee may, even before entry, assign his term. If the lessor dies, the right of entry remains in the lessee, and if the lessee dies, his heirs or representatives may enter, because by the lease they presently have an interest in the the first lessee had the whole interest during that time ; and his forfeiture or determination of it sooner, which was perfectly contingent and accidental, shall never make good the second lease as a future interesse termini, when at the time of making thereof it was abso- lutely void, for want of power in the les- sor to contract for it; and as a reversion- ary interest it cannot be good, for want of a deed : for a reversion, whether it be granted for life or years, not being ca- pable of executing either by livery of seizin or entry and transmutation of the possession, there can be no evidence of the creation or existence of such a grant, without a deed to ascertain it ; and therefore a deed in such a case is as essen- tial to the making good the grant, as livery of seizin or entry in the other cases, wliere they deal for the posses- sion ; and by consequence, this second lease not being good, either as a future interesse termini or a reversion, must be absolutely void. But now if such second lease had been made for twenty years, then it had been good as a future in- teresse termini for the last ten years, and void for the first ten years, for the reasons before given. For the last ten years it had been good ; because when the first ten years were elapsed, the second lessee might then execute, and reduce into possession by entry, as well as if it had been at first made in posses- sion; for it had been good for the whole twenty years if the first lease had not stood in the way, and that can stand in the way no longer than it continues, and therefore by its determination lets in the second lease. But as a grant of the re- Yersion such second lease could not be good, for want of a deed, for the reasons before given; neither could any attorn- ment help it, or let in the second lease till the first ten years run out by effluxion of time. But if such second lease had been made by deed poll, then it might well enure as a grant of the reversion, and draw after it tlie rents and services of the first lessee, if he would consent to attorn, and by consequence, whenever the first lease determined by surrender. forfeiture, or otherwise, such second lessee having the immediate reversion must come in for the residue of his terra; but without such attornment to make it, operate as a grant of the reversion, this second lease, though by deed poll, would be absolutely void, as if, it were made only by parol, because during the first ten years the lessor had no power to contract for the possession; and there- fore if this grant could not take effect as a grant of the reversion, which was all the lessor had a power of, it must likewise be absolutely void. But if such second lease by deed poll had been for twenty years, then with attornment this would be a good grant of the reversion pres- ently, to take effect in possession when- ever the first lease determined; or if no attornment could be had, yet it would enure as a future interesse termini for the last ten years, and would be abso- lutely void "for the first ten years, as much as if it had been made by parol. But if such second lease for ten years had been made by indenture or fine, then this would have Ijeen good as a present lease, by reason of the estoppel to both parties by the indenture or fine, and therefore whensoever the first lease determined, the second lease should commence in possession ; and in the meantime the second lessee, by reason of the estoppel, would be obliged to pay the rent reserved in an action of debt. And if such second lessee could prevail for an attornment, then this lease would enure as a grant of the reversion, and draw after it the rents and services of the first lessee, and would take effect in possession whenever, that determined ; but without such attornment, though the second lease would be good between the parties, by reason of the estoppel, yet not as a reversion: and therefore such second lessee could have no rem- edy for the rents and services of the first lessee." This view is sustained by Lord KENYOif in Neale v. Mackenzie, 1 M. & W. 758. 1 Tomlinson v. Day, 5 Moore, 558 ; LoED Kenyon In Neale v. Mackenzie, 1 M. & W. 764. Entet TJndke. 339 premises; and if the lease is made to two, and one dies, his interest survives,^ and this interesse termini is in the lessee whether the lease commences presently or at a future period.' Void or voidable leases. Sec. 225. A lease may be void at the election of the lessor, and good as against the lessee, or voidable at the election of the lessee and good against the lessor, and vice versa ; ' as, where a lease contains a condition that, for breach of any of the covenants by the lessee the " lease shall cease and determine and be utterly void," the courts hold that, upon breach of a condition, the lease does not eo instanter and absolute- ly become void, but only upon the election of the lessor, or some per- son in privity with him, because, to hold otherwise, would place it in the power of a lessee at any time to put an end to his term against the will of the lessor, by his own wrong ; * and the rule applies as well to a lease for years as for life.^ When the lessor or his assignees or gran- tees elects to treat such a lease as void for a breach of any of the cov- enants, the lease is not avoided from the date of the breach, but ordy from the date of the election.^ The lessor need not re-enter in order to determine the lease, but he must do some unequivocal act that signifies to the lessee his election to determ,ine it.'' Upon electing to treat the 1 Co. Litt. 46 6, 270 6. 2 Lock B. Furze, 19 C. B. N. S. 96 ; Comyn's Digest, tit. Estates (G), 14. * Dumpors Case, 4 Coke, 119 6 ; Rob- erts V- Davey, 4 B. & Ad. 667; Hughes v. Palmer, 19 C. B. N. S. 393. * In Arnsby v. Woodward, 6 B. & C. 519, tliere was a clause of re-entry super- added to the provision for avoidance, and it was held that both were to be construed together, as only amounting to a power of determining the lease by re- entry, and that a subsequent acceptance of rent accruing subsequent to the breach was a recognition of the lease as still subsisting. In Bryan v. Bancks, 4 B. & Aid. 401, a. tenant attempted to insist upon a forfeiture created by his own act, and thereby to convert the teiTn into a yearly tenancy, but the court held that the lease did not become void, unless the lessor elected to treat it so, and that having received subsequently accruing rent, he must be treated as hav- ing elected to treat the lease as valid and subsisting. A similar doctrine was held in Rude i. Farr, 6 M. & S. 121, where a tenant attempted to vacate the lease, because of a breach by him of a pro- vision therein, that the lease should be- come void upon non-payment of the rent as stipulated. See also Nash v. Birch, 1 M. & ^.402; Reidi). Parsons, 2 Chitt. 247; Roberts v. Davey, 4 B. & Ad. 664. The lessee is not permitted to take ad- vantage of his own default. Rude ». Parr, ante. This subject is treated fully in the chapter on Rent. * Roberts v. Davey, ante. It was formerly supposed that a distinction ex- isted between leases for lives and for years, in respect to tlie necessity of an entry to avoid the lease, but, wliatever may have formerly been the rule, there is now no distinction, and in order to avoid a lease for a breach, containing a provision rendering the lease void for that cause, it is only necessary that the lessor, or some one in privity with him, should re-enter, or do some decisive act showing his intention to determine the lease, and until such act is done the lease remains in force. Lord Dbnman, C. J., in Roberts ». Davey, ante ; also opinion of Parke, J., in the same case. See also Baylis ». Le Gros, 4 C. B. N. S. 537 ; Matthews v. Smart, 12 East, 444 ; Reed v. Tuttle, 35 Conn. 25 ; Bowman b. Foot, 29 Conn. 331. 6 Atty.-Genl. ». Cox, 3 H. L. Gas. 240; Hartshornei). Watson, 4 Bing. N. C. 178; Johns V. Whittey, 3 Wils. 127; Load v. Green, 15 M. & W. 216; Franklin b. Carter, 1 C. B. 750; Selby v. Browne, 7 Q. B. 620. ' Reed v. Tuttle, 35 Conn. 25 ; Bow- 340 Leases. lease as void for a breach, the landlord does not lose his right to sue for rent previously accrued,^ or for a breach of a covenant to repair.' If the lessor parts with the reversion after a breach, he cannot re-enter nor avoid the lease,' nor can the assignee or grantee of the reversion avoid the lease for a breach or forfeiture committed before the rever- sion was conveyed to him.* Nor can an entry be made after forfeiture has been waived,^ but an entry may be made at any time after a breach, and before a waiver." Bringing an action of ejectment is man k. Foot, 29 Conn. 331. He may bring ejectment without having pre- viously signified his election, Hyde v. Watts, 12 M. & W. 254, e.xcept in the case of a lease for life or lives. Co. Litt. 218. 1 Hartshorne v. Watson, 4 Bing. N. C. 178; Selby ». Browne, 7 Q. B. 62a; Wad- dilove V. Barnett, 2 Bing. N. C. 538; Partington ». Woodcock, 6 Ad. & El. 670. 2 Davis -0. Underwood, 2 H. & N. 573 ; Woolcock ». Dew, 1 F. & F. 337 ; Had- dock- B. iluUett, 12 Ir. C. L. 173. 3 Prior !). Ongley, 10 C. B. 25 ; Mat- thews B. Smart, 12 East, 441 ; Marriott r. Edwards, 5 B. & Ad. 1065. * Matthews v. Smart, ante. Little- ton, Sec. 347; Co. Litt. 214 6, says that no entry nor re-entry (which is tlie same thing) may be reserved or given to any person but only to the donor or lessor, or to their heirs, and such re-entiy cannot be given to any otlier person. And then he puts tlie case, if one lets to another for lite by indenture rendering rent; and for default of payment, a re-entry, &c. , if tlie r^ut be behind, the grantee of the reversion may distrain for it, but may not enter and oiifit the tenant, as the les- sor or his heirs might have done if the reversion had continued in them. Ajid in this case the right of re-entry is taken away forever, for the grantee cannot en- ter causa qua supra ; and the lessor or his lieirs cannot enter; for if the lessor might enter, then he ouglit to be in his former state, &c., and this may not be because he hath aliened from him the reversion." " Every one," says Lord Coke, Co. Lit. 215 a, "shall take ad- vanta/e of the condition, in law, broken in his own time. Entry for a forfeiture ought to he by him wlio is next in rever- sion or remainder after the forfeited es- tate; as, if a tenant for life or years com- mit a forfeiture, he who has the imme- diate remainder ought to enter, &c." Comyn's Digest, tit. Forfeiture (A.) 6 & 7. " But lie in the next remainder or re- version shall not enter for the forfeiture if his estate do not continue." 1 Rolle's Abr. 857 1. 45, 50, 858 1. 5. In a word, he who had the estate at the time of the breacli, or his heirs, only, can enter for that breach. Johns v. Whittey, 1 Wils. 127-140 ; Montague's Case, Cro. Jac. 301. In Goodright v. Forrester, 8 East, 552, it was held that a right of entry for a forfeiture is not devisable, and by parity of reasoning it is not demisable ; and LoBD Ellbneorough in that case says : "It is made a question in tlie hooks, who may enter, but it must noiv be taken to be him who has the right to enter." In Co. Cop., Sec. 60, it is said : " Regularly it is true tliat none can take the benefit of a forfeiture but he that is lord of the manor at the time of the forfeiture ; an d therefore if a copy- holder maketh a feoffment and then the lord alieneth, neither the grantor nor the grantee can take benefit of tlie for- feiture, for neither a right of entry nor a right of action can be transferred from one to another." In New York, under the statute (Revised Statutes 748, §§ 23, 25), it is held that the grantee orassignee of the lessor is entitled to all the reme- dies which the lessor had when he parted with the reversion. Van Rensselaer b. Barringer, 39 N. Y. 9 ; Van Rensselaer v. Slingerland, 26 id. 5S J. So in New .Jer- sey, by statute of 1851. Soutliard v. R. R. Co., 26 N. J. L. 13. But at the com- mon law, none hut the lessor and his heirs or legal representatives can take ad- vantage of the breach, and this rule gen- erally prevails in this country. Norris v. Melver, 20 G-a. 563: Smith v. Brannan, 13 Cal. 107; Vermont v. Society, &c., 2 Paine (U. S.), 545; Davey ». Williams, 40 N. H. 222 ; Winn v. Cole, 1 Miss. 119 Parker J). NichoUs, 7 Pick. (Mass.) Ill Cross V. Carson, 8 Blaclrf. (Ind.) 138 Hooper v. Cummings, 45 Me. 389 ; Cor- nelius V. Ivins, 26 N. J. L. 376. ^ Baylis v. Le Gros, 4 C. B. N. S. 537; Griffith V. Pritcliard, 5 B. & Ad. 765; Davis V. Burrell, 10 C. B. 821 ; Arnsby V. Woodward, 6 B. & C. 519. As to what constitutes a waiver, see post For- feiture. " Davis V. Burrell, ante. No intimation of an election on the part of the lessor is necessary as a preliminary to bringing Void oe Voidable. 341 equivalent to entry, and is an election to determine the term, so that from the time of its commencement the rent ceases.' Where a tenant goes into jjossession under a void lease, or agreement for a lease, and pays rent, he becomes a tenant from year to year upon such of the terras of the lease, or agreement for a lease, as are consist- ent with such a tenancy,^ and the tenancy so implied will tei-minate without notice to quit, at the end of the term named in such void in- strument.' Actual payment of rent is not indispensable to convert an occupancy under a void lease into a tenancy from year to year. It is enough if the tenant recognizes his liability to pay, and the rent is permitted to stand Over by mutual consent,* as payment of rent does not create, but is merely evidence of such a tenancy ,° and the pre- sumption arising from such payment may be risbutted.^ Of course, if the lessee does not enter under a void lease, no action lies against ejectment, Hyde i). "Watts, 12 M. & W. 254 ; nor can the lessor elect to put an end to the lease after he has ^¥aived the forfeitures. GritBth b. Pritchard, 5 B. & Ad. 765. Where the landlord brings an action for the rent, Dendy d. Nicholl, 4 C. B. ISr. S. 376, or a distress, Doe o. Peck, 1 B. & Ad. 428; McKildoe u. Dur- racott, 13 Gratt. (Va.) 278, or accepts rent accruing subsequent to the breach, Doe B. Rees, 4 Bing. N. C. 348 ; Griffith ». Pritchard, ante, he waives the for- feiture as a matter of law, and no words of his at the time of receiving the rent can prevent such legal effect. Croft x>. Lumley, 5 E. & B. 648. But accept- ance of rent accruing before the forfeit- ure was incurred, or after ejectment brought, does not amount to a waiver. Price B. Worward, 1 H. & N. 512;. Jones V. Carter, 15 M. & W. 718. An absolute and unqualified demand of rent due after a forfeiture made either by the landlord or a person authorized by him to make it, operates as a waiver, Nash V. Birch, 1 M. & W. 408, opinion of Parke, B., and an acceptance of rent accruing after the forfeiture, even after the landlord has re-entered, has been held to operate as a waiver. Coon v. Brickett, 2 N. H. 164. In order to operate as a waiver, not only must it be shown that rent accruing after the breach was received by the landlord, but also, that he received it knowing of the breach, Jackson ». Allen, 3 Cow. (N. Y. ) 220 ; Jackson , ». Br'onson, 7 John. (N. Y.) 227, and where it was paid to an agent, it was held that his knowledge of the breach was not enough. Jackson b. Schutz, 18 John. (K. Y.) 174. An agreement by the landlord to grant a n^^v lease after the expiration of the term in respect of which the forfeit- ture was innured, Ward b. Day, 5 B. & S. 359, or advising a third person to buy the lease of the lessee, the landlord knowing of the forfeiture, is a waiver. Doe V. Eykins, 1 C. & P. 154. Where the breach is continuous, the receipt of rent or other acknowledgment of ten- ancy will not preclude the landlord from taking advantage of a forfeiture in- curred subsequently. Doe b. Jones, 5 Exchq. 498; Doe b. Woodbridge, 9 B. & C. 376. 1 Jones B. Carter, 15 M. & W. 718; Franklin b. Carter, 1 C. B. 750. ■■' Lee B. Smith, 9 Exchq. 665 ; Cum- berland V. Glavis, 15 C. B. 348 ; Bolton B. Tomlin, 5 Ad. & EI. 856; De Medina B. Palson, Holt, N. P. 47; Waukley b. Bucknell, Cowp. 47.3; Mann v. Lovejoy, 1 Ad. & El. 52; Beale b. Sanders, 3 Bing. N. C. 856; Eigge b. Bell, 5 T. R. 471 ; Doe b. Amey, 12 Ad. & El. 476 ; Cox B. Bent, 5 Bing. 185 ; Knight v. Beimett, 3 id. 361 ; Bennett v. Ireland, 3 E. B. & E. 326; Clayton b. Blakley, 8 T. R. 3; Doe v. Watts, 7 id. 83; Brayth- wayte v. Hitchcock, 10 M. & W. 494; Doe B. Foster, 3 C. B. 215 ; Doe v. Col- lings, 7 C. B. 939 ; Doe b. Smith, 11 M. & Hy. 137 ; Chapman v. Towner, 6 M. & W. 100; Doe v. Taniere, 12 Q. B. 99&, ' Tress v. Savage, 4 E. & B. 36 ; Dee V. Stratton, 3 C. & P. 164; Doe e. Mof- fatt, 15 Q. B. 257. * Vincent b. Godson, 34 L. J. Ch. 122; Cox B. Bent, ante. ^Finlay v. Bristol, &c., E. R. Co., 1 Exchq. 415; Jones b. Shears, 4 Ad. & El 832 6 Lord V. Crago, 6 C. B. 90. 342 Leases. him for fho rent or for not taking possession,' nor agaiiist the land lord for refusing to let the tenant into possession.^ What acts of the parties invalidate a lease. Alterations, erasures, inter- lineations, filling blanks, &c. Sec. 226. A lease by deed may be invalidated by an unauthorized or fraudulent erasure, interlineation or alteration therein in any material respect,* but not by one made before delivery or by the consent of all 1 Edge V. Strafford, 1 C. & J. 391 ; Ilnan v. Stamp, 1 Stark. 12. , 2 Jinks i). Edwards, 11 Exchq. 175. ' 2 But a destruction of the lease by the lessee, or a fraudulent alteration in an immaterial respect, will not defeat his estate, Barrett v. Thorndi.ve, 1 Me. 73; Doe V. Bingham, 4 B. & Aid. 677; Woodward v. Aston, 1 Vent. 297; nor if it is altered by consent of the parties; but upon redelivery it is good without reackuowledgment. Bassett v. Bassett, 55 Me. 125. But an unauthorized ma- terial alteration destroys its validity, Kex I'. Beck, 2 Stra. 1160; Miller b. Maynwar- ing, Cro. Car. o99, and one of two grantors cannot confer authority as against Ills co-grantor. Bassford v. Pearson, 9 Allen (Mass.), )5S7. In South Carolina it has been held that an alteration made by consent of all parties in a deed previous- ly delivered, is inoperative. Booker v. Stivender, 13 Kich. (S. C.) 85; Bigot's Case, 11 Coke, 26 a. As applied to bonds, the rule as stated in the text has been repeatedly held, and the same prin- ciple applies to leases, deeds or simple contracts, and a material alteration, era- sure or interlineation destroys the instru- ment, Wood V. Hildebrand, 46 Mo. 284 ; Bell V. Quirk, 3 Jf. J. L. 312 ; Miller v. Stewart, 4 Wash. (U.S.) 26; Pumy v. Corwithe, 18 John. (N. Y.) 499; Heffel- finger v. Shute, 16 S. & E. (Penn.) 44; Ben-y u Berry, 2 J. J. Marsh. (Ky. ) 487, and lief eats the estate if done by the lessee or grantee fraudulently. Thus in Bliss V. Mcliityre, 38 Vt. 466, it was held that if a lessee iriiiululently altei's his lease in a material part, subsequent to its execu- tion, he thereby destroys all liis future right under the lease to retain posses- sion of the premises or to preclude the lessor from re-entering upon them. And if the lessor or grantor fraudulently makes the alteration, the land passes discharged from the covenants, and a recovery cannot be had upon the origi- nal contract for use and occupation, in- dependent of the deed, nor will equity relieve and compel a redelivery of .the premises or payment of tiie rent. The estate of the person making the altera- tion is destroyed as a penalty of his fraud and his assignee stands in no better relation. Arrison u. Harmstead, 2 Penn. St. 191. The rule seems to be, that, where a contract is reduced to writing, whether under seal or not, so as to merge the original promise, and the written agreement is so altered without author- ity from the parties thereto as to avoid it, the party making the alteration can- not resort to the original contract. Mills 1). Starr, 2 Bailey (S. C), 359; Newell V. Mayberry, 3 Leigh. (Va. )'250; Wheelock v. Freeman, 13 Pick. (Mass.) 165; Jackson v. Malin, 15 John. (N. Y.) 293; Nunnery?!. Cotton, 1 Hawks (N.C.), 222 ; Lewis v. Payn, 8 Cow. (N. Y. ) 71 ; Wright C.Wright, 7 N. J. L. 175 ; Smiths. Mace, 44 N. H. 653 ; Bigelow v. Stutphen, 35 Tt. 521. But, where the alteration is not fraudulently made, it will not can- cel a debt of which the instrument was evidence. Vogle ». Ripper, 34 111. lOD. And in Woods v. Hildebrand, 46 Mo. 284, it was held that, when a grantee, after delivery to him of his deed, alters the description of the land, the title is not tliereby reconneyed to his grantor. But that the title having passed by the deed, its continued existence or integ- rity is not essential to the title, although the alteration is fraudulent ; but that the instrument only is destroyed, so that no action lies upon its covenants, and there can be no question but that this is the rule as to deeds, because the destruction of the instrument, even by the consent of the parties, after the es- tate has vested, does not divest the title. Sinker v. Long, 64 K C. 296; Parshall V. Shirts, 54 Barb. (N. Y.) 99. But if the title or estate never vested under the conveyance, the rule is otherwise. Upton V. Archer, 41 Cal. 85. Therefore it would at least seem that, where the lessee has never taken possession under his lease, and it is refused him, either by the lessor or a stranger, he is withoiit remedy, as both the lease and the estate have been destroyed by the material al- teration. In the case of a lease the sub- ject-matter lies in grant so that the estate cannot exist without the deed, because How Invalidated. 3iS the ])arties, simply to express what was intended by the parties, espe- cially if the deed is redelivei-ed ; ^ nor by an immaterial alteration, although fraudulently made.^ The rule may be said to be, that an al- teration of a lease or deed after execution, which does not operate upon the provisions of the deed, or the parties who previously executed it, will not avoid the deed, but it will be valid against those executing before as well as after the alteration.' Nor is a lease or deed de- stroyed by an alteration made therein by a stranger, without the privity of the party relying upon it.* An alteration in an instru- it is of the essence of the estate. Any al- teration, material or immaterial, if made by the lessee or a person claiming under him, avoids the lease as to him to all in- tents and purposes, and not only his remedy but his estate is lost. Lewis v. Payn, 8 Cow. {N. T.) 71; Bliss d. Mc- Intyre, ante. But a rent is created by duplicate deeds, one being in the hands of each party. JEven though the grantee alters his deed in a material part, neither the remedy nor the estate is lost, for, though his deed is avoided, yet both were original, and the grantor's deed will sup- port the estate. Lewis v. Payn, ante. ^ Bassett v. Bassett, ante, see pre- ceding note. Doe u. Houghton, I Man. & By. 208; Lewis d. Payn, 8 Cow. (N. Y. ) 71; Eavisies v. Alston, 5 Ala. 297; Bank v. Hall, 14 N". J. L. 533; Stewart ». Preston, 1 Fla. 10; Boston v. Benson, 12 Cush. (Mass.) 61. It takes effect from the date of alteration as a new contract. Still v. Probst, 69 111. 383. 2 Barrett v. Thorndike, 1 Me. 73; People V. Muzzy, 1 Den. (N. Y.) 239 ; Pequaket Bridge,' v. Mathes, 8 N. H. 139 ; Van Brunt u. Van Brunt, 3 Edw. Ch. (2Sr. Y.) 14; Burnhamu. Ayer, 35 id. 351 ; Nicholls v. Johnson, 10 Conn. 192 ; Herrick v. Mulin, 22 Wend. (N. Y.) 388; Huntington v. Finch, 3 Ohio St. 445; Jackson v. Mulin, 15 John. (N. Y. ) 293. But there are cases in which it is held that an immaterial alteration, fraud- ulently made by the party claiming under it, avoids it so far as respects the remedy by action upon it. Nunnery)). Cotton, 1 Hawks (N. C), 222; Jackson 1). Mulin, 15 John. (N. Y.) 293; Wright ». Wright, 7 N. J. L. 175; Morris v. Vanderen, 1 Dall. (U. S.) 67; Moye v. Herndon, 30 Miss. 110. ' Lewis V. Bingham, 4 B. & Aid. 674 ; Whiting V. Daniel, 1 H. & M. (Va.) 390. It has long been settled that, after a lease or deed has been duly executed, and the estate is vested under it, that the destruction of the instrument by the lessee or grantee does not divest the es- tate, Woodward v. Aston, 1 Ventr. 297; Lewis V. Bingham, ante ; Bolton v. Bishop of Carlisle, 2 H. B. L. 263; Bul- ler's Nisi Prius, 267, even though it was done fraudulently and with a wrongful intent. Barrett v. Thorndike, 1 Me. 73. And where a deed is offered in evidence, not to charge any one with a duty, or to operate anything, but to show what has been operated during the time that it ex- isted as an impeachable instrument, no alteration, material or immaterial, is an objection to its being received. * As to whether an alteration by a stranger, without the knowledge of the lessee or grantee, will destroy the instru- ment, has been variously decided ; but Mb. Sugden, in his treatise on Powers, p. 400, upon the authority of Henfree v. Bromley, 6 East, 309, lays down the doctrine, that a deed altered in a mate- rial part by a stranger does not become • void. The case of Henfree v. Bromley, it is true, related to an award, which is not necessarily a deed, but it is quite difficult to conceive of a piinciple upon which it can be held that the mere spoliation by a stranger shall not avoid au award, but shall avoid a deed. Waugh V. Eussell, 5 Taunt. 707, is an authority in support of Me. Sugden's rule, to the extent that an immaterial alteration by a stranger does not avoid the lease, and Lokd Ellenboeougii, in his opening remarks in French r. Patton, 9 East, 355, seems to assent to the doctrine of Henfree u. Bromley, as to alterations made by a stranger, and the case of Zouch v. Claye, 2 Lev. 35, is a full authority. Holding that an im- material alteration does not avoid, San- derson V. Symonds, 1 Brad. & B. 426, where an alteration made in an insur- ance policy by the assured, was held not to vitiate it. So Cora v. Savings Bank, 98 Mass. 12, where a bond stolen and the number altered by the thief, was held not to be invalidated thereby. So ' Kendall v. Kendall, 12 Allen (Mass.), 92, where a mortgage was held not to be invalidated as against the mortgagor 344 Leases. nient is a change in its meaning or purpose, and any change there- in that does not vary its meaning cannot be said to be an alterar tion, and, consequently, does not affect its validity ; ^ and, where the by the fraudulent addition by the gran- tee of the name of the grantor's wife, as a party signing the same, for the pur- pose of releasing her dower, she being dead, so that no rights were affected or defeated thereby. In Rees ii. Over- baagh, Cow. (N.T. ) 746, it was held that a deed was not avoided by a stranger' s tearing off the seal, and that an altera- tion by a stranger, tJiouf/h material, will not avoid the deed. See Nicholls v. Johnson, 10 Conn. 192, where the addi- tion of the words " Sales at auction, 6th March, 1826," to a memorandvun of sale, by the auctioneer, did not avoid the instrument. Chubch, C. J., in de- livering the judgment of the court, said : " Whether the alteration in the memo- randum, if material, was made by the plaintiff or a stranger, does not appear. It is said in Pigot's Case, 11 Co. 27, and also in Markman v. Gonaston, Cro. Eliz. 626, that " when any deed is al- tered in a point material, by the plain- tiff himself, or by any stranger, without the privity of the obligee, be it by inter- lineation, addition, erasing, or by draw- ing a pen through a line, or through the midst of any material word, the deed thereby becomes void." This doctrine, not without good reason, has been sup- posed to have been derived from the an- cient technical forms of pleading in cases of deeds, and from principles ap- plicable to proferts. Read v. Brook- man, 3 T. R. 1.51 ; Masters v. Miller, 4 T. R. 321. But whatever may have been the origin of this principle, it has been much relaxed, if not entirely sub- verted, in later times, so far as it ex- tends to the aets of strangers. As early as the reign of Car. 2, it was decided, that a deed was not made void, the seal of which had been torn off by a little boy. Palm. 413. Before the case of Read v. Brookman, ;! T. R. 151, it was uncertain how far a prn/ert could be dispensed with, in a court of law ; and Iti that case, it was, for the iirst time, settled, that the loss or destruction of a ileed would excuse a profert ; and that a resort to a court of equity, in such eases, was not necessary. More recent- ly it has been holden, that an altera- tion of a written instrument, by mis- take, will not defeat it. Chitty on Cont. 298 ; Eaper v. Birkbeck, 15 East, 17 ; Wilkinson !). Johnson, 3 B. & C. 428. In the case of Henfree b. Bromley, 6 Kast. 310, the court of King's Bench de- cided, that where an umpire, after the expiration of his power, had altered an award in a material part, such award was not thereby rendered void, but was good as before the alteration. In the case of Jackson c. Malin, 15 John. (N. Y. ) 293, it was said, by Platt, J., " that a material alteration, though made by a stranger, without the privity of the party claiming under it, renders the deed void, is a proposition to which I am not ready to assent." And in a stil later case of Rees v. Overbaugh, G Cow. (N. T.) 746, this subject was discussed, and it was held, that if a stranger tears a seal from a deed, it shall not destroy it. And no distinction exists in this respect between deeds and other written instru- ments. Masters v. Miller, ante. The reasons controlling the decisions in the cases referred to, seem entirely applica- ble to the present, and wholly inconsist- ent with the old doctrine of Pigot's Case, ante, in itn application to the acts of strangers to the deed. Indeed it can hardly be conceived, if a deed or other instrument in writing is not rendered inoperative by either a mistaken altera- tion, or its loss or destruction, how it can be by the unauthorized intermed- dling of a stranr/er. To the same effect see Waring v. Smyth, 2 Barb. (N. T. ) Ch. 119; Harris o. Bradford, 4 Ala. 214; Lee V. Alexander, 9 B. Mon. (Ky. ) 25 ; Malin v. Malin, 1 Wend. (jST. Y. ) 625 ; Smith D. McGowan, 3 Barb. (N. Y.) 404 ; Terry v. Hazelwood, 1 Duv. (Ky.) 104 ; Wilks ». Caulk, 5 H. & J. (Md.) 36 ; Wright c. Wright, 6 N. J. Eq. 175 ; Lewis !). Page, 8 Cow. (N. Y.) 71 ; Uni- ted States V. Hatch, Paine (U. S. ), 336 ; Bigelow I). Stilphen, 35 Vt. 521, and es- pecially is this so if the original tenor of the instrument can be ascertained. Lub- bering v. Kohlbrecker, 22 Mo. 590 ; Davis i). Carlile, 6 Ala. 707 ; Medlin ». Platte Co., 8 Mo. 235 ; Croft d. White, 36 Miss. 455. 1 lu Morrill v. Otis, 12 ST. H. 466, it was held that memoranda upon a plan, that certain persons desired to purchase one of the lots, and to whom and when it was sold, but not varying the courses and distances of the lines of the lots, nor the relative situation of the lots to each other, did not constitute an altera- tion of the plan. Pequawket Bridge b. Mathes, 8 id. 139 ; Burnham u. Ayer, 35 id. 351 ; Nicholls v. Johnson, 10 Conn. 192. A change in the character How Invalidated. 345 law would supply the matter added, or where it does not change the meaning^ character or purpose of the instrument, it is immaterial, and may be treated as surplusage.^ Where erasures, interlineations or al- terations appear upon the face of an instrument, common prudence requires that the party receiving it should see to it that they are prop- erly noted in the attestation, and thus avoid the possible contingency of being compelled to explain them.'* Indeed in some of the States, where an instrument upon its face appears to have been altered, it is presumed that it was done subsequent to its execution,' while in of the instrument, as by annexing a seal to the name of a party, thus making the instrument a specialty, or tearing off a seal and thus renducing it to a simple contract, is an alteration that is mate- rial and avoids the instrument as to the party doing it. But if done by a stran- ger without the privity of the parties, Kees 1). Overbaugh, 6 Cow. (N". Y.) 746, or accidently, as when they are brushed off, or torn off by a child, the validity of the instrument is not affected. Zouch d. Claye, 1 Palra. 413. An alteration of the d,ate of a lease is not material, unless the date is made material either as to the commencement or duration of the term, State d. Miller, 3 Gill (Md.), 335. S. P. Owings B. Arnott, 33 Mo. 406 ; Hocker ». Jamison, 2 Watts & S. (Penn. ) 438 ; nor when the rights of the parties are not affected thereby, or the legal effect of the instrument is not changed. Hunt b. Adams, 6 Mass. 519. An alteration of the amount of the rent to be paid is material, State ». Boring, 15 Ohio St. 507 ; Mathis v. Mathis, 3 Dev. & B. (N. C.) L. 60, or of the time or mode of payment. Darwin v. Rippey, 63 N. C. 318. So an alteration that changes the duration of the term, or the character of any of the covenants, conditions, reservations or exceptions therein, avoids the instrument as to the party making the alteration or causing it to be m ade. 1 Burnham us. Ayres, 35 N". H. 351 ; Jackson b. Molin, 15 John. (N. T.) 293; People B. Muzzy, 1 Den. (N. T.) 239. As applied to bonds, Heed b. Kemp, 16 111. 445 ; Terry b. Hazelwood, 1 Dur. (Ky.) 104 ; Stone b. Wilson, 4 McCord (S. C.), 203 ; Fulton's Case, 7 Cow. (N. T.) 484; Kendall B. Kendall, 12 Allen (Mass.), 92 ; Hatch b. Hatch, 9 Mass. 307 ; Shelton b. Deering, 10 B. Mon. (Ky.) 405 ; Wilkes o. Caulk, 5 H. & J. (Md.) 36; Bird b. Bird, 40 Me. 398, and theTOienf with which the change was made, will not alter its legal effect. Kobinson ». Phenix Ins. Co., 25 Iowa, 430. In Herrick ». Baldwin. 17 Minn. 209, 10 Am. Kep. 161, the defendant indorsed a promissory note for the ac- commodation of tlie maker, who after- ward, and without the knowledge of defendaiitj changed the note, by adding to the body of it the following words : " Payable before maturity, and interest on unexpired term refunded if I so elect," and negotiated it to plaintiff who was a bona fide holder thereof, for value, and without notice of the alteration. It was held, that the alteration was imma- terial as to the defendant, and that his liability was not affected thereby. In an action by the administrators of the payee of a promissory note made in 1859 and payable "in gold" against the sureties thereto, the latter interposed the de- fense that the words " in gold " were inserted by the payee without their knowledge or consent after delivery. It was held, that the alteration did not change the legal liability of the sureties, and that they were therefore liable. Bridges v. Winters, 42 Miss. 135; 2 Am. Bep. 598. See also Falmouth v. Rob- erts, 9 M. &. W. 469, where a tenant who had entered and become a tenant from year to year, subsequently entered into an agreement for a lease with the landlord for seven years. He altered the word " seven " in the agreement to "fourteen." The court lield that the agreement might be put in evidence without explanation of the erasure, be- cause the term of years was immaterial to the parol contract to hold from year to year, subject only to the terms of the agreement as to the cultivation of the land. 2 Hodge B. Oilman, 20 111. 437. ' Burnham b. Ayres, 35 K. H. 351 ; Mortag B. Linn, 23 111. 551, and the bur- den is held to be upon the person hav- ing the possession of the instrument to explain any apparent alteration, Burton B. Pressly, 1 Cheeves (S. C. ), Part 2, 1, or who is to be beneiited thereby. Jordan V. Stewart, 23 Penn. St. 244 ; Ely v. Ely, 6 Gray (Mass.), 439 ; Roberts «. Unger, 30 Cal. 676. 346 Leases. others it is presumed, in the absence of any suspicious circumstances, to have been done before or at the time of its execution,^ and in others, there is no presumption one way or the other, but it is a question for the jury when the alterations were made, unless there is evidence upon the face of the instrument, intrinsic or extrinsic, that furnishes ground of suspicion.^ But generally, it may be regarded as the rule that, where an interlineation or alteration appears upon the face of the instrument, attended with any suspicious circumstances, the party relying upon it should show eitlier that it was not altered by him, or, if so, that it was done with the consent of the other party,^ and the (piestion as to whether it was made before or after execution must be submitted to the jury.* The unautliorized filling of blanks left in an instrument avoids it as to those cognizant of the alterations ; ° but, wliere a person makes and delivers to a third person an instrument, with the name of the grantee left blank, with verbal authority to him to fill such blank with the name of a certain person as grantee, the deed is good and operative to convey the estate ; " and there would 1 Korth Kiver Meadow Co. «. Shrews- bury Church, 22 N. J. L. 424 ; Stover «. Ellis, 152 ; Beaman «. Kussel, 20 Vt. 205 ; Mathews b. Coalter, 9 Mo. 705 ; Farnsworth v. Sharp, 4 Sneed (Tenn. ), 55; Maybee u. Sniffen, 2 E. D. S. (N".Y. C. P. ) 1 ; Little t>. Herndon, 10 Wall. (U. S.) 26. 2 In Cole V. Hills, 44 N. H. 227, it was held that, where a material alteration is apparent on the face of an instrument, and is not noted as being made at or be- fore the signing, the instrument may be pat in evidence before the jury, without previous evidence of the time of the al- teration, or explanatory thereof. In such case the instrument, with its full history, "the appearance of the altera- tion, the possible motives for and against it, and its effect on the respec- tive parties, should be submitted to the jury, for them to determine when it was made, and whether fraudulently or not, and the presumption that the alteration was made after the execution of the note is one of fact for the jury, and not of law for the court. In Wicker ». Pope, 12 Rich. (S. C.) .387, it was held that whether an instrument was altered or not is a question for the jury, and that the person offering it is not called upon to explain, but may rely on the ap- pearance of the instrument. See also Parker c. Moore, 29 Miss. 218 ; Ellison I). Mobile, &c., R. R. Co., 36 id. 572. 3 Croft ». White, 30 Miss. 455; Hun- tington V. Fitch, 3 Ohio St. 445. Where an alteration appears on the face of a written inKtrnment, it will, as a gen- eral rule, if nothing appears to the con- trary, be presumed .to be contempo- raneous with the executiim of the instrument; but if any ground of sus- picion is apparent on the face of the paper, the law presumes nothing, but leaves the question of the time lohen it was done, as well as that of the person ■ bij whom, and the intent with which it was done, as matters of fact to be found by the jury, upon proof by the party offering the instrument in evidence. Mathews v. Coalter, 9 Mo. 705 ; Maybee V. Snifeen, 2 E. D. Smith (N. Y.), 1; Farnsworth J). Sharp, 4 Sneed (Tenn.), 55; Beaman o. Russell, 20 Vt. 205; but in Croft b. White, ante, where the alteration was not Inade in the hand- writing of any of the parties, it was held that the court would presume t,hat it was made by a stranger. *Hunt V. Gray, 35 N. J. L. 227; Jack- son B. Osborn, 2 Wend. (N. T. ) 555; Norwood !). Fairservice, Quincy (Mass.), 189. * But only those claiming in right of the grantor can avail themselves of such an objection. McKab v. Young, 81 III. 11; Cooper v. Page, 62 Me. 192. "Field V. Stagg, 52 Mo. 534; Pence V. Arbuckle, 22 Minn. 417; Furnas «. Durgin, 119 Mass. 500; but if the agent fills the blank by inserting the name of some other person as grantee, the deed will be void. Upton v. Archer, 41 Cal. 85 ; Clark B. Allen, .34 Iowa, 190 : Schmitz B. McManamy, .33 Wis. 299. But contra and holding that a deed lejEt blank as to the grantee and filled up How Invalidated. 347 seem to be no good reason why, if the blanks are only filled according to the intention of the J}arties, the instrument should be invalidated, even though the blanks are filled by the grantee himself,^ as the lessor or grantor, by delivering the instrument with material blanks, should be regarded as impliedly authorizing the grantee or lessee to fill them according to the intent of the parties.^ The cancellation or destruction of a lease for a term by the mutual assent of the parties, is held not to divest the lessee of his term where the lease is by deed, and all the remedies that can be upheld without production of the deed to either party are left the same as though the lease had not been destroyed,^ nor is it evidence of a surrender by deed.* If the validity of the lease is expressly made to depend upon the happening of a certain event it is invalid if such event does not occur.*^ So, too, it may be invalidated by the judgment of a court of competent jurisdiction.^ So it may become void by the breach of any covenant, by the breach of which it is ex- pressly declared to be void.' So where the premises were leased for an unlawful purpose, the landlord knowing that they were to be so used, even though the lease contains an express covenant against such use, the lease would doubtless be void.* But although a lessee intending to use premises for an unlawful purpose represents falsely that he in- tends to devote them to a lawful purpose, and thereby procures the after acknowledgment, conveys no title. Diser !). Eioe, 33 Tex. 139. See, holding that such alteration does not vitiate the deed, Devin d. Hiner, 29 Iowa, 297. lives V. Farmers' Bank, 2 Allen (Mass. ), 236; but in Burns u. Lynde, 6 id. 305, as well as in Cross v. State Bank, it was held that authority to fill up and deliver a deed executed in blank must be conferred by writing under seal. 2 In South Berwick b. Huntress, 53 Me. 89, it was held that a person who exe- cutes and delivers a deed, bond or other instrument as his deed, &c., knowing that there are blanks to be filled, must be treated as agreeing that the blanks may be filled according to the contract, and, although this does not seem to be the generally accepted doctrine of the courts, yet, there is no valid objection to it. Nothing but merely technical notions can be opposed against it. ''Stewart u. Astor, 8 Ir. C. L. N. S. 35; Roe ». Archbishop of York, 6 East, 86; Ward v. Lumly, 7 H. & N. 86. The covenants are destroyed but the estate is not thereby revested in the grantor, Wiley 0. Christ, 4 Watts (Penn.), 199; Hatch r. Hatch, 9 Mass. 307; Jackson r. Page, 4 Wend. CS. Y.) 585; Chess- man "p. Whittemore, 23 Pick. (Mass.) 241; Grayson ». Richards, 10 Leigh (Va. ), 57; Lawrence w. Lawrence, 24 Mo. 269; Gilbert ». Bulkly, 5 Conn. 262; Jordan d. Jordan, 14 Ga. 145; Morgan t). Elam, 4 Yerg. (Tenn.) .373; even though the parties so intended. Parker V. Kane, 4 Wis. 1 ; Fawcett v. Kimmey, 33 Ala. 261 ; Lawton v. Gordon, ,34 Cal. 36; Carver v. McXulty, 39 Penn. St. 473; Listoff 1). Hart, 25 Miss. 245 ; WilsSn v. Hill, 13 Js". J. Eq. 143 ; Scheffer v. Tithian, 17 Ind. 463. But in New Hampshire, Maine and New Jersey it has been held that the cancelling of an unrecorded deed by mutual consent revests the estate, Mussey v. Holt, 24 N. H. 248; Nason v. Grant, 21 Me. 160; Paulks !). Burns, 16 N. J. Eq. 230; and, if the rights of third persons have inter- vened in consequence of such cancel- lation, the grantee, as against them, may be estopped from setting up his title. Holbrook n. Tirrell, 9 Pick. (Mass.) 105; Wiley r. Christ, ante. See Eay- nor D. Wilson, 6 Hill (N. Y.),469. 4 Doe V. Thomas, 9 B. & C. 288. ^Woodfall'sL. &T. 152. "2 Blackstone's Com. 308. ' Hartshorne t). Watson, 4 Bing. N. C. 178; Davies v. Underwood. 2 H. &, N. 573; Woolcock v. Dew, 1 F.it F. 337. ' Gas Light Co. v. Turner, 5 Bing N..C. 666. 348 ijEASBS. lease, it is not void,^ although if the matter rested would doubtless be a good defence to an action lease.'' But it is held that, where a lease is made that he knows that the premises are to be used for the landlord not hnowing the fact, contrary to the render the lease void as to him, or prevent him rent, as, in such cases, the knowledge of the agent to the principal.' in contract merely it for not granting the by an agent, the fa«t an unlawful purpose, general rule, will not from recovering the is not to be imputed License. — Distinction betiween, and a lease. Sec. 227. An instrument cannot operate as a lease, although words of de:rpise are used therein, if it is evident that such was not the inten- tion.^ Thus, a lease for years or for any specifie term is a contract for the exclusive possession of lands or tenements ; '' consequently, an instru- ment tTwit rnerely gives to another the right to use premises for a spe- cific purpose, the otoner of the premises retaining the possession and control of the premises, confers no interest in the land and is not a lease, but a mere license,^ and a similar right may be given to others if it iFeretD. Hill, 15 C. B. 207; see also S. P. Stewart v. Astor, 8 Ir. C. L. N". S. .35. 2 Calvalerio «. Puget, 4 F. & F. 537. 3 In Stanley V. Chamberlin, 39 N. J. L. 565, the agent of plaintiff, who was the owner of real estate, rented the premises to the defendant, knowing that he intended to use them for gaming pur- poses. Plaintiff had no actual knowledge of the intended use. In an action for the rent the defense set up was, that the renting was for an unlawful jiurpose. The court held that the knowledge of the agent was not to be imputed in this case to the principal, and that the plain- tiff was entitled to disown the agent's contract and to recover on a quantum valebat for the use of the premises. The general rule is well established, that knowledge of the agent is knowl- edge of the principal, and that the principal must be charged with a notice of such facts as are communicated to the agent in the particular employment which has been committed to him. Cornfoot ». Fowke, 6 M. & W. 358; Cooper V. Slade, 6 H. of L. Cas. 793. And in Dresser v. Norwood, 10 Jur. (K. S.), it is held that the principal is ^.ffected by the Icnowledge of his agent acquired in transactions other than those belonging to his agency. See, also, Hern v. Nichols, 1 Salk. 289, where a merchant employed a factor to sell silk for him, and the factor sold one sort of silk for another, and the doubt was whether this deceit could charge the merchant, Holt, C. J., was of the opinion "that the merchant was answerable for the deceit of his factor, though not criminaliter yet civiliter, for seeing that somebody must lose by this deceit, it is more reasonable that he who employs the deceiver should be a loser than a stranger." But in every case where the doctrine of constructive notice is maintained, the knowledge of the agent has been imputed to the principal for the benefit of a third party, who has dealt with the agent in good faith. The court, in the case at bar, says that it can liave no application here. " The plaintiff would not be re- sponsible to the public by way of indict- ment, without showing an actual knowledge of the intended wrongful use of his premises, and, surely, the law will not impute turpitude to him, by charging him with a knowledge which he did not actually have, for the benefit of a defendant who sets up his own execution of such criminal design in his defense. See, also, on the general sub- ject, Hill V. North, 34 Vt. 604; Lawrence I!. Tucker, 7 Me. 795; Bracken v. Miller, 4W. &S. (Penn.)102. * Taylor v. Caldwell, 3 B. & S. 826. " Reg V. Morrish, 32 L. J. M. C. 245. "Taylor d. Caldwell, ante ; Williams V. Joiies, 3 H. & C. 256; Hill v. Tuppor, 2 id. 121 ; Funk v. Holdman, 53 Penn. St. 229 ; Stockbridge Iron Works v. Hudson Iron Co., 107 Mass. 290; Cornish V. Stubbs, 39 L. J. C. P. 206; Coleman V. Foster, 1 H. & N. 37. An instrument License. 349 does not interfere with the exercise of the right conferred ■upon the licensee.^ Where, however, an interest in the land is given, or where the license is for a definite period, it amounts to a lease, if conferred in such a manner as to give it validity.^ Where a hall was agreed to be let for four nights at a £100 a day for the purpose of giving four concerts and day and night ffites ; but from the agreement it was evident that the lessor was not to part with the possession of the premises during the four days, it was held not to anniunt to a demise.* So where A paid B twelve shillings a week for pei'mission to put his loom machines in a room in B's factory, and for ingress and egress to and from the room for himself and workmen for the jjurpose of working and inspecting the machines, and for the steam power to run them, which was furnished by B ; it was held that there was no demise to A of any part of the room, and that the relation of conferring an authority to do an act upon the premises of another, the own- er still retaining possession, is a mere license and is limited to the person to whom it is given, and cannot be grant- ed, assigned or transferred to another, Carter u. Harlan, 6 Md. 29; Prince v. Case, 10 Conn. 376; Cooks. Stearns, 11 Mass. 51-3; Seidensparger ». Spear, 17 Me. 123; Simpkins v. Eogers, 15 111. 397; Frost ». R. R. Co., 23 Conn. .375, and is only binding as to third persons when it has been so far executed as to give rise to an equity, of which they had notice at the time of acquiring the in- terest sought to be charged with the license, Wilson v. Chalfoot, 15 Ohio, 247 ; E«nick v. Kearn, 14 S. & R. (Penn. ) 267; Ricker v. Kelly, 1 Me. 117. iln Silsby v. Trotter, 29 N. J, Eq. 228, it was held that a contract simply giving the right to take ore from a mine, no interest or estate being granted, merely confers a license under which the licensee acquires no right to the ore until he separates it from the freehold, and that unless especially expressed it is not exclusive. The authorities are agreed that a license to dig and take ore Is never exclusive of the licensor unless expressed in such words as to show that that was the intention of the parties. When the licensee has simply the right to dig and take ore the same right may be given to other persons. This has been the prevailing rule since Mount- joy's Case, And. 307, decided during the reign of Queen Elizabeth, Co. Litt. 164. In that case such a license was held to be like a grant of com- mon sans nombre, which never ex- cludes the grantor from enjoying the commpn with his graatee. In Chetham v. Williamson, 4 East, 469, LoED Ellenboeough declared, " a lib- erty reserved of digging coals could not give the person reserving it the exclusive right to them. No case can be named where one who has only a liberty of digging for coals in another's soil has an exclusive right to the coals, so as to enable him to maintain trover against the owner of the estate for coals raised by him." And in Grubb v. Bayard, 2 Wall. Jr. (U. S.) 81, where the license gave the licensee the right to dig, and carry away all the iron ore to be found in certain designated lands, it was held there was no grant of the ore, but the licensee merely had the rirjht to take away so much as he mir/ht dig. The word "all" was held to show merely the extent of his license as to qiiantity; he was at liberty to dig all the ore there ■was in the land, but he acquired no title to any until he separated it from the freehold. His license conferrred a right without stint as to quantity, but, like a grant of a right sans nombre, it did not exclude the grantor. A similar doctj-ine was expressed in Funk v. Haldeman, 53 Penn. St. 229, and in Stockbridge Iron Co. ». Hudson Iron Co., 107 Mass. 290, also in Carr v. Ben- son, L. R., 3 Ch. App. 524, where it is said : " It has been held, from the earliest period, that a man taking a license where he is under no obligation to work, cannot exclude his licensor from r/ranting as many more licenses as he thinks Jit ; provided, always, that they are not so granted as to defeat the known objects of the first licensee in applying for his license." 2 Hull D. Seabright, 1 Mod. 42. 3 Taylor v. Caldwell, 3 B. & S. 826. 350 Leases. landlord and tenant was not thereby created.^ So it has been held that a grant by a riparian proprietor to a person of a right to take water from a natural stream on which his land abuts, is a mere license in gross, and that the licensee has no such interest as will enable him to maintain an action against a wrongdoer.^ But while this is true of a license that does not confer an interest in the land, yet, when the license is coupled with an interest, so that it is assignable, the rule is otherwise,' and such an interest cannot be conferred by parol ; * but in some cases a parol license may become operative by way of estoppel so as to become irrevocable when the licensee has made large expendi- tures upon the faith of it, with the knowledge and tacit assent of the licensor.^ In those cases where assent has been given to one by an- 1 Handcock v. Austin, 14 C. B. N. S. 429. 2 Stockport "Water Works ». Potter, 3 H. & 0. 300. See also Hill i;. Tup- per, 2 id. 121, wliere it was held that the grant by deed by a canal company to a person, of the exclunve right to put pleas- ure boats on their canal, for hire, did not convey such an interest as would enable him to maintain an action against a stranger who disturbed his right by putting and using other pleasure boats on the canal for hire. In Bird v. Great Eastern R. R. Co.. 19 C. B. N. S. 268, it was held that a license to hunt and shoot did not confer an interest in the land, and that an action would not lie in his name against a stranger who interfered with this right. 3 Goff V. Obertuffer, 3 Phila. (Penn.) Vl. A license not coupled with an in- terest, is a mere personal privilege, and not assignable, Dork v. Johnston, 55 Penn. St. 162, and does not pass to a lessee of the licensee, Grovendyke v. Cramer, 2 lud. 382; and licenses are re- vocable at the pleasure of the licensor, tiei&eliv. Central R. R. Co., 29 N. J. L. 571 ; Dinsmore v. Rich, 22 Wis. ; Hitch- ens V. Shaller, 32 Mich. 496; Veghtev. .Raritan Canal Co., 19 N. J. Eq. 153; Wolfe V. Frost, 4 Sandf. Ch. (N. Y.) 72; Foster v. Browning, 4 R. I. 47; Kim- ball V. Tales, 14 111. 464, and being unassignable is revoked by an attempt on the part of the licensee to assign it. Dork V. Johnson, ante, or by the death of the licensor or licensee, or by a conveyance of the estate by the licensor, unless it is irrevocable. Cole- man !). Foster, 1 H. & C.37; Eggleston ». R. R. Co., 35 Barb. (N". Y.) 162; Rob- erts V. Row, 3 H. & C. 162 ; Carter v. Hanlon, 6 Md. 20, and if a license to build a dam or erect other structures is gi^'en, which it is not revocable so long as the structure remains, yet, if it is de- stroyed by flood or fire or other casu- alty, it is revocable. Veghte v. Canal Co., ante. In Carter v. Page, 4 Ired. (N. C. ) 424, A & B, owning adjoining lands, agreed that B might cut ditches on A's land, which were useful both to A and B, and that they should be dug under the direction of A and until he was satisfied, and the ditches were ac- cordingly so dug by B, and used and en- joyed by him during A's lifetime, and for three years afterwards, without com- plaint. It was held, that although the license to use the ditches on A's land expired on A's death, and the person succeeding to his title might fill up these ditches, if he thought proper to do so, yet he could not sue B for a nuisance, es- pecially without a reasonable notice to discontinue the use of flie ditches. But if a license is given to two persons, and one of them dies, it is not thereby re- voked as to the other. Chandler v. Spear, 22 Vt. 388. * Collins Co. V. Marcy, 25 Conn. 239, and where it is attempted, it is void, and revocable at any time. Tanner w. Valen- tine, 75 111. 624; Brown v. Woodworth, 5 Barb. (N. Y.) 550; Selden v. Delaware, &c.. Canal Co., 29 N. Y. 6. portioned.* A lessor may release the rent reserved before entry, in respect of the privity ; so the interest which the lessee has before enti-y is grantable to another ; and although the lessor dies before the lessee enters, yet the lessee may enter into the lands ; so if the lessee 'Woodhouse's Case, 1 Dyer, 93 6; Exch. 932 ; Litchfield ii. Heady, id. 939 ; Wrottsleyu. Adams, 2 id. 177 6; Dove Lowe v. Ross, id. 553; Harrison v. V. Williott, Cro. Eliz. 160. Blacljburn, 17 C. B. N". S. 678. 24 Bacon's Abr. tit. Leases (N). * Parsley 13. Day, 2 Q. B. 156 ; Evan 8 Veal V. Roberts, Cro. Eliz. 199. v. Clark, 14 Q. B. 73. * Co. Lit. 296 6 ,• Wheeler v. Monte- ^ 2 Blac. Com. 270. fiore, 2 Q. B. 133, 156 ; Turner v. Cam- "> Neale «. Mackenzie, 1 M. & W. 747. eron's Coalbrook Steam Coal Co., 5 * Holgate v. Kay, 1 C. & E. 341. 360 Leases. dies before he enters, yet his executors or administrators may enter, because he presently by the lease has an interest in him : so if it is made to two, and one dies before entry, his interest survives.^ This interesse termini is in the lessee, whether the lease is made to com- mence immediately or at a future day.^ Void or voidable. Sec. 230. When a lease contains a proviso or condition that on breach of any of the covenants, the lease " shall cease, determine and be utterly void, to all intents and purposes whatsoever," such words will be construed to mean void at the election of the lessor? The lessee will not be allowed to take advantage of his own wi'ongful act or omission, and to say that thereby the lease has become void.'' The lessor must do some act evidencing his intention to enter for the for- feiture and determine the lease ; ^ and the lease will be avoided from that time only ; but previous arrears of rent may be sued for, although upon re-entry the lessor is to have the premises again " as if the said indenture had never been made." ^ So the lessor may sue for any previous breaches of covenant to repair, &c.' The lessor cannot avoid the lease after he has parted with the reversion.' Nor can the grantee of the reversion avoid the lease for a forfeiture committed before the reversion was conveyed to him.^ The lessor may enter and take actual possession at any time after the foi-feiture has accrued and before he has waived such forfeiture,^" but not afterwards.^^ The bringing of an ejectment for the forfeiture is equivalent to an entry, and amounts to an election to determine the term from the day on ^vhieh the plaintiff claims to be entitled to possession, so as to prevent the recovery of any subsequent rent}''' No act or intimation of election on the part of the plaintiff to avoid the lease is necessary before bringing an ejectment ; " , 1 Co. Lit. 46 6, 270 6. v. Carter, 1 C. B. 750; Johns v. Wliitlev, 2 Com. Dig. tit. Estate (G), 14 ; Lock 3 Wils. 127; Attorney-General v. Cox,'3 o. Furze, 19 C. B. N. S. 96. H. L. Cas. 240. s Roberts u. Bavey, 4 B. & Ad. 667 ; ' Woolcock v. Dew, 1 P. & F. 337 ; Pennington u. Cardale, 3 H. & N. 6.56 ; Davies v. Underwood, 2 H. &, N. 573 ; Hughes B. Pahner, 19 C. B. N. S. 393, Haddock v. Mallett, 12 Ir. C. L. R. 173. 404; 1 Smith L. C. 19. « Matthews v. Smart, 12 East, 441, * Kede u. Fan-, 6 M. & S. 121 ; Bryan 451 ; Marriott v. Edwards, 5 B. & Ad. D. Bancks, 4 B. & Aid. 401 ; Arnshy ti. 1065; Prior c. Ongley, 10 C. B. 2.5. Woodward, B. ife C. 519 ; Roberts b. « Matthews v. Smart, 12 East. 441. Davey, 4 B. & Ad. 664 ; Kash ». Birch, i» Davis i>. Burrell, 10 C. B. 821 ; Bay- 1 M. & \V. 402; Reid v. Parsons, 2 Chit. lis ». Le Gros, 4 C. B. N. S. 537. 11, 247. " Arnshy o. Woodward, 6 B. & C. 519; f' R;iberts, V. Davey and Arnshy ». Doe d. Griffith d. Pritcliard, 5 B. & Ad. Woodward, ante ; Fenn d. Matthews v. 765. Smart, 12 East, 444 ; Baylis n. Le Gros, " Jones v. Carter, 15 M. & W. 718 ; 4 C. B. N. S. 537. Franklin v. Carter, 1 C. -B . 750 ; Cole 6 Hartshorue u. Watson, 4 Bing. K. C. Ejec. 82, 408. 178 ; Load ». Green, 15 M. & W. 216 ; i* Hyde d. Watts, 12 M. & W. 254 ; 1 Selbv J). Browne, 7 Q. B. 620 ; Franklin Smith L. C. 20. What Avoids. 361 unless, indeed, the lease be for a life or lives.' But no such election will avail, nor can an entry or ejectment be supported, after the lessor has waived the forfeiture by the acceptance of subsequent rent or otherwise,'' provided he then knew of the forfeiture, but not other- ■What avoids a lease. Sec. .231. A lease by deed may be avoided by matter ex post facto, as, by erasure, interlineation, or other alteration in any matei;ial part.* A deed executed with blanks in material parts, whereby it is incapable of having any operation, and afterwards filled up and delivered by an- other person, in the absence of the party who has executed, and unau- thorized by instrument under seal, is invalid.^ The addition by a stranger of a seal to an instrument signed only, renders it void." Where, by agreement between plaintiff and defendant, a house, No. 38, was let te the plaintiff, and after the agreement was executed and delivered to the plaintiff, the number was altered to 35, but it did not appear by whom, No. 35 being in fact the house let ; it was held that the agree- ment might be given in evidence in an action for an excessive distress, in which the demise was admitted to show the terms of the holding.' If a deed is altered by a stranger in a point not material, it is not avoid- ed ; but it is otherwise if it is altered by a stranger in a material point ; for the witnesses cannot prove it to be the act of the party where there is any material difference. An immaterial alteration, however, does not change the deed, and consequently the witnesses may attest it without danger of perjury ; but if the deed be altered by the party himself, though in a point not material, yet it avoids it, for the law takes every man's act most strongly against himself. Alterations made in a deed by the grantee, after the execution thereof, though material, will not prevent the deed being received in evidence on his behalf to show the estate which passed by it, and which was not divested by these altera- tions.^ If there be several covenants in a deed, and one of them is al- tered, this destroys the whole deed, for it cannot be the same, unless every covenant of which it consists be the same also. A lease may be rendered invalid by breaking off or defacing the seal, unless it is done by accident ; thus, on an indenture being offered in evidence with the 1 Co. Lit. 21S ; 2 Coke, 53 a , 1 "Wms. 2 Atk. 327 ; Miller v. Mayn waring, Cro. Saund. 287 d (n. ) ; 4 Tyr. 625. Car. 399 ; Bull N. P. 267 ; Kex v. Beck, ^ Griffith V. Priteliard, 5 B. & Ad. 2 Stra. 1160. 765 ; Gatehouse v. Kees, 4 Bing. N. C. '' Hibblewhite v. M'Morine. 6 M. & 384; Lit. s. 131; Co. Lit. 211 ft. ■W.200. ' Gregson ». Harrison, 2 T. K. 425 ; ^ Davidson b. Cooper, 11 M. & W. Walter v. Davids, 2 Cowp. 803 ; Duppa 778. V. Mayo, 1 Wms. Saund. 288 a, h, n. ' Hutchins r>. Scott, 2 M. & 'W. 809 ; (16) ; Pennant's Case, 3 Coke E. 64 6. Stewart ». Aston, 3 Ir. C. L. N. S. 35. * 2 Blac. Com. 308; Bennett v. Vade. * Stewart v. Aston, ante. 362 Leases. seals torn off, it being proved to have been done by a little boy, the in- denture was allowed to be read. A lease may also be invalidated by delivering it up to be cancelled. But the cancelling of a lease by the mutual consent of both parties does not destroy the term vested in the lessee, and the lessor may therefore maintain an action of debt on the demise for the recovery of the rent ; ^ and notwithstanding such can- cellation, the deed may be given in evidence to show the estate passed.- Bv tI)o disagreement of those whose concurrence is necessary in order for the deed to stand ; as the husband, where a wife is con- cerned ; an infant, or a person under duress, when those disabilities are removed, and the like. So, too, a lease may be rendered inopera- tive b}^ the judgment or decree of a court of com])etent jurisdiction." A proA'iso or condition in a lease, that upon non-payment of rent, or non-performnnce of covenants, or upon the bankruptcy of the lessee, or upon any other event, the lease shall become utterly void, means void- able only, that is, void at the election of the lessor, who must hjr some act signify his election to avoid the deed ; which will be- come void from that time only : but previous arrears of rent, and damages for previous breaches of covenant, may be recovered after the deed has been so avoided.* Where a lease was granted to a man on his fraudulent representation that he intended to use the prem- ises for carrying on a lawful trade, he intending at the time to use them, and afterwards using them, as a brothel, the representation being collateral to the agreement, was held not to avoid the lease.^ But if the lease had not been actually granted, it might have supported a plea of fraud to an action for not granting the lease." Where the lessor knew that the lessee took the premises for the purpose of using them as a brothel, notwithstanding an express covenant therein con. tained not so to use them, the lease was held void, and that no rent or damages for breaches of covenant was recoverable.' In covenant 1 Lord Ward v. Lumley, 5 H. & N. 87, be used for lectures maitilaining that 656. the character of Christ is defective and '^Thc Agricultural Cattle Ins. Co. v. liis teaching misleading, and tliat the Fitzgerald, 16 Q. B. 432; Stewart v. Bible is no more inspired than any other Aston, ante. book, he refused to allow the use of the " 2 Blac. Com. 308. rooms, but did not give this as a reason * Hartshorne v. Watson, 4 Bing. N. for the refusal. In an action for breach C. 178 ; Woolcock v. Dew, 1 F. & F. of contract, it was held, that the pur- .337; Davies v. Underwood, 2 H. & N. pose for which the plaintiff intended to 573. use the rooms was blasphemous and il- ^ Feret v. Hill, 15 C. B. 207. But, if legal, and that the contract could not bo a. person agrees to let premises to an- enforced at law ; and that the defendant other, and he subsequently ascertains might justify his refusal on this ground, that the lessee intends to use them for notwithstanding his having given a dif- an unlawful purpose, such facts will ferent reason. Cowan v. Milbourn, L. operate as a full defence to an action for K. , 22 Exchq. 2.30. refusing to carry out the agreement. " Calvaleiro v. Puget, 4 F. & F. 5.37. Thus, in an English case the defendant ' Smith ». White, 10 Mar. 1866,, KlN- agreed to let rooms to the plaintiff ; debsley, V. C. afterwards, learning that they were to CONCTJEEENT. 363 for rent it is a good defence that the premises were demised by the plaintiff to the defendant for the express purpose of being used for purposes contrary to the provisions of any statute.' An assignment of a lease obtained by false and fraudulent representations is not void at law, where something more than a simple avoidance of the deed necessary to do complete justice between the parties.^ Concurrent leases. Sec. 232. A concurrent lease is one granted for a term which is to commence before the expiration or other determination of a previous lease of the same premises, made to another person,* oi', in other words, an assignment of a part of the reversion, entitling the lessee to all the rents accruing upon the previous lease, after the date of his lease, and all the remedies against the tenant under the prior lease, which his les- sor would have had except for the a.ssignment.^ But, unless under «eal, it does not have this effect, because it does not come within the provisions of the statute 32 Hen. 8, chap. 34.^^ No attornment of the tenant in possession is necessary as against the lessor ; " but unless there has been an attornment by the tenant, the reversion does not pass, but only an interesse termdni,'' nor until notice of such assignment of the lease can the assignee charge the lessee for rent previously paid to the lessor ; * but the lessor will be liable to the second lessee for the amount received by him from the tenant, as, for so much money had and received.' .When the lessee himself takes and accepts a concur- rent lease it operates as an implied surrender of his previous term, and the last lease becomes operative as a lease in possession for the term named in it, upon the principle that the same person cannot, at the same time, be both lessee and reversioner ; '° but even where there is a merger of estates, it seems that the lessee is still bound in equity to perform those covenants in his first lease that are made for the benefit of adjoining premises belonging to the lessee or his grantees. Thus, A being possessed of a piece of land for a term of ninety-nine years, laid it out in plots, and underleased one plot to the defendant for the resi- 1 Gas Light Co. v. Turner, 5 Bing. N". ' Cook w. Maylan, 1 Exchq. 67 ; Mosa C. 666; 6 id. 324. v. Gallimore, Boug, 279 ; Waddilove v. 2 Stewart v. Aston, 8 Ir. C. L. N. S. Barnett, 2 Bing. K. C. 538 ; Lumley v. 35. But see Evans v. Edmonds, 13 C. B. Hodgson, 16 East, 99. 777; Canbam v. Barry, 15 C. B. 597. sjfeate v. Harding, 6 Exchq. 349 ; sWoodfall'sL. & T. 170. Smith v. .Jones, 1 Dowl. N. S. 526; « Harmer b. Bean, 3 C. & K. .307. Watson v. McLean, E. B. & E. 75. 5 BicUford v. Parson, 5 C. B. 920 ; i" Davison v. Stanley, 4 Burr. 2210 ; Studen v. Chrismas, 10 Q. B. 135. Crawley v. Vitty, 7 Exchq. 319 ; Furni- « Edwards i'. Wickmar, L. K., 1 Eq. vail v. Grove, 8 C. B. X. S. 496. The Cas. 403. matter embraced in this section will be ' Edwards ». Wickmar, ante ; Agar b. fully treated post, under the heads of Brown, 2 E. & 13. 331 ; 4 Bacon's Abr. Assignment and of Surrender, tit. Leases (N). 364 Leases. due of the teiiii, less three days, the defendant covenanting not to build more than twenty feet in height on that side of liis plot which adjoined a narrow passage. A underleased another plot, which abutted on the other side of the passage, to the plaintiffs. On A's death, the estate was sold under conditions which provided that the purchaser of the largest lot in value should take an assignment of the whole, and grant fresh underleases to the various underlessees, for the residue of the term of ninety-nine years, less two days. The defendant purchased his own plot, and the plaintiffs purchased their plot, which was the largest in value. The plaintiffs took an assignment of the whole, and granted a fresh underlease to the defendant of his lot for the residue of the term, less two days, at an apportioned ground-rent. It was held that though the defendant's original underlease was merged at law, he was still bound in equity to observe his building covenant ; and that the plaintiffs could obtain an injunction to restrain him from infringing it.i Estoppel. — Leases by. Sec. 233. Estoppels are said to be odious in law, as they have a ten- dency to prevent an investigation of the truth.^ They are said to be an imj)ediment or bar raised by law upon a man's own deed to his averring or proving anything in opposition to what he has once so solemnly and deliberately declared.^ It may be said to be a conclusion, from its de- termining, finishing, closing or shutting up the mouth, so that the party cannot speak, plead or claim anything contrary to his doed.^ In order to be operative, they must be certain to every intent, and pre- 1 Birmingham Joint Stoclc Co. ». Lea, the courts do not and will not permit it. 36 L. T. Rep. N. S. 843, Ch. Div. See Eoe b. Jerome, 18 Conn. 138; WJiite v. post Merger. Langdon, 30 Vt. 599; Forsyth v. Day, 2 Rex V. Lubbenhara, 4 T. R. 255; Co. 46 Me. 176 ; Coolv o. Finkler, 9 Mich. Lit. .365 b; Bacon's Abr. tit. Joint Ten- 131; Bowen v. Buck, 28 Vt. 308; Garri- ants (H) 1; Sldpwitli v. Green, 8 Mod. son v. Garrison, 29 JST. J. L. 153; Wy- 311; Abbott v. Wilbur, 22 La. An. 368; man v. Perkins, 39 N. H. 218; Laskl Comyn's Digest, tit. Estates (K) 8; v. Goldman, 18 La. An. 294; Eigney v. Woodfall's L. & T.'172. "Estoppels, in Smith, 39 Barb. (K T.) 383; Cooke v. general," said LoBDKENyoN, in the case Kuykendall, 41 Miss. 65; Crockett e. firstcited,.su2)?-a, "are not to be favored; Lashbrook, 5 T. B. Mon. (Ky. ) 530; they are to be extended only so far as Plumer v. Lord, 9 Allen (Mass.), 455. the? positive rules have gone ; because " 2 Blackstone's Com. 295 ; Comyn's the tendency of them is to prevent the Digest, tit. Estoppel (A), investigation of the truth of the case." * Co. Litt. 37 a, 170 a. The ground But however odious an estoppel may be, upon -which estoppels are allowed is, there is apparent justice in holding that that, when a man, without fraud on the a person who, by his words, conduct or part of the other party, does or alleges deed has induced another to believe in that upon which others have acted and be- the existence of a certain state of facts, lieved to be true, it must be presumed to and to act upon them as Kuch, should be true, and he ought not to be permitted not be permitted to aver a different state to deny it to that other's prejudice. Co. of facts to such person's prejudice, and Litt. 352 a, n. 1. By Estoppel. 365 cise, clear and unequivocal,^ and mutual,^ and both parties must be bound thereby, or neither is." Therefore, if one party is an infant, or a feme covert, it will not operate as an estoppel,^ nor can any one who is not bound by, avail himself of it.^ So, too, it must not be induced by the fraud of tlie other party, nor the result of an innocent mistake on the part of the person sought to be bound by it." After purchase of estate. Sec. 234. If a person leases land for years, to wliich he lias no title, but to which he subsequently acquires one, the lease which before operated by estoppel only becomes a lease in interest.' Thus, if A makes a lease to B of certain lands to which, at the time when the lease was made, he had no title, the lease is good against A by estoppel, but is not good as against the real owner. Bui if A subsequently purchases the estate, the lease thereupon becomes a lease in interest, and A is estopped from setting up the fact tliat he had no title when the lease to B was made, in avoidance thereof.* So, where an heir makes a lease of lands before the death of his ancestor, if the ancestor dies before the time named in the lease expires it instantly attaches to the estate as a lease in interest.' But, in order to operate as an estop- pel, the lands must be particularly described ; for, if a demise be made of all the lands which the lessor had in Dale, and he had no lands at ' Eich V. Atwater, 16 Conn. 409; La^ government, national or State, is not joye r. Princaii, 3 Mo. 529 ; Clarlc v. bomidby them, Johnson u. U. S., .5 Mas., Cuerdin, 2 Jolm. (N. Y.) Cas. 353. (U. S.) 425; Taylor v. Shaford, 4 Hawks - Lanshig v. Montgomery, 2 John. (K. C. ), 116; nor is the grantee of the (N. T.) 382 ; Smith D. Law, 1 Alk. 489; government. Candler v. Lunsford, 4 Bacon's Abr. tit. Estoppel (O). . Dev. & B. (X. C.) L. 401. 2 Longwell v. Bentley, 3 Grant's Cas. '' Pierroi>ont v. Barnard, 5 Barb. (N. (Penn.)"l77; Schumann t. Garratt, 16 T.) 364. In Jackson ». Spear, 7 Wend. Cal. 100. (N. Y. ) 401 ; Jackson w. Ayi-es, 14 John. * Lackman D. "Wood, 25 Cal. 147; Ba- (N. Y.) 224; Stougliton u. Lynch, 2 con's Abr. ante; Smith v. Law, ante; John. Cas. (N. Y. ) 3o.3. Clark D. Goddard, 39 Ala. 164 ; Brown ' Webb v. Austin, 7 M. & G. 701; 4 V. McAmo, 5 Saudf. (N. Y.) 224. Bacon's Abr. tit. Leases (O), 189; Co. ^ Lansing I'. Montgomery, ante; Cuttle Litt. 47, 227 a; Doe v. Ongley, 10 C. B. V. Brockway, 32 Peiin. St. 45; Wood v. 25; Smith ;;. Law, 1 Atk. 489; Sturgeon Pennell, 51 Me. 52. Parties and privies «. Wingfleld, 15 M. & W. 224; Doe v. only are bound, and in order to be Fuller, Tyr. & G. 17. binding tlie estoppel must be mutual, * Bacon's Abr. tit. Leases (O), 189. Griggs?). Smith, 12 N. J. L. 22; Griffin !> Rothwell's Case, Hut. 91; Anony- V. Richardson, 11 Ired. (N. C.) L. 439 Langer v. Filton, 1 Eawle (Penn. ), 141 Worcester v. Green, 2 Pick. (Mass.) 425 mous, Dal. 27, pi. 4; South v. Law, ante; Rawlyn's Case, 4 Coke, 53 a; Isehamt. Morrice, Cro. Car. 109 ; Hermitage v. Deeryi). Cray, 5 Wall. (U.S.) 795; Nut- Tomkins, 1 Ld. Rayd. 729; Goodtitle well ?;. Tongue, 22 Md. 419; Williams v. v. Morse, 3 T. R. 371, and the same rule Chandler,! 25 Tex. 4, and can never be prevails as to one who makes a lease of set up by a stranger, or one who is not lands which he claims under a devise, bound by it. Louis v. Castleman, 27 before the title has vested in him, Tex. 407; Massure v. Noble. 11 111. 531; Hooks v. Bellamy, 1 Keb. 530, or by a Miles V. Miles, 8 W. & S. (Penn.) 135; tortfeasor. Pau'lin v. Hardy, Skin. 2, Wright «. Hazen, 24 Vt. 143; Langston 62. ». M'cKinne, 2 Murph. (N. C. ) 67. The 366 LEAf3ES. the time when the lease was made, it is said that it will fail, for its gea- erality, to create an estoppel against the lessor if he subsequently ac- quires land there.' It was formerly held that a lease could not become operative by way of estoppel, when it appeared upon its face that the lessor had no title ;^ but that if the lessor falsely recited that he had no title to the lands the recital would be void, and the lease would be operative by way of estoppel.' But this doctrine has been overruled, and whatever may be the recital as to title, in the lease, it will enure by estoppel if the lessor subsequently acquires title to the lands.* Under the rule that both parties must be bound, it is held that a lease cannot operate by way of estoppel unless both parties sign it ; ^ conse- quently, a lease by deed poll will not operate by way of estoppel, be- cause the lessee is not bound thereby,'' but a lease executed by the lessor, and a counterpart executed by the lessee, although not in- dented, is ti-eated as one instrument, and such a lease will operate by way of estoppel.' If any interest passes under a lease ' it cannot op- erate by way of estoppel.^ An estoppel is not confined to the parties to the lease, but is annexed to the estate, and is binding alike upon all parties claiming under them}" If a mortgagor makes a lease, and after performance of the condition in the mortgage conveys the estate, the 1 Jenkin's Cent. 225, Case 46. 2 Lumley ». Scarborough, 3 Ad. & El. 2 ; Hermitage v. Torakius, ante ; Jef- ferys v. Bucknell, 2 B. & Ad. 27S; Cooks ■c. Bellamy,! Keb. 531; Montgomery's Case, 2 Dyer, 244 a; JToak v. Amador. Cro. Eliz. 373; Frontin b. Small, 2 Ld. Rayd. 418; Ludford i). Barber, 1 T. R. 86 ; Barber d. Lawrence, 4 Taunt. 23 ; Pargoter o. Harris, 7 Q. B. 108. Mar- tin," B., in Cutlibertson v. Irving, 4H. & N. at p. 757. ^ Jenkin's Cent. 255, Case 46. 1 Morton o. Woods, L. R., 4 Q. B. 293; Jolly I!. Arburthnot, 4 DeG. & J. 224. ^ Co. Litt. 47 a, 363 6,- Pike b. Eyre, 9 B. & C. 909 ; Hooks ». Bellamy, 1 Keb. 530; Hilmani). Hore, Cartli. 247; Card- well D. Lucas, 2 M. & W. Ill; Palmer 1). Ekins, 2 Ld. Rayd. 1550 ; Wilson 1). Woolfryes, 6 M. . Cuester, 41 Mo. 4«i7. After a judgment of evic- tion against the tenant, he may, without the landlord's consent, attorn to the successful party, although he has not actually been evicted, Moffat b. Strong, 9 Bos. (N. y. Sup. Ct.) 5.7; Lunsford b. Turuer, 5 J. J. Marsh. (Ky.) 104 ; Fos- ter V. Morris, 3 A. K. Mar. (Ky.) 609; or he may show that the premises have been sold under a, mortgage, execution, or for taxes, Shields t. Lozear, 31 N". J. L. 496; Doe b. Ashiuore, 261; and if the sale is subsequently set aside, he may dispute the title of the purchasers and attorn to his original landlord. Thus, on a decree in favor of H, land was sold to him ; he conveyed, and the purchasers entered and put in their tenant ; on appeal, the sale was set aside and a re- conveyance by a commissioner was ordered and executed : thereupon the tenant attorned, and afterwards gave possession to the original owner, to whom the re-conveyance had been so made. It was held, on ejectment by the purchasers, that the relation of tenancy did not estop the tenant so to attorn ; that therefore after his attornment the original owner was in possession by him, under the new title by the re-conveyance, so that he was not in as sub-tenant of the plaintiffs, and therefore was not estopped to deny the plaintiff's title, and the plaintiffs were called upon to show title in themselves. Miller v. Williams, 15 Grait. (Va.) 213. This is upon the principle that if one in possession, under claim of title, is, by fraud or mistake, induced to believe that another has a better title, and thereupon to take a lease from him, the tenant will not be estopped. Alderson v. Miller, 15 Graft. (Va.)279. iDoe V. Seaton, 2 Cr. M. & K. 728 ; see ante, n. ^Glein v. Rise, 6 Watts (Penn.), 44; Swift V. Dean. 11 Vt. 323 ; Baskin v. Seechrist, Penn. St. 154. 8 Schultz B.Elliott, 11 Humph, (Tenn,) 183. * Moffat B. Strong, 9 Bos. (N". Y. Sup. Ct.) 57 ; Foster b. Morris, 3 A. K. Mar. (Ky.) 609 ; Fletcher b. McFarlane, 12 Mass. 43 ; Allen v. Thayer, 17 id. 299. ""Shelton b. Carnal, 16 Ala. 148. "Page B. Kinsman, 43 N. H. 328; Car- penter B. Thompson, 3 id. 204. If there is no tenancy, there is no estoppel. Hughes B. Clarksville, 6 Pet. ( IT. S. ) 369 ; Fousti). Trice, 8 Jones {N. C), L. 290; Head b. Head, 7 id. 620. As the estop- pel began by the making of the lease so CONSTEPCTION OF. 375 expired is treated as holding as tenant upon the terms of the former lease, he remains subject to the estoppel.^ C«nBtruction. — Leases by deed. Sec. 237. Deeds — including leases by deed — being the highest de- scription of private written instruments, are themselves the best evi- dence of the facts which they contain, the circumstances whicli they relate, and the makers' intentions. In their construction, regard must be had to all their parts ; and general words may be restrained by j)ar- ticular recitals.'' Where the recitals in a lease stated that a sum of money which was in part to be given for fixtures was part of the con- sideration for the lease, it was held, that, whether the lessee would or would not be estopped by it, he was not bound to execute such a lease.^ If a deed may operate in two ways, the one consistent with the intent of the parties, and the other repugnant to it, the courts will put such a, construction on it as to give effect to the intent ; * for deeds must be construed so as to operate according to the intention of the parties, if by law they may ; and if they cannot operate in one form, they shall in another.'' The language of a lease will be construed with reference to the subject matter to which it applies, and in reference to a general or local custom if there is any controlling the matter ; and if the words used have acquired a peculiar meaning in the vicinity of the leased premises, such meaning may be shown. Thus, a tenant under a lease bound himself to " cultivate and farm said land in a workmanlike man- ner ; to put out all the crops in good season and in jjroper order, of such kind of grain and in such field as the landlord should designate ; also to take off all the crops in proper season and house the same in proper order." It was held, that " workmanlike manner " meant in a " farmer like manner," or as good farmers usually do. The duty of the tenant was not confined to performing the things expressly required by the lease. And in an action by the tenant for work and labor in spread- ing lime in the fall before he was to take possession under his lease, it was held competent for defendant to show as evidence of what was by the determination thereof it ends, as a condition precedent to denying his Cuthbcrtson v. Irving, ante ; 4 Bacon's title. Abr, tit. Leases (O), 191. Tayler c. Homersham, 4 M. & S. ' Stoops 0. Delain, 16 Mo. 162 ; Long- 42.S ; Simons v. Johnson, 3 B. & Ad. fellow ». Longfellow, 54 Me. 240. See 175 ; Bain v. Cooper, 9 M. & W. 701 ; contra, Carpenter v. Thompson, ante, Major u. Salisbury, 2 D. & L. 763, 768; where it is held that the estoppel only White v. Osborne, 4 Jur. O. S. 941, 8.pp]ies while the terra continues. In C. P. Wilson 1). James, 79 N. C. 349, it was ^ VonhoUen v. Knowles, 12 M. & W. held that even where one who at the 602. time of entry was disabled from enter- * Solly v. Forbes, 4 Moo. 448; Hotham ing into a contract, entered upon land v. East India Co., 1 T. E. 638. by the permission of one who claimed, ^ Edwards v. Bailey, Cowp. 600 ; Shep, and was acknowledged to be the owner, Touch. 81 (sec. 13) ; 2 Smi'h L. C. 412, he must return the possession to Mm, notes, 4th ed. 376 Leases. meant by " workmanlike manner " of cultivation, that good hTisbandrj-^, and tlic usual course of managing sucli farms in that vicinity, required that a tenant about to take possession in the spring, or liold over an- other year, should prepare the gi-ound in the preceding fall or v.'inter ; and should spread on corn ground such lime or other fertilisers as tha landlord furnished, without sti2)ulation to that effect in the lease, and without charging the landlord therefor.^ Where a material word ap- pears to have been omitted in a lease by mistake, and other words can- not have their proper effect unless it is introduced, the lease must be construed as if that word was inserted, although the particular passage where it ought to stand conveys a sufficiently distinct meaning without it.^ An instrument of demise was produced in evidence, by which the plaintiff agreed to let for the term of one year fully to be complete and ended ; most of the subsequent stipulations in the lease were wholly inapplicable to a tenancy determinable by a notice to quit ; the docu- ment appeared on the face of it to have originally contained words cre- ating a tenancy from year to year, which were struck out, and the above words as to the term only remained ; it was held, that the words struck out might be looked at to show what the intention of the jsarties was ; that the tenancy was for a single year only ; and that the terms inapplicable to such a tenancy must be considered as expunged, or as only applicable in case the tenancy should continue.' General words at the end of a particular specification will not pass any property of a different nature from that particularly mentioned.* In construing a deed conveying either a fee or a term, the court will not lay too much stress upon the strict and precise moaning of words where the intention is manifest, but will marshal the words, if necessary, so as to give effect to the intention of the p.arties ; ^ and it sometimes happens, th.at a different meaning will be given to the same woi-ds, when they refer to different subject matters, and it is clear that they were used to convey a different sense in reference to one matter, from what they were intended to have in another." The end contemplated hy the parties leill be regarded, rather than the mode taken to ob- tain it, and the failure of the latter will not be permitted to involve the failure of the formei- ; ' and if there is an evident intention to pass the land in one way or another, the conveyance may be good either 1 Aiighiiibaugh v. Coppenhaffer, 55 tees of Mile End Old Town, 17 Q. B. Penn. St. 347. 512 ; Lyndon v. Stanbridge, 2 H. & N. 2 Wright V. Dickson, 1 Dow. 141, 147. 51 ; Huntington v. Havens, 5 John. Ch. 3 Strickland o. Maxwell, 2 C. & M. CS. Y. ) 2.3. 539. 5 Cook V. Gerrard, 1 Wm. Saund. 170; * Anon., Lofft. 398 ; Sandiman u. Atto v. Hemmings, Bulst. 2S2. Breach, 7 B. & C. 96; Hare v. Horton, ^ Footh v. Chajpman, 1 P. Wins. 667. 5 B. & Ad. 715 ; Re^ v. jSTevill, 8 Q. B. ; ' Bell c. Scanimon, 15 N. H. 381; Bry- East London Water Works Co. b. Trus- an u., Bradley, 16 Conn. 474. Leases. 377 way ; ' and if the intention to convey is clear, the misuse or misapplica- tion of teclmical words or terms will not defeat such intention.^ If an instrument contains two distinct instruments, as a lease and a release, the court will regard that as first which is first in point of time, in order to carry out and give eifect to the intention of the parties.' A grammatical error will not be permitted to defeat a deed, the rule being according to the maxim "mala grammatica non vitiat chartum," and if necessary to effectuate the clear intention of the parties, the proper word will be supplied, or a word will be construed as thougli the proper word was used, and under this rule the word "and" has been made as " or." ^ In construing a deed, the court will look at the entire instrument, and general words will be restrained by jjarticular recitals,'^ and an erroneous or false desorijstion will not destroy or qual- ify a former description. Thus, if a lease is made of "all my lands " in a certain town, " containing ten acres," all my lands in the town named will pass, whether it embraces more or less than ten acres ; agreeably to the maxim " falsa demonstratio, non nocet." ^ If there are particulars enough to indicate what land is intended to be con- veyed, the addition of other inconsistent particulars will be rejected.' The rule may be said to be that, where two clauses of a deed are so in- consistent or repugnant with each other that both cannot stand, the first will be enforced and the last rejected,* as, if anything in the ha- bendum is irreconcilable with the premises, that portion of the haben- dum will be treated as void,' and the granting clause, in case there is repugnancy, prevails over the introductory statemeiit,-"" and generally, subsequent words of doubtful import will never be construed so as to contradict preceding words that are certain ; ^^ and in applying these rules, the court will regard that part of a deed which ought to take precedence as being jjrecedent, although such is not its order in the 1 Bryan «. Bradley, ante; Shep. Touch, v. Beswick, 3 Ad. &, El. 8*78 ; Hunting- 83 ; Wii.LEa, C. J., in Milbourne ». ton ii. Havens, 5 John. Ch. (Jf. Y.) 23; Simpson, 2 Wils. 22;Willdnson k. Tram- Moore v. Griffin, 22 Me. 350. mer, 2 id. 75 ; Barrett v. French, 1 Conn. ^ Shep. Touch. 248 ; Llewyllwyn, 11 3.54 ; 2 Inst. 271 ; Gale v. Coburn, 18 M. & W. 183 ; Herrlck v. Hopkins, 23 Pick. (Mass.) .397; Crossing u. Senda- Me. 217. more, 1 Mod. 175. ' Seaman d. Hogehoom, 21 Barb. (N". 2 Lynch b. Livingston, 8 Barb. (N. T. ) Y. ) 398 ; Prescott «. Hayes, 43 K H. 463; Krideri-. Lafferty, IWhart. (Penn.) 593; Anderson v. Baughman, 7 Mich. 303.; Brown ii. Manter, 21 N. H. 528. 69. s Bredan's Case, 1 Colie, 76; Barker « Havens v. Dale, 18 Cal. 359 ; Daniel ». Keat, 2 Mod. 252. v. Veal, 32 Ga. 589; Gould ». Womack, 4 1 Inst. 225 a; Chapman v. Dalton, 2 Ala. 83; Webb ». Webb, 29 id. 588; Plowd. 289; Hancock ». Watson, IS Cal. Doe v. Porter, 3 Ark. 18. 1.37; Jackson «. Topping, 1 Wend. 'X. a Eldredge b. See. Yap; Co., 17 Cal. 44. T. ) 388. ^'' Webb v. Webb, ante. s Mcseley ». Motteux, 10 M. & W. 535; " Pitty w. Booth, 19 Ala. 633; but this Simons v. Johnson, 3 B. & Ad. 175 ; is not the rule in the construction of Pritchard ». Dodd, 5 id. 689; Payler i). wills. Sherritt ». Buckley, 2 My. & K. Homersham, 4 M & S. 682 ; Swindells 149; Doe ». Biggs, 2 Taunt. 109. 378 Leases. deed.' But every part of a deed will be given effect to, if it can be done, and tlierc must be a positive repugnancy to warrant the rejection of any part of it.^ The language of a deed will be construed most strongly against the party using it, as it is presumed that a person will not use language to his own disadvantage;" and if it is sus- ceptible of either of two constructions, the grantee or lessee may elect which way to take it,^ but the party must malce his election, and not leave tlie court to make it for him.^ Parol evidence inadmissible to vary deeds. Sec. 238. The general rule with regard to the admission of parol evidence to explain the meaning, or to add to, vary or alter, the ex- press terras of a deed, is, that it shall not be admitted.^ Thus, where property lias been conveyed by deed, parol evidence of an agreement to a]iportion the rent of the current quarter, contrary to the terms of tlie deed, is inadmissible.'' So parol evidence is inadmissible to show that a particular piece of land was intended to be included in or to be excluded from the deed.' Exceptious. Sec. 239. The exceptions to this rule are — 1st, where, although the deed is clearly enough expressed, some ambiguity arises from extrinsic circumstances ; 2, where the language of a charter or deed has become obscure, and the construction doubtful from antiquity ; 3, where the grant appears uncertain, owing to a want of acquaintance with the grantoi-'s estate ; 4, where it is important to show a different consid- eration consistent with but not repugnant to that stated in the deed itself; 5, where it becomes necessary to show a different time of deliv- ery from that at whicih the deed purports to have been made ; 6, where it is sought to prove a customary right not expressed in the deed, but which is not inconsistent with any of its stipulations ; 7, where fraud or illegality in the formation of the deed is relied on to avoid it. If a clause in a deed is so ambiguously or defectively expressed, that a court of justice cannot, even by reference to the context, collect the meaning of the parties, it will be void." 1 Doe 1). Porter, ante. L. 126; Mills ». Catlin, 22 Vt. 98; Hogg's 2 Corbin v. Healey, 20 Pick. (Mass.) Appeal, 22 Penn. St. 479. 514; Pike v. Monroe, 36 Me. 309; Gib- < Jaclisou «. Hudson,. 3 John. (N. T.) son V. Bogg, 23 Mo. 478. 375; Step. Touch. 83. 3 Judson V. McMullen, 1 Strobb. (S. ^ Miller v. Green, 8 Bing. 92. C); Marshall v. Mills, 8 Conn. 369; « Eos. Ev. 14 (11th ed.). Carroll v. >foi-wood, 5 H. & J. (Md.) ' Flinu v. Calow, 1 M. & G. 589. 163; Adams v. Frothingham, 3 Mass. * Meres v. Anscll, 3 Wils. 275 ; Hope 352 ; Buslmell v. Proprietors, &e., 31 d. Atkins, 1 Price, 143; Doe d. Jforton Conn. 150; Alton v. Illinois Transn. ti. Webster, 12 Ad. & El. 442; Barton d. Co., 12 111. 28; Cocheco v. Whittier, 10 Dawes, 10 C. B. 261. K. H. 305; Dunn v. English, 23 N. J. » Woodfall's L. & T. 90. Easements. 379 CHAPTEK XXVII. EASEMENTS. Sec. 240. Easements.— Generally. Sec. 241. Eight of way. Sbc. 242. By grant. Sec. 243. Prescription, necessity, &c. Sec. 2-U. Duties of those using. Sec. 245. Who nrast repair. Sec. 243. Public may acquire right. Sec. 247. Wlio liable for obstruction of. Sec. 248. Eights of commons. Sec. 249. Inter-commoning. Sec. 250. Common of turbary. Sec. 251. Nature and description of common of estovers. Sec. 252. Common of fishery.— Nature of. Sec. 253. Watercourse. — Definition of. Sec. 254. Nature of rights in natural streams. Sec. 255. Eights between mill-owners on the same stream. Sec. 250. Question of reasonableness for jury. Sec. 257. Limitation upon right to dam water Sec. 258. Precautions to be adopted. Sec. 259. Prescriptive rights. — How acquired. Sec. 260. E.xtent of right acquired. — Gilford v. Lake Co. Sec. 261. Lawlor d. Potter. Sec. 262. Carlisle v. Cooper. Sec. 263. Mertz v. Dorney. Sec. 2§4. Change of machinery. Sec. 265. Ancient mills. Sec. 266. Effect of prior use. Sec. 267. Wliat is raill seat. Sec. 268. Artificial watercourses. Sec. 269. Implied grant or reservation of drains, &c. Sec. 270. License to make or use drains, &c. Sec. 271. E.xitinguishment or suspension of drains, &c. Sec. 272. Underground water. Sec. 273. Surface water. Sec. 274. Lateral support. Sec. 275. Su'bjacent support. Easements. — Generally. Sec. 240. It may be said that all easements that belong to the premises demised pass with the lease, unless expressly reserved, and the 380 Easements. tenant also takes the estate subject to all such easements as are imposed upon it, and upon the one hand takes the same rights, and on the other hand is subject to the same duties, in respect of such easements, as the landlord himself. Among these easements or ser\-itudes are rights of way, of commons, fislieries, watercourses, drains, right of support, and many others that it is not important to enumerate. It may not be out of place briefly to define the nature of these easements, and the rights and liabilities imposed thereby. Right of way. Sec. 241. A way is an incorporeal hereditament, and arises either from grant, presumption or necessity. It is a right of jiassage acquired over another's land. It is either in gross or appendant to land. A way in gross, is a way that is attached to the person, or ajjjjurtenant to land ; ^ and a way appendant is a way that is incident to the estate of the person claiming it and has a terminus thereon. A way in gross, being personal, cannot be transferred,^ but a way ap>pandct,iit is an in- cident of the estate and passes as an ajjpurtenance by grant.^ A right of way appendant to an estate can only be used for purposes con- nected with that estate, and a right of way in gross can only be en- joyed by the jjcrson in whom it exists.' By grant. Sec. 242. Rights of way by grant must be used in accordance with the terms of the grant, and are subject to all the restrictions therein im- posed.^ The way granted may be inclosed by the owner of the land with gates or bars unless it is expressed to be an open way, or unless such inclosure is inconsistent with the jjnrjjoses for whieli it was granted.' But if the way had been laid out before the grant, it will pass in the condition it was when conveyed, and if it was tlien open the grantor would have no right to set up gates or bars at its entrance.' Unless restricted by the terms of the grant the owner of the land may do any act that does not impair the right of passage over the way granted, or inte*'fere with its free use by the person to whom the right is granted.* Prescription, necessity, &c. Sec. 243. A waj^ by prescription is a right of passage over another's land, acquired by adverse user for the statutory period, .and presupposes 1 Garrison v. Rudd, 19 111. 558; Wood ^ Garraty v. Daffy, 7 U. I. 476. on Nuisances, 150-1G.5. <= Garland v. Furber. 47 N". H. 304 ; 2 Washburn on Easements, 232 ; Al- Hoopes n. Aldersoii, 22 Iowa, 162. ley B. Carlton, 29 Texas, 77. '' Welsh ». Wiloox, 101 Mass. 163. 3 Thorpe v. Brumfltt, 8 L. R. (Eq. « Schwarer «. Boylston Jlarket. 99 Ca.) 650. Mass. 285 ; Bakeiuan v. Talbut, 31 N. * Ackroyd v. Smith, 10 C. B. 164. T. 366; Bean v. Coleman, 44 N. H. 539. Easements. 381 a grant.^ Vv'ays of necessity can never exist except ovtr one of two parcels of Innd of which the grantor M^as the owner when the land in favor of which the way exists was granted, and only arises when the land granted is wholly surrounded by the land of others, and no other access exists.^ It is appurtenant to the land and passes by grant ; ' mere convenience or inconvenience does not determine the right to such a way.* There must an actual necessity exist or the right is not created,'^ and the right ceases when the necessity therefor ceases. ° Duties of tho5e using. Sjjc. 244. As has been previously stated, when a right of way lias 'beon acquired by grant, it must be used according to the terms of the grant,' and, when a right has been acquired by prescription, the right will be commensurate with, and measured by, the nse.^ The owner of the land is subject to the restriction that he must do no act upon the land adjoining the way that impairs its usefulness or interferes with tlic passage over it,' but he may make any reasonable or ordinaiy use of the adjacent land, provided he does not thereby obstruct the passage over it.^" He may sink drains or watercourses 1 Dirrickson v. Springer, 5 Harring- ton (Micli.), 21. 2 White D. Seeson, 5 H. & N. r,?, ; Tracey v. Athertoii, 35 Vt. 52 ; Mar- sliall V. Trumbull, 28 Conn. 183 ; Trask V. Patterson, 2'J Me. 499. ^ VVissler v. Ilersliey, 23 Penn. St. 333. "All vmys and rights of way, occupied or enjoyed, or reputed as ap- purtenant." — Defendant was owner in fee of a dwelliiig-liouse, togetlier witli a cottage and stable belonging to it, called "Roseville," and was also owner in fee of an adjoining farmstead and farm, having a private road wliicli led from a liigh road to the farm buildings, and passed close to one side of tlie stable of Roseville. By indenture of the 1st of May, 1800, defendant demised Rnseville to H for ten years. H entered on tlie premises, and built overtlie stable aliay- loft, with two openings toward the private farm road, having first obtained permission from defendant to do so, and also permission froTn defendant and tlie then tenant of the farm to use the farm road for the purpose of bringing hay, straw, &c., to the loft, that being the only access to the openings in the loft, il and the sub-tenants occupying Roseville continued during the term to use tlie road up to May, 1870 ; at that time plaintiff agreed to purcliase Rose- ville of defendant ; and by deed of the 2d of August, 1870, Roseville, &c.. was conveyed by defendant to plaintiff in fee, " togetlier with all * * * ways and riglits of way, ™ * * e.asements and ap- purtenances to the said dwelling-house, cottage, and heredilanieuts, or any of them appertaining, or with tlie same or any of them now or heretofore demised, occupied, or enjoyed, or I'eputed as part or parcel of them, or any of them, or appurtenant thereto. Held, that the right to use the farm road for the afore- said purposes passed to the plaintiff under the above words. Langloy v. Hammond, L. Tl.,3 Ex. IGl. discussed; Kay V. O.xley, L. E. 10 (J. B. 300. * McDonald v. Lindal], 3 Rawle (Penn.), 492. ^ Hyde v. Jamaica, 27 Vt. 460; Leon- ard v. Leonard, 2 Allen (Mass.), -543. « Abbot r. Stewartson, 47 K. H. 230; Staple V. Heydon, Mod. 1 '; Holmes V. Seeley, 19 AVend. (N. Y.) 507 ; Scri- ven D. Gregorie, 8 Rich. Law (S. C), 1.58 ; Gayetty v. Bethune, 14 Mass. 49 ; Alley 1). Carlton, 29 T.^xas, 78 ; Lawton V. Rivers, 2 McCord (S. C), 445 ; N. Y. Life Ins. & Tr. Co. v. Milnor, 1 Barb. (N. Y.) 353; Collins v. Prentice, 15 Conn. 30. ' Kirkliani v. Sharp, 1 Whart. (Penn.) 323. ' Reignolds ». Edwards, Willes, 282 ; Smith v. Wiggin, 52 N". H. 112. 3 O'Linda b. Lathrop, 21 Pick. (Mass.l 292. 1° Underwood t)i Carney, 1 Cush. (Mass.) 292. 382 Easements. beneath it,' he may dig cellars beside it, erect buildings on its borders, with doors ojoening on to it, if in a city or town,- or with blinds and shntters opening o^■cr it,' and, unless it is a way by prescription, or he is restricted by his grant, he may build over it,'' or may close it up with bars or gates.^ The title to the soil is in the owner of the land, and he may maintain trespass against persons using it without right," or ejectment against those making erections upon or over itJ But any act of the landowner, that obstructs or hinders the right of the person in whom the easement is vested, or interferes with any rights that he has acquired as incident to his right of way, is a nuisance, and actionable as such. Thus, if he digs a drain under the way, he is bound to close it np securely, and if he fails to do so, whereby tlie way is injured, or whereby the owner of the way is damaged, eitlier in his property or person, he is liable for all the damages that ensue.' So, if he makes insecure erections upon the way that damage the person in whom the right is vested, or if he makes openings near thereto and does not securely guard them,^ or if he closes up the way or in any manner liinders or obstructs the I'ight of passage over it, he is guilty of a nuisance and chargeable with all the consequences.'" Who must repair. Sec. 245. The grantee of a way, or the projirietor of a way ' by necessity or prescription, is bound to keep it in repair, and the land- owner is chargeable with no duty or li.ability in that respect.'' When the track is fixed by user the right exists in that track, and even though the track becomes impassable, or is obstructed by the owner of the land, the person in whom the easement exists cannot deviate from the old track upon other lands of the person over whose lands the right exists.'- But, if the landowner places obstructions in the waj^, the owner of the right of way may remove them." if the owner of the land, or any other person, builds over the way so as to darken it or to obstruct it, or in anywise render it less convenient, he is liable as for a nuisance.'* ' Tillmes v. Marsh, 07 Penn. St. 507 ; * Perley v. Chandler, G Mass. 454. Pomeroy v. Mills, 3 Vt. 279. « Corby d. Hill, 4 C. B. {N. S.) 556 ; 2 Underwood v. Carney, 1 Cush. Gallaglier ». Humphrey, 10 W. K. 664 ; (Mass.) 292. .Shadwell v. Hutchinson, 4 C. & P. 333. 8 O'Linda ». Lathrop, 21 Pick. (Mass.) '» Kent v. Judlcins, 53 Me. 162 ; Batis- 292. hill V. Reed, 18 C. B. 006. * Schowerer v. Bovlston Market, 99 " Wynkoop v. Burster, 12 Johns. (N. Mass. 285. ' Y.) 222 ; Walker v. Pierce, 38 Vt. 95. 5 Bakeman v. Talbot, 31 N. T. 366 ; '^ Williams v. Safford, 7 Barb. (N. T. Huson B.Toung, 4 Lans. (N. Y. S. C. ) 63. S. C. ) 309 ; Boyce v. Brown, id. 80. " Hollenbeck v. Kowley, 8 Allen '^ Boyce v. Brown, supra. (Mas?.), 476. '* Richardson o. Pond, 15 Gray ' Codman v. Evans, 5 Allen (Mass.), (Mass.), 387. 308. Easements. 383 Thus, where the plaintiff had a right of way over the lands of the de- fendant, for hauling merchandise to his store, and had hoisting appa- ratus arranged for taking the goods into the store, it was held that the defendant was liable for all damages that resulted from the erection of a building over the way, that cut off these facilities, as the plaintiff was entitled to the use of the way for all the purposes for which he had used it for a period suflncient to acquire a prescriptive right.^ Public may acquire right. Sec. 246. The public may acquire a prescriptive right to use a way as well as a single individual,^ and where a private Avay is opened, lead- ing from a public street, and prepared for use the same as a public street, and with nothing to show that it is not such, although it is closed at one end, the public may use the way, and are bound only to the exercise of the same care as in the use of a public street.' Who liable for obstruction of. Sec. 247. Where a right of way is vested in several persons, for the benefit of several tenements, neither of the persons in whom the right exists has a right to more than a reasonable use of the way, and any obstruction thereof by one to the detriment of the others, is a nuisance, and actionable.* If the acts of several persons together, though not done jointly or in concert, operate as a nuisance to a way, when the acts of either alone would not operate as an appreciable injury, an action may be maintained in equity against all of them in f.avor of one who is injured by the aggregation of their acts. In a recent English case,'' it appeared that A and B were, in 1853, the owners of the Com- mercial Inn, at Bradford, and certain lands and buildings adjoining. In the rear of the inn was a yard, occupied with it. The only access to the stable and yard for horses and carriages was from a street, called the Tyrells, along a passage, which was upon part of the land also belonging to A and B. The passage ran northerly from the yard to the street. In July, 1853, A and B sold and conveyed the buildings and land adjoining the Tyrells to one John Morrell, reserving the way to the inn yard. Subsequently to the sale to Morrell the parties agreed to a change in the boundary between their lands, and a new passage was substituted to the inn yard in place of the old one, which was properly conveyed to A and B by Morrell, and by the terms of which Morrell was to construct the new way and keep it in proper repair. It 1 Richardson v. Pond, 15 Gray (Mass. ), ^ Danforth ». Durell, 8 Allen (Mass. 1, 387. 242. 2 Richardson B. Pond 15 Gray (Mass.), * Thorpe v. Brumfitt, 8 L. R. (Er.. 387. Ca.)650. 384 Easements. was also provided that Morrell might erect buildings over the passag-;- way, so that it was left at least eight feet high. Morrell also reserved a right of way over the passage for the benefit of his jsreniises, and the right to grant a right of way over the same to others. The new way was constructed and Morrell erected warehouses on the land purchased by hini, and also- made in the floor-way of the new passage a large open- ing forming the entrance to a cellar beneath, and covered it with a wooden trap-door. He also made a trai:i-door over it, forming an entrance through the roof covering the passage-way into the warehouse above. He also made side entrances into the warehouses and placed folding doors in them, for the purpose of loading and unloading goods from the passage-way. He let these premises to different parties in 1863, and he was never aftei- that time in the occupation of them. The tenants occupying distinct portions of the premises caused the road-way to be blocked up with carts and wagons, and kept the trap-door and folding doors open, and the crane used for hoisting goods at work for long and unreasonable jDeriods during the busiest hours of the day, when great numbers of persons with vehicles and on foot required to pass to the inn yard. The court held that the obstruction of the way by teams and otherwise, in the loading and unloading of goods upon the passage-way, was a nuisance to the jslaintiff, for which the defendants were liable to him. Loed Justice James, among other things, said : " The plaintiff only claims a right of way. He does not claim to be entitled to the soil or to prevent the owner of the soil from exercising over it any rights which do not derogate from his grant. The plain- tiff cannot complain unless he can prove an obstruction which injures him. The case is not like one pf trespass in which a recovery can be had if no damage is jiroved. Nothing can be much more injurioits to the owner of an inn than that the way to his yard should be constantly obstructed by the loading and unloading of heavy wagons. It is said that the plaintiff alleges an obstruction caused by several persons, act- ing independently of each other, and does not show what share each had in causing it. It is probably impossible for a person in the jjlain- tiff's position to show this. Nor do I think it necessary tliat he should sliow it. The amount of obstruction caused by any one of them might not, if it stood alone, give ground for any complaint, though the amount caused by all of them may be a serious injury. Suppose one person leaves a wheelbarrow standing on a way. That may not cause any appreciable inconvenience, but if a hundred do so, that may cause a serious inconvenience, which a person entitled to the use of the way has a right to prevent; and it is no defence to anyone among the hundred to say, that what he does of itself causes no damage to the complainant." Easements. 385 Rights of commons. Sec. 248. Common, as a legal term, signifies a right or liberty to take or use some part or poijtion of that which another person's lands, woods, waters, &c., naturally produce, without having any property in the soil,' and embraces, among others, common of pasture, of turbary, estovers and piscary. A common of pasture is a i-ight or liberty which one or more persons may have to feed their cattle on another's lands, and is generally restricted to commonable cattle : that is, such as plough and manure the lands, such as horses, oxen, cows and sheep, and seldom extends to other animals, as goats, swine, geese, and the like.'* The number is usually restricted either by an express limitation as to the number, or by those only being allowed to depasture which are levant and coucha-nt upon the land, in respect of which the right of common is claimed. That is, such cattle as the winter eatage of the land, to- gether with the produce of it in summer and the food obtained from the common, is capable of maintaining.' It cannot be claimed by prescription for a house without any land,* nor can it exist without limitation, as appurtenant to an ancient house, without lahd,^ but it may exist as an appurtenant to land without a house.^ A limita- tion as to the time of the year in which the rights shall be exercised is sometimes imposed, but as to whether any or what restrictions are imposed depends upon the terms of the grant, or the extent of the users. Common of pasture is either appendant, appurtenant, in gross, or pur cause de vicinage ; but in pleading it is not necessary to allege whether it is of one class or another.' A common appendant is purely a common law right, and must have existed from time immemorial,* and belongs only to arable lands, for commonable cattle, levant and couchant,^ and only for so many of the tenant's cattle as are necessary to manure the tenant's arable land,'" and does not extend to the waste.^* Common of pasture appurtenant is a right or liberty of pasturing cat- tle on another's land, and is not confined either to arable land or com- monable cattle, and may be claimed by modern grant '^ or by prescrip- tion ; ^* but this right only extends to the party's own cattle, levant and ' Bacon's Abr. tit. Commons ; Tudor's ^ Eioketts u. Salwey, 2 B. & Aid. 360. Leading Cases, Real Property, 108 ; ' Petersdorff's Abr. 144. Woodfall's L. & T. 602. Common is a » Xudor's Leading Cases, Real Prop, right, or privilege, which several per- 109. sons have to the produce of the lands or ' Bacon's Abr. tit. Commons (H), 1. waters of another. Van Rensselaer ?). -° Tyringham'sCase, 4Coke, 36 a,-Ben- Eadcllff.lO Wend. (N. T.) 639. son v. Chester, 8 T. R. 396 ; Bennett v. 2 Tudor's Leading Cases of Real Prop- Reeve, Willes, 227 ; Cheesman n. Hard- erty, 109. ham, 1 B. & Aid. 711. 8 Carr ». Lambert, 3 H. & C. 499 ; " Dunraven u. Llewellyn, 1.5 Q. B. 791. Whitlock ». Hutchinson, 2 M. & R. 205. i^Xyringham's Case, ante; Co. Litt. 122 * Scholes ». Hargreaves. 5 T. E. 46. a ; Cowlan v. Slack, 18 East, 108. '' Benson v. Chester, 8 T. E. 596. is Co. Litt. 122 a. 25 886 Easemekts. couchant on his land.^ A right of common of pasture in gross is a right to pasture cattle upon another's land, although the person in whose favor it exists does not own or ocowpy any other land. Such a right is created by deed, and may be conveyed to a man and his heirs or only for life.^ Common appendant or appurtenant for cattle levant or couchant cannot be converted into common in gross, because they cannot be severed from the land to which they are annexed without being extinguished ; but a common appurtenant for a certain number of cattle may be, because it has no connection of tenure.^ Common ^wr cause de vicinage is a liberty that the tenants of one landlord in one town have to enjoy a common of pasture with the tenants of another landlord in another town.* It can only be claimed by grant, or by pre- scription from time immemorial, or by user for sixty or thirty years under 2 & 3 Will. 4, c. 71, but not by custom.^ This is not properly a right of common, but rather an excuse for a trespass, and at most but a permissive right, which was originally allowed foiithe prevention of suits in neighborhoods where a boundary could not easily be estab- lished.^ It exists where the tenants of two lords have used, time out of mind, to have common promiscuously in both lordships, lying together and open to one another; ' it is therefore necessary that these adjoining lands should both be commonable.' It seems that common pur cause' de vicinage may also exist between the proprietors of neighboring lands, though there are no commons on either side ; ' and the lord of a manor may have, in respect of the waste or common land in his own manor, a right to turn his own cattle upon the common of an adjoining manor.^" Those who claim common ^wr cause de vicinage may not put their cattle on such common, for then they are distrainable, but should turn them into their own fields, and leave them to stray into the neigh- boring common.^^ Every common pitr cause de vicinage is a common appendant.^^ Where one of two adjoining commons, with common of vicinage, was inclosed and fenced off by the ownei- of the soil, leaving open only a passage suiRcient for the highway which led over the one to the other; yet as the separation was not complete, so as to prevent the cattle straying from one to the other by means of the highway, it was held, that the common by vicinage still continued.^* Where the 'Benson v. Chester, ante; 2 Wm. Abr. tit. Common (A), 4; Tudor L. C, Saund. 346, n., 1. Eeal Prop. Hi. 2 Tudor's Leading Cases, Real Prop- ' 8 Coke R. 78. erty, 111. « Heath v. Elliott, 4 Bing. N. C. 388. 8 Bunn «. Channer, 5 Taunt. 244. » Jones v. Robin, 10 Q. B. 581, 620. * Jones V. Robin, 10 Q. B. 620. i" Earl of Sefton v. Court, 5 B. & C. 6 Jones V. Robin, 10 Q. B. 581, 620 ; 911 Clarke v. Tinker, id. 604 ; Prichard ». -i Termes de Ley, 146 ; Bac. Abr. tit Powell, id. 589, 603 ; Tudor L. C. Real Common (A), 4. Prop. 113. 12 Dahv. Abr. 799. « Co. Litt. 122 a; Willes, R. 322 ; Bac. "GuUett u. Lopes, Bart., 13 East, 348. Easements. 387 plaintiff, being possessed of a house and land in G, had for sixty years exercised rights of common in W, but it appeared that this was done near the boundary of the two commons of E and W, which lay open and uninclosed adjacent to each other : and it also appeared that the par- ties exercising the right did not at the time know the exact boundaries, and that the plaintiff had on a previous inclosure of the common of E obtained an allotment there in right of his estate ; it was held that the judge was right in leaving it to the jury to say whether the evidence was referable to an exercise of the right in E and a mistake in the boundary, or to an exercise of the right in W.'' In this country, rights of common may be said to be obsolete, especially in the Northern and Western States. In New York the right is recognized ; '' also in Illinois, where there are lands granted as commons to towns, hamlets and villages that are always to remain so.' In Missouri as well as in New York it is held that the right may be lost by adverse user.* Inter-commoning. Sec. 249. There is frequently a mutual right of inter-commoning be- tween the owners of the land in open common fields: the extent of this right and the mode of exercising it varies according to the custom which has prevailed among the occupiers of such land. Where, however, there is no custom which has become binding upon the parties, the common law rule appears to be, that those persons only who are owners of land within an open common field are entitled to enjoy the right of inter- commoning ; and such right can be exercised at those times only when the corn is off the land, that is, after all the corn and grain have been reaped and gathered, and before any more has been sown.' Where A, being possessed of a quantity of land in a common field, and having a right of common over the whole field, and B having also a right of com- mon over the whole field, they entered into an agreement, for their mutual advantage and convenience, not to exercise their respective rights for a certain term of years, and each party covenanted to that effect ; it was held, that if, during the term, the cattle of B came upon '' Hetherington v. Vane, 4 B. & Aid. There can be no inter-commonage or 428. common because of vicinage, unless 2 Livingston ». Ten Broeck, 16 Jobn. there are contiguous townships, the in- (X. Y.) 26 ; Watts -o. Coffin, 11 id. 495 ; habitants of which, seeking to excuse a Smith ». Floyd, 18 Barb. (If. T.) 522; trespass for that cause, have common Livingston b. Ketcham, 1 id. 592; Pear- rights of pasturage appendant, appurte- sall ». Post, 20 Wend. (N". T.)lll; Corn- nant, or in gross, in the towns where ing V. Gould, 16 id. 531. they reside. The fact that cattle are * Hebert v. Lavalle, 27 111. 448. suffered, without objection, to run at * Funkhouseri). Langkopf, 26 Mo. 453; large over the uninclosed woodlands of Denton v. Jackson, 2 John. Ch. (K. Y.) a new country, affords no ground from 320. which to iniplv a grant. Supreme Ct, 5 Cheesman v. Hardham, 1 B. & Aid. 1854, Sanith ». Floyd, 18 Barb. 522. 706 ; Musgrave v. Cave, Willes, 319. 88S Easements. the land of A, he mig-ht distrain them, damage feasant.' There are also statutes pointing out the mode of exercising the right of common.^ The owners of land in open common fields may by custom mutually inclose against each other, and sometimes by statute. The remedies for a disturbance of common of pasture have been already mentioned.* Common of turbary. Sec. 250. Common of turbary is a right or liberty to dig turf upon the ground of another, or in the lord's waste : this common is append- ant or appurtenant to a house, but not to lands, for turves are to be burnt in the house.* It may also be in gross, or may be gi-anted ex- pressly with other land.' It does not give any right to the land, trees or mines ; nor can it exclude the owner of the soil ; ° but as this right never existed in this country, its discussion is of no practical value. Nature and description of common of estovers. Sec. 251. Common of estovers is a right or liberty of taking neces- sary wood for the use and furniture of a house or farm, from off an- other's land.' This right is generally considered as being divided into three distinct species, distinguished from each other by a different ap- plication of the Saxon word " bote," which is synonymous with the French " estovers : '' thus, there is a house-bote, plough-bote and hay- bote. House-bote is a sufficient allowance of wood to build or repair the house, or to burn in it, which latter is sometimes called fire-bote. Plough-bote and cart-bote are wood to be employed in making and re- pairing all instruments of husbandry, as ploughs, carts, harrows, rakes, forks, &c. Hay-bote or hedge-bote is wood for repairing hedges or fences, as pales, stiles and gates to secure inclosures.* These botes or estovers must be reasonable, and such as any tenant or lessee, except a strict tenant at will, may take off the land demised to him without waiting for any leave, assignment or appointment of the lessor, unless he be restrained by special covenant to the contrary.' House-bote, hay-bote and fire-bote belong to a termor of common right, and he may take wood for the same ; but if he takes more than is needful he may be punished for waste,^" as, if he cuts down wood to burn, when he has sufficient dead wood. Although the tenant may cut down and take sufficient wood to repair walls, fences or hedges as he found them, yet 1 Whiteman v. King, 2 H. Bl. 4. ' O'Hare v. Fahy, 10 Ir. Com. L. 318, 2 29 Geo. 2, c. 36; 13 Geo. 3, c. 81. C. P. 8 Hickman ». Thome, 2 Mod.105 ; Tyr- <> 4 Co. E. 37. ingham's Case, 4 Co. R. 36 6, 38 6, 39 a ; 'Co. Litt. 122 a; 2 Blac. Com. 35; Tudor L. C. Real Prop. 101-126 (2d Tudor L. C. Real Prop. 114 (2d ed.). ed.); Cbrbet's Case, 7 Co. R. 5 a ; Jones ' Wood's Inst. 344. V. Robin, 10 Q. B. 587. »Fitz. N. B. 59, M. ; Co. Litt. 41. 4 Tudor L. C. Real Prop. 116 (2d ed.). lo Tei-mes de Ley, 387, 396. Easements. 389 he cannot do so to make new ones.' If a man has common of estovers by grant, he cannot build new houses to have common of estovers for those houses.^ The right to estovers belongs and is incident to the state of every tenant, whether for life or years, except that of a strict tenant at will, for that is said to be too mean. Common of estovers cannot be appendant to land, but it must necessarily be to a house to be spent there.' A copyholder ■ may take the necessary estovers or botes on his copyhold without a special custom ; but to enable him to take them on the other lands, a special custom must be shown.^ If a man has common of estovers in the woods of another, and the owner of the wood cuts down all the wood, he who ought to have the estovers might, before 3 & 4 Will. 4, c. 27, s. 36 (which abolished real and mixed actions), have had an assize of his estovers ; now it seems that an action on the case is the proper remedy.' Common of fishery. — Nature of. Sec. 252. Common of fishery is a right or liberty of fishing in an- other man's water.' It can only exist in streams which are not nav- igable, for the sea and all navigable rivers are open to all.' It is a profit d, prendre and not a mere easement nor an interest in land.' It may be either appendant, appurtenant, or in gross.' It may exist by grant, or by prescription from time immemorial, or by user for such a period of time as is required by statute to fix a right by prescription,'" but not by custom." A custom for all the inhabitants of a town or parish to fish in a person's river is bad.'^ So a custom for all the in- habitants in a town to use a foot-path for angling with rods and lines for fish in the daytime, for recreation only, and not profit, is bad as setting up a custom to take a profit d, prendre in alieno solo?^ Com- 1 Co. Litt. 53 ; Wood's Inst. 525 ; Coke, scription of twenty years will bar a claim 113. to a right of common. Denton c. Jack- 2 Fitz. N. B. 180, H. ; Arundel r>. son, 2 Johns. Ch. (N. Y. ) 820. Steere, Cro. Jac. 25. ' Ashmeai v. Ranger (in error), 1 Ld. 8Co. Litt. 1216; Fitz. N. 6.180, C. b; Kay. eral, they may jointly convey it to one. Jones, 6 C. B. 81; Blewitt v. Tregoning, Leyman v. Abeel, 16 Johns. (K. Y.) 30; 3 Ad. & El. 554. Van Rensselaer ». Eadcliff, 10 Wend. i^ Lloyd v. Jones, 6 C. B. 81, 89. (N. Y.) 639; and see Livingston v. '' Bland b. Lipscombe, 4 E. & B. 713, Ketcham. 1 Barb. (N. Y.) 592. A pre- n. c. 390 Easements. mon of fishery, to the exclusion of the owner of the soil, is contrary to law ; though a person by prescription may have a separate right of fishing in such water, and the owner of the soil will be excluded ; ^ for a man may grant the water without passing the soil. If one grant a sejjarate fishery, neither the soil nor water pass, but only a right of fishery.^ An exclusive right of fishery may exist either by grant or prescrip- tion, but neither by grant or prescription can a person acquire a right to erect dams or other obstructions so as to prevent fish from going up the stream.^ .. A patent to the inhabitants of a town, conveying all the land under water within certain boundaries, together with the exclu- sive right of fishery in such waters, has been held to confer a right of fishing as the common property of the town, so as to give to the inhabit- ants the right to regulate the same at any legal meeting.* A town, how- ever, does not, at common law, unless expressly granted to it, possess any right of property in a fishery within its limits. The right is in the public.^ Unless a special grant or prescription is shown, a private right of fishery is limited to fresh water rivers whei-e the tide does not ebb or flow,'' and in navigable streams the public have the right to fish, ex- 1 Co. Lit. 122 a. 2 Bac. Abr. tit. Piscliary. 8 Brown v. Kennedy, n H. & J. (Md.) 19.5; Peoples. Piatt, 17 John. (N. Y.) 19.5; Adams v. Pease, 2 Conn. 4S1. "In rivers not navigable," saysLoED Mans- field, in Carter v. Murcot, 4 Burr. 2164, ' ' the proprietors of land have the right of fishery on their respective sides, and it generally extends ad fllium aqum. But in navigable rivers, the proprietors of the land on each side have it not." These principles of common law are in- controvertible. If the term navigable is construed according to its popular im- port, every river capable of being sailed upon by a boat, however small or shal- low, is embraced by it. Many of the in- considerable streams which fall into a floatable river, are of this description. The same common law, however, which has established the principle, has fur- nished a definite explication of the term. E^-ery river, where the sea ebbs and flows, is, by the common law, considered as navigable ; and all rivers not thus distinguished are not navigable. 2 Eoll. ITO, pi. 14; Pooyal Fishery of the Banne, Davies' Kep. 152, .5, 7; Carter j). Mur- cot, 4 Burr. 21(32; The King v. Wharton, 12 Mod. 510 ; Hale's De .Jure Maris, Harg. Law Tracts, 5; Lord Fitzvvalter's Case, 1 Mod. 105. The distinction be- tween rivers navigable and not naviga/- ble, that is, where the sea does, or does not, ebb and flow, is very ancient. The ■ King v. Smith, Doug. 441. The former are called arms of the sea, while the latter pass under the denomination of private or inland rivers. " That is called an arm of the sea where the tide flows and re-flows, and so far only, as the tide flows and re-flows." Hale De Jure Maris, cap. 4. " If a river runs contiij- uously between the land of two 2yersons, each of them is owner of that yart of the river which is next his land, of common riyht," Eex v. Wliarton, 12 Mod. 510, and the right of fishery belongs exclu- sively to such adjoining owners. Beck- man V. Kreamer, 43 111. 447 ; Adams v. Pease, ante ; Ingram v. Threadgill, 3 Dev. (N. C. ) 59. Where a right is con- ferred by statute upon particular individ- uals, it is not assignable. Munsou v. Baldwin, 7 Conn. 168; Comm'rs v. Jen- nings, 6 Cow. (N". T.) 518; People v. Teli'bets, 19 N. Y. 523; Com. v. Charles- town, 1 Pick. (Mass.) 180; Coumers v. Kempshall, 26 Wend. (N. Y.) 404; Scott V. Wilson, 3 N. H. 321 ; Beryl v. Carle, 3 Me. 269; Gould v. James, 6 Cow. (N. Y.) 369 ; Eogers )_;. Jones, 1 Wend. (N. Y.) 237; Brookhaven b. Strong, 1 S. C. 415. * Rogers v. Jones, 1 Wend. (N. Y.) 237. ' Randolph v. Braintree, 4 Mass. 315. ^ Mayor v. Kichardson, 4 T. R. 437; Arnold v. Mundy, 5 N. J. L. 1 ; Parker Easements. 391 cept an individual has acquired an exclusive right thereto by grant or prescription.^ Whether the State has the right to regulate private as well as public fisheiies within its limits or not, is not now an open question, as the right has been assumed and acted, upon for so long a period as to prevent any inquiry in that direction.'^ Merely clearing out a fishing place in a river, or making valuable improvements therein, does not give an exclusive right of fishery, nor does a person acquire such a right by stocking a stream.' But, a per- son who plants oysters in a stream, and clearly designates the bed, ac- quires such a property therein as enables him to maintain trespass against any one interfering therewith ; * and his right of property is such as even persons navigating the waters are bound to resjDeot, and if they wiKully or negligently commit a damage thereof they are liable therefor.^ A fishery may be leased, and a mere lease thereof does not pass an interest in the land, but simply a right to take fish from the water in the mode, and within the limits, prescribed in the lease.** A mere grant of a right to fish with nets, for a certain period, is not a lease of the fishery, but merely of the i-%ht to draw nets within the limits prescribed. And in any event, even if a lease, it could confer no more exclusive rights upon the lessee than the lessor had, and if his right simply consisted in fishing with nets, that right alone would pass, and the fishery would still remain in common.' Indeed, although !). Mill Dam Co., 20 Me. 333 ; Martin v. the person claiming it is required to es- Waddell, 16 Pet. (U. S. ) 400; Carter v. tablish his right by clear proof, as all Murcot, ante. presumptions are against it. Gould v. 1 Id. Any person may take fish in Jones, Cow. (N. T.) 369. In the ab- such waters if he can do so without sence of a prescriptive right, there can trespassing on the lands of individuals, be no exclusive right except by grant Com. t). Chapin, 5 Pick. (Mass.) 199; from the sovereign power. State u. Glen, Coolidge B. Williams, 4 Mass. 140; Free- 7 Jones (N". C), 321; Collins v. Ben- ry V. Cooke, 14 Mass. 488, and extends bury, 5 Ired. (N. C.) L. 118; S. C. 3 id. to the taking of shell fish on the shores 277. of navigable waters where the tide ebbs ^ Smith r. Levins, 8 N. Y. 472 ; Com. and flows, Parker v. Cutter Mill Dam b. Bailey, 13 Allen (Mass.),. 541; Dunham Co., ante; Moulton v. Libbey, 37 Me. d. Lamphere, 3 Gray (Mass.), 368. 472, upon the general proposition stated ^ Westfall v. Van Arker, 12 John, in the text. See Preble v. Brown, 47 (N. Y.) 424. Me. 284. A free fishery is not an exclu- * Fleet v. Hegeman, 14 Wend. (N. sive fishery. Melvin r. Whiting, 7 Pick. Y. ) 42; Decker v. Fisher, 4 Barb. (N". (Mass.) 79. Aright to take shell fish Y.) 592; Lowndes v. Dickerson, 34 id. does not carry with it a right to take the 586. soil or dead shell fish imbedded therein, ^ Cobb v. Bennett, 75 Penn. St.> 326; except such as necessarily adheres to Mayor of Colchsster v. Brooke, 6 Q. B. the living fish taken. Porter b. Shehan, 339. 7 Gray (Mass.), 435. In New Jersey it •■ Cortelyon v. Van Brandt, 2 John, is held that no person can have an ex- (K. Y.I 357. elusive right to take fish from navigable ' Brink d. Eitohmeyer, 14 John. (N. waters. Yard v. Carman, 3 N. J. L. 936. Y. ) 256. In Read v. Greenberry, 8 Ired. And it is also held that the right of fish- (N. C. ) L. 109, A leased a fishery to B, ing is not inseparable from the soil. Cobb and covenanted with him that he should V. Davenport, 32 N. J. L. 369. In order use the fishery for certain privileges and to avail himself of a prescriptive right for the offal, which A was to liave in to a several fishery in navigable waters, part payment. B put up his fish in 392 Easements. in navigable streams the right of fishing is common, yet the owners of the land bordering thereon have the exclusive right of drawing seines and taking fish 07i their own lands, that is, upon the flats that are only covered at high tide, if they belong to adjoining owners.'' In this country, the common law rule as to navigable streams — at least in most of the States — has been enlarged, and, while all streams in which the tide ebbs and flows are treated as navigable whether they are in fact so or not, so, too, all streams capable of serving a useful purpose in floating the products of the country either in a rough or manufactured state.^ The test by which to determine the navigability of our rivers and streams is to be found in, and determined by, their actual navigable capacity for any useful purpose, and those rivers that are navigable in fact for useful purposes, and serve as a means of commercial inter- course either between points in the same State, or between States, are regarded as navigable, and are subject to that servitude irrespective of prescriptive use or statutory enactment.' This is a part of our com- :non law, created by necessity, and applied by common consent, and, while there is some conflict in the cases, as to the relative rights of the public and of riparian owners, in this class of streams, yet in the main, I think our courts have exhibited less conflict upon this subject, and much more consistency than might have been expected to result from such a variety of questions as arise, and the varied conditions under which they are presented. There is yet another class of streams which, although not navigable by "boats or lighters," are yet susceptible of valuable use for the pur- pose of floating logs and other products of the country along its banks to market or to mills, and which are floatable in fact, and regarded gross, aud A sued him for a breach of ». Pearson, 3 id. 455 ; Tomlin ». Rail- the covenants of the lease. It was road Co., 32 Iowa, 106 ; The Daniel held that the word offal meant such Ball, 10 Wal. (U. S. S. C.) 557; The parts of the fish as were not used for Montebello, 11 id. 411 ; Chicago v. Mc- food, and if B put up his fish in gross, Ginn, 51 111. 266 ; Volk v. Eldred, 23 though A's profits were diminished, yet Wis. 410; Scott b. Wilson, 3 N. H. 321; there was no breach nf covenant. An Georgetown v. Alexandria Canal Co.. attempt was made to show a custom of 12 Pet. (U. S.) 91 ; Varick v. Smith, 9 fishermen to cut up their fish, but no Paige's Ch. (N. Y. ) 278; Wadsworth v. general custom which is necessary to Smith, 2 Fair. (Me.) 278; Veazie v. explain the meaning of words in a cov- Dwinel, 50 Me. 496; Knox v. Chaloner, euant was shown. Also, that the cov- 42 id. 150; McManus v. Carmichael, 3 enant by B did not amount to a stipula- Iowa, 1; People v. Tibhits, 19 N. Y. 523; tion to cut up the fish which he took at Hooker v. CumTnings, 20 Johns. (N. Y. ) A's fishery. 90 ; Palmer v. Mulligan, 3 Oaines (N. ' Com. D. Shaw, 14 S. & R. (Penn.) 9; Y. ), 307. I«xy V. King, 5 Day (Conn.), 72. ' Wood on Nuisances, 612; The Dan- s' Comm'rs v. Hemphill, 26 Wend. (N. iel Ball, 10 Wal. (U. S. S. C.) 557; The Y.) 404 ; Morgan v. King, 35 N. Y. 454; Montebello, 11 id. 411; Chicage v. Mc- Weise v. Smith, 3 Or. 445. See Folger Ginn, 51 111. 269. Easements. 393 as quasi navigable.* In most of tlie States, while the test of navi- gability is made to depend upon the capacity of the stream for that pnrpose, even though it be a fresh-water stream, yet all streams in which the tide ebbs and flows are regarded as navigable in law, and the rules of the common law applicable thereto, so far as the rights of the State and riparian owners are concerned, are adopted.'' In all the cases referred to in the previous note, it is held that, while other streams than those in which the tide ebbs and flows to the point where the tide ceases to affect them, are navigable, yet the public do not have the same right of property in the alveus of fresh water, as in tide- water streams, and that on all fresh-water streams the owner of the banks also owns the bed of the stream to the " medium filium aquae" while in those affected by the ebb and flow of the tides, the title to the bed of the stream is in the State, and the titles of the riparian owners are restricted to high-water mark.' ' Morgan d. King, 35 N. T. 454 ; La- ney ». Clifford, 54 Me. 491; Brown v. Chadborne, 31 id. 9; People v. Canal Appraisers, 33 N. T. 472 ; Weise v. Smith, 3 Or. 445 ; Palmer n. Mulligan, 3 Gaines' Rep. (N". T.) 307 ; Lorman v. Benson, 8 Mich. 18 ; Middleton b. Flat River Booming Co., 27 Mich. 533 ; Da- vis V. Winslow, 51 Me. 264 ; Veazie v. Dwinel, 50 id. 474 ; Magnolia x>. Mar- shall, 39 Miss. 126 ; Com. v. Chapin, 5 Pick. (Mass.) 199 ; Volk v. Eldred, 23 Wis. 410 ; Stuart u. Clark, 2 Swan (Tenn.), 9; Rhodes v. Otis, 33 Ala. 578; Nearderhauser v. State, 28 Ind. 270; Moore v. Sanborne, 2 Mich. 523; Ellis V. Carey, 30 Ala. 725; Hubbard v. Bell, 54 111. 112. 2 In Avery v. Fox, 1 Abb. Ch. Rep. (TJ. S.) 246, it was held that the owner of land bordering upon a stream, though navigable, in which the tide does not ebb and flow, is presumed to be the owner of the bed of the stream to the centre thereof. Cora'rs v. People, 5 Wend. (N. Y.) 355 ; Shaw ». Crawford, 10 Johns. (K T.) 236 ; People v. Tibbetts, 19 N. Y. 523 ; Com'rs v. Hemphill, 26 Wend. (N. Y.) 404. See Morgan v. King, 35 N. Y. 454; Gray v. Burdick, 20 Pick. (Mass.) 186 ; Trustees v. Dickin- son, 9 Cush. (Mass. ) 544 ; Com. v. Cha- pin, 5 id. 190 ; Scott ». Wilson, 3 N. H. 321 ; Middleton i). Page, 8 Conn. 221 ; Chapman v. Kimball, 9 id. 38 ; Spring i). Seavey, 8 Me. 138 ; Berry ». Carly, 3 Oreenl. (Me.) 269 ; Brown v. Kennedy, 5 H. & Johns. (Md.) 195; Hays v. Bowman, 1 Rand. (Va.) 417 ; Lamb r>. Ricketts, 11 Ohio, 311 ; Gavlt v. Chambers, 3 Ohio 495 ; Gates v. Wad- dlington, 1 McCord (S. C), 580 ; McCul- lough V. Wall, 4 Rich. (S. C.) 68; Stuart ». Clark, 2 Swan (Tenn.), 9 ; Magnolia v. Marshall, 39 Miss. 109 ; Gom'rs v. Withers, 29 id. 21 ; Morgan ». Reading, 3 S. & M. (Miss.) 366; Mar- iner V. Schultz, 13 Wis. 692 ; Walker v. Shepardson, 4 id. 486 ; Schunniur v. Railroad Co., 10 Minn. 82 ; Lorman v. Benson, 8 Mich. 18; Middleton d. Pritoh- ard, 3 Scam. (111.) 500 ; Cox v. The State, 3 Black. (Ind.) 193 ; Hubbard v. Bell, 54 111. 110 ; Warren v. Chambers, 25 Ark. 120 ; State of Penn. v. The Wheeling Bridge Co., 18 How. (U. S.) 421. * Hale's De Jure Maris ; Trustees ». Bootle-cum-Linacre, L. R., 2 Q. B. 4. In Rex V. Smith, 2 Doug. 441, it was held that the soil of a navigable stream is not, by presumption of law, in the owner of the banks, but in the king ; but that the title of the soil in all streams in which the tide does not ebb and flow is in the riparian owner. In that case a nice question arose as to what point in a stream in which the tide ebbs and flows, the navigability of the stream ends. The city of London under certain supposed powers, delegated to it by act of parlia- ment, erected piles ,on the bed of the river Thames, near Richmond, withiu the high-water mark, some 30 feet from the shore, for the purpose of making a towing-path for horses, adjoining and contiguous to a wharf in the possession of the defendants. The defendants be- lieving the towing-path and piles to be in violation of their rights, and a nuis- ance, cut away one of the piles, for which they were indicted. The defendants 894 Easements. In Kew York it is held that on all the larger navigable rivers of the State above the ebb and flow of the tide, which are boundaries between States, or which are highways for commerce between States, the title of riparian owners is restricted to high-water mark, as also upon all streams navigable in their natural state, whicli have been declared navigable by statute.^ It also seems to be the doctrine of the courts of that State, and indeed the doctrine of all the courts, that the waters of a stream in their natural condition, susceptible of beneficial use for the jiurposes of navigation audoommeroe, are j^ublici Juris, and may be declared navigable by the legislature, and become subject to all the restrictions of navigable streams, without compensation to riparian owners for injuries sustained. But that the legislature has not the con- stitutional power to declare a stream navigable that is not so in fact, and which can only be made navigable by artificial means, without proper compensation to riparian owners for the damages inflicted upon them insisted tliat the tide did not ebb and flow in tlie Thames above London bridge, and tliat above tliat point it was kept navigable by artificial means, and that the tide above that point was occa- sioned'by the pressure and accumulation backward of the river water, and that, therefore, the soil did not belong to tlie crown. Lord Maksfield said : " The distinction between rivers, navigable and not navigable, and those where the sea does not ebb or floM-, is very ancient ; but tlie point contended for, a distinc- tion between the case of the tide occa- sioned by the flux of the sea water, or by the pressure backward of the fresh water of a river, seems to be entirely new, but there were no facts set forth in the case, which let in the consideration of that distinction. The case does not state wlietlier the water, when the tide rises at Eichmond, was fresher salt, but it rather seems to be talcen for granted that it was salt." A verdict was ren- dered ar/ainst tlie defendants, whicli was sustained in the king's bench. In Attor- ney-General V. Wood, 108 Mass. 36 ; 11 Am. Kep. 380, a similar question arose in reference to the rights of the public and riparian owners upon the Mystic river above the point of navigability in fact, except for skiffs and small pleasure boats, but within the ebb and flow of the tide. It appeared that the tide rose and fell at the point in question about two feet, and that the ordinary depth of the channel was about the same. The defendant erected a dam at the point in question, in 1851, and maintained it there imtil 1870, when it was destroyed. The river is a small stream flowing into Boston harbor, and the defendant denied that it was navigable in fact ; and it did not appear that it was, except for small pleasure boats. He also denied that it was navigable in law, and insisted that although the rise and fall of the water there was two feet, tliat it was occasion- ed by the meeting of the salt water of the tide with the fresh water of the stream on its downward passage. But upon tliis point the court said: "Tlie law on this point is well settled. It is the rise and fall of the wafer, and not the proportion of salt water to fresh, that detennines whether a particular portion of a stream is within tide water," and the court cited Rex v. Smith, ante ; Peyroux V. Howard, 7 Pet. (U. S. S. C.) 324, and Lapish V. Bangor Bank, 8 Me. 85, in support of its position. In reference to the actual navigability of the stream, except for pleasure craft, the court said : "Navigable streams are highways, and a traveller for pleasure is as fully en- titled to protection in using a public way, whether by land or i\ater, as a traveller for business. * * * If water is navi- gable for pleasure boating, it must be regarded as navigable water, though no craft has ever been upon it for the pur- poses of trade or agriculture," thus overruling the doctrine of Eowe v. Gran- ite Bridge Co., 21 Pick. (Mass.) 344; Charlestown v. County Com'rs 3 Mete. (Mass.) 202, and Murdock v. Sticliney, 8 Gush. (Mass.) 113. 'The People v. Canal Appraisers, 33 N. y. 461. Easembn-ts. 395 in depriving them of the use of the streams for ordinary jjurposes.^ In several of the States no distinction is made between tlie rights of riparian owners upon fresh-water streams, navigable in fact, and those streams affected by the ebb and flow of the tide. But the same rule prevails as to all, and the bed of all navigable streams is held to be vested in .the State.^ In several of the States where it is held that the title to the beds of the streams are in the State, the titles of riparian owners are extended to low-water mark, thus vesting in them the power and the right to erect and maintain wharves in front of their property, where it can be done without actual impediment to naviga- tion.^ Thus it will be seen that, in this country, there are three classes of navigable streams : 1st. Tidal streams that are navigable in Liw.^ 2d. Those that, although non-tidal, are yet navigable in fact for " boats or lighters " and susceptible of valuable use for commercial pur- poses ; " and 3d. Those which are Jioatahle, or capable of valuable use in bearing the products of the mines, forests, and tillage of the country it traverses to mills or markets.^ 1 Morgan v. King, 35 K Y. 4.54 ; Wal- ker 13. The Board of Public Works, .16 Ohio, 540. 2 Shrunk v. Schuylkill Co., 14 S. & R. (Penn.) 71 ; Bridge Co. v. Kirk, 46 Peno. 112 ; Ellis v. Carey, 30 Ala. 725 ; Bullock V. Wilson, 2 Porter (Ala.), 436; Ingraham v. Threadgill, 3 Dev. (N. C. ) 59 ; Collins v. Benbury, 3 Ired. (N. C.) 277 ; Stuart v. Clark, 2 Swan (Tenn.), 9 ; Elder v. Burns, 6 Humph. (Tenn.) 358 ; Haight ». Keokuk, 4 Iowa, 199 ; McManus v. Carmichael, 3 Clarke (Iowa), 1; Tomlia v. Dubuque, .33 Iowa, 106 ; Attorney-General v. Wood, 108 Mass. 36. ^ Qualifiedly in McManus v. Carmi- chael, 3 Iowa, 1. But contra, Haight v. Keokuk, 4 id. 199 ; Tomlin d. Dubuque, 32 id. 106 ; Elder v. Burns, 6 Humph. (Tenn.) 358; Stuart v. Clark, 2 Swan (Tenn.), 9 ; Blanchard v. Porter, 11 Ohio, 138. But later, that the title of riparian owners covers the bed of the stream if he owns on both sides. Walker I). Board of Public Works, 3 Ohio, 495 ; Howard v. IngersoU, 17 Ala. 780; Rhodes v. Otis, 33 id. 33 ; Ellis u. Gary, 30 id. 725; Flanagan v. Philadelphia, 42 Penn. St. 219 ; Bridge Co. v. Kirk, 46 id. 112 ; East Haven v. Hemmingway, 7 Conn. 186. *The Royal Fishers of the River Bamie, Davy's Rep. 143. 5 The Daniel Bell, 10 Wall. (U. S.) 555 ; The Montebello, 11 id. 411 ; Chi- cago !). McGinn, 51 III. 269. " Rhodes v. Otis, 33 Ala. 578 ; Weise V. Smith, 3 Oregon, 445 ; Morgan v. King, 30 Barb. (H. T. S. C.) 9; affirmed Ct. of Appeals, 35 I>r. Y. 454 ; McManus I). Carmichael, 3 Iowa, 1 ; Veazie v. Dwinell, .54 Me. 160 ; Lorman v. Ben- son, 8 Mich. 18 ; State v. Canterbury, 28 N. H. 195, navigable by usage ; Scott v. Wilson, 2 N. H. 321. (The Connecticut River above the ebb and flow of tlie tide held to be navigable for rafts and logs by long user.) See also Shaw v. Craw- ford, 10 Johns. (S. Y.) 236 ; Pitkin v. Olrastead, 1 Root (Conn.), 217, in which it is held that the Connecticut River above the tide is common to all. ISullock B.Wilson, 2 Port. (Ala.) 436; Martin v. Bliss, 5 Blacld. (Ind.) 35; Depew v. Canal Co., 5 lud. 8 ; Young v. Harri- son, 6 Ga. 130 ; Jones v. Water Lot Co., 18 id. 539 ; Harrington v. Edwards, 17 Miss. 580; Dalryinple v. Mead, 1 Grant's Cases (Penn. ), 197; Hubbard v. Bell, 54 111. 110 ; Lincoln v. Chadbourne, 56 Me. 157; Hooper b. Hobson, 57 id. 273 ; ^olger V. Peai-son, 3 Oregon, 455; Valk V. Eldred, 23 Wis. 410; Munson v. Hun- gerford, 6 Barb.- (N. Y.) 265; Varick v. Smith, 5 Paige (N. Y.), 148; Dwinel d. Veazie, 44 Me. 167. 396 Easbmbmts. It should be understood that, except in salt-water streams, so far as the tide ebbs and flows, the question of navigability is one of fact, and must be established by those who seek to use it as such ; ^ and also, that the stream must be navigable in its natural state, unaided by artificial means or devices.^ If a stream is not susceptible of valuable use to the public as a navigable or floatable stream, without the erection of dams, it is not a navigable stream, even though it might be applied to that use after dams are erected. So, too, it must be susceptible of use for a considerable portion of the year,^ although the fact that it is dry at some seasons of the year, if for a considerable time at other seasons it is really floatable, will not destroy the public right of navigation.' So, too, in order to make a stream \ega\bf floatahle, and thus a public high- way, it must be in such a condition that it will float logs or other pro- ductions of the country without artificial aid. Thus, in one case, it was held that a stream that would not float logs, without the aid of a person in a canoe, or of people on the banks to push them along, and when the logs were frequently injured by the difficulty in passing them through, the stream was not navigable in any sense.* The stream must be of such a character and capacity that it can be profitably and advantageously used during certain seasons of the year, in its natural state, for the passage of the products of the country through which it passes ; but, while a stream that cannot at any season of the year be turned to profitable account for this purpose is motjloat- aile in the legal sense, yet, if, in its natural state, it is susceptible of profitable use for such purposes at some seasons of the year, the fact that dams are erected, and that by the aid of those dams alone it is susceptible of such use at other seasons of the year, than those in which it would otherwise be used, does not prevent its use for such purposes at any season when, by the aid of such dams, it can be used.^ No definite legal test, by which to determine the question of navi- gability for the purposes oi floatage, can be given. It is purely a ques- tion of fact, dependent upon the capacity of the stream, the products of the country, and the profitableness or unprofitableness of its use in that manner."' If, in its natural state, it is capable of floating vesself, 1 McManus v. Carmichael, 3 Iowa, 1 ; v. Sanborne, 2 Mich. 423 ; Wadsworth Rhodes v. Otis, 33 Ala. 578 ; Morgan v. v. Smith, 11 Me. 278 ; Naederhouser ». King, 35 N. Y. 454. State, 28 Ind. 270; Veazie ». Dwinel, 50 2 Morgan v. King, 35 N. T. 454; Beryl Me. 479. r. Carl, 3 Me. 209; Wadsworth ^). Smith, « Morgan ». King, 35 N". Y. 454. The 2 Fair. (Me.) 276. * natural capacity of the stream must be ^ People V. Tibbetts^ 19 N. Y. 523 ; such as to make it serve a useful pur- Eeynolds b. McArthur, 2 Peters (U. S.), pose to the public, as a means of float- 417, ing the products of the country to mills * Morgan v. King, 35 K Y. 454. and markets. Hence if it can be used ^ Volk 11. Eldred, 23 Wis. 410 ; Moore only by a few individuals, and only Easements. 397 rafts, logs or other products of the country to market or to mills, and in that respect is fairly susceptible of beneficial use to the public, for any considerable portion of the time, then it may be used by the pub- lic for that purpose, but the owner of the alveus of the stream is not thereby prevented from using the stream in all ways and for all pur- poses not inconsistent with its use by the public* The riparian owner may apply the water to use for the propulsion of machinery, and for that purpose may erect a dam across the stream where the stream is sua-^ly floatable, leaving suitable ways for the passage of logs and other products." The right of the public for pass- age with logs, &c., is superior to the right of the riparian owner, and if he erects obstructions in the stream which prevents, endangers or materially hinders the passage of rafts or logs, whether such obstruc- tion is in the form of a dam or otherwise, such obstruction is a nuis- ance and subjects the person making it, not only to an action for the damages sustained by the owners of rafts or logs obstructed by it, but also to indictment as for a public nuisance, and the person so injured by the obstruction may abate so much of the same as is necessary to secure the proper exercise of his right.' for a few weeks in each year, it is not regarded as a public stream. Mun- son V. Hungerford, 6 Barb. (N. Y.) 265; Burrows v. Gallup, 32 Conn. 501. N"or imless it is capable of use witliout deep- ening or widening, or other artificial means, as by a dam, Volk v. Eldred, ante, or digging out the channel or widening the stream. Wadsworth v. Smith, 11 Me. 278 ; Veazie «. Dwinnel, 50 id. 479 ; People ». Piatt, 17 Johns. (N. Y. ) 195. It must serve a useful public purpose, so as fairly to be said to be of a public character, and beneficial as a public highway for the outlet of the products of the country it traverses. Curtis I). Keeler, 15 Barb. (K. Y.) 511 ; Hubbard v. Bell, 54 111. 112 ; Treat v. Lord, 42 Me. 552 ; Brown v. Chad- bourne, 31 id. 9 ; Morgan v. King, 18 Barb. {N. Y.) 277; 35 N. Y. (Ct. of Ap- peals) 454 ; Walker v. Shepardson, 4 Wis. 486 ; Stuart v. Clark, 2 Swan (Tenn. ), 9; Moore ». Sanborne, 2 Mich. 253 ; Weise v. Smith, 3 Oregon, 445 ; Falyer v. Robinson, id. 458 ; Naeder- houser v. State, 28 Ind. 270 ; Rhodes ». Otis, 33 Ala. 578 ; Laney v. Clifford, 54 Me. 489. In such streams it Is not ne- cessary that they should be susceptible of navigation against the current. Mor- gan ». King, ante ; Lorman v. Benson, 8 Mich. 18. But, upon the authority of all the cases, it must be susceptible of bearing the products of the country in a state fit for market, so as really to sei-ve a valuable and beneficial public purpose. Whether it is navigable for such purpose is a question of fact, and must be established by those asserting the right to use it for that purpose. Rhodes v. Otis, ante. In determining the question of navigability, it is the valuable more than the continual capa- city that is to be considered. The real question is, can it be made a valuable and beneficial aid to the public in get- ting the products of the country to market. Lorman v. Benson, ante; Rice V. Ruddington, 19 Mich. 125 ; Draw- bridge Co. V. Halliday, 4 Ind. 36 ; Mar- tin V. Bliss, 5 Blaekf. (Ind.) 135; Depew B. Canal Co., 5 Ind. 8 ; Moore v. San- borne, 2 Mich. 518. 1 Lorman v. Benson, 8 Mich. 18 ; Laney «. Clifford, 54 Me. 491 ; Morgan V. King, 18 Barb. (N. Y.) 277 ; Scofield !). Lansing, 17 Mich. 437. See note in Washington on Easements, p. 507 Avery ». Fox, 1 Abb. (U. S. C. C.) 240 Yates ». Milwaukie, 10 Wal.(]Sr. S.) 497, ^ Scofield V. Lansing, 17 Mich. 437 , Thurman v. Morrison, 8 B. Mon. (Ky.j 367 ; Douglass ». State, 4 Wis. 387. 8 Renwick v. Morris, 7 Hill (N". Y.), 575 ; Memphis R. R. Co. v. Hicks, 5 Sneed (Tenn.), 427; Barnes b. Racine, 4 Wis. 454 ; !§urrows v. Pixley, 1 Root (Conn.), 363 ; Brown v. Watrous, 47 Me. 161 ; Gerrish ?;. Brown, 51 id. 256 ; 398 Easements. But, while the right of passage for the public must on the one hand be respected by the' rijDarian owner, so on the other hand must the rights of the riparian owner be respected by the public, and where a rbfer is mevelj floatable the public have no right to so use it as to de- stroy its beneficial use for manufacturing purposes.' Thus it has been held that persons using a floatable stream have no right to erect dams thereon, and thereby detain and hold the water to be let off in such a manner as to aid in the floating of logs, when, by such dams, the water is withheld from mill-owners below, to their injury, even though except for such dams the stream could not be used for floatage at certain sea- sons of the year.*" Thus, it will be seen that, in order to determine whether the owners of land bordering upon a stream navigable in fact, but in ivhich the tide does not ebb and flow, have a private right of fishery or not, de- pends upon the question whether, in the State where the question arises, he is treated as being the owner of the soil ad filium aquae, or is restricted to low-water mark. In any event, it must also be remem- bered that fish, uncaught, are not absolutely the property of the owner of the stream, but that he has simply a qualified or quasi property therein, while they remain in the water upon his land, but this prop- erty is lost whenever they escajDe beyond the limits of his boundaries.' Watercourse. — Definition of. Sec. 253. A watercourse is water flowing between banks more or less defined. To constitute a watercourse in which rights may exist, or may be acquired by user or otherwise, the flow of water must pos- sess that unity of character by which the flow on one person's land can be identified with that on his neighbor's land. Water which squan- ders itself over an indefinite surface is not a watercourse, nor a propter subject-matter for the acquisition of a right by user.* But the moment the water of a spring runs into a definite channel, it constitutes a watercourse ; ^ and all accessions to such stream, from whatever source, form a part of it.' Veazie ■». Dwinel, 50 id. 479 ; Knox v. (Mass.) 191 ; Wagner d. Long Island E. Chaloner, 42 id. 156 ; State v. Freeport, E. Co., 2 Hun (N. Y. S. C), 633 ; Bris- 43 id. 198 ; Powers ». Trisli, 23 Mich, coe d. Drought, 11 Ir. Com. L. E. 250 ; 429. Eawson v. Taylor, 11 Exch. 369 ; Broad- 1 Scofield V. Lansing, 17 Mich. 437. bent x>. Eamsbottom, id. 602. 2 Middleton ». Flat Eiver Booming ^ Dudden v. Guardians of Glutton Co., 27 Mich. 533. Union, 1 H. & N. 627 ; Gillett v. John- 8 Taylor's Landlord and Tenant, 193. son, 30 Conn. 180 ; Macomher ». God- * Shields d. Arndt, 15 N. J. Eq. 234 ; frey, 108 Mass. 219 ; 11 Am. Eep. 349 ; Dickinson v. Worcester, 7 Allen (Mass.), Ashley -o. Wolcott, 11 Cush.»(Mass.) 192; 9; Eulrich v. Eichter, 37 Wis. 226; S. C. Gannon ». Hargdon, 10 Allen (Mass.), 41 id. 318 ; Barnes v. Sabron, 10 Nev. 106; Franklin b. Fisk, 13 id. 211. 217; Luther ». Winnissmet Co., 9 Cush. « Wood ». Waud, 8 Exch. 748. Easements. 399 Nature of rights in natural streams. Sec. 254. Flowing water is puMici juris, not in the sense that it is a bonuvi vacans, to which the first occupant may acquire an exclusive right, but that it is public and common in this sense only, that all may reasonahly use it who have a right of access to it ; that none can have any property in the water itself, except in the particular portion which he may choose to abstract from the stream and take into his posses- sion, and that during the term of his possession only.^ The right to the use of flowing water is clear. Prima facie the proprietor of each bank is the proprietor of half the land covered by the stream, ad medium filum aqum, but there is no property in the water. Each proprietor of the land has a right to the advantage of the stream ^om;- ing in its natural course over his land, and to use the same as he pleases for any purpose of his own, not inconsistent with a similar right in the proprietors of land above or below ; so that neither can any proprietor above diminish the quantity or injure the quality of the water which would otherwise naturally descend, nor can any proprietor throw back the water, without the license oi- the grant of the propri- etor above ; ^ or a right to do so acquired by prescription from time immemorial, or by user for the period prescribed by statute.^ Every riparian proprietor has a right to the reasonable use of water flowing past his land ; namely, for his domestic purposes, and for his cattle. He has also the right to the use of the water for any other purjjose, pro- vided he does not thereby interfere with the rights of the proj^rietors 1 Embrey v. Owen, 6 Exch. 369 ; Ma- water. Cole m. Lake Company, 54 N. son !). Hill, 3 B. & Ad. 304; .5 id. 1. H. 242 ; Pierce n. Kinney, 59 Barb. (N. ^Merritt x,. Brinlcerlioff, 17 John. (IST. Y.) 56; Woodbury v. Short, 17 Vt. 387 : Y.) 306 ; Hetrick v. Deuchler, 6 Penn. Wallace y>. Drew, 59 Barb. (N. Y.) 413 ; St. 32 ; Mervitt -o. Parker, 1 N. J. L. ShamlefEer n. Council Grove Co., 18 460; Dormant. Ames. "NVhere a lease Kan. 24 ; Acquachanonk Water Co. v. conveyed the right to draw a certain Watson, 29 N". J. Eq. 366 ; Taylor u. quantity of water from a canal of the Welch, 6 Oregon, 198 ; Mason ». Hill, 5 lessors to the mills of the lessees, and B. & Aid. 1, 24 ; 3 B. & Ad. 304 ; 5 id. contained a reservation excepting and 1 ; Wright «. Howard, 1 Sim. & Stu. reserving to tlie said lessors, however, 190, 203 ; Acton xi. Blundell (in error), the control of the water in the W river, 12 M. & W. 348, 349 ; Tyler ». Wilkin- and in all mill ponds, bays, lakes, and son, 4 Mas. (11. S. ) 397. reservoirs at and above said premises, ^ Belknap v. Trimble, 3 Paige's Ch. with the right of holding back and re- (X. Y. ) 605 ; Hajght ». Price, 21 N. Y. taining and discharging the water there- 241 ; Norton -o. Valentine, 14 Vt. 243 ; from at their pleasure, an abatement of Butman k. Hussey, 12 Me. 407 ; Hatch the rent hereinafter mentioned being y>. Dwight, 17 Mass. 296 ; Webb j). Port- made in case said lessees shall be inter- land Mfg. Co., 3 Sum. (TJ. S.) 189; Bol- rupted in the use of said mills thereby, ivar v. Mfg. Co., 16 Pick. (Mass.) 241 ; — Held, upon a consideration of the King ». Tiffany, 9 Conn. 162 ; Drewett whole instrument together, that the v. Sheard, 7 C. & P. 465 ; Sampson v. lessors could not, at their pleasure, erect Hoddinott, 1 C. B. N. S. 590; 3 id. 596; a barrier to prevent the flow of water Moore u. Webb, 1 C. B. K. S. 673; Car- from their reservoir into the canal, and lyon D. Lovering, 1 H. & N". 784 ; Mur- in that way terminate the lease, when gatroyd b. Eobinson, 7 E. & B. 391 ; such course was not necessary in their Gaved v, Martyn, 19 C. B. N. S. 732 general control and management of the Tudor L. C. Real Prop. 159-168. 400 Easements. eitliev above or below him.^ Subject to this condition, a riparian pro- prietor may dam up the stream for the purpose of a mill, or divert the water for the purposes of irrigation ; but he has no right to inteiTupt the regular flow of the stream, if he thereby interferes with the lawful use of the water by other proprietors and inflicts upon them a sensible injury.^ He has a right by means of water-wheels and machinery, erected by him for that purpose, to pump up water from the stream to a reservoir, and to convey it thence by pipes to his dwelling-house upon another estate at a distance from the stream, and there to apply such water to his domestic and other necessary purposes of utility ; provided he takes only a reasonable quantity with reference to the size of the stream and the rights of his neighb«r ; but he has no right to take more water by means of the wheels and machinery than he would have a right to take otherwise.' The proprietor of a water- course has a right to avail himself of its momentum as a power which may be turned to beneficial purposes ; and he may make a reasonable use of the water itself for domestic purposes, for watering cattle, or even for irrigation, provided it is not unreasonably detained or essen- tially diminished.* A riparian proprietor has a right to divert water to a reasonable extent for the purposes of irrigation ; but the extent of such user must depend upon the circumstances of each case. It must not be such as materially to prejudice any proprietor below.^ If a ripa^ 1 Tyler B. Wilkinson, 4 Mas. (U. S.) Wadswortli ». Tillotson, 15 Conn. 369, Sill ; China v. Southwlck, 12 Me. 238 ; il was held that a diversion of the water Williams u. Gale, 3 H. & J. ( Md. ) 231 ; reasonably necessary for domestic uses, Richardson v, Kerr, 34 Cal. 69 ; Lapham and a reasonable use of water for other V. Curtis, 5 Vt. 371 ; Hodges v. Hodges, purposes, Is not a nuisance, and tliat 5 Met. (Mass.) 205 ; Mllner v. Gilmour, the question of reasonableness is always 12 Moore P. C. C. 131 ; Sampson v. for the jury. Gillett v. Johnson, 30 Hoddinott, 1 C. B. N. S. 590; 3 id. 596 ; Conn. 183 ; Evans ». Merrlweather, 3 Embrey v. Owen, 6 Exch. 353; Ld. Kor- Scam. (111.) 492. See Bliss v. Kennedy, bury V. Kitchin, 3 F. & F. 292. 43 111. 73; Ferrea v. Knipe, 28 Cal. 344 ; ^ If he raises his dam so as to flood Johns d. Stevens, 3 Vt. 808 ; Blanchard the lands of upper owners, or unreason- v. Baker, 8 Me. 253 ; Stein v. Burden, ably holds It back from lower owners, 29 Ala. 127 ; Smith v. Adams, 6 Paige he is liable for the consequences. Mayor (N. Y. Ch.), 435 ; questioned in Trus- V. Bailey, 3 Den. (N. Y.) 433 ; Johns v. tees v. Youmans, 50 Barb. (K. Y. Sup. Stevens, 3 Vt. 308 ; Webb v. Portland Ct. ) 819 ; Elliott v. Fitchburgh R. R. Mfg. Co., 3 Sum. (U. S.) 189 ; Mabie ». Co., 10 Cush. (Mass.) 191 ; Pugh v. Mattison 17 Wis. 1 ; Shaw v. Cumiskey, Wheeler, 2 Dev. & B. (N. C. ) 50 ; Bea- 7 Pick. (Mass. ) 76 ; Springfield v. Har- ley v. Shaw, 6 East, 208 ; Corning v. ris, 4 Allen (Mass.), 496 ; Casebeer «. Troy, 34 Barb. (N. Y. S. C.) 485. In Mowry, 55 Penn. St. 473 ; Davis v. Get- Kidd v. Laird, 15 Cal. 161, it was held chell, 50 Me. 604 ; Ferrea v. Knipe, 28 that where a person had acquired a Cal. 343 ; Milner v. Gilmour, 12 Moo. P. right by grant from the United States C. C. 131 ; 7 W. R. 328 ; Lord Norbury government to divert water from a run- V. Kitchin, 3 F. & P. 292 ; 9 Jur. If. S. ning stream, with no restrictions as to 132, Exch. the point from which it should be taken, ' Lord Norbury v. Kitchin, ante. the place of diversion or the mode of * Blanchard v. Baker, 8 Me. 258 ; 6 use might be changed at any time, if no Exch. 365. one was injured thereby. But when ^ Embrey v. Owen, 6 Exch. 353, 372 ; the rights of others are affected thereby Ld. Norbury v. Kitchin, ante. In no change can be made. See, also. Easements. 401 rian proprietor unreasonably detain the water of a stream for purposes of irrigation, whereby another proprietor lower down the stream is deprived of the use of the water daily for several hours, until it is too late for him to use it for irrigating his land, or for any other lawful and necessary purpose, he may maintain an action.^ A proprietor of land contiguous to a stream may, as soon as he is injured by the diversion of the water from its natural course, maintain an action against the party so diverting it; and it is no answer to the action that the defendant first appropriated the water to his own use, unless he has had twenty years' undisturbed enjoyment of it in its altered course.- So where the water is improperly heightened and penned and forced back upon the plaintiff's land situate higher up the stream,^ or the stream is heated or otherwise polluted with the refuse of a mill or works higher up the Butte V. Morgan, 19 Cal. 609 ; Mitchell V. Parks, 26 Ind. 354 ; Pratt v. Lawson, 2 Allen (Mass.), 275 ; Arthur v. Case, 1 Paige Ch. (N. Y.) 448 ; Curtis v. Jack- son, 13 Mass. 507 ; Webb v. Portland Manuf. Co., 3 Sum. (TJ. S.) 1S7 ; Van- derbergli v. Van Bergen, 13 Johns. (N. Y. ) 212. In Crocker v. Bragg, 10 Wend. (N. Y.) 260, an island divided the stream so that only a small portion of it de- scended on the defendant's side of the island and the balance on the other side. The defendant placed obstruc- tions at the head of the island for the purpose of diverting more of the water of the stream to his side. The court held that each owner was entitled to all the water that naturally descended to him, and that where there was a natural barrier that divided the stream, neither owner could erect obstructions to change the natural course of the water. But the water of a stream may be diverted on one's own land if it is returned again to its original channel without sensible diminution to the injury of those lower down on the stream. Nor- ton c. Valentine, 14 Vt. 239 ; Johnson V. Lewis, 13 Conn. 303. Water may be diverted by sluices or artificial channels for a reasonalsle use, and no liability at- taches for that insensible loss of the water consequent upon its reasonable beneficial use. Wadsworth v. Tillotson, 15 Conn. 366. The diversion or ob- struction of water, in order to be ac- tionable, must be such as to injure the lower owners, and no prescriptive right can be acquired unless such use does operate injuriously. But the diversion or obstruction of all the water is action- able, or of such a quantity as sensibly diminishes its natural flow. Davis v. Fuller, 12 Vt. 178; Norton ». Valentine, 26 14 Vt. 230 ; Parker u. Plotclikiss, 25 Conn. 321 ; Webster v. Flemming, 2 Humph. (Tenn.) 518 ; Plumleigh v. Dawson, 1 Oilman (III.), 544 ; Miller v. Lapham, 44 Vt. 416 ; Snow v. Parsons, 28 Vt. 49. But when the diversion is by one who has no legal right to make it, an action may be maintained by a riparian owner, even though no actual damage is sustained. Whipple v. Cum- berland Manufacturing Co., 2 Story (U. S. ), 601 ; Butman v. Hussey, 3 Fairfax (Va.),407. In Parker V. Griswold, 17 Conn. 288, it was held that, in order to maintain an action for diversion, it is not necessary to allege that the plaintiff had a mill upon his premises, but that an allegation of injury to the land is suflScient. Leggett v. Kenton, 2 Rich. (S. C. ) 466. But the injury must be perceptible, and not merely theoretical. Thompson v. Crocker, 9 Pick. (Mass.) 59; Merritt v. Parker, Coxe (N. J.), 46; Pugh V. Wheeler, 2 Dev. & Bat. (K. C. ) 56; Omelvany v. Jaggers, 2 Hill (N". Y.), 684. Diverting water for purposes of irrigation is unlawful, when. An- thony V. Lapham, 5 Pick. (Mass.) 175 ; Weston V. Alden, 8 Mass. 1.36 ; Arnold V. Foot, 12 Wend. (N. Y. ) 330. 1 Sampson v. Hoddinott, 1 C. B. N. S. 590; 3 id. 596; Snow v. Parsons, 28 Vt. 457; Parker D. Hotchkiss, 25 Conn. 321; Robertson v. Miller, 40 id. 40 ; Keeney V. Wood Mfg. Co., 39 id. 576 ; Oregon Iron Co. B. Terwilliger, 3 Oreg. 1 ; Springfield ». Harris, 4 Allen (Mass.), 494 ; Stein v. Burden, 29 Ala. 127; Fos- ter V. Fowler, 2 T. & C. 425 ; Ripka b. Sargent, 7W. & S. (Penn.) 9. 2 Mason b. Hill, 5 B. & Aid. 1. ^ Saunders b. Newi^ian, 1 B. & Aid. 258. 402 Easements. stream, or in any way.' The right to have a stream flow in its ntcmral state, without diminution or alteration, and uncontaminated by artificial means, is a natural right incident to the property in the land through which it i^asses, and not a mere easement.^ The owner of such 2:)rop- ei'ty has a right to have the stream come to him in its natural state in flow, quantity and quality, and to go from him without obstruction, upon the same principle that he is entitled to have the air come to him over his neighbor's soil reasonably pure and in its natural state. Such a right in no way depends upon prescription, or the presumed grant of his neigh, bor, nor from presumed acquiescence of the proprietors above and below.^ By grant, or by jDrescrijstion from time immemorial,'' a riparian jsroprietor may acquire a right to use the water in a manner not justified by his natural right ; but such acquired right is an easement, and has no oper- ation against the natural rights of a landowner higher up the stream, unless the user by which it was acquii-ed affects the use that he himself has made of the stream, or his power to use it, so as to raise the pre- sumption of a grant, and so render the tenement above a servient tene- ment.^ Nothing short of twenty years' undisturbed possession of water diverted from the natural channel, or raised by a dam, can give a party an adverse right against those whose lands lie lower down the sti-eam, and to whom it is injurious ; a possession for a less period than is re- quired by statute is not sufiicient.^ A ]-iparian proprietor derives his right in respect of the' water from ])ossession of land ahutting on the 1 Wood !). Waud, 3 Excli. Y48 ; Car- Ala. 214; Woi-msley ■». Church, 17 L. T. lyon D. Lovering, 1 H. & N. 784; AYhaley N. S. 190 ; Ottawa Gas Co. v. Thomp- V. Lalng, 2 H. & N. 476 ; 3 Id. 67.5 ; 5 son, 39 111. 601 ; Brown d. Illins, 25 Id. 480 ; Murgatroyd v. Eobinsoii, 7 E. Conn. 583 ; Howell v. McCoy, 3 Eawle ife B. 391 ; Magor v. Cliadwick, 11 Ad. (Penn.), 356 ; Clowes ». Staffordshire &. El.' 571 ; Mason x>. Hill, 3 B. & Ad. Waterworks Co., L. R., 8 Ch. App. 126; 304 ; 5 Id. 1. A person who pollutes Lingw^ood r. Stowmarket Co., L. R., 1 the water of a stream so as to diminish Eq. Cas. 77 ; Crossley b. Liglitower, L. its value for domestic or manufacturing K., 3 Eq. Cas. 279; L. K., 2 Ch. App. 478; purposes, is guilty of an actionable O'Eiley ». McCliesney, 3 Laus. (If. Y. S. nuisance. Stockport Waterworks Co. C.) 278 ; Snow ■a. Parsons, 28 Vt. 459; 1). Potter, 7 H. & N. 159 ; Wood d. Suti- Hounsee d. Hammond, .39 Barb. (N. Y.) liffe, 16 Jur. 75 ; Attorney-General v. 89 : Hayes v. Waldron, 44 N. H. 585. Gee, L. E., 10 Eq. Cas. 131 ; Goldsmid '- Embrey x,. Owen, 6 Exeh. 353; Dick- r. Tunbridge Wells Imp. Co., L. E., 1 inson r. Grand Junction Canal Co., 7 Cli. App. 349 ; Lillywhite v. Trimmer, Exch. 2S2 : Chascmore v. Eichards, 2 H. 16 L. T. N. S. 318 ; Cushart d. Auburn & N. 1(58 ; 7 H. L. Cas. 349 ; Eawstron Gas Light Co., 23 Barb. (N. Y.) 444; b. Taylor, 11 Exch. .381 ; Tyler d. Wil- Wilts J). Navigation Co.,L. R., 9 Ch.App. kinson, 4 Mas. (U. S.) 897. 451 ; Hudson E. E. Co. v. Laeb, 7 Eobt. ^ Cbasemore r. Eichards, ante. (N. Y. Superior Ct. ) 248 ; Attorney- * Ante, p. 369. General ». Leeds, L. E., 5 Ch. App. 58.3; ° Sampson v. Hoddinott, 1 C. B. N. S. Norton B. Schofield, 9 M. & W. (563 ; 590; 3 Id. .596; Wright ». Williams, 1 M. Carlyon v. Lovering, 1 H. & N. 784 ; & W. 77 ; Murgatroyd v. Eobinson, 7 Jonea D. Crow, 32 Penn. St. 393 ;, 3[eri-i- E. & B. 391 ; Wood v. Waud, 3 Exch. field D. Lombard, 13 Allen (Mass.), 16 ; 778; Greatrex b. Hayward, 8 Exch. 291; Holsman ». Boiling Springs Co., 14 N. Carlyon v. Lovering, H. & N. 797. J. Eq. 334 ; Attorney-General n. Stew- >* Prescott b. Phillips, cited 6 East, 213. ard, 20 N". J. L. 415 ; Lewis \>. Stein, 16 Easements. 403 stream, and if, by a deed which conveys only land not abutting on the stream, he affects to grant water rights, the grant, though valid as against the grantor, can create no rights for an interruption of which the grantee can sue a third party in his own name.^ The abstraction of water from a natural stream openly and under a claim of right for a period of .twenty years to a tenement nOt abutting on the stream will create no easement to have pure water flow down the stream to the point of abstraction.^ Rights between mill-o'wners on the same stream. Sec. 255. The rights of mill-owners upon the same stream, are to be construed according to their respective rights under the conveyance under which they hold, and in reference to their prescriptive rights, if they have acquired any. Upper mill-owners have a right to the first. use of the water, and to detain it reasonably for that purpose.' As to what is a reasonable use of water on a stream, is always a question of fact to be determined by a jury, and is to be arrived at, first, by ascertaining the capacity of the stream, the nature and character of the works sought to be propelled thereby, the kind of wheels and machinery used, and the reasonable necessities of the mill-owner in view of all those facts, and the custom of the country, if there be any, in a beneficial applica- tion of the water.^ A man must adjust his uses of the water to the capacity of the stream. He may not erect a dam and build mills to be propelled by the water of a stream, that in their requirements are far beyond the ordinary capacity of the stream to supply the power for, neither has he a right to use wheels which require an excessive amount of water to propel ; but in his use, both in the )'equirements of the works and in the character of his machinery, he must have a reasonable regard to the ordinary capacity of the stream, and when he has thus con- formed hia use of the water to the capacity of the stream, he may detain the water from the mills below to the extent necessary to make it ben- eficial to him, even though it takes the entire water of the stream.* If, however, there is sufficient water for all the mills, if reasonably used, then it is the right of each mill-owner to require of the others such a iThe Stockport Waterworks Co. v. S. C.) 654; Hill u. Waud, 2 Gilman (111.), Potter, 3 H. & C. 300. 285; Gould v. Boston Duck Co., 13 Gray 2 Id. (Mass.), 442; Sampson v. Hoddinott, 38 8 Piatt V. Root, 16 John. (N. Y.) 92 ; Eng. Law & Eq. 241 ; Pollitt v. Long, 3 Palmer v. Mulligan, 3 Caines (ST. Y.), N". Y. S. C. Rep. (Parsons' Ed.) 232 ; 58 307; Davis ». Winslow, 51 Me. 290; Par- Barb. (N. Y. S. C.) 79; Hetrick v. Desh- ker V, Hotchkiss, 25 Conn. 351 ; Olney ler, 6 Barr (Penn.), 32. V. Fenner, 2 R. I. 211 ; Martin v. Bige- '" Gould v. Boston Duck Co., 13 Gray low, 2 Aiken (Vt.), 185 ; King u. Tif- (Mass.), 442; Pollitt ». Long, 3 N. Y. S. fany, 9 Conn. 162 ; Barrel v. Wells, 22 C. (Parsons' Ed. ) 232 ; Whalen v. Ahl, Pick. (Mass.) 237 ; Wood on Nuisances, 29 Penn. St. 98; Clinton v. Myers, 46 If. 458 et seq. Y. 511; Timm v. Bear, 29 Wis. 254. * Thomas v. Brackney, 17 Barb. (N. Y. 404 Easements. use of the water as shall yield him his proper suisply.^ The upper owner may detain the water so long as is necessary for the purpose of working his mills ; but he must, at his peril, see to it that he does not unneces- sarily or unreasonably detain it.^ Question of reasonableness for jury. Sec. 256. As to what is a reasonable detention or use of water is always a question of fact to be determined by the jury from the cir- cumstances of each case, and in determining the question, a variety of considerations are to be considered, such as the size of the stream, the adaptability of the machinery to the ordinary condition and volume of the stream, the uses to which it is or can be applied, as well as the character of the machinery used as comjaared with the improvements in machinery for a similar pui'pose, and, in the language of Fostee, J., in a recent case in New Hampshire, " whether, under all the circumstances of the case, it is or is not a reasonable use of the stream ; and in deter- mining that question the extent of the benefit to the mill-owner, and of the inconvenience to others, may very properly be considered." ''^ The right of a mill-owner is to %ise the water, but he has no right to divert it entirely fi-om the stream. If he conducts it away from the stream to a mill, he must see to it that it is returned again before it leaves h" premises, so that an owner below is not damaged by the act.^ So, too, a mill-owner is bound to so maintain his dam (unless he has acquired a prescriptive right to do otherwise) so as not to set the water back upon the land or the wheels and machinery of an upper mill,^ or so as to dis- charge it in a fitful manner, to the injury of an owner below." Limitation upon right to dam water. Sec. 257. The rights of a riparian owner to dam the stream have been previously discussed. The right exists so long as it can be done without 1 Snow B. Parsons, 28 Vt. 459. Bassctt v. Salisbury Manufacturing Co. , 2 Whalen ». Ahl, 29 Penn. St. 98 ; 4:J id. 567. Pollitt 1). Long, 3 N. T. S. C. Eep. (Par- * Sacla-ider v. Beers, 10 Johns. (N. Y.) sons' Ed.) 232; Snow v. Parsons, 28 241 ; Brissell b. Shall, 4 Dallas (U. S.), Vt. 459; Parker ». Hotchkiss, 25 Conn. 211 ; Merritt v. Bi-inkerhoff, 17 .Johns. 321 ; Barrett B. Parsons, 10 Cush. (Mass.) (N.T.)306; Stein i). Burden, 29 Ala. 127. 367. In Tiram v. Barr, 29 Wis. 254, ^ Wright v. Howard, 1 Sim. & Stu. It is held that an upper mill-owner has, (CIi. ) 203 ; Saunders b. Newman, B. & generally, no right to deprive the lower Ad. 258; Butz v. Ihric, 1 Rawle (Penn.), mill-owners of the natural flow of the 218; Stiles i-. Hooker, 9 Cow. (N. Y.) water, and that in determining what is 266 ; Gilman d. Tilton, 5 jST. H. 232 ; a reasonable detention, reference may be Hodges t). Raymond, 9 Mass. 310 ; Hill had to the kind of machinery used in b. "Ward, 7 111., 285 ; Cheek b. McAiley, the upper mill, and its adaptability for 11 Eich. (S. C.) 153. use on such a stream. See Brace v. ^ Stein b. Burden, 29 Ala. 127; Mabie Yale, 99 Mass. 488 ; Clinton b. Myers, b. Mattieson, 17 Wis. 1 ; Corning b. 46 K. Y. 511. Troy, &c., 39 Barb. (N. Y. S. C.) 311 ; 3 Norway Plains Co. b. Bradley, ,52 N. Davis b. Getchell, 50 Me. 604; Hulme ». H. 110 ; Hays v. Waldron, 44 id. 584; Shrieve, 3 Green's Ch.tN. J.) 110. Easements. 405 injury to the property or rights of others, but if a dam is erected so as to injure the lands above or below the mill by flooding them, or otherwise producing injury thereto of which the dam is the proximate cause, it is a nuisance, and its maintenance unlawful.' If, by hoarding the water by a dam, the water is set back and held so that it imj:)airs the health of those living on the stream, or as to impair their comfort by reason of the noxious vapors arising therefrom, this is not only an actionable but an indictable nuisance.^ Or if it interferes with the drainage of lands,' destroys springs,* charges the soil with water,'^ or causes ice to accu- mulate or to be thrown thereon,^ or in any way interferes with the natural condition of the land or the rights of landowners, its main- tenance is unlawful and imposes upon those maintaining it liability for all the natural and probable consequences flowing therefrom.' So, too, in the erection of dams, lower owners are restricted to the erection of such dams as will not set back the water upon the wheels of upper mill- owners, or in any wise interfere with the free and unobstructed opera^ tion thereof.* He cannot substract from the power of an upper owner by throwing the water back upon him." Nor does it make any differ- ence whether the upper owner has a mill upon his premises or not,'" and if the water is set back upon the premises of one who has a mill site, even though the lands are not overflowed, the backing of the water creates an actionable injury.^' Precautions to be adopted. Sec. 258. In the erection of a dam, the person erecting it is bound to regard the character of a stream, and the incidents of the locality, and if it is subject to extraordinary and violent freshets, even though occur- ring only at intervals of several years, he is bound to construct his dam of snfiicient strength to resist such freshets, and, failing in that, he is liable for all the damages that ensue.'^ The restriction imposed by law upon mill-owners in the erection of dams, is, that they must not essen- tially injure those above or below them in the use of the stream, or, as 1 Hill V. Ward, 2 G-ilman (III), 285 ; ^ Smith v. Agawam Canal Co., 2 Allen Haas V. Chaussard, 17 Tex. 588. (Mass.), 355. 2 Kounslar v. Ward, Gilmer (Va.), ' Amoskeag Co. v. G-oodale, 46 N". H. 127; Rhodes ». Whitehead, 27 Texas, 53. 304. 8 Graver v. Soholl, 42 Perm. 67; War- 'Bassett v. Company, 43 N". H. 573 ; iiig v. Martin, Wright (Penn.ji, 281; Trustees v. Toumans, 50 Barb. (K. T. Shreve v. Voorhees, 2 Green's Ch. (N. S. C.)328; Johnstone B. Roane, 3 Jones' J.) 25 ; Thompson v. Crocker, 9 Pick. (N. C.) Law, 523; Barron v. Lundry, 15 (Mass.) 59; Good b. Dodge, S Pittsburgh La. An. 681; Hooper v. Wilkinson, id. (Peim.), 557; Ripka v. Sargeant, 7 S. & 497. R. (Penn.) 9; Pixley v. Clark, 35 N. Y. * Payne ». Taylor, 3 A. K. Marsh. 525; Stout v. McAdams, 2 Scam. (111.) (Ey.) 328; Neil v. Henry, 1 Meigs 67. ' Good u. Dodge, ante. (Tenn.), 17. " Stout v. McAdams, ante. . * Pixley V. Clark, 25 N. T. ; 35 ii. " Amoskeag v. Goodale, 43 N". H. '56. 579. 12 Gray v. Harris, 107 Mass. 492. 406 Easements. stated in a recent well-considered case in New Hampshire,^ " so as not sensibly and injuriously to affect the rights of other mill-owners." Prescriptive rights. — How acquired. Sec. 2.59. Prescriptive rights by long user of the water in a partic . lar way may he acquired, and when acquired are added to the natura. right, and to the extent of such increase, are a complete defence to ac- tions for injuries resulting from a use of the water in excess of the nat- ural riglit. Prescriptive rights ma^' not only be acquired against ripa- rian owners either above or below him on the stream, but also against mill-owners upon the same dam. Thus one mill-owner who has the right to use a certain quantity of water from the pond by grant, and in a cer- tain way, or at certain times of the day, may acquire the right by twenty years' adverse use in larger quantities, for a different jjurpose or at a different time, to use the water in a manner entirely different from the terms of his grant. But in order to acquire a prescriptive right, his use must be ad\erse, open, continuous, uninterrupted and as of right, and with the knowledge and acquiescence of the owner of the estate affect- ed thereby." Thus it is held that when one has maintained a dam at a given height for twenty years, this raises the presumption of a grant to maintain it at that height in a state of perfect repair. But, if during that period it has not flooded the lands above, if, when repaired, it pro- duces that result, the dam is a nuisance, and an action lies for all in- juries produced by flooding the uppei' land the same as though it was a new dam.' Extent of right acquired. — Gilford v. Lake Co. Sec. 260. But this must be understood as subject to the condition that the use of the water in a particular way, in oi'der to confer a prescriptive right, must not only be " adverse under a claim of rights exclusive, continuous and ■uninterrupted,^'' but such use must be hnown 1 Norway Plains Co. n. Bradley, 52 N". 78. See Cohvell b. Thayer, 5 Met. H. 86. (Mass.) 2.53 ; Eay v. Fletcher, 12 Cush. 2 Yard v. Ford, 2 Wm. Saunders, 175, (Mass.) 200; Hinds v. Schultz, 39 Barb. 6 note ; Parker v. Foote, 19 Wend. (N. (N. Y. S. C. ) 600. But the right will Y'. ) 309 ; Luce v. Carey, 24 id. 451 ; only be co-extensive with the use, and, Stokes «. Apponiatox Co., ?> Ijeigh (Va. ), though the dam has been maintained at 318; Watkins v. Peck, 18 N. H. 360 ; a given height for the prescriptive period, Thoratis D. Marshfteld, 13 Pick. (Mass.) yet if during that time it has not been 240; Winnipiseogee Lake Co. u. Young, keijt in repair, so as to set the water back 40 N. H. 420. upon the lands above, the owner of the 2 Stiles i). Hooker, 7 Cow. (N. Y. ) 266; dam will be liable for all damages re- Eussell'f). Scott, 9 id. 279; Mertz ». Dor- suiting from the setting back of the water ney, 25 Penn. St. 519. But see Jackson when the dam is in repair beyond that r. Harrington, 2 Allen (Mass.), 242; what is covered by his use. Carlisle v. Norway Plains Co. ». Bradley, 52 N. H. Cooper, 4 C. E. Green (N. J.), 260; 108; Winnipiseogee Lake Co. d. Young, Mertz v. Dorney, 25 Penn. St. 519. 40 id. 420; Burnham t). Kempton, 44 id. Easemb!S"ts. 407 to, and acquiesced in, by the owner of the rights affected thereby, and tlie burden of proving these conditions is upon the jserson assert- ing the claim.^ But a use of water for however long a period, lack- ing in either of these elements, confers no jjrescriptive right.^ In a 'S&w Hampshire case,^ Smith, J., in delivering the opinion of the court, thus laid down the rule : " Merely maintaining a dam for twenty years, without thereby raising the water on the plain- tiff's land often enough to give notice that they claimed the right to flow it, would not give the defendant a prescriptive right to flow plaintiff's land as high as it coidd be flowed by means of that dam- The mere erection and maintenance of the dam did no injury to the plaintiffs, and furnished them no ground of action against the de- fendants. It is not the right to erect or maintain a dam upon their own land that the defendants seek to establish by prescription, for that they have already. They may build and maintain a dam on their own land at any height ; unless it pens back the- water on the plain- tiff's land, the plaintiffs could not complain or maintain an action against them for an invasion of their right. Tt is not the height of the dam, but of the viater, which does the i:i .. It is not the height of the dam but of the water of which tlie ])hiintiffs complain. * * * To gain a prescriptive right there must be something more than a mere intention to do some act on the plaintiff's land. The land own- ers on the shores of this lahe are not bound to make annual pilgrimages to Lahe village to measure the dam of the Lake Co., and employ an engineer to calculate whether, if hept tight and full, it qan be used to throw water on their land." ^ The fact that the dam owner exercised the right of flowing the land as often as lie chose, is not the test. The question is, did he exercise the right so often, and in such a way, as to invade the rights of the plaintiff, and as to operate as a notice of the extent of his claim ? ^ So where a mill-owner has used flush boards in dry times for the period of twenty years, taking them off upon a rise of water, he does not thereby acquire a right to maintain them upon the dam. In order to acquire a prescriptive right to the use of the water in a particular way the use must be such as is in violation of ' Melians )). Patrick, 1 Joiios (Jf. C. ), ^ ^jnerican Co. v. Bradford, 27 Cal. 23 : Gentleman v. Soule, 32 111. 279 ; 366; Gilford u. Lake Co., 52 N". H. 262. American Co. b. Bradford, 27 Cal. 366; ^ G-ilford v. Lake Co., 52 N". H. 262. Esling V. Williams, 10 Penii. St. 266 ; * Carlisle v. Cooper, 4 C. E. Green Tracey v. Atherton. 36'Vt. 514 ; Evans (N. J.), 256 ; Stiles v. Hooker, 7 Cow. V. Daner, 7 R. I. 311; Mitchell b. Parks, (N". T.) 256; Mertz b. Dorney. 25 Penn. 26 Ind. 354 ; Finioum Fishing Co. v. St. 519; Sargent b. Stark, 12 N. H. 332 ; Carter, 61 Penn. St. 40 ; Olney b. Gard- Burnham b. Kempton, 44 id. 78; Court- ner, 4 M. & W. 406; Arnold b. Stevens, auld b. Legh, L. R., 4 Ex. 126. 21 Pick. (Mass.) 106; Watldns v. Peck, <• Lowe v. Carpenter, 6 Ex. 825 ; Carr 13 N. H. 360; Luces. Corley, 24 Wend. v. Foster, 3 Q. B. 581; Lake Co. v. {N. T.) 451. Toung, 40 N". H. 420. 408 Easements. the rights of others, and such as is actionable on the part of those affect- ed thereby, although it need not be such as to produce actual damage.* La'wlor V. Potter. Sec. 261. In a New Brunswick case,'' an interesting question was raised as to the right of a mill-owner to raise the water in dry seasons by means of flush boards, whereby the lands of supra-riparian owners were flooded, and rendered useless for the purposes of cultivation. It appeared that the defendant was the owner of a mill and dam, and dur- ing a dry time, when the stream was low, he put on logs and raised the water and overflowed the plaintiff's lands during the dry season, more than ever had been done by the original dam, so that the plain- tiff was unable to cut hay from portions of his jDremises bordering on the stream from which he would otherwise have been able to take it. Upon the trial of the case the judge charged the jury that, if the defendant's dam had, for the period of twenty years previous to this action, been maintained at its present height, and had thus been kept up and maintained continuously for the period of twenty years, and had backed up the water so as to overflow the land above, then there could be no recovery. But that, if the defendant, by raising his dam by means of permanent or temporary devices, thereby overflowed more of the upper land, or overflowed land which had only been partially flooded before, or if the orginal dam only overflowed the land in a particular way, and at particu- lar seasons of the year, any change in the dam which occasioned an overflow in a different manner, or at different or other seasons of the year, would be a nuisance, and actionable as such. The judgment was affirmed upon appeal. The use of flush boards or any devices whereby the height of the dam or the quantity of water in the pond is .increased, whether in wet seasons or dry, is unlawful and a nuisance, and is actionable, even though no special damage results therefrom because, if kept up for twenty years a right to use them is thereby gained by prescription. But this must be qualified with the condition that the water, during the season when the flush boards or other de- vices are used, raises the water in the channel beyond what it would be raised at that season by the original dam.' The rule generally adopted seems to be that it is not the height oi 1 King V. Tiffany, 9 Com. 162 ; Law- 352; Hynds v. Sliultz, 39 Barb. (K. T.) lor V. Potter, 1 Hannay (N". B.), 328 ; 600. Mertz V. Doriiey, 25 Penn. St. 519 ; ^ Lawlor v. Potter, 1 Hannay (New Carlisle v. Cooper, 6 C. E. Green (K .1.), Brunswick), 328. 578; Biirnham v. Kempton, 44 N. H. » Hynds v. Shultz, 39 Barb. (N. Y.) 90; Carlisle ». Cooper, 4 C. E. Green 600; Grigsby m. Clear Lake Co., 40 Cal. (N. .J.), 262. But see Hall D. Augsbury, 407; Marcly v. Shultz, 29 N. Y. 352- 44 N". Y. 622 ; Marcly v. Shultz, 28 id. Pierce v. Travers, 97 Mass. 306. Easements. 409 the dam that regulates and measures the rights of the parties to tlood the lands of supra-riparian owners, but the height of the water as ordi- narily and usually hei^t in the dam when kept in repair, as dams are kept for profitable and economical use} Carlisle tt. Cooper. Sec. 262. In Carlisle v. Cooper, cited m the last note, it was held, in a case where a right to flood lands by prescription was claimed, that the fact that the (Zamhad been maintained at a given height for twenty years, was not conclusive of the right of the party to maintain his dam at that height, but that it must be shown that the dam during all that time had been maintained in such a state of repair that the right of flood- ing would be maintained to the full height of the dam, and that where a dam had been allowed to remain in a leaky condition and out of re- pair for two years, so as not to amount to full assertion and maintenance of the right to the full height of the dam, those two years would not be counted as a part of the prescriptive period. A different rule would certainly be productive of fraud, and would be exceedingly oppressive, as it would enable parties surreptitiously, and without the knowledge of the owners of estates to be affected thereby, to impose burdens upon their estates, without their knowledge and without the power of re- sistance on their part; and would also be opposed to the fundamental principles controlling the law of prescription, which requires that the use should be open, adverse, as of right, and continuous, during the requisite period. The dam must be kej)t in such a condition as to amount to a full exercise of the right claimed during the entire period. Merely tempo- rary suspensions in the user, sucli as occur from accidental ^ or neces- sary cause,^ that are not permitted to continue for any considerable period, will not defeat the right, but a neglect to keep the dam in such a state of repair as to fairly amount to an assertion and continuance of the right to set back the water to the full extent which the dam in a perfect state of repair would set it back, would restrict the party to a use of the w^ater commensurate only with that which he had exercised, with the dam in the condition in which it had ordinarily been main- tained. Mert» V. Dorney. Sec. 263. In a Pennsylvania case,* the defendant had for a period of twenty years maintained his dam at a given height, but during all 1 Carlisle v. Cooper, 21 N. J. L. 578 ; 2 Hoag u. Delorme, 30 Wis. 594. Mertz 1). Dorney, 25 Penn. St. 519; » Perrin u. Garfield, 37 Vt. 310; Brace Burnham ■». Kerapton, 44 N. H. 90; b. Yale, 10 Allen (Mass.), 443. Smith ». Boss, 17 Wis. 227. * Mertz ». Dorney, 25 Penn. St. 519. 410 Easements. that time it had been in a defective state of repair and leaky, so as not to hold and set back the water as it would have done if it had been kept tight and in repair. At the expiration of twenty years the de- fendant repaired and tightened his dam without increasing its height, and as a result the water was set back upon the pilaintiff' s land beyond what it liad ever formerly been, during the twenty years, and it was held that the defendant was responsible for all damages resulting from the setting back of the water beyond what it had formerly been set back by the dam in its leaky and defecti\-e condition. It is the use tliat measures the right, and this is to be determined from the ordinary effects of the dam upon the lands above, and the condition in -wliich the dam has been kept, together with the condition of the stream, ami the uses to which it has been applied by the owner of the dam during the jjrescriptive period.^ Change of machinery. Sec. 264. As between mill-owners, an ancient mill has no right to change its machinery, by putting in such as requires more water, or as is in any measure a nuisance to other mill-owners on the stream. The antiquity of a mill affords no protection against liability for injuries thus inflicted, for, as to the new wheel or other machinery, it will bo treated as a new mill.^ / So, where a mill, ancient or otherwise, has been used for a particu- lar purpose, as a saw-mill, grist-mill or paper-mill, it may not apply the water to any other class of machinery or business requiring more power to the injury of others, but it may use the same quantity of water that was formerly required in any other business, unless by grant it is specially restricted to a particular and special use.^ But when water rights are granted with specific restrictions as to the apj)lication of the Avater, it must be applied only in the mode speci- fied in the grant. The restrictive clause must, however, be positive and unequivocal, and clearly import an intention on the part of the parties thereto to restrict the use of the water to a particular class of business, and that only. Thus a conveyance of a fulling-mill in these words, " together with water sufficient to operate the fulling-mill thereon 1 Murdy v. Shultz, 39 Barb. (K Y. S. ^ Simpson b. Leaney, 8 Me. 1.38; Pratt C.) OIJO; Carlisle v. Cooper, 21 N. J. u. Sampson, 2 Allen (M.ass.), 27.3; L. .587 ; Pierce D. Travers, 97 Mass. SOB; Bardwell v. Ames. 22 Pick. (Mass.) Powell V. Lash, 64 N. C. 456 ; Hoag v. 354 ; Adams v. Warner, 23 Vt. 395 ; Delorme, 30 Wis. 594 ; Metz v. Delorme, Dewey v. Williams, 40 N". H. 227; Kaler 25Penn. St. 519; Carlisle v. Cooper, 19 v. Beaman, 49 Me. 208 ; Olmstea/l d. N. J. L., 260 ; Darlington v. Painter, 7 Loomis, 6 Barb. (N. Y.) 152 ; Wakeley Penn. St. 473 ; Buruham ». Kempton, 44 v. Davidson, 26 N. Y. 387; Miller ». Lap- N. H. 78 ; Stiles v. Hooker, 7 Cow. (X. ham, 44 Vt. 433. Y.) 266 ; Gilford v. Lake Co., 52 N. H. ^ Miller v. Lapham, 44 Vt. 433. 262. Easements. 411 standing," would not restrict the grantee to the use of the water for a fulling-mill, but would authorize the use of an equal quantity for any- other purpose. But where the language of the grant is specific and clearly indicated an intention to restrict the use of the water to a special use, as " together with water sufficient to operate the fulling- mill thereon standing and for no other purpose," this would restrict the use of the water to that purpose alone, and any different use would be actionable.^ Indeed any language in the granting clause that indicates a clear intention on the part of the grantor to limit the use of the water to a particular class of business or machinery will be operative to that end.^ Ancient mills. Sec. 265. In reference to what are termed ancient mills, it may be said that the mere fact that a mill is ancient and has had the entire use of the water of a stream does not confer a right upon the owners to use the water at their own convenience or as their interests may die. tate, as against a new mill lower down the stream. But, when a lower mill is erected, the ancient mill is bound to a reasonable and proper use of the water in reference to the rights of the new mill, and any unreasonable detention or use of the water is a nuisance to the lower mill, and actionable the same as though the ujDper mill was also a new one.^ Effect of prior use. Sec. 266. It may be understood as a settled rule of law that priority of occupation, in the use of water, by a mill-owner, gives him no such rights as will deprive those above or below him on the stream from also turning the water to beneficial purposes. He simply acquires the right to use the water in its natural flow, and, while an owner above or below him cannot do any act in violation of his rights by unreasonably de- taining it from his mill on the one hand or setting it back ujDon his wheels upon the other, neither can he make an unreasonable use of the water to their injury.^ It may be said, however, that he who is first 1 Tortelot v. Phelps. 4 Gray (Mass. ), 2 strong y. Benedict, 5 Conn. 219. 370; Shed u. Leslie, 22 Tt. 498 ; Dishon » Barrett v. Parsons, 10 Ousli. (Mass.) V. Porter, 38 Me. 289; McDonald d. Ask- 367. eny, 29 Cal. 207. But in all cases where * Martin «. Bigelow, 2 Aiken (Vt), the language of the grant will admit of 184; G-ould v. Boston Duck Co., 13 Gray its being construed as the rtieaSKre rather (Mass.), 442; Thurber 0. Martin, 2 id. than the quality of use, the courts will 394; Tyler u. Wilkinson, 4 Mason (U.S.), so construe it. Adams ». Warner, 23 397 ; Davis ». Getchell, 50 Me. 604 ; Vt. .395 ; Cromwell v. Selden, 3 N. Y. Springfleldo. Harris, 4 Allen (Mass.), 494. 253; Salmon v. Kudd, 6 N. Y. 22 ; Pratt In California it is hold, if the first ap- V. Samson, 2 Allen (Mass.), 275 ; Kaler propriator only takes a part of the water, 1). Beaman, 49 Me. 208 ; Wakeley v. or only uses it during certain times, an- D. Davidson, 26 N". Y. 387. other may take the surplus or use it for 412 J Easements. in point of time in turning the water of a stream to a beneficial use has the right to water sufficient to operate his mill, even though the effect be, in a reasonable use thereof, to destroy the value of a lower privilege.^ It is not every riparian owner who may erect a dam upon the stream, nor indeed can it e^'er be lawfully done, when the dam will raise the water beyond its natural surface, to the injury of other owners.^ "What is mill seat. Sec. 267. A dam may be erected whether upon a fall or not, so as to raise the water up to the level of his own land, but no further.'' If there be no fall upon the land, and no method by which a mill can be pro- pelled by the water, there is no mill seat, and no right on the part of the riparian owner to pen back the water to the injury of others, for the law will not recognize the right of interfering, with the natural flow of a stream, to the injury of others, excejjt when the water is applied to a beneficial purpose.* No rights are acquired by a frivolous use of water, as by the erection of a dam for the simple purpose of turning a wheel to which no machinery is attached, and which serves no useful end or beneficial purpose.*^ Where water flows through land upon what is termed a " dead feiie?," with no perceptible fall, it can hardly be said that a man has a " mill seat'''' or '■'■mill privilege,^'' within the meaning of the law. But if there is a point upon his land to which the water can be directed with sufiicient momentum and fall to be beneficially applied as a power, the owner may thus divert it, if he can and does again return it to its original channel before it leaves his land ; but he cannot divert the water entirely from its natural channel for any pur- pose.^ Artificial ■watercourses. Sec. 268. The right of a riparian proprietor is limited to natural the balance of the time. Smith v. (Pa. ), 84 ; Brown o. Bush, 45 Penn. St O'Hara, 43 Cal. 371 ; Thorp v. Freed, 1 66; Rhodes b. Whitehead, 27 Tex. 310. Mon. T. 651 ; Columbia Mining Co. v. * Staclcpole v. Curtis, 32 Me. 382 ; Haller, id. 296. In Maine it is held Russell u. Scott, 9 Cowen (N". Y.), 2S1. th.at as between owners of dams on the ^ Jackson v. Vermilyea, 6 Cow. (N. same stream he has the best right who Y. ) 677; Weaver o. Eureka Co., 15 Cal. is first in point of time. Lincoln ■b. 271. Chadborne, 56 Me. 197. ^ Davis d. Fuller, 12 Vt. 178 ; Van 1 Hatch V. Dwight, 17 Mass. 289; Hoesenc. Coventi^, 10 Barb. (N.T.S.C.) Chandler c. Howland, 7 Gray (Mass. ), 518; Binney's Case, 2 Bland's (Md.) 348 ; Thurber v. Martin, 2 id. 394 ; Cli. 99 ; Bardwell b. Ames, 22 Pick. Smith-». Agawam Canal Co., 2 Allen (Mass.) 333; Crittenden «. Field, 8 Gray (Mass.), 355. But see King v. Tiffany, (Mass.), 621; Samuels ». Bradford, 25 9 Conn. 162; Butman b. Hussey, 12 Me. Wis. 327;BraceB. Yale, 10 Allen (Mass.), 407; Pool B. Lewis, 41 Ga. 168 ; Omel- 447; Bealey u. Shaw, 6 East, 205; Proc- vaney b. Jaggers, 2 Hill (N. Y. ) , 634. tor b. Jennings, 6 Nev. 87; Baldwin v. 2 Colwell B. May's Landing Co., 19 K Calkins, 10 Wend. (N. Y.) 167; Rex b. J. L. 248. Trafford, 1 B. & Ad. 874 ; Lord b. Com'rs 8 McCalmont ». Whittaker, 3 Rawle of Sidney, 12 Moore's P. C. 473. Easements. 413 streams, and does not attach in the case of artificial cuts or drains.' But a watercourse, though artificial, may have been originally made under such circumstances and have been so used as to give all the riglits that the riparian proprietors would have had if it had been a natural stream ; and therefore, in an action by one riparian proprietor against anothei', for the pollution and diversion of a watercourse, it is a misdirection to tell the jury that, if the stream were artificial and made by the hand of man the plaintiff could have no cause of action.^ The flow of water from a drain made by a landowner in his own land for the purposes of agricultural improvements for twenty years, 'does not give a right to the neighbor, so as to preclude the landowner from altering the level of his drain for the improvement of his land.' No right can be acquired to the use of an artificial watercourse made for a particular and temporary purpose.^ In one case it was held that in the absence of a special custom artificial watercourses were not dis- tinguished in law from natural ones ; and that a title might be gained by twenty years' user as well to the former as to the latter.^ But that case was unsatisfactory, and has since been overruled." All the au- thorities from the Digest downwards show that there is a difference in this respect between a drain and a natural watercourse.'' Nevertheless, an artificial watercourse or drain may have been originally made for permanent purposes, and under such circumstances, and have been since used for such a period as to give all the rights that the riparian propri- etors would have had if it had been a natural streanl.' The plaintiff and the defendant occupied contiguous portions of land. For more than forty years, and as far back as living memory went, the occupiers of the plaintiff's land had been in the habit of passing over the defend- ant's land to a brook which lay on the other side of that land and of damming up the brook when necessary, so as to force the water into an old artificial watercourse which ran across the defendant's land to the plaintiff's land. They did this for the purpose of supplying their cattle with water whenever they wanted the water, except when the owners of the defendant's land used the water, as they did at certain seasons of the year for irrigation : — held, that upon this evidence the jury was warranted in inferring an user, as of right, by the occupiers of the plaintiff's land, of the easement on the defendant's land ; and 1 Sampson v. Hoddinott, 1 C. B. N. S. ? Sampson v. Hoddinott, 1 C. B. 590, 690; 3 Id. 596; Wardle ». Brocklehurst, 606. 1 E. & E. 1058; Gale, 262. ' Id. 606; Arkwriglit v. Gell, 5 M. & 2 SutclifEe V. Booth, 32 L. J. Q. B. W. 203; Acton v. Blundell, 12 M. & W. 136. 324 ; Wood v. Waud, 3 Exch. 778 ; Great- 3 Greatrex v. Hayward, 8 Exch. 291 ; rex v. Hayward, 3 Exch. 291. Wood V. Waud, 8 Exch. 7T8. s SutclifEe v. Booth, 32 L. J. Q. B. * Arkwright v. Gell, 11 Exch. 610. 136. 6 Magor V. Chadwick, 11 Ad. & El. 571. 414 Easements. that, for the interruption of such easement, the plaintiff might maintain an action against the defendant.' Implied grant or reservation of drains, &c. Sec. 269. Where the owner of two or more adjoining houses sells and conveys one of them to a purchaser, such house is entitled to the benefit, and is subject to the burthen, of all existing drains communi- cating with the other house, without any express reservation or grant for that purpose ; an implied grant or reservation (as the case may re- quire) will be presumed in the absence of express words to the con- trary. It makes no difference in this resjaect that the purchaser did not know of the drains under his house, if he might have ascertained their existence upon a careful inspection by a person ordinarily conver- sant with the subject, and it will be deemed his own fault if he did not do so at the time of his purchase.^ Two properties, which adjoined, wore originally possessed by the same owner, in one of which was a cessjjool and a drain to carry the water from the adjoining projDerty, which was a tan-yard. The owner afterwards sold the property to dif- ferent persons, and the conveyances contained no reference to the drain and cesspool : — held, that there was an implied grant of the ease- ment of the cesspool in the conveyance of the tan-yard.^ Where the plaintiff excepts and reserves to himself the right to make and use a sewer in land conveyed by him to the defendant, whereby the exclusive use of such sewer is reserved to the plaintiff, he may maintain an ac- tion against the defendant for opening and using the sewer.* So where the defendant grants to the plaintiff the use of Avater, subject to a pro- viso for the use thereof by the defendant, the plaintiff may maintain an action on the deed for the abuse of such reservation by the defend- ant.^ License to make or use drains, &o. Sec. 270. A parol license to make a drain or watercourse in the land of the licensor will not, even after it has been fully executed at the expense of- the licensee, confer any right or title on him to have the use and benefit of the drain or watercourse free from obstruction ; nor enable him to maintain any action against the licensor for obstructing such drain or watercourse without notice.' But a license attached to a 1 Beeston v. Weate, 5 E. & B. 986. ^ Rawston v. Taylor, 11 Exch. 369. 2 Pyer v. Carter, 1 H. & N. 916. But « Hewlins d. Shippam, 2 B. & C. 221 ; see contra, SufHeld v. Brown (on ap- Cocker ». Cowper, 1 C. M. & E. 418; peal), 33 L. J. Ch. 249. Greenslade v. Halliday, 6 Bing. 379; i* Ewart D. Cochrane, 5 L. T. N. S. 1, Mason v. Hill, 5 B. & Ad. 1; Wood ». H. L. But see Suffield v. Brown, su- Leadbitter, 13 M. & W. 838; Adams ». pra. Andrews, 15 Q. B. 284; Taplin v. Flor- * Lee V. Stevenson, E. B. & E. 512. ence, 10 0. B. 744; Roffey o. Henderson, Ease.mexts. 415 valid grant of real or personal property is irrevocable, it being a license coupled with an interest.^ No man can derogate from liis own grant, nor can any person claiming through or under him. But a license connected with an invalid gi-ant is a mere license (whetlier under seal or not), and may be revoked at any time,'' either expressly or by im- plication.^ A parol license to erect a skylight, or a weir, or other ease- ment on the land of the licensee cannot be revoked, after it has been ex- ecuted at the licensee's expense, so as to render it necessary for the licensee to incur further expense in removing it.* Extinguishment or suspension of drains, &c. Sec. 271. Nothing of absolute necessity to a messuage or other build- ing is extinguished by unity of ownership or possession, as a gutter in alieno solo to carry off water, &c., or a watercourse, or a way of necessity. They are merely suspended as easements during the joint ownership or possession, and will revive whenever the building or the land is conveyed to another.^ But it is otherwise with respect to ways not of necessity or other easements not of a continuous nature.^ Underground Tvater. Sec. 272. The principles which regulate the rights of owners of land in respect to water flowing in knoion and defined channels, whether upon or below the surface of the ground, do not apply to underground water which merely percolates through the strata in no known chan- nels.' The o^yner of land through which water flows in a stibterranean course has no right or interest in it which will enable him to maintain an action against a landowner who, in carrying on mining operations on his own land in the usual manner, drains away the water from the land of the first-mentioned owner, and leaves his ^wll dry.' The owner of a mill on the banks of a stream cannot maintain an action against a landowner who sinks a deep well on his own land, and by pumps and steam-engines diverts the underground water which would otherwise 17 Q. B. 574; Roberts v. Rose, 3 H. & u. Burchell, 1 H. & C. 113; Worthing- C. 162; affirmed in error, 4 H. & C. 103; ton ». Gimson, 2 E. & E. 618; Pearson L. R., 1 Ex. 82. J). Spencer, IB. & S. 571 ; 3 B. & S. 1 Wood ». Manley, 11 Ad. & El. 34; 761 ; Polden v. Bastard, 4 B. & S. 258 ; Feltham v. Cartwright, 5 Bing. N". C. affirmed in error, L. R., 1 Q. B. 156. 569. ' Chasemore v. Richards (in error), 2 2 Eentiman «. Smith, 4 East, 107 ; H. & N. 168; 7 H. L. Cas. 349; Reg. b. Wood u. Leadbitter, 13 M. & W. 838; The Metropolitan Board of Works, 3 B. Taplin r. Florence, 10 C. B. 744. & S. 710; New River Co. u. Johnson, 29 3 Roffey D. Henderson, 17 Q. B. 574. L. J. M. C. 93 ; Ibbotson -u. Peat, 3 H. * Winter v. Broclcwell, 8 East, 308; & C. 644. Liggins ». Inge, 7 Bing. 682; Harvey v. » Acton ». Bluvidell, 12 M. & W. 324, Reynolds, 12 Price, 724. 348; New River Co. d. Johnson, 29 L. spheysey o. Ticary, 16 M. & W. J. M. C. 93; Galgay u. Great Southern 485. and Western R. Co., 4 Ir. Com. L. R. 6 Pyer d. Carter, 1 H. & N, 916; Dodd 456, Q. B. 416 Easements. have percolated the soil and flowed into the river, by which for more than sixty years the mill was worked.^ " If a man has the misfortune to lose his spring by his neighbor digging a well, he must dig his own well deeper." ^ A mine owner may work his coal in the manner most advantageous to himself, and remove a bar of coal therein to obtain the coal in such bar, although in consequence of his so doing the water floods an adjoining mine.* But he has no right to pollute the water flowing through swallets in his own mine which communicate with a stream running into an adjoining mine.* And after a demise of certain closes and all streams of water therein, reserving to the lessor all mines and minerals, with power to win and work the same, the lessor or his assigns cannot work the mines so as to cut off the springs in the closes demised.^ Surface ■water. Sec. 273. A landowner has a right to appropriate surface water which flows over his land in no definite channel, although the water is thereby prevented from reaching a watercourse which it previously supplied.*^ He has an unqualified right to drain his land for agricultural piirposes in order to get rid of mere surface water, the supply of the water being casual and its flow following no regular or definite course ; and a neighboring proprietor cannot complain that he is thereby de- prived of such water, which otherwise would have come to his land.' But where the water from a spring j^otoec? in a yully or natural charts tiel to a stream on which was a mill, the spring having been cut off at its source and the water received into a tank as it rose from the earth, by the license of the owner of the soil on which the spring rose : held, that an action lay by^the millowner against the jDerson so abstracting the water.* The flow of water for twenty years from the eaves of a house cannot give a right to a neighbor to have it continue to flow,' although the owner of the house may, by such user, acquire the right to have it flow there." It will be understood that the rights and liabil- ities of a tenant, unless qualified or restrained, are the same as the landlord. 1 Cliasemore v. Richards (in error), 2 ^ AVhitehead v. Parks, 2 H. & K. H. & N. 168; Reg. v. The Metropolitan 870. Board of Works, 3 B. & S. 710; New '^ Broadbent ». Ramsbottom, 11 Exch. River Co. v. Johnson, 29 L. J. M. C. 602. 93; Ibbotson «. Peat, 3 H. & C. 644, ' Rawstron «. Taylor, 11 Exch. 369; 6.50. Reg. V. The Metropolitan Board of 2 Per Bbamwell, B., in Ibbotson v. Works, 3 B. & S. 710. Peat, 3 H. & C. 650. ' Dudden ». Guardians of Glutton s Smith ». Kenrick, 7 C. B. 51.5 ; and Union, 1 H. & N. 627. see Fletcher v. Rylands, 3 H. & C. 774; » Wood v. Waud, ante. Baird o. Williamson, 15 C. B. N. S. 376. i» Thomas v. Thomas, 2 C. M. & R. ■• Hodgkinson v. Ennor, 4 B. & S. 229. 34. Easements. 417 Lateral support. Sec. 274. Every landowner has a right to have his soil preserved intact, as against its own weight and the ordinary effects of the elements ; and an adjoining owner who excavates so near to the line of his neighbor's land as to cause it to crumble or fall away, is liable for all the damages ensuing therefrom ; but if the character of the adjoining soil is such that it will and does sustain its own weight, and the natural pressure thereon by the power of its own coherence, with- out the aid of the surrounding soil, the adjoining owner may remove his soil without liability to damage therefor. No damage is recover- able except for an actual disturbance of the integrity of the soil.^ The right to support only extends to the soil itself, and does not include anything placed thereon that sensibly increases the pressure,^ nor does it exist after the owner has removed the soil, and substituted a wall or other artificial substitute therefor.^ This right to supi)ort from neigh- boring soil exists ex jure naturae, and not as an easement,'' although it. partakes of the nature of an easement, and is frequently classed as such both by elementary writers and courts.' Beamwell, B., in an English case,'' says : " I think it inaccurate to say that the plaintiff is claiming any kind of e.isement, qualified or otherwise ; an easement seeming to me to he something additional to the ordinary rights of property." But it will not be profitable for us to discuss this question here. The right exists, and whether it is to be regarded as an easement or a natural right, is a question of small consequence. It must not be understood that the riglit to support ceases to exist when the land is encumbered with a building or other erection. It is true that the right extends only to the soil itself, but it is by no means restricted, as is stated by some of the elementary writers, to "the land in its natural state."' It exists only as to the soil, but, however the soil maybe incuiiabered with buildings or other structures, unless they contributed directly to the injury, a right of action exists for an interference with 'Wilde V. Minsterley, Pasch. 384; Humphries v. Brodgen, 12 Q. E. 744; Farrand v. Marshall, 19 Barb. (K. Y.) Solomon v. Vinters Co., 4 H. & N. 380; 21 id. 409; Foley v. Wyeth, 2 Allen (Exch.) 585 ; Murchie o. Black, 34 Law (Mass.), 121; Thurston v. Hancock, 12 J. (C. P.) 337. Mass. 220; McGuire ». Grant, 25 N. Y. "Wilde v. Minsterley, ante; Thurston Eq. 356 ; Shrieve v. Stokes, 8 B. Mon. t. Hancock, 12 Mass. 220; La Sala v. (Ky.) 453; La Salla v. Holbrook, 4 Holbrook, 4 Paige's Ch. (N. Y.) 167; Paige Ch. (N. Y. ) 167 ; Vt. Centl. R. R. Richardson v. Vermont Central Railroad Co. v. Richardson, 25 Vt. 465 ; Moody Co., 25 Vt. 465, opinion of Bennett, V. McClelland, 39 Ala. 45 ; Humphries J. ; Hay ». Cohoes Co., 2 ST. Y. 159. V. Brogdeii, 12 Q. B. 739 ; Dugdale d. * Rowbotham v. Wilson, 8 E. & B. Robertson, 3 K. & J. 695; Proud v. 136; Bonomi d. Backhouse, E. L. &Eq. Bates, 34 L. J. (Ch. ) 406, and indeed all 622 ; Thurston d. Hancock, ante, the English cases are to the same effect. ^ G-ale on Easements, 148. " Stansell v. JoUard, 1 Selw. N". P. 444; ^ Rowbotham v. Wilson, ante. Wyatt V. Harrison, 3 B. & Ad. 871 ; 'Washburn on Easements, 431 : Gale Partridge ». Scott, 3 Mees. & Wels. 220; on Easements, 311. 27 418 EASEi\rENTS. the right, precise]}' ns much with as without the buildings.' Indeed, I think the cases will justify the broad statement, that in actions for injuries to the right of support, where liability is sought to be avoided, on the ground that there are erections on the plaintiff's land that con- tributed to the injury, it is incumbent upon the defendant to show that the injury would not have resulted except for such erections." A distinction exists between an injury to the soil and an injury to the wall or other structure erected in lieu of it. In the case of a build- ing erected upon the surface of the soil where no excavation has been made for a foundation, a removal of the support of the adjoining soil would be actionable, notwithstanding the presence of the building, if any injury to the soil thus left unsupported followed, even though the excavation was made in the exercise of the highest care and skill possible. In such cases, where no excavation has been made and no artificial support has been substituted for the soil, the adjoining owner excavates so near to his neighbor's line as to disturb his soil at liis peril. It is an interference with a natural right, and a nuisance, and liability attaches whether the digging was accompanied with negligence or not.^ If by the increased weiglit imposed upon the soil by the building the dam.nge is enhanced, this does uot defeat liability for such damages as would have arisen if no building had been placed there, but only such as are the direct results of the pressure of the building. This precise question has not been directly decided, but the later authori- ties disclose a tendency of the courts in that direction.* But where the owner of an adjoining lot excavates up to the limits of his line, and replaces his soil with an artificial structure, the right of support that existed in favor of the soil, ceases to exist, and the adjoining owner may, in the exercise of reasonable care, excavate to any depth upon his own land, even though by so' doing he withdraws the supjDort from such structure, and causes it to fall into the pit, and no action lies against him therefor.^ The degree of care required of a person excavating upon his own 1 Foley V. Wyeth, 2 Allen (Mass.), Mass. (Thurston v. Hancock), it is, I 13] ; Hunt v. Peal^e, Johns. (Eng. ) apprehend, to be found in tlie courts not 705 ; Thurston v. Hancock, 12 Mass. discriminating between the soil that fell 220 ; Brown v. Robins, 4 H. & N. into the excavation from its own inher- (Exch. ) 186. ent weight, and that which was pressed 2 Foley V. Wyeth, ante; Brown v Rob- in by the building." Foley v. Wyeth, 2 ins, ante. Allen (Mass.), 1,31; Brown v. Windsor, 3 Thurston v. Hancock, 12 Mass. 220; C. & J. 20; 2 Dane's Ab. 717; Farrand v. Hay V. Cohoes Co., 2 N. Y. 159; Tre- Marshall, 19 Barb. (N. Y. Sup. Ct.) main v. Cohoes Co., id. 164; Stroynan 3S0. V. Knowles, 6 H. & N. (Exch.) 454; " Wilde d. Minsterley, ante; Thurston HamCT D. Knowles, id. 459. v. Hancock, ante ; Panton v. Holland, * Richardson v. Vermont Central Rail- 17 John. (N. Y. ) 92 ; Rockwell v. Wil- road Co., 25 Vt. 465. In this case Ben- son, 11 Cush. (Mass.) 221; Dodd b. NETT, J., says: "If there is any error in Holme, 1 Ad. & EI. 493. See cases the decision of the case in the 12th previously cited. Easemknts. 419 premises, near the foundation of another's building, cannot be accur- ately defined, but must necessarily depend upon the circumstances of each case. The character of tlie soil, the condition of the wall and building, the depth of the excavation, and all those conditions that a man of ordinary prudence would observe.^ The better criterion by which to determine the question of liability would seem to be, that if the mere exorcise of a lawful right to remove the soil upon his own premises occasioned the fall of the structure, no liability exists ; but if the fall is occasioned by the manner in which it is removed, then liability attaches for all the consequences of the act.^ The safest course to pursue would be for the party excavating, to giv.e the other party notice of the fact that he intended making an excavation, and thus give him an opportunity to shove up or otherwise protect his building. There must be an absence of negligence or unskilfulness and of im- proper motive.' There can be no negligence imputed, except as to structures that are visible or known to the party causing the excava- tion to be made ; and the degree of care to be used is in view of the circumstances known to him.* The test of liability is not whether the party has used such care as a prudent man would use if all the loss and damage was his own, nor whether he has used such care as a pru- dent man skilled in such business would have used. Nor can he shield himself from liability upon the ground that he follswed the directions of a person skilled in sucR matters, but the decisive question is, was he guilty of negligence in view of the circumstances of the case.^ Was the work managed and executed with such care as a man of ordinary prudence usually exorcises in the management of his business.^ Subjacent support. Sec. 275. There are frequently two freeholds in the same estate, one in the surface, and another in the minerals that lie beneath it. These conflicting estates, of course, arise from a conveyance of the lands, reserving the mines, quai-ries, &c. The rights of the several owners depend largely, of course, upon the provisions of the convey- ances under which they hold. But when there is a simple reservation, from the conveyance of the surface, of the minerals, and a right to iPanton v. Holland, 17 Johns. 92; Thurston ». Hancock, 12 Mass. 220 ; La McGuiro jj. Grant, 1 Dutch. (N". .J.) 356; .Sala v. Holbrook, 4 Paige's Ch. {N. Y.) Eockwood 11. AVilson, 11 Cush. (Mass.) 169; G-ale on Easements (3d Lond. 221; Charles v. Kankin, 21 Mo. 566; ed.), 349; Walters «. Pfiel, Moody . Trower, 3 Bins. N. 0. 2 Dodd V. Holme, 1 Ad. & El. 493 ; 334. Trower b. Chadwick, 3 Bing. N. C. ^ Charles v. Rankin, 22 Mo. 556. 334 ; Smith 8. Kendrick, 7 C. B. 515 ; « Smith v. Hardestry, 31 Miss. 411. 420 Easements.. work or mine them, and no express right is reserved to produce a suli- sidence of the surface if necessary in the working of the mines, the owner of tlie minerals is bound at his peril not to cause a subsidence of the soil, even though without doing so he cantiot work the mines at all, and if lie does weaken the support of the upper soil, so that it in any measure subsides, he is responsible for all the consequences, irre- spective of the question as to whether or not he was negligent in his operations. Indeed, the question of negligence is not involved, for, although he was in the exercise of the highest degree of skill, if the soil subsides he is resijonsible for the damages ; ^ and a custom of the country, as between the owner of the surface and the owner of the mines to cause a subsidence of the surface, if necessary, to the working of the mines, will not shield the mine-owner from liability, and has been held to be bad.^ A mere reservation of the minerals and a right to dig for the same, and to work the mines, does not confer any jiowor to interfere with the proper support of the surface.' Such a reserv.a- tion is construed as merely giving a riglit to take out the minerals so far as they can be taken out without injury to the surface.'' 1 Wakefield v. Du];e of Enccleaugh, L. K., 4 Eq. Cas. OIU ; Humphries v. Brogdeii, l.") Jiir. 124; Harris v. Ryding, 5 M'. & Vf. (JO; Smart v. Morton, 5 E. & B. ;30 ; i;iciiai(ls v. Harper, L. R., 1 Exchq. lUO; Homer v. Knowles, 6 H. & N. 4.^)8. - Wakefield v. Duke of Buceleaugli, L. R.,4 Eq. Cas. 024; L. R., 4H. L. a77; Hext V. Gill, L. R., 7 Eq. Cas. 699. '' Smart i-. Iilortoii, ante ; Bell v. Wil- son. L. R., 4 Eq. Cas. 303. * Hext V. Gill, ante; Sm.irt v. Morton, ■ante. In the first case cited there was a conveyance to the plaiiuiff, Avith a resci'valion lo the defendants of all the mines and minerals therein, and a right of entry to work the mines. There was a hir'-;e quantily of china clay upon the premises, Vihieh llie defendant claimed the right lo lake out of the land under his rc!-ei'va;ion (f minerals, but which could not he taken out without injury to the surliiec. 'J he court held that the clay v, as embraced in the reservation, hut (hat the defendant having neglected to reserve the right of interfering with the surface hyihe operations of mining, the power could not he implied from the mere fact that a reservation liad been made. That the reservation of min- erals, with the right to work the mines, could only Ik! const rued as giving aright to take out the minerals, if that could he done \\ ithout causing a subsidence of the .surface, and restrained the defend- ant from taking out the clay in any man- ner that would injure the surface. In Smart v. Morton there was a reserva- tion of the minerals in the land, with power " to seek, work .and win the same in any part of the said ])remises, and to drive drift or drifts, make water-gate or water-gales, or use .any other way or ways for the better and more commodi- ous working and winning the same, in the said hereby granted or intended granted premises, or any part of the same." A verdict having been ren- dered in favor of the plaintiiis, upon hearing in exchequer, Loud Campbki^l, C. J., said : " The simjile reservation of the minerals docs not ihprive the grantee of the surface of (Ik; right of support from the minerals, atid the de- fendant must rely upon the .supposed power reserved for the working if the minerals." The judgment cf the lower court was affirmed. So in hell v. Wil- son the minerals were rescr\ed. and it was held that certain stones in the soil ^^ere embraced under the rc-ei'vatior. ; but, although power to work and take out the minerals was reser\ed in the grant of the surface, yet the lord jus- tices held that, as the store eouid tmt be taken out except by quaia'ying, and a consequent destrnclii n cf the sur- face, the defendant, under a reserva- tion of power to take out the minerals, without an express reservation of, a right to let down or desti-oy the surface, would not be justified in injuring the surface. Easements. 421 In one case,' it was held that where lands had been improved and were covered with buildings, even a graat to let down the surface would be regarded as repugnant, and rejected as absurd. And that decision was afterward supported in the house of lords.^ In another case,' there was a grant with covenants against liability for the sub* sidenee of the surface in the working of the mines ; but the court held that this covenant did not run with the land. In several other cases,* it was held that stipulations as to the manner of working the mines, and for compensation for all injuries to the surface resulting therefrom, did not deprive the surface owner of his right to support from the min- eral strata, or justify the owner of the mines in depriving him of it. To summarize, it maybe said that the surface has a right to support ; that this is a part of the freehold, and not an easement;" that the mine- owner can only work so far as is consistent with this right, and is liable if he violates it ; ° and that the right of support is independent of the nature of the strata, and in no sense dependent upon the fact that it cannot be worked without injury to the surface. This is the mine- owner's misfortune, and does not in any sense impair the surface owner's right.' The highest care and skill in the working of the mine is no defense \vhatever, if injury results to the surface; and negligence need not be proved, even though it is alleged in the declaration.' The degree of support must be in accordance with the present or intended use of the property,^ and a custom of the country will not uphold an injur}' thereto.^" But the right may be waived by grant, or by express reservation of the right to interfere with it ; but the language must be such as clearly to import the power granted or reserved." The right only exists to the extent necessary to prevent a subsidence of the sur- face ; and a withdrawal of all the minerals, that does not injure the surface, is not an interference with the surface owner's rights, and is not actionable (see all the cases cited). The right is absolute to the 1 Hilton c. Lord Granville, 5 Q. B. 385 ; Hunt b. Peake, Johns. Ch. (Eng.) 721. "705 ; Brown o. Robbing, 4 H. & N. ^ Marquis of Salisbury c. Gladstone, 4 186. H. L. C. 692. 3 Proud v. Bates, 34 L. J. (Ch. ) 408 ; 8 Richards d. Harper, L. R., 1 E.xchq. Berkly b. Shafte, 15 C. B. N. S. 79 ; 190. Dugdale v. Robertson, 3 K. & J. 695. * Humphries 13. Brogden, 1 Eng. Law. i' Constable v. Nicholson, 14 C. B. & Eq. 383 ; Harris v. Ryding, 5 M. & N. S. 230 ; Wakefield v. Duke of Buc- W. 60 ; Roberts ». Haines, 7 E. & B. cleugh, L. R., 4 Eq. Cas. 313; 4 H. & C 625 ; also 6 id. 643. 377. ^ Backhouse v. Bonomi, 9 H. L. C. ^ Earl of Cardigan o. Armitage, 2 B. 503. & 0. 197 ; Wakefield o. Duke of Buc- « Caledonian K. R. Co. o. Sprot, 2 cleugh, 4 H. L. C. 377 ; Rowbotham c. Macq. (Scotch) 449. Wilson, 8 H. L. C. .345; Bell v. Wilson, ' Wakefield u. Duke of Buccleugh, 4 L. R., 4 Eq. Cas. 303 ; Harris v. Ryd- H. L. C. 377. ing, 5 M. art thereof used or enjoyed" any way which, at the time the grant was made, is used with any part of the demised jiremises, will pass, whether spe- cifically mentioned or not.^ It has been held that a mere reservation of a right of way over the demised lands is neither an exception or a reservation, being neither parcel of the thing demised, nor issuing out of it, but is, strictly speaking, an easement, and pleadable as a grant.* " A right of way reserved,'''' says Tindal, C. J., in the case last cited, " (using that word in a somewhat popular sense) to a lessor, as in the j)rescnt case, is, in strictness of law, an easement newly created by way of grant from the grantee or lessee, in the same manner as a right of sporting or fishing, which has been lately much considered in ' sev- eral ' cases." ^ But where the lessee does not sign the lease, such a right cannot be said to be granted by him, and, unless sustainable as a res- ervation or exceiDtion, it would be void ; " and, whatever may be said to be the result of a strict construction, riglits of ^YiiJ, &c., are treated as proper subjects of reseiwation, especially if they are incident to any other exception or reservation in or out of the demised j^remises.'' 1 Anonymous, 2 Mod. 317. If timber 191; Smith v. Bale, Cro. Jac. 540; and trees are reserved, there is an im- Shep. Touch. 100. plied reservation of a right to enter and ^ Barlow ». Eliodes. 1 Cr. & M. 439. cut and draw them away. If mines, ^ Eooystra v. Lucas, 5 B. cfe Aid. 8-30. minerals, quarries, &c., are reserved, <• Durham, i&c, E. Co. v. Walker, 2 there is an implied reservation of a right Q. B. 940. to enter to work .ind win them, &c., * Douglass v. Lock, 2 Ad. & El. TljS; &c. In Foster v. Spooner, Cro. Eiiz. Wickham v. Hawker, 7 M. & AY. 63. 17, it was held by all the court, " that if >> Durham, &c., E. Co. v. Walker, a man maketh a lease reserving the ante, p. 967. wood, &c., ho may justify the entry to ' Fancy c. Scott, 2 Man. & E. -lo." ; Mit- cnt and carry them away. Liford's calfe v. Westaway, 17 C. B. N. S. OoS; Case, 11 Coke, 46 h. In Eich v. Make- Proud v. Bates, 11 Jur. N. S. 441. If a peace, Noy. 29, it was held that even lessor intends to retain a right of way though the trees were excepted, the over the demised premises he m^ist ex- lesseo had a right to take the loppings pressly reserve it, Good b. Hill, 2 Esp. for firebote, but this is not the rule, and 690; Brown v. Meady, 10 Me. 391, un- it seems well established that an excep- less it is implied as an 'incident to some tiou of the trees carries with it not only other reservation or exception in the de- all the fruits, but all the boughs or lop- mise. as the effect of an exception is to pings. Goodright v. Vivian, 8 East, except all things dependent upon or in- Exceptions and Keservations. 429 If the exception or reservation confers an interest in tlie land, it is assignaEle. Thus, where a railway comiDany excepted and reserved out of a demise of land a patent slip therein, and the machinery con- nected therewith, with free access thereto " for themselves, their suc- cessors and assigns, officers, servants and workmen : " it was held that a, licensee of the company might justify using the slip.^ Where a person agreed to let a farm, except thirty-seven acres (not saying which), held, that he had the right to select which thirty-seven acres sliould not be included in the leas^.^ In all good exceptions these things must always concur : 1, the exception must be by apt words, as " saving and except- ing," or the like ;" 2, it must be a part of the thing demised, and not of sontG other thing; 3, it must be jjart of the thing only, and not all ; and not the greater part, or the substance of the thing granted ; 4, it must be of such a thing as is severable from the j)remises demised, and not of an inseparable incident ; 5, it must be of such a thing as the person in whose favor the exception is made may have, and which properly belongs to him ; thus, it must be of a particular thing out of a general, and not of a particular thing out of a particular thing ; 6, it must be certainly described and set down ; therefore, if one demises a farm excepting one acre, without setting forth which or what acre it shall be, the excei^tion is void.* If a man possessed of a new and an old one makes a lease with an exception of the new house for his use when he pleases to reside there, and at other times for the use of the lessee, the exception is good as to the new house, and is not avoided by the words " at all times to be used by the lessee, when the lessor doth not dwell there ; " for that sentence does not enure as an exception out of an exception (which sets the matter at large), but only as a declaration of the lessor's intention in making the exception ; — the latter words, ho.wever, make the lessee tenant at will. So if a man leases his houses, excepting his new house, during the term, this exception is good : but if he excepts it during life, it is void ; for the words " during life " qualify the exception, and show his intent that the house shall not be excepted during the whole term, and for that reason is void.' cident to it. Foster ». Spooner, Cro. Thurston?).Masterson,9Dana(Ky. ), 228. Eliz. 17; Liford's Case, 11 Coke, 46 b; But. see Dorrell v. Collins, Cro.Eliz. 6. Cardigan v. Armitage, 2 B. & C. 207; Also Mooney v. Cooledge, 30 Ark. 040, Saclieverll v. Day, Latch. 163; Bacon v. where it was lield that tlie same cer- Gryling, Cro. .Jao. 296; Percy's Case, 13 tainty is required in an exception and Coke, 60; 1 Coniyn's Dig. 607. reservation as in the grant itself, and i Mitcalfe v. Westaway, 17 C. B. N. that where land is conveyed, "except S. 6.58. A tliird person may justify nn- one acre thereof," witliout designating der a grant or license from the grantor which acre, the exception is void. or lessor, but not under a geTieral res- ^ Co. Lit. 47 a. ervation, or a special one to liim. See * Dorrell j). Collins,, Cro. Eliz. 6. But also Moulton v. Faiight, 47 Me, 595. see Jenkins v. trreeii, supra. 2 Jenkins v. Green, 27 Beav. 437; ' Cudlip «. Kundall, 3 Salk. 156. 430 Exceptions, Keseevations and Conditions. Construction of ezoeptions and reservations. Sec. 278. A clause in a lease purporting to reserve underwoods and underground produce does not enure as a reservation, but as an excep- tion.^ Thus, a lease of all lands excepted all timber, timber trees and other trees, . Churcliman, 4 Rawle 54 n. (Penn.), 26; Todd v. Summers, 2 Gratt. ^ Mechelen v. Wallace, ante; Tilleston (Va.) 1(37; Barruso v. Maddan, 2 John. 13. Newell, 13 Mass. 306; Grant ». John- (N". Y.) 145; Howland v. Leach, 11 son, .5 N. Y. 247 ; Carpenter ». Ores- Pick. (Mass.) 154; Dwiggins v. Shaw, 6 well, 3 Bing. 409 ; Bennett o. Pixley, 7 Ired. (N. C.) L. 46. John. (N. Y.) 249 ; Poppin b. Haight, ^'SezXa v. Ratcliffe, 15 Q. B. 916; 20 Barb. (N. Y. ) 429. Hutchinson v. Read, 4 Exchq. 761 ; ' Palethorp v. Bergnet, .52 Penn. St. Hunt v. Bishop, 8 id. 675. 149; Carpenter ». Creswell, ante; Boone V. Eyre, 2 W. Bl. 1312. 438 Exceptions, Resebtations and Conditions. or for the rent thereof, lie not having occupied the premises in such a manner as to waive performance by the lessor, does not attach unless the landlord performs.^ But, as previously stated, where the obliga- tions are concurrent, even though one act is partly to precede another, it does not amount to a condition.'' Thus, where there was a stipula- tion in a lease for five years, that it should be renewed for five years more if the tenant desired to have \\,, pro-vided all improvements were done by him, it was held, that the doing of such improvements during the first five years was not a condition precedent to his right to a re- newal, but that such improvements might be done during the last five years.' So, where the lease provides that the tenant shall surrender, and that the lessor may take possession upon giving notice of a certain duration, and paying the tenant the damages he sustains by being pre- vented from occupying for the full term, the payment of compensation is not a condition precedent to the landlord's right to re-enter.' But where a lease contains a proviso that the tenant may put an end to the term by giving a certain notice and performing all his covenants, per- formance of all his covenants is a condition precedent to his right to give up possession.^ Construction of conditions. Sec. 281. Conditions as well as covenants are to be construed ac- cording to the real intentions of the parties ; " but a condition will not be construed to extend to things of common right ; as if the condition is, that one shall enjoy such land immediately upon the grantor's death — here, if the executor takes the emblements, the condition does not extend to them.' The court will not decide as to the meaning of an insensible condition or proviso for re-entry.' By what instrument they may be made. Sec. 282. A condition may be contained in the same deed, or in- dorsed upon the deed ; or may be contained in another deed executed the same day;" thus, a condition indorsed upon the back of a lease be- 1 Hickman w. Koyl. 55 Iiid. 551; ' Parsons ». Miller, 15 Wend. (N. Y. ) Wriglit V. Lattin, 38 111. 293 ; Tidey d. 561 ; Bartlett v. Greenleaf, 11 Gray Mallet, 16 C. B. N. S. 268 ; Coward -o. (Mass.), 98. Gregory, L. E., 2 C. P. 153. ' Hotham v. E. India Co., 1 T. E. 045; * ijrorthrup w. Northrup, 6 Cow. (N. Gardner v. Corson, 15 Mass. 500 ; Pow- T. ) 296 ; Cannock v. Jones, 3 Exchq. ers d. Ware, 2 Pick. (Mass.) 451 ; Peo- 2,33 ; Lewis v. Weldon, 3 Eand. (Va.) pie's Bank ». Mitchell, 6 N. Y. Weekly 71 ; Alexander v. Mann, 6 T. B. Mon. Eeporter, 476. (Ky.) 300 ; Gazley v. Price, 16 John. "^ Cole Ejec. 407; Shinn «. Eoherts, 20 (N". Y.) 267; Hopkins v. Young, 11 N. J. L. 435. Mass. 302 ; Dean of Bristol i). Jones, 1 • Con. Dig. tit. Condition (E). E. & E. 484. " Wynham v. Carew, 2 Q. B. 317 ; 8 Palethorp v. Bergner, 52 Penn. St. Darke v. Bowditch, 8 Q. B. 973. 149. 51 Com. Dig. lit. Condition (A), 9. How Ceeated. 43!) fore the sealing and delivery was held of equal force with a condition within the deed ; ' but where a lease for years was made, rendering rent, and the lessee covenanted. to repair, &c., and afterwards the lessor de- vised to the lessee for n?ore years, yielding the same rent, and under such covenants as were in the first lease, it was considered not to be a condition; for although after the first lease was ended, the lessee would not be bound by the covenants, yet the will expressing that the lessee should have the lands, observing the first covenants, it could not be taken to be a condition by any intent to be collected out of tlie will.^ If it is doubtful whether a clause is a covenant or a condition, the bene- fit of the doubt will be given to the tenant, and it will be construed as a covenant, because such a construction is most favorable to the lessee. But if the clause is susceptible of performing the ofiice of a covenant and a condition, and such was the obvious intent of the parties, it will be given that effect, as if a lease is made for a term of years, provided that the tenant shall annually pay a certain rent, it is a covenant for the payment of rent, and a condition upon the non-performance of which the estate may be defeated.^ Conditions precedent will be lib- erally construed, and the intent of the parties will be given effect so far as can be done consistently with the language used ; * and if it has been performed as nearly in accordance with the intent of the parties as possible it will be treated as sufBcient, although the performance does not accord with a strict construction of the condition ; but conditions that defeat the estate will be construed strictly, as forfeitures are not favored in law.^ By -what Twords they may be created. Sec. 283. Conditions are most properly created by using the word " condition," or the words " on condition ; " but the word commonly and as effectually made use of, is, that of " pi-ovided." * The words "covenant" and "condition," when used in an agreement, do not ne- cessarily mean a covenant under seal, or a condition in the strict legal sense of the word, but may, in order to effectuate the intention of the parties, be construed to mean " contract or stipulation." ' The follow- ing words, in an agreement for letting, do not create a condition : — " The tenant hereby agrees that he will not underlet the premises with- out the consent in writing of the landlord." * A covenant by the les- 1 Griffin v. Stanhope, Cro. Jac. 456 ; R., 6 Q. B'. 644; Crawley v. Rice, L. E., Goodright d. NichoUs v. Mark, 4 M. & 10 Q. B. 302. S. 30. 6 Shep. Touch. 122 ; Co. Lit. 146 ; Craw- ^ Bac. Abr. tit. Condition (G). ley u. Mullin, 48 Mo. 517. 8 Livingston v. Stickles, 8 Paige Ch. ' Hayne v. Cummings, 16 C. B. N. S. (N". T.)398. 421. * Co. Litt. 220 a. 8 gi^aw v. Coffin, 14 C. B. N. S. 372. ^Wadham v. Post Master Genl., L. 440 Exceptions, Keservations and Conditions. sor for quiet enjoyment by the lessee, his executors, administrators and assigns, during the term, he or they paying the rent thereby reserved and performing the covenants on his and their part contained, is not a covenant subject to a condition precedent.' If a proviso or condition has dependence upon another clause of the deed, or if the woi-ds of the lessee be to compel the lessor to do something, then it is not a con- dition, but a covenant only ; as if there be in the deed a covenant that the lessee should scour the ditches, and then these words follow, "pro- vided that the lessor shall carry away the earth." If the words run thus : " provided always, and the lessee, &c., doth covenant, &o., that neither he nor his heirs shall do such an act ; " this is both a condition and a covenant : ^ so if the words are " provided always, and it is cov- enanted and agreed between the parties, that the lessee shall not alien," this is both a condition and a covenant ; for it is a condition by force of the proviso, and a covenant by force of the other words.^ Where m an agi-eement to demise land for a term of years at a certain annual rent, in which there was no clause of re-entry, there was a stipulation " that in case the said lessor should want any part of the said land to build or otherwise, or cause to be built, then the lessee shall give up that part of the said land as should be requested by the lessor, by his making an abatement in proportion to the rent charged ; and also to pay for so much of the fence at a fair valuation, as he should have oc- casion from time to time to take away, by his giving or leaving six months' notice of what he intended to do :" it was held that this was merely a covenant, and not a condition.* But where a proviso in a lease was, that in case the lessor at any time shall be desirous of hav- ing any part of the land delivered up to him and shall sign three months' notice, the lessee covenants to give it up, and that the lessor shall and may take peaceable and quiet possession, paying a fair com- pensation, and the rent being reduced at a certain rate per acre, it was held not to be a covenant merely.* By an agreement, in consideration of the rent and conditions thereinafter mentioned, A was to have, hold and occupy, ns on lease, certain premises therein specified, at a certain rent per acre ; and it was stipulated that no buildings should be in- cluded or leased by virtue of the agreement ; ana it \\as further agreed and stipulated, that A should take, at the rent aforesaid, certain other parcels, as the same might fall in ; and lastly, it was stipulated and con- ditioned, that A should not assign, transfer, or under-let any of the said lands and premises otherwise than to his wife, child or children ; it 1 Dawson v. Dyer, Bart, 5 B. & Adol. ■* "Wilson v. Phillips, 2 Bin?. 13; Gard- 584; and see Ivock v. Furze, 19 C. B. K. ner o. Kennard, 12 Q. B. 244; 9 Moo. 46; S. 96. Doe d. Wilson v. Abel, 2 M. - tt> -,n^-„ 205 6 ,• Simpson v. Litterell, Cro. Eliz. o ' '^^'''y "• p^'if' ^,\ ^A' 4° S' I' 242; Pembroke v. Berkley, id. 884; Har- ^^^ ; Shaw v. Coffin, 14 C. B. N. S. rington ». Wise, id. 486. But while the Vt „i ht t h n ^ ,-.t tenant under sAch a provision cannot v ) 295 "" *^'=^^"''''' ^ ^'"^- '^- assign or underlet, yet he may associate '' others with him in the occupancy with- Wadham v. Post Master Genl., L. out incurring a forfeiture ; or, if the E., 6 Q. B. 644. provision merely provides that he shall i" 2 Danv. 30. not assign, he may underlet. Hargrave u Hodgson «. Rawson, 1 Ves. sen. 47; V. King, 5 Ired. (K. C.) Eq. 480. Anon., 1 Salk. 170. 442 Exceptions, Reseevatioxs and Conditions. have.^ The schedule or inventory is generally written at the foot or end of the lease, or it is indorsed thereon, or annexed thei-eto ; in either case it forms part of the instrument and must be counted (figures as words) in estimating whether any and what progressive duty is payable. But when any schedule, inventory or catalogue is separate and distinct from the lease, and not indorsed thereon or an- nexed thereto, but only referred to, it is not to be counted as part of the lease.^ If a schedule referred to in a deed as annexed thereto is not in fact annexed when the deed is executed, yet the deed will operate and take effect, so far as may be, without the assistance of the schedule.^ But if it is insensible as to part without the aid of the schedule it will be inoperative.'' The articles comprised in the schedule should be specified in such a manner as to prevent all doubt as to what was in- tended to be included.^ When they are numerous and comprise items of small value, the operative words should be general enough to include all the property, after which may be added " the principal articles whereof are particularly enumerated and described in the schedule hereunder written, or hereunto annexed," or to that effect.' But some- times the schedule may be referred to in such a manner as to exclude anything not therein specified.' A deed is not avoided by subsequently annexing the schedule therein referred to.^ The usual attestation clause should not be omitted, especially when the lease is granted in pursuance of a jiower. Alterations in the deed should be specially mentioned in the attestation, or marked in the margin with the initials of the attesting witnesses.*" Alterations indorsed before the lease is executed. Sec. 286. It sometimes happens that after a lease has been made, but before it is executed, some additional covenant or stipulation is agreed on, which cannot conveniently be interlined. In such ■ case it may be indorsed on the lease, and referred to in the proper place, thus : — " See back (A)." Memorandums indorsed upon leases, if made previously to the execution of the lease, are considered in con- struction and effect as part of the instrument, although they add to or 1 Dampier v. Pole, 4 Exch. 678. Baker ». Richardson, fi W. E. 603, Q. B. ; " Sneezum v. Marshall, 7 M. & W. Walsh ». Trevanion, 15 Q. B. 733 ; Bar- 417; 9 Dowl. 267. ton u. Dawes, 10 C. B. 261. '^ Dyer v. Green, 1 Exch. 71 ; Dames « Dyer v. Green, 1 Exch. 71. D. Heath, 3 C. B. 938; Dampier v. Pole, 'Wood v. Eowcliffe, 6 Exch. 407 ; 4 Exchq. 678. Baker u. Richardson, 6 W. R. 663, contra. 4 Weeks v. Maillerdet, 14 East, 568. « West v. Stewart, ,14 M. & W. 47. 6 Wood I). Eowcliffe, 6 Exch. 407; Cort » Dames v. Heath, 3 C. B. 938; DyoT V. Sagar, 3 H. & N. 370; Hutchinson v. v. Green, 1 E.\ch. 71. Kay, 23 Beav. 413; cited 3 H. & N. 372; Alterations. 443 change the provisions of the deed.^ An indoi-sement upon a deed, or other alteration therein, shall be taken to have been made before the execution of the deed and to be jjarcel of it, in the absence of i^roof to the contrary.'^ It is no objection to a lease that an alteration therein was made and signed after the lease was signed, but before it was sealed and delivered.^ In England, it is held that a memorandum indorsed upon a lease after its execution, although it refers thereto, is a new in- strument and must be stamped as such.^ ^ Griffin b. Stanhope, Cro. Jac. 456 ; with respect to a will or codicil. Doe d. Goodright d. jSTicholls b. Mark, 4 M. & Shallcross v. Palmer, 16 Q. B. 747 ; S. 30; Frogley d. Earl Lovelace, 1 Johns. Cooper o. Bookett, 4 Moo. P. C. C. 419 ; 333. Cole Ejec. 604. 2 Brewster B. Kidgell, Carth. 438; Flint =* Lyburn «. Warrington, 1 Stark. 162. r. Brandon, 1 Bos. & P., N. K. 73; Doe * Eeed b. Deeue, 7 B. & C. 261 ; A. Tatum b. Catamore, 16 Q. B. 745. French ». Patten, 9 East, 351 ; Hjli u. But the presumption is the other way Patten, 8 id. 373. 444 The Estate. CHAPTER XXIX. THE ESTATE. Sec. 287. Habendum. — Office of. Sec. 288. Commencement of terms. Sec. 289. Commencement from the date of tlie lease. Sec. 290. Commencement with reference to entry. Sec. 291. Duration of terms for years. — "What certainty is requisite generally. Sec. 292. Certainty with reference to collateral matters. Sec. 293. Where there is an optional number of years fixed. Sec. 294. Where there is a recurring number of years. Sec. 295. Where the term depends on a contingency. Sec. 296. Leases for life or lives. Sec. 297. Reddendum. Sec. 298. Rent payable in advance. Sec. 299. Certainty as to amount of rent. Sec. 300. Mode of reservation. Sec. 301. "Net rent." Habendum. Office of. Sbc. 287. The office of an habendum in a lease, is to point out with certainty, and limit, the estate conveyed.^ But it cannot cut down the grant so as to change the nature of the estate or interest mentioned in the premises.^ Thus, in the case last cited, land was conveyed to W 1 Shep.Touchstone, 75. The habendum the court define an habendum to be " that is that part of a deed or lease that begins part of a deed which limits the use of with the words "to have and to hold," the thing conveyed." In general, the and immediately succeeds the premises, habendum refers to the premises, and (j^- In 4 Cruise's Digest, title 82, Deed Ch. clares the estate which the grantee shall 21, it is said, " With respect to the ha- hold in them, but it may sometimes en- bendum,its office is to limit the certainty large or diminish the grant, when it is of the estate granted ; therefore, no per- so worded as to show a clear intention son can take an immediate estate by the to do so. Corbin v. Healey, 20 Pick, habendum of a deed, where he is not (Mass.) 514. And it may qualify, ex- named in the premises : for it is in the pound or vary the estate given by the premises of a deed that the thing is really premises. Moss v. . Sheldon, 3 W. & granted," and in the same work, Sect. S. (Penn. ) 160. Where, in a deed for 76, p. 273, the author continues : " If land, a life estate only is mentioned in lands are given in the premises of a deed the premises and the habendum, this to A and his heirs, habendum to A for cannot be enlarged into a fee, either by life, the habendum is void, because it is a warranty in fee, or by a covenant for utterly repugnant to and irreconcilable quiet enjoyment to the grantee and his loti/i t/ie premises," and the author cites heirs. Snell u. Toung, 3 Ired. (N". C. ) Throckmorton v. Tracey, Plowd. 145. 379. In Stockton b. Martin, 2 Bay (S.C. ), 471, = Dodwell v. Gibbs, 5 B. & C. 709. Haben'ditm. 445 in fee, but the habendum was, " to have and to hold to huTi the said W in fee, after the death of M" and it was lield that W took an imme- diate fee, and that the habendum could not cut down the grant so as to make the whole a freehold conveyance ; and Abbott, C. J., in deliv- ering an opinion in the case, very aptly summarized the office and force of an habendum. He said : "If no estate be mentioned in the prem,ises, the grantee will take nothing under that part of the deed, except by implication and presumption of law; but if an habendum follows, the intention of the parties as to the estate to be conveyed will be found in the habendum, and consequently, no implication or presumption of law can be made ; and if the intention so expressed be contrary to the rules of law, the intention cannot take effect, and the conveyance will be void. On the other hand, if an estate and interest he mentioned in the premises, the intention of the parties is shown, and the deed may be effectual without any habendum ; and if an habendum, follows which is repugnant to the premises, or contrary to the rules of law and incapa- ble of a construction consistent loith either, the habendum will be rejected and the deed will stand upon the premises.'''' ^ As stated by Abbott, C. J., where the habendum is repugnant to the premises, it is void ; but where it merely qualifies them, it will be effective. Lord Coke says : ^ " The office of the premises is two-fold : first, rightly to name the feoffor and the feoffee ; and, secondly, to comprehend the cer- tainty of the lands or tenements to be conveyed by the feoffment, 1 See also Timmis B.Steele, 4 Q. B., lease Bass was described as trustee for where a tenant in fee conveyed lands to Topham. The words " J. Topham" in "Hannah Timmis, her heirs and as- the premises, from an inspection of the signs," with an habendum " to have and whole instrument, was evidently a cler- to hold to H and her assigns for and ical error. If effect had been given to during the natural life of G-eorge Tim- them, nothing could have passed to any mis." The executors of Hannah Tim- one by the release, and the whole pur- mis claimed that the effect of the liaben- pose and object of the parties would have dum was to qualify the estate named in been defeated. The court, therefore, the premises, so as to give the same to read the release as if the words in the her executors during the balance of the premises had been " G. Bass" instead life of George Timmis, instead of to of " J. Topham," Lobd Ellbnbob- George Tunmis her heir. But the court ough, C. J., saying that the cases cited held, that after Hannah Timmis' death were sufficient to authorize the' court in the heirs took the estate. Lord Den- putting a construction upon the deed in MAN, C. J., saying : "The words in the support of it, " which, from the good habendum are manifestly contradicto- sense of the thing, we should probably ry and repugnant to the words in the have done without such autliorities." premises, arid must, according to the gen- The case was determined upon its pecu- eral rule of construction in such cases, liar circumstances, and, as was said by be disregarded. " The only case to be Loed Kenton, in Timmis v. Steele, found where the habendum has been ante, referring to it, " is no rule for any permitted to change the legal effect of case not exactly like it." the premises is Spyve B. Topham, 3 East, ^ Co. Litt. 6 a. Pattekson, J., in 11.5, in which the words in the premises Timmis v. Steele, 4 Q. B. 666, said: " If were " to J. Topham, his heirs and as- a man give land to me and my heirs, signs," and those in the habendum were habendum to me and the heirs of my "to G. Bass, his heirs and assigns." body, there is no repugnancy because The deed was a release : and the lease the habendum explains the sense in for a year was to G. Bass. In the re- which the word ' heirs ' is used." 446 Thb Estate. either by express words, or which may by reference be reduced to a certainty ; for certtcm est quod cerium reddi potent} The habendum ' The office of the premises in a deed is to state the parties, the description of the property, and tlie grant ; that of tlie habendum is lo limit the estate with certainty. 2 Eolle's Ahr. 65; Wrastlev D. Adams, Plowd. 196 a; Tlie Earl of Slirewsbury's Case, 9 Coke, 47 6 ; 1 Inst. 6 a ; 2 id. 240. It follows, therefore, that, if the premises grant an estate at will, the habendum may enlarye it into an estate for years, or that, if an estate for years or for life is given, it may en- large it into a fee. 1 lust. 299 a; 2 id. ,584 ; Poph. 138. Thus, if lands are granted to A and the heirs of his body, habendum to him iu fee, he has by the premises an estate tail, and by the ha- bendum a fee simple expectant thereon. Altham's Case, 8 Coke, 154 b; Turnham 1). Cooper, Cro. Jac. 476 ; Beek's Case, Litt. 345; Comyn's Dig.Faits. (E) 9; Doe V. Ellis, 9 East, 386; Anonymous, Moore, 26; Corbin v. Healey, 2U Pick.' (Mass.) 514 ; Sanders on Uses, note I. The rule is, that, where a deed at the first contains special words, and afterwards concludes with general words, both shall stand, but, while subsequent words may qualify and abridge, they shall not de- stroy the generality of precedent words. Dyer, 56; Altham's Case, 154 ii; Thomas V. Howell, 4 Mod. 69 ; Viner's Abr. Grants H. 13, pi. 41 et seq. ; Payler v. Hamershaw, 4 M. & S. 427. The haben- dum may qualify and restrain the import of words in the granting part of the pre- mises. Thus, when the grant is to A and his heirs, habendum to him and the heirs of his body, or to him during the lives of B and C, the habendum qualifies the premises so as to restrain the grant therein to the heirs described in the habendum, so that in the one case the grantee will take an estate tail, and in the other a descendible freehold. Mor- timer's Case, 8 Coke, 154 b ; Pillsworth I). Pyatt, T. Jones, 4 ; 1 Inst. 21 a ,• 2 Sanders' Uses, 260 ; Preston's Shep. Touch. 113. If no express estate is granted in the premises, but it is defined in the habendum, the estate named in the habendum will control it to that ex- tent, qualifies the intendment of the pre- mises. 3 Bacon's Abr. tit. Feoffment (C); 2 Rolle's Abr. 65; Hogg!). Cross, Cro. Eliz. 254. If the grant is to two, the habendum may limit a moiety to one and the otlier moiety to the other, and make them' tenants in common, even though by the premises they were joint tenants. 1 Inst. 183 6, 190 b, 772; 2 id. 241; Comyn's Dig. Fait. (E) 9. But, al- though the habendum is allowed to as- certain and fix the meaning of the pre- mises, it must not contradict tliem, Cocking 1). Heathcote, Lofft. 191, or be repugnant thereto. Thus, if an estate in fee is expressly given in the premises, an habendum to the grantee for his own life, or to him and his executors and ad- ministrators, or for years, will be repug- nant and void, and the grantee will take the estate in fee notwithstanding the habendum. So if a grant is to two, an habendum to one for life, remainder to the other for life, is void, because by the premises they are made Joint tenants, and the habendum severs the jointure. Where the premises and the habendum are equally clear, the former will not be controlled by the latter, but both will be allowed to have an operation when it can be done without conflicting with the evident intent of the parties, in accord- ance with the rule that a deed shall be construed in such a manner that each part shall be made effectual if they can stand together. Shelly's Case, 1 Coke, 95 b ; 1 Inst. 21 a ; 1 Wood's Convey- ancing, 224 a. But where there are words in a deed evidently repugnant to each other, and to the general intention of the parties, they will be rejected. Barrington «. Parkhurst, 3 Atk. J 35. Or if words are omitted by mistalce, they will be supplied. Lloyd v. Say, 1 Salk. ■341; Uredall v. Halfpenny, 2 P. Wms. 151 ; Targus ». Paget, 2 Ves. 194. And the courts will modify in construction tlie different parts of an instrument, so as to carry the intention of the parties into effect, so far as it can be done with- out doing violence to any rules of law. Spyne v. Topham, 3 East,115. But when the habendum is repugnant to the pre- mises, it is void, Baldwin's Case, 2 Coke, 23 b, upon the principle, or rather under the rule that, where there are two clauses in a deed repugnant with eacli other, the ^rst shall prevail; Leicester v. Biggs, 2 Taunt. 113 ; and every deed is con- strued most strongly against the grant- or and most for the advantage of the grantee; therefore the grantee will take under the premises if that is most favor- able to him, and not by the habendum, because the grantor having given the estate, cannot by any subsequent words detract from it, 1 Inst. 299 o, but he may add to it by the habendum, and such ad- dition will inure to the benefit of the grantee. Wliere the grant in the pre- Habendum. 447 hath also two parts, to wit : first, to name again the feoffee ; and, sec- ondly, to limit the certainty of the estate." ■^ It cannot introduce par- cels not named in the premises. Thus, if a brick house is demised, habendum together with another house, the other house, not having been named in the premises, will not pass under the lease. But if a thing is comprehended in the premises, the fact that it is called by a different name in the habendum does not invalidate the latter, for the estate is the same.° If some parcels are named in the premises, but not included in the habendum, the operation bf the deed as to those depends upon the premises, the same as though the deed contained no habendum.' The object of the habendum is not to designate the par- ties who take under the grant, but to designate and limit the quantity of interest conferred.^ If the lessee is not named in the premises, but is named in the habendum, the lease will be good ; ^ and such is also the case if he is named in the premises but not in the habendum.^ If the lessee is named in the premises, another person cannot take under the lease who is named in the habendum, but not in the premises,' except by way of remainder, nor then, unless the order of succession is clearly pointed out.* Neither the premises or the habendum are anything more than formal parts of a' deed ; and if either or both be omitted, the deed will be good ;°but either or both, Avhen used, exercise, as we have seen, a most important influence upon the construction of the deed, and great care should be taken to give to each the efficacy mises admits of two meanings, tlie lia- estate, and ascertains tlie meaning of the beudum will control, as wliere a grant is premises, but cannot contradict or de- made to a man and his heirs, habendum feat them. Ashton v. Underliill, Cald. to him and the heirs of his body; here 416. the word heirs being an equivocal term, ^ Neld v. Cooper, Toth. 186 ; Throck- applicable either to general or special morton v. Tracey, Plowd. 153 ; Shep. heirs, the habendum properly explains Touch. *76; 2 RoUe's Abr. 65 (J), pi. 2. the sense in which it is used. 1 Wood's * Piatt on Leases, 48. Conveyancing, 200 n. When the haben- * Becklin's Case, 2 Coke, 53 a ; Lo- dum clause in a deed is contradictory to field's Case, 10 id. 107 6 ,' Strickland v. the premises, it is void, but when it sim- Maxwell, 2 Cr. & M. 539. ply explains, limits or qualifies the pre- ' Butler v. Doddington, Toth. 194, S. mises, it performs its proper office. Con- C. sub nom ; Butler b. Dodson, Cary, gregational Society ». Stark, 34 Vt. 248. 122 ; Ellis v. Lambert, Al. 33; Co. Litt. The word appurtenances in the haben- Y a; Shep.Touch.75; 4 Cruise'sDig. 290; dum of a deed, when none are specified, 1 Preston's Abstracts, 79. But contra, will not convey anything except what and holding that if the lessee is named was legally appurtenant to the land in only in the habendum the lease is inop- the hands of the grantor; and tlierefore erative. See Anonymous, 3 Leon, 32; 2 will not convey an easement in the land Rolle's Abr. 66, pi. 13, tit. Grants; Bust- of another, which, by reason of not hav- ard o. Coulter, Cro. Eliz. 002. ing ripened into a legal right, had not ^ Anonymous, 3 Leon, 32. become legally attached to the premises ' Windsraere v. Hobart, Hob. 313 ; conveyed, unless properly described by Kirkman ». Keigiiold,2 Leon, 1; Haffner ■words. Swazey v. Brooks, 34 Vt. 451. ». Irwin, 4 Dev. & B. (K. C. ) 433. 1 See Cocking v. Heathcote, Lofft. 190; » Windsmere ». Hobart, ante ; Whea- Bird ». Baker, 1 E. & E. 12, upon the don -o. Sugg, Cro. Jac. 372. point, and holding that the habendum »Inst. Ta; Sheppa,rd's Touchstone, fixes the quantity and quality of the 75. 448 The Estate. and purpose for which they are employed. An ignorant or careless conveyancer may so use them as to defeat entirely the intention of the parties, while, if properly used, they are instrumentalities through which the intention of the parties is effectuated and made clear. Commencement of terms. Sec. 288. Certainty of commencement, of duration, and of termina- tion, is es^sential to the validity of a lease for years,^ but this ap- plies to certainty of the time when the interest or enjoyment under the lease is to begin, rather than to commencement in computation oi time, as the two do not necessarily run together. Thus, a lease for years may be made to commence in interest from a future day, although in computation of time it commences from its date.^ So a lease in computation of time may be made to comraence from a day past, although it is not to commence in interest until a future day, or until the happening of a certain contingency.^ A lease for five years, to iCo. Litt. 45 6; Foote d. Berkley, 1 Vent. 83 ; Chidington's Case, 1 Coke, 156 a ; i Bacon's Abr. Leases, 55 ; 2 Blackstone's Com. 143 ; Sheppard's Touchstone, 271 ; Coniyn's Big. tit. Es- tates (G), 8 ; Say's Case, Plowd. 270. 2 Euys V. bonnithorne, 2 Bufr. 1190. In tlie Bishop of Bath's Case, 6 Colie, 35 a, it was resolved by the court that " every lease for years should have a certain beginning is to be intended lohen it is to take effect in interest or posses- sion. A lease for years, being a mere chattel interest, may be made on a con- dition or contingent precedent : as, if I grant to you that, if yoti pay me twenty pounds at Michaelmas next following, you shall have my manor of D for one and twenty years ; now it is uncertain whether it will commence or not, and in the mean time, until the payment of the money, it is not any lease, but it is sufiBcient that the commencement by certain when it is to take eifect in inter- est or possession. So it is true that the continuance of it ought to be certain ; but that is to be intended either when the time is made certain by express num- bering of years, or by reference to a cer- tainty, or by reducing it to a certainty by matter ex post facto, or by construction in law by express limitation. At first, if a lease be made for twenty-one or any other certain number of years, it is good for the certain eumneration from the first." SeealsoBoraston's Case,19a,- Co. Litt. 45 6 ,- Roll. Abr. 849; Say ». Smith, Plowd. 271 ; Shep. Touch. 273. Until the former lease terminates, the second lessee has a mere interesse termini, and such lease does not operate as an assign- ment of the reversion expectant on such lease. Smith v. Day, 2 M. & W. 684 ; Locke V. Furze, 19 C. B. N. S. 96. But, after the day appointed for the com- mencement of the term, an interesse termini is sufficient to support an entry or ejectment. Agar v. Brown, 2 E. & B. 331. ^In Enys v. Donnithorne, 2 Burr. 1192, a lease to hold from a day past, for fifty years therein next ensuing, the said term to commence and begin from and immediately after the surrender, forfeit- ure, or other determination of an exist- ing lease of the same premises, was held not uncertain in its commencement, and was upheld as a valid lease. On the de- termination of the former lease, either from efflux of time, surrender,forfelture, or any cause, the second lease imme- diately takes effect in possession, for the residue of the term : for, on its creation it was good as a present demise, by rea- son of the estoppel to botli parties, by the indenture, and therefore shall come into possession whenever the first lease is out of the way. 4 Bacon's Abr. Leases (N") ; Read v. Erviugton, Cro. Eliz. 322. But by the common law, before the Statute 4 & 5 of Anne,chap.l6,attom- ment was requisite to make the second demise enure as a lease of the reversion so as to entitle the second lessee to the rents and services reserved on the first lease,unless it was by way of bargain and sale for vears. Malorie's Case, 5 Coke, 113; 1 Inst.309 0,312 a ; 2 List. 356n.(B). In some measure, attornment was avoidl ed by the Statute of Uses, 27 Hen. S' Commencement of. 449 commence upon the death of a person then living, is good ; for, although it is uncertain when the term will begin, yet it is reduced to a certain- ty by the death of the person named, and is aided by the maxim id certum est quod certum reddi potest} So, if one leases premises "as many years as A has " other premises, the lease is good for a term as long as that which A has in the premises named.^ So, if a lease is made during the minority of a person named,' or for a certain term, to commence at the lessor's death,* or, indeed, upon any possible event or contingency ; ^ but a lease made upon a contingency that is impos- sible, or that is dependent upon another contingency, is bad.^ A lease for such a period as a certain person, designated in the lease, shall name, is inoperative until such person names the duration of the term ; but, after the term has been named by him, it attaches as a valid lease ab initio for that period.' If a lease is made of premises to commence when a former lease recited therein is ended, and in fact no such lease exists, the lease will attach and the term commence immediately;^ but if there is a former lease, but it has been mis-recited in an essential respect in the second lease, the second lessee will have merely an inter- esse termini, and his lease can commence presently only in the enumeration of years, and not in interest, until such former lease is determined.' Coniinencement from the date of the lease. Sec. 289. It was formerly held that a lease to commence H datu included the day of the date, but that d, die datus excluded the day ; i" cliap. 10, and by the Statute of Wills, Child v. Baylie, Cro. Jac. 4.59; Grute v. So Heu. 8, chap. 5 ; but it was not until Loeroft, Cro. Eliz. 287 ; Anonymous, the Stat, of Anne previously referred to, Poph. 4. and 11 Geo. 2, chap. 19, that this formal- » Co. Litt. 4.5 b ; 1 Roll. Ab. 849 ; The ity was almost entirely dispensed with. Bishop of Bath's Case, 6 Coke, 3b a. Previous to the Statute of Anne, supra, ^ Braston's Case, .3 Coke, 19 h; Say u. if the second demise was by deed poll, Smith, Plowd. 2Y3 a 3. without such attornment, it could only ■• Grute v. Loeroft, Cro. Eliz. 287 ; take effect in possession upon the deter- Herbin v. Chard, Poph. 97 ; Cheding- raination of the first lease, by the death ton's Case, 1 Coke, 1.53 a. of the first lessee, according to the ex- * Shep. Touch. 273 ; The Eector of press limitation, and did not become Chedington's Case, 1 Coke, 156 a. operative upon its determination by sur- ^ Child b. Baylie, Cro. Jac. 461 ; Ched- render or forfeiture, or other cause ; for ington's Case, ante, during the first lease the lessor had no ' Goodright, v. Eiohardson, 3 T. R. power to contract for anything but his 463. A lease to another until a child en own reversion ; and therefore, unless the ventre sa mere shall arrive at the age of second lessee could obtain the reversion twenty-one yijars, is not good as a lease by attornment, the contract could not for years, but only at will. Say v. take effect until the death of the first Smith, Plowd. 271 ; Bishop of Bath's lessee; and the same was true in refer- Case, 6 Coke, 35 i ; 4 Bacon's Abr. tit. ence to parol leases, which, prior to the Leases (L), 3. Statute 29 Car. 2, chap. 3, enured by way ' 4 Bacon's Abr. tit. Leases (L), 1. of interesse termini for such part of the ' Co. Lit. 46 6 ,• Eowe v. Huntington, time as was not named in the former Vaugh. 73. lease. I'Haths v. Ash, 2 Salk. 413; JMacdon- ^Hall V. Richardson, 3 T. R. 462; neU'. Weldon, Stra. .550 ; Anon., Lofft. 29 450 The Estate. but it is now considered that the words " from the da)' of the dalte " mean eitlier inclusive or exclusive, according to the context and the apparent intention of the parties ; and the court will construe them so as to effectuate such intention.^ And in computing time from an act or event, there is no general rule that the day is to be inclusive or ex- clusive ; but the question whether it shall be included or excluded de- pends upon the reason of the thing according to the circumstances.^ And in case of doubt the construction will be made so as to save the right or estate. Thus, where lands were devised to a person upon con- dition that he should pay a certain sum to a certain person " within one year after " the testator's decease, and the testator died Oct. 2, and the devisee tendered the money Oct. 3d of the next year (the 2d being Sunday) the tender was held in time, the court saying : " There is no invariable sense, however, to be attached to the word ' after,' when used in such a connection, hut it is to he taken to he exclusive or inclu- sive, according as it will, in the particular case, effectuate the intention of the parties ; and in ascei'taining that intention, the context and the subject matter are to be regarded, as well as the effect of the construc- tion to uphold or destroy the instrument in question, and the rights depending upon it, the presumption being, that instruments are de- signed to be effectual, and not futile." In cases of doubt, the construc- tion is to be such as will save the right or estate, such being the pre- sumed intention.^ And in construing the word " from " a similar rule 275; Cornish D. Cawsey, Eoll. Abr. 850, forth" includes the day of date, pi. 12; Douglass b. Shank, Cro. Ellz. Llewelyn d. Williams, Cro. Jac. 258, but 766; Vernon t). West, 2 Wils. 165; Mac- "from henceforth" passes the estate donnel v. Weldon, 8 Mod. 54; Llewelyn from the time of the delivery of the V. Williams, Cro. Jac. 258 ; Mellows t>. lease. Clayton's Case, 5 Coke, 1. May, -Cro. Eliz. 873 ; Howard's Case, 2 iPughu. Duke of Leeds, Cowp. 714 ; Salk. 625 ; Bacon v. Waller, 1 Eol. 387 ; Ackland v. Lutley, 9 Ad. & El. 879 ; 4 Bayntum ». Watton, Cowp. 723; Built). Bac. Abr. tit. Leases (L), 1 ; Smith L. Wyatt, Cro. Car. 386 ; Osbourn v. Eider. & T. 104, 105 (2d ed.). A lease for a Cro. Jac. 135 ; Warren c. Eearnside, 1 term of years " from the first day of Wils. 176 ; Haths v. Ash, 2 Salk. 913. July," begins on the 2d of July. The cases are not uniform. In Bacon Atkins v. Sleeper, 7 Allen (Mass.), 487 ; D. Waller, ante, "from date" and Doe v. Smyth, Anth. (N. Y. ) 179. "from the day of the date," were held ^ Lester v. Garland, 15 Ves. 248; Doe to be one and the same thing. See also, i). Day, 10 East, 427 ; Sands v. Lyon, 18 to the same effect, Hicks v. Harvey, Conn. 30; Sims v. Hampton, 1 S. & R. Comb. 399; Signorettei). Maguire, 2Ld. (Venn.) 411 ; Windsor d. China, 4 Me. Eayd. 1241. "From the making" has 298; People b. Eobertson, ,39 Barb. (N. been held to commence only from Y.) 9; Pellaer v. Wauford, 9 B. & C. delivery, Norris v. Gawtry, Hob. 140 ; 134; Bennett ». Nichols, 4 T. R. 121. Hicks V. Harvey, ante ; Anonymous, ' Sands «. Lyon, ante; Kellogg m. Cur- Dyer, 286 a, pi. 43, and in Barwick's rico, 47 Mo. 157 ; Protection Life Ins. Case, 5 Coke, 94 a, was held to exclude Co. v. Palmer, 81 111. 88; but it is agen- the day of making. See also, Anony- eral rule that where, by the terms of a mous, Loftt. 275; Umble v. Fisher, Cro. contract, an act is to be done within a Eliz. 702 ; Jenk. Cent. 136, case 78, certain time, and the last day is Sunday, where the word "from " is construed as performance on Monday is good. Stry- excluding the day of date. "Hence- per ». Vanderbilt, 85 N. J. L. 68. Commencement ov. 451 exists,^ especially when it will prcTent an estoppel or save a for. feiture,^ and both the day from which the reckoning commences and that on which it terminates maybe included or excluded, as best serves the interests of the parties in saving a right or preventing a forfeiture.^ A distinction is made between a lease or other conti-act, where it is to commence from or after a certain act done or from the day itself. In the former case, the day in which the act is done is excluded,^ but in the latter case the day itself will be included or excluded according to the intention of the parties, or as it will best serve their interests or preserve their rights^^ Generally, however, either the first day or the last one will be excluded, and the other included, according to the in- tention of the parties.' Generally speaking, a lease from 25th March commences the next day and ends on 25th March, otherwise the day on which the last quarter's rent is usually reserved would be subse- quent to the expiration of the lease.' A lease " from the day of the date," and "from henceforth," is the same thing.' Sometimes a lease " from the day of the date " will be construed to mean " from the day of the execution of the deed," " but the more literal construction is usually adopted." As to an impossible or uncertain date, there is this 1 Cornell v. Moulton, 3 Den. (N. T.) 12. 2 Windsor v. China, 4 Me. 298; State V. Gjasconde, 33 Mo. 102. 8 State V. Schnierle, 5 Rich. (S. C.) 299 ; O'Connor v. Towns, 1 Tex. lOY. ' Handley v. Cunningham, 12 Bush. (Ky. ) 402 ; Protection Life Insurance Co. 1). Palmer, ante ; Lang v. Phillips, 27 Ala. 311; Burr v. Lewis, 6 Tex. 76 ; Kimm v. Osgood, 19 Mo. 60 ; Cornell v. Moulton, ante; Weeks v. Hull, 19 Conn. 378 ; Windsor v. China, ante ; Bissell v. Bissell, 11 Barb. (N. Y.) 96 ; Irving v. Humphrey, Hop. Ch. (N. T. ) 364 ; State V. Gasconde, ante ; Homes b. Smith, 16 Me. 181 ; Thorne v. Masher, 20 N. J. Eq. 257 ; Page v. Waymouth, 47 Me. 238 ; Carruthers v. Wheeler, 1 Grey, 194 ; but see Hampton v. Even- zeller, 2 Browne (Penn.), 18; Wagner v. DufEy, 1 Phila. (Penn.) 367 ; Chiles v. Smith, 13 B. Mon. (Ky.) 460 ; Wliite v. Crutcher, 1 Bush. (Ky. ) 472, where it was held that the day on which the act is done is included. i> Goode V. Webb, 52 Ala. 452 ; Bemis D.Leonard, 118 Mass. 502; Wood v. Com., 11 Bush. (Ky.) 220 ; Corawinger, &c., Co. V. Cunningham, 75 Penn. St. 138 ; Ewing V. Bailey, 5 111. 420 ; Bigelow v. Willson, 1 Pick. (Mass.) 485; Wiggin v. Peters, 1 Met. (Mass.) 187; Bowman v. Wood, 41 111. 203 ; Pyle v. Moulding, 7 j. J. Mar. (Ky.) 202 ; Laurent v. Ins. Co., 1 N. & M. (S. C.) 505 ; Jacobs v. Graham, 1 Blacld. (Ind. ) 392 ; Goswil- ler's Case, 3 Penn. 200 ; Arnold ». TJ. S., OCranch (TJ. S.), 104. But see Shuts V. Selden, 2 Wall. (U.S.) 190, overruling this case ; Rand v. Rand, 4 N. H. 267 ; Sands v. Lvon, ante ; People v. New York, 28 Barb. (N. Y.) 284. « Kendall v. Kingsly, 120 Mass. 94 ; Higgins V. Halligan, 46 111. 173; Cornell B. Moulton, 3 Den. (W. Y.) 12 ; Farwell V. Rogers, 4 Cush. (Mass.) 460; Small u. Edrick, 5 Wend. (N. Y. ) 137. The rule most prevalent is to exclude the first day and include the whole of the last, Webb B. Fairmaner, 3 M. & W. 473 ; Sands b. Lyon, ante ; Hunter b. Sar. C. S. Co., 4 Nev. 153 ; People b. R. R. Co., 28 Barb. (N. Y.) 284; Bemis b. Leonard, 118 Mass. 502, but this is governed largely by the intention and apparent interest of the parties. Wiggin v. Peters, 1 Met. (Mass. ) 127 ; also cases cited, ante. ' Ackland v. Lutley, ante ; Wilkinson B. Gaston, 9 Q. B. 137. * Llewellyn D. Williams, Cro. Jac. 258; Clayton's Case, 5 Coke, 1. 8 Underwood B. Horwood, lOVes. 209. i» Shep. Touch. 108 ; Cox v. Day, 10 East, 427 ; Steele v. Mart, 4 B. & C. 272 ; Styles v. Wardle, Id. 908 ; Cooper V. Robinson, 10 M. & W. 694 ; Darling- ton B. Ulph, 13 Q. B. 204; Bird v. Baker, 1 E. & E. 12. 452 The Estate. distinction, tliat if a lease is made to begin from an impossible date, as from the 30th of Feb., or the 31st of April, or from the Nativity of our Lord, not saying from the feast of the Nativity, especially if it be by deed, it shall fake effect from the delivery. So if it is dated and is to commence from the " making hereof," or " from henceforth," ^ or from the executing of a former lease, and no such lease in fact exists or if the prior lease is void in law ; - but where the limitation is uncer- tain, as a lease made the 10th day of Oct., to hold from the 20th day of Nov., without saying what Nov. is meant, the lease is thereby vitiated, because the limitation is part of the agreement, and the court cannot determine it, not knowing the terms of the contract.^ Where a deed has no date, or an impossible date, as the 30th of Feb., and in the deed reference is made to the date, that word must be construed " delivery ; " but if it has a sensible date, the word date occurring in other parts of the deed means the day of the date and not of the delivery ; and, therefore, in covenant on an indenture of lease, dated the 24th day of Dec, 1822, whereby the defendant agreed, within twenty-four calendar months then next after the date of the indenture, to procure a certain thing to be done : it was held, that the deed took effect from' the day of the date, and that the twenty-four calendar months reckoned from the date.* Where a lease was dated 25th March, 1788, habendum "from the 18th March now last past" and it was proved that the deed was not executed until some time after the date, it was held, that the term commenced on the 25th March, 1783, and not in 1782.^ A deed having been made in the month of August in a leap year, the words "the 29th February then next ensuing" were construed to mean the 29th February in the ne^rt leajD year." A lease operates as a grant only from the time of its execution, and the tenant is not liable for previous breaches of covenant, although committed after the date of the deed.' But the duration of the tei-m is to be computed from the day in that behalf mentioned in the lease. Thus, where J, by indenture dated and made 19th July, 1851 demised to A certain premises, habendum from 25th Dec, 1849, for fourteen years thence next ensuing, determinable at the end of i he first seven years by six months' previous notice: held, that the seven years were to be reckoned from 25th Dec, 1849, and that the lease might be determined on 25th Dec, 1856.' ' Co. Lit. 46 6 ; Styles v. Wardle, 4 B. * Styles v. Wardle, 4 B. & C. 908. & C. 008. 6 Steele v. Mart, 4 B. & C. 272. 2 Miller d. Maynwaring, Cro. Car. 397; ^ Chapman v. Beeeliam, 3 Q,. B. 723. Bassett v. Lewis, 1 Lev. 77. ' Shaw v. Kay, 1 Exch. 412 ; Jervis ». "4 Bac. Ahr. tit. Leases (L), 1; Tomkinson, 1 H. & N. 195, 206. Anon., 1 Mod. 180; Foote v. Berkeley, 1 8 Bird v. Baker, 1 E. & E. 12 • 23 L Sid. 461. J. Q. B. 7. COMMBNCBMENT OF. 453 Commencement -with reference to entry. Sec. 290. In general, a letting by parol will be considered to com- mence from the day of the tenant's entering, and not with reference to any particular quai-ter-day.^ ■ But where a tenant entered in the middle of a quarter, and afterwards paid for that time to the beginning of a suc- ceeding regular quarter, from which time he paid, half-yearly, his ten- ancy was held to commence from the quarter succeeding his entering.^ Where, however, the tenant entered in the middle of a quarter, upon an agreement to pay rent " quarterly and for the half -quarter," the jury, under the judge's direction, found that the tenancy commenced from the quarter-day preceding the entry.' A party having taken posses- sion on the 1st of August, and at the Michaelmas following paid the half-quarter's rent, and continued afterwards to pay quarterly on the usual feast days, it was held, that a notice to quit at Michaelmas was sufficient ; and that although the landlord had at first given notice expiring with the half-quarter, it was not necessarily to be inferred from that circumstance that the tenancy from year to year commenced on that 'day.* Where a tenant under a lease continued to hold after the expiration of it as a tenant at will, and assigned it to another, the tenancy of the assignee was held to commence at the day on which the original tenancy commenced under the lease, notwithstanding the as. signee came in on a different day.'' Duration of terms for years. — What certainty is requisite generally. Sec. 291. The duration of leases for years is ascertained either by the express limitation of the parties at the time of making, or by ref- erence to some collateral act which may with equal certainty measure their continuance, otherwise they will be void.^ And the same rule 1 Kemp V. Derrett, 3 Camp. 510. makes a lease of lands of the value of 2 Holcomb V. Johnson, 6 Esp. 10. twenty shillings per annum, till one- 3 Wadraore v. Selwyn, Hil. T. 1807 ; and-twenty pounds be levied of the is- Adams Ejec. 107 (4th ed.). sues and profits ; The Bishop of Bath's * Savage v. Stapleton, 3 C. & P. 275. Case, 6 Coke, 35 b ; in neither of tliese 6 Castleton v. Samuel, 5 Esp. 173. cases does the grant amount to a lease * Bac. Abr. tit. Leases (L), 3. It is a for years, on account of the uncertain- rule that, in order to support a lease ty; in the first case put, when the son for years by reference, the reference will be born, and in the second, whether ought to be to a thing winch has express the land will continue for twenty-one certainty at the time of the lease made, years of the same annual value. So, if and not to a possible or casual certainty; one makes a lease of land for so many and, therefore, if the wife of J>S be en- years as A B shall be parson of D, it ceinte, and a lease is made until the is- cannot be made certain by any means, sue in ventre sa mere shall attain for nothing can be less certain than the twenty-one; The Bishop of Bath's Case, time of bis death, or the period of his 6 Coke, 35 6 ; or if a lease is made to ceasing to be parson. Co. Lit. 45 b. one who has execution under a statute So, if a demise is made to A for eighty merchant, until he is satisfied the duty years, and after his death to B for so for which he has sued the execution ; many years as shall be then imexpired, Say ». Smith, Plowd. 273 ; or if a man it is void for uncertainty, as to B's in- 454 The Estate. applies to an agreement for a lease, or for an underlease, to save it from the operation of the statute of frauds.^ A lease for " one year certain, and so on from year to year," creates a tenancy for two years at the least.^ So a lease " for six months, a-nd so on from six months to six months until determined by either party," creates a tenancy for one year at the least.' So a demise may be made from two years to two years, or from three years to three years, or the like.^ In one case a lease was made, to hold " from seven years to seven years, for and during the term of forty-nine years." ' So for seven years, and afterwards from year to year.^ An instrument, by which A agreed to let and B to take certain premises, on the terms that B should p.ay certain specified sums, varying in amount at the end of every three years up to a specified date, and which provided that from and after that date " he should pay the clear annual rent of 9Z. till the end of the lease,^' without mentioning any period at which the lease was to ter- terest. So, if a grant is made by one possessed of a lease for forty years to B for as many of the years as shall be un- expired at the time of his (the grantor's) death, the lease is void ; The Eector of Chedington's Case, 1 Coke, 153 a ; Caponhurst v. Caponhurst, T. Eaym. 27 ; but it is otherwise where the owner of a term of ninety years demises the land for seventy, to commence after his decease ; for, to use Mr. Justice Gaw- dt's words, so much of the term was granted as should be behind at the time of the grantor's death, which was alto- gether uncertain in the grant itself ; while, in the latter, the land was de- mised, habendum after the death of the lessor for seventy years, in which there was sufficient certainty, and no appa- rent uncertainty in the deed. And, though a person cannot make a lease of his land for so many years as A B shall continue parson of D, yet he may make a lease for three years, and so from three years to three years, so long as he shall be parson ; and the lease will be good for six years, if he continues par- son so long; first for three years, and after that for three years, and for the rest uncertain. Co. Lit. 45 b- The term may be rendered certain by matter ex post facto. The Bishop of Bath's Case, 6 Coke, 34 b, 35 b ; Goodright V. Richardson, 3 T. R. 463. For in- stance, it may be granted for so many years as A B shall name; and the lease, though uncertain at the beginning, will be valid ab initio after the naming of the years. The Bishop of Bath's Case^ Hob. 174; Plowd. 6 a, 13a; Sparkeu. Sparke, Mo. 666; Co. Lit. 45 6; lEol. Ab. 849, Estate (T),ll. The term, however, must be specified in the lifetime of both the lessor and lessee ; The Bishop of Bath's Case, ante ; Say v. Smith, Plgwd. ■ 273 6; The Rector of Chedington's Case, 1 Coke, 155 a ; and, therefore, a lease for so many years as the lessor's execu- tors shall name is void ; becaiise no in- terest can pass out of the lessor during his life; and after his death the naming of the years will come too late. Savell V. Coi-dell, Godb. 24-5 : Porry v. Allen, Cro. Eliz. 1*73; Perryn v. Allen, Ow. 97. So, where A demised certain lands to B for eighty years, if he so long lived ; and if it should happen that B should die or alien the premises within the tei-m, then A granted the premises to C for so many of the said eighty years as should be then unexpired ; and C died in the lifetime of A ; it was held that, as the demise to C depended upon a contingency precedent, the interest or term intended to be demised was not certain; that the land was not bound with it; and that, as he died before it was reduced to a certainty, it could never take effect nor vest in his execu- tors. The Eectorof Chedington's Case, 1 Coke, 1.55 a. 1 29 Car. 2, c. 3, s. 4 ; Bayley v. Fitz- maurice, SE. & B. 664; Clinan v. Cooke, 1 Sch. & Lef. 22 ; Clarke, app., Fuller, resp., 16 C. B. N. S. 24. '■* Chadftorn v. Green, 9 A. & E. 658 ; Monck v. Gi3eckie, 5 Q. B. 841. 3 Reg. ». Chawton, 1 Q. B. 247. * Hennings d. Brabason, 2 Lev. 45 ; Bree v. Lees, 2 W. Blac. 1171 ; 3 Prest. Conv. 76. ' Richards ». Sely, 2 Mod. 80. * Brown v. Trumpei-, 26 Beav. 11. Commencement of. 455 minate, was held good only for the time previous to the date at which the Ql. was to commence.^ Certainty with reference to collateral matters. Sec. 292. If a lease of land is made for ten years, with a provision that if at the end of every ten years he shall pay the lessor a certain quantity of tiles, or do any other specific act, then he shall have a per- petual demise of the land from ten years to ten years continually fol- lowing; it is good for ten years only, and bad as to the rest for uncer- tainty.^ So, if a man makes a lease for years, without saying how many, it is good for two years certain ; because for more there is no certainty, and for less there can be no sense in the words : ^ but if a man leases lands for such a term, as both parties shall please, it is only a lease at will.* A tenancy from year to year is determinable at the end of the first as well as of any subsequent year, unless in creating the tenancy the parties use words showing that they contemplate a ten- ancy for two years at least.* If premises are taken " for twelve months certain, and six months' notice to quit afterwards," the tenancy may be determined at the end of the first year by a six months' previous notice to quit.'* A lease for one year, and so on from year to year tftitil the tenancy thereby created shall be determined as after men- tioned, with a provision that either party may determine the tenancy by three months' notice, creates a tenancy for two years certain. A demise for a year, and so from year to year, is a lease for two years certain at least.' So, if a parson makes a lease for a year, and so from year to year as long as he continues parson, or as long as he lives, it is a lease for two years at least, if he lives or continues parson so long.* So, a lease " for the term of six months from the 1st of January, and so on for six months to six months," until six calendar months' notice is given, the first payment of rent to be on the 1st of July, is a tenancy for twelve calendar months at least.' In legal proceedings, the word "months" means lunar months, unless the contrary appear to be the meaning from the subject-matter to which: that term is afiplied.^" 1 Gwynne v. Maynestone, 8 C. & P. Salk. 414 ; Denn v. Cartwright, 4 East, 302. 29, 32 ; Harris v. Evans, 1 Wils. 262 ; 2 Say B. Smith, Plowd'. 271. Birch b. Wright, 1 T. 11. 380 ; Fox v. ' Bishop of Bath's Case, 6 Colce, 35 ; Nathans, 32 Conn. 348. 4 Bac. Abr. Leases (L), 3. t" Thompson v. Maberley, 2 Camp. * 4 Bac. Abr. tit. Leases (L), 3; Bish- 573. op of Bath's Case, supra ; Com. Dig. ' Chadborn v. Green, 9 A. & E. 658 ; Estates (H), 1 ; Richardson v. Lang- Monclc v. Geeelde, 5 Q. B. 841. ridge, 4 Taunt. 128 ; Cole Ejec. 448. * 4 Bac. Abr. tit. Leases (L), 3. 6 Clarke v. Smaridge, 7 Q. B. 957 ; ' Reg. v. Chawton, 1 Q. B. 247; Simp- Plumer ». Nainby, 10 Q. B. 473 ; 4 Bac. son u. Margitson, 11 Q. B. 23. Abr. tit. Leases (L), 3 ; Agard v. King, i" Johnstone v. Hudlestone, 4 B. & C. Cro. Eliz. 775 ; Legg ». Strudwick, 2 922. 456 The Estate. ■Where there is an optional number of years fixed. Sec. 293. A lease " for seven, fourteen or twenty-one years, as the lessee shall think proper," is good for at least seven years,^ and a lease made in 1785, for " three, six or nine years, determinable in 1788, 1791 or 1794," is good for nine years, determinable at the end of three or six years.^ But the lessee alone has the option to determine such a lease at the earlier periods, on the ground that every doubtful grant must be construed in favor of the grantee.^ The usual form of making such leases is to insert the full term in the habendum, and add a pro- viso at the end for one or either of the parties to put an end to the term at the shorter periods. If the^ option is given exjsressly to each party, the lease may be determined by either, or by his representative entitled to the reversion or term ; * and where the option was given to the respective parties, their executors and administrators, it was held that the devisee of the lessor might determine the lease.^ But where the lease contained a proviso that if either of the parties, their respec- tive heirs or executors, should wish to put an end to the term at the end of seven or fourteen years, six months' notice in writing should be given under " his or their respective hands," and the lessor died, leaving three executors ; it was held, that a notice signed by two of them only, although given on behalf of themselves and the other ejd? ecutor, was not a good notice within the terms of the proviso.*^ A lease for twenty-one years, expressed to " be determinable neverthe- less in seven or fourteen years if the said parties hereto shall so think fit," is determinable only by consent of })oth the jiarties, although it may have been their intention to give the option to either of them.'' The notice must end with the first seven or fourteen years (or other stipulated period), according to the terms of the proviso, and not at any other time." It must not end at noon on the right day.° Some- times it is made a condition j)recedent that the tenant shall not only give the notice, but also pay all the rent, and perform all the coveiiants on his part, to the termination of the notice.^" But sucli a condition is unreasonable, and ought to 'be objected to in the first instance, or it will be binding." A lease for three, seven or ten years, determinable on notice, stipulated that a quarter's rent should be ])aid by the tenant 1 Ferguson v. Cornish, 2 Burr. 1032. ' Fowell v. Frank, 3 H. & C. 458. 2 Goodright B. Kichardsoii, 3 T R. 462. s Cadby -o. Martinez, 11 A. & E. 720 ; 3 Dann !^ Spurrier 3 B. & P. 399 ; Bir^ d. Baker, 1 E. & E. 12 ; Cole Eiec Webb -0. Dixon, 9 East, 15 ; Price i'. 393 •* Dyer, 17 Ves. 356 ; Cole Ejec. 398. g' „ 15 O B 684 •1 Goodriglit V. Mark, 4 M. & S. 30 ; -^^^e d. More, 15 y. B. 684. Bird v. Baker, 1 E. &, E. 12. " Friar d. Grey, 5 Exch. 584, 597 ; 6 Bamford v. Havley, 12 East, 464. Fnar n. Gray, 15 Q,. B, 891 ; Parker «. •5 Eight D. Cutheil, 5 East, 491 ; Aslin Shepherd, 6 T. K. 665. t). Summersett, 1 B. & Ad. 135. " Cole Ejec. 397. Duration of. 457 on taking possession, the same to be allowed him for the last quarter's rent, " on the determination of the said tenancy ; " after a notice to determine the lease at the expiration of the third year had been given, and before its expiration, the parties verbally agreed that the party should continue tenant for another year, no express mention being made of the terms of the tenancy ; it was held, that the tenant con- tinued to hold subject to the terms of the original lease, and conse- quently that the payment on taking possession was aiDplicable to the last quarter of the fourth year.-^ Where there is a recurring number of years. Sec. 294. If a lease is made for twenty-one years, with a further covenant by the lessor, " that the lessee shall have the same for twenty- one years more after the expiration of the said terra, and so from twenty-one yeaj-s to twenty-one years, until ninety-nine years thence next ensuing shall be complete and ended," the first twenty-one years will not be reckoned as a part of the ninety-nine years.^ So, where a lease is made for three years, and so from three years to three years until ten years expire,' it is a lease for nine years only, and the odd year is rejected, because it could not come to fall within any three entire years according to the limitation.* Where a lease was made of freehold and copyhold lands at an entire rent, to hold so much as. was freehold for twenty-one years and so much as was copy- hold for three years, and there was a covenant for renewal of the lease of the copyhold every three years toties quoties during the twenty-one years under the like covenants; and that in the mean time, and until such new leases should be executed, the lessee should hold the said lands, as well copyhold as freehold, &c. ; it was held, that this was only a lease of fhe copyhold for three years, and that the lessor, after the three years, might recover the premises in ejectment against the lessee, there not having been any fresh lease granted.* ■Where the term depends on a contingency. Sec. 295. Sometimes a term is limited condition g,lly, as for ninety- nine years, if the lessee or some other person or persons therein named shall so long live,^ and where one made a lease for forty years, " if his wife or any of their issue should so long live ; " it was held, that the lease was not determined by the death of one of them, but continued 1 Finch V. Miller, 5 0. B. 428. * Fenny v. Child, 2 M. & S. 255. 2 Manchester College v. Trafford, 2 ^ Hughes and Crowther's Case, 13 Show. 31. Coke, 66; Brudnell's Case, 5 Coke, 9 a; 8 4 Bac. Ahr. tit. Leases (L), 3 ; Say Cole Ejec. 402. ». Smith, i?" >wd. 273, 522 a. 458 The Estate. until all were dead, by reason of the disjunctive or^ which goes to and governs the whole limitation : but if the words had been " if his. wife and issue should so long live," then clearly, by the death of any of them within the forty years, the term would have been at an end, by reason of the copulative and^ which conjoins all together, and makes all their lives jointly the measure of the estate.^ If a lease is made to- two for years, if they so long live, it determines by the death of one of them, because their life is but a collateral condition and limitation of the estate, which is broken when one dies. This differs from a lease to two persons for their lives, for that gives an estate to both for their livies, and both liave an estate of freehold therein in their own right ; whicli cannot determine by the death of one of them, for then the other could not Ito said to have an estate for his life, as the lessor at first gave it.^ Where a lease was made for twenty-one years, if the lessee should live so long and continue, in the, lessor's service^ it was held, that it did not determine on the lessor's death.^ If a lease is made for a certain number of years, provided the lessee shall so long continue to occupy the premises personally,, it will cease and determine when- ever he jjarts with the jDossession, even by compulsion of law.'' If a lease be made to J S for twenty years, if the coverture between A and B shall so long continue, it is good for twenty years, although the dis- solution of the coverture may determine it sooner.'' But a lease to one generally during the coverture of A and B would create but a tenancy at will, because of the uncertainty of the duration of the coverture.^ Where a lease for years is made to A and B, " if they should so long live ;" or to A, "if he and B shoald so long live ; " or " if the lessor and lessee, or the lessor and J S should so long live : " in any of these cases, if one dies the lease is determined.' So, if a lease is made dur- ing the minority of J S, or until J S shall come to the age of twenty- one years, it is good ; " and if J S dies before he comes to his full age, the lease is ended : so, if U man makes a lease for twenty-one years, " if J S live so long," ^ or " if J S shall continue to be parson of Dale so long ; " they are good.^° If A makes a lease to B for as many years as A and B or either of them shall live, not naming any Certain num- ber of years : or if the parson of Dale makes a lease of his glebe for so many years as he shall be parson there : they are not certain, neither 3 Co. Lit. 225 a ; Lord Vaux's Case, ' Brudiiell's Case, 5 Coke, 9 6 ,• Dan- Cro. Eliz. 269. iel v. Hill, Cro. Jac. 377; 1 Roll. E. 197; 2 4 Bac. Abr. tit. Leases (L), 4 ; Roll. Bailes v. Wenman, 2 Ventr. 74. Rep. 309. 8 Bishop of Batli's Case, 6 Coke, 35 ; 3 Wrenford v. Gyles, Cro. Eliz. 643 ; Boraston's Case, 3 Coke, Ifl ; Whittome Cole Ejec. 402. v. Lamb, 12 M. & W. 813. ^ Lookwood V. Clarke, 8 East, 185. ° "Wright v. Cailwrigbt, 1 Burr. 282. 6 Say V. Smitli, Plowd. 273. ^ 4 Bac. Abr. tit. Leases (L), 2, 3. ^ 4 Bac. Abr. tit. Leases (L), 3. DUEATIOIT OF. 459 can they be made so by any means ; and yet if a parson makes a lease from three years to three years, so long as he shall be parson, it is good for six years, if he continues parson so long, and for the residue is void for uncertainty,^ and the general rule is, that, if a person makes a lease for a term longer than he has power to grant, the lease will be good for such part of the term as he had power to demise.'' Leases for long terms were formerly discouraged, and a lease for more than forty years, at the common law were held to be void, be- cause they tended to disinherit men.' But, says Me. Platt,* if such a rule ever existed it soon became obsolete,' and now both in this coun- try and in England there is no restraint or limitation upon the duration of leases by the common law ; " and a lease for 99 years, or for 999 years, is of no higher character than one for two years.' In New York, by a constitutional provision, agricultural leases cannot be made for a longer term than twelve years,' but this does not apply to leases of city or other property, for other than agricultural purposes.' If, how- ever, under this constitutional provision a mere right in agricultural land is let for purposes other than that of agriculture, as, for mining purposes simply, in order to take the lease out of the provision of the constitution, there must be an express restriction to such purpose in the lease,^" and the right to use it for agricultural purposes should be expressly excepted from the lease." Leases for life or lives. Sec. 296. At the common law, an estate for life cannot be made to commence from a future day, as an estate of freehold cannot commence 1 Id. (L), 3. the fifty-one years, Geffrey doubting ; 'Martin v. Sterling, J Root (Conn.), but according to the report of this case 210. In Law v. Hempstead, 10 Conn, in 5 Coke, 81 a, the confirmation was 23, the court held that where a right of held good for the whole term, and in way was granted 14 feet 6 inches in the report of the same case by Croke width for carriages, carts, &c., and 11 and by Anderson, they agree with Coke, feet of such was covered by an out- Tomlinson's Case, Helt. 75. standing mortgage, that the grantee ^ Qq_ Lit. 45 h ; Theobald v. Duffey. took a right of way in the remaining 3 The ordinary husbandry lease was for feet and five inches for such vehicles as 21 years. Attorney-Genl. v. Owen, 10 the width of the way would allow to Yes. 560; 2 Blackstone's Com. 142; Eis- pass. See also, Williams v. Robinson, den v. Tuffin, Toth. 187. 16 Conn. 522, where a mortgage made * 1 Piatt on Leases, 668. to cover more land than the mortgagor ^ 2 Blackstone's Com. 142. owned, was held good as to that which ^ Browne d. Tighe, 8 Bli. P. C. IT. S. he did own. See also, Rogers v. Moore, 272. 11 id. 533 ; Wooden v. Haviland, 18 id. ' Both are mere chattels and go to the 107 ; Chamberlain ». Thompson, 10 id. executor. Dillingham ». Jenldns, 15 243. Indeed, this doctrine has been Miss. 479. held from an early period. In Foord's » Const, of New York, Art. 1, Sec. 14. Case, Dyer, .338 6, pi. 43, a lease made « odell v. Durant, 62 N. T. 524. by a prebendary for 70 years, but which i" Rapello, J., in Odell v. Durant, was confirmed by the bishop, &c., for ante. on]y fifty-one years, was held good for " Id. 460 The Estate. infuturo} Thus, a lease to A for life, from the 1st day of Api-il next, &c., at the common law, would be void. But, under the later decisions, the word " f i-om " is construed either as exclusive or inclusive, according to the circumstances and evident intent of the parties ; consequently, such a lease for life " from the day of the date hereof," is construed as conveying a jwesent estate, and such a lease will be upheld." So, a lease to hold for the lessee's life, which term shall begin after the determination of a previous term for their lives, is good.' Under the statute of uses, an entirely different rule prevails in cases of limitations as to demises or trusts taking effect under such statute,* and in most, if not in all the States, estates in freehold may lie in grant as well as in livery of seizin, and such is the condition of such estates in England under the statute 8 & 9 Vict. chap. 106, sec. 2.'' A lease for life, without mentioning whose life, is a lease during the life of the lessee." A lease for life to A during the life of B and C, continues so long as either lives ; ' but a lease for a term of years if A and B shall so long live, is determined by the death of either,^ and the distinction upon the difference between a limitation and a condition. In the case last cited Lord Coke says : "And two differences were taken and agreed in this ease. 1st. Be- tween a limitation, as the case before, and a condition : for if a man leases land for one hundred years, 'if A and B shall so long live,' in that case, if one of them dies the lease is ended, /br the lease was con- ditional, and not determinable by limitation of estate ; and the life of a man is collateral as to the lease, which is but a chattel. " The second difference was between a limitation of an estate of free- hold during lives (which is the usual and ordinary limitation of a free- hold) and a collateral determination, as, during the time that C and D shall be of the Inner Temple, or during the time that C and D shall be dwelling in Norfolk, or shall be justices of the peace, and the like ; for in these cases the failure of the one shall determine the estate." Reddendum. Sec. 297. The reddendum fixes the amount and kind of compensa- 1 2Blackstone's Com. 144, 315; Sliep. construe the words of parties so as to ToiTcli. 272. effectuate their deeds and not destroy ^Freeman v. "West, 2 Wils. 165; Ack- them: more especially where the words land D. Luttey, 9 Ad. & El. 879; Pugh themselves abstractedly may admit of V. Duke of Leeds, Comp. 714. In the either meaning. last named case, Lobd Mansfield, ^ Underliay v. Uuderhay, Cro. Eliz. after a review of all the previous cases, 290. said : " The ground of the opinion and * Gilbertson v. Eicliards, 4 H. & N. judgment which I now deliver is, that 277; Elvis v. Watson, 5 M. & W. 255. 'from' may, in vulgar use, and even in ^1 Sanders on Uses, 142 ; 1 Piatt on the strict propriety of language, mean Leases, 692. either' inclusive or exclusive ; that the ^ Co. Lit. 42 a. parties necessarily understood and used ' Pritohard v. Dodd, 5 B. & Ad. it in that sense which made their deed 693. effectual ; that courts of justice are to ^ Bruduell's Case, 5 Coke, 9. Reddexduji. 461 tion to be paid by the lessee to tlie lessor for the use ami possession of the premises demised, and usually sj)ecilies the period at which such recompense is to be paid or rendered. No special form of words is essential. A proviso,^ or a covenant,^ may constitute a good reservation of rent, and\ letting " at and under the rent of'' any sum named, is an agreement by the tenant to pay that rent.^ Under the words yielding and paying, a covenant for payment of the rent is implied.* Rent payable in advance. Sec. 298. Rent may be made payable in advance, but in that case the i-eddendum should state expressly that the rent is so payable from time to tiine, or ahoays, in advance, or the stipulation for payment in advance may be held to relate to the first quarter's rent only.^ Certainty as to amount of rent. Sec. 299. The amount of the rent must be either expressly stated, or otherwise rendered capable of being ascertained with certainty.^ In some cases there may be a certainty in uncertainty ; as a man may hold the premises of his landlord to shear all the sheep depasturing upon the premises; and this is certain enough, although the landlord has sometimes a great and sometimes a small number there.' A roy- alty of so much quarterly per yard for marl got, and so much per thou- sand for all bricks made, or so much per square for slate quarried, or so much per bushel for each bushel of grain raised by the tenant, is a rent capable of being ascertained with certainty.* The rent must be reserved to the lessor and his lieirs, and not to a stranger.^ But the law uses all ingenuity imaginable to conform the reservation to the estate." Hence a reservation to the lessor, entitled in fee, his heirs, executors, and assigns, will not prevent the rent from following the reversion and going to the heir." Mode of reservation. Sec. 300. The most clear and sure mode of reservation is to reserve rent yearly during the term, and leave the law to make the distribu- tion, without an express reservation to any person.^^ A reservation of 1 Harrington d. Wise, Cro. Eliz. 486. J. Q. B. 309. See judgment in Watson 2 Drake ». Munday, Cro. Car. 207. v. Waud, 8 Ex., at p. 339. 8 Doe B. Kneller, 4 C, & P. .3. ^ Lit. s. 346 ; 2 Wms. Saund. 370. * Igguldeu V. May, 9 Ves. 830; Hellier See post Bent. J). Casbard, 1 Sid. 266; Porter v. Swet- i' Saclieverell u. Froggatt, 1 Vent. 161. nam. Styles, 406. " Dralce b. Munday," Cro. Car. 207. o See Holland v. Falser, 2 Stark. 161. See Sacheverell v. Froggatt, 2 Wins. 6 Co. Lit. 142 a. Saund. 367 a. ' Co. Lit. 96 a. 12 -^hitlock's Case, 8 Co. E., at p. 8 Daniel v. Gracie, 6 Q. B. 145; 13 L. 71. 462 The Estate. rent to the lessor only, not mentioning his heirs, &o., will enure only during the life of the lessor,' unless the reservation be expressly to the lessor during the term, in which case rent will continue payable to the end of the term." " Net rent." Sec. 301. A stipulation for a net rent means a rent clear of all de- ductions ; hence the tenant under a lease containing this reservation will be liable to pay land tax and water rates, and all rates chargeable upon the premises.^ 1 Co. Lit. 47 a. s Bennett v. Womack, 7 B. & C. 629; 2 Sacheverell v. Froggatt, 2 Wms. 3 C. & P. 96 ; Bradbury v. Wright, 2 Saund. 367 o. Dougl. 624. General Rules foe. 4(i3 CHAPTER XXX. CONSTETTCTION OF LEASE8. Sec. 302. General rules for. Sec. 3Q3. Oral evidence admissible wlien to explain, &e. General rules for. Sec. 302. Leases, whether by deed or otherwise, are to be construed, like all other contracts, so as to effectuate the intention of the parties. The rules for ascertaining which, as well as the general rules for con- struction, are so fully given in the succeeding chapter on Covenants as to render their repetition here unnecessary. It may be stated as a gen- eral rule, that if a lease or deed may operate two ways, the one of which is consistent with, and the other repugnant to, the intention of the par- ties, that construction will be adopted which will give effect to the in- tention of the parties, if by law it may so operate, but if it cannot op- erate in one way it will be made to operate in another if possible.* If a material word is omitted and the other words in the lease cannot have their proper effect unless it is supplied, the court will, when the imper- fect expression can be resolved by reference to the context of the lease when brought into contact with the surrounding circumstances, aid the imperfect expression in favor of the manifest intention of the parties, and will read the instrument as though the word was inserted in the instru- ment, and that, although the particular passage where it ought to stand conveys a sufBciently distinct meaning without it.^ If a wrong word, descriptive of the estate, is used, and in applying the description to the estate the error is obvious, the right word will be supplied. And under this rule, the word " east " in a lease, for a boundary in a grant will be 1 Goodtitle ». Bailey, Camp. 600; Solly " I promise not to pay, &c.," the court V. Forbes, i Moore, 448 ; Hotham v. rejected the word not. Thrall v. New- East India Co., 1 T. K. 638. ell, ante. And where a bill of exchange 2 Wright V. Dickson, 1 Dowl. 141; was made for " Twenty-five, seventeen Jarvis v. Wilkins, 7 M. & W. 410; shillings," the court supplied the word Coles V. Holme, 8 B. & C. 568; Lang- pounds. Phipps v. Tanner, 5 C. & P. don V. Groole, 3 Lev. 21; Say's Case, 10 488. And where a person agreed to pay Mod. 46. So the court will reject in- a tailor a certain sum " for a suit of, or- consistent words. Thrall v. Newell, 19 tiered for, ifec," the word clothes was Vt. 202. In a case where a note read, supplied. Jarvis v. "Wilkins, ante. 464 CoNSTEUCTioN ov Leases. construed to mean "west" where such correction is obviously re- quired by the other calls in the instrument.' So, where, a lease in writing is made, and certain words have been stricken out, which, if left, would have entirely changed the meaning of the lease or the character of the estate granted, yet, if the omission of such words leaves the matter in doubt as to what the parties really mean, or as to the char- acter of the estate which was intended to be conveyed, resort may be had to the words erased, to ascertain their intention. Thus, in one case '■' a lease was produced in evidence by which the plaintiff agreed to let the premises for the term of one year fully to be completed and ended. Most of the subsequent stipulations in the lease w^ere inap- plicable to a tenancy determinable by a notice to quit. The lease on the face of it originally contained words showing a tenancy from year to year, which were struck out, and the words as to the term were'left as stated above. It was held, that the words that had been struck out might be looked at to show what the intention of the parties w^as, and that the parties only intended a tenancy for one year, and that all words inconsistent with such a tenancy must be treated as expunged. When necessary to do so, the courts will draw all suc-li plain and reasonable inferences from the language and general context of the in- strument as appear to be necessary to give effect to the obvious mean- ing of the parties. Thus, in a case where the lease recited an agree- ment made by the lessee with other part owners to pull down a certain smelting mill upon the premises and build another of larger dimen- sions, and the lease contained an express covenant to keep such new mill in repair, the court held that a covenant to huild the mill jnight be implied from the import of the whole deed, and that the lessor might maintain an action of covenant for the lessee's failure to do so, and recover his proportion of the damages for such failure.^ Care should always be taken to describe the premises with reasonable certainty, but too much particularity of description may be worse than too little, and if the description is so vague and indefinite that it cannot be applied tc the subject-matter, and there is no reference in the grant to any other conveyance or anything that will aid the application of the grant by construction or otherwise, it will be void ; but if by any rules of con- struction the grant can be applied to the subject-matter, it \\i\\ be up- held, notwithstanding the description is vague and uncertain, and, if necessary, the court will reject or reconcile necessary particulars.* 1 Mizell V. Simmons, 79 IST. C. 182. 3 Iowa, 507 ; Bailey v. White, 41 N". H. 2 Strickland v. Maxwell, 2 C. & M. 337 ; Harvey v. Mitchell, 31 id. 575 ; 539. Jackson v. Marsh, 6 Cow. (N. Y.) 281 : " Sampson v. Easterly, 9 B. & C. 505; Armstrong v. Mudd, 10 B. Mon. (Ky.) Saltarmv. Houston, 1 Bing. 433. 144; Kea'o. Eobeson, 5 Ired. (X. C.) * Hall V. Foster, 7 "Vt. 100 ; Wing v. Eq. 375; United States v. King, 3 How Burgis, 12 Me. Ill ; Wright b. Cochran, (U. S. ), 77!. If necessary, a general de- Oral Evidence admissible when to Explain. 465 Where the description includes several particulars, all of which are necessary to ascertain the esta^te, no estate will pass except such as will agree with every particular ; ^ but if the description is suflBciently certain to ascertain the estate conveyed, the estate will pass although it does not agree with some of the particulars.^ The rule may be said to be, that descriptions in a grant are to be construed liberally, so as to carry into effect the intent of the parties if possible, and it is only necessary that after subjecting it to every modification which the actual condi- tion of the premises may require, there shall be left some substantial designation of the thing to be conveyed, so that the court, looking at the property in the condition in which it was when the grant was made, that the description can be fitted to it, and was intended to relate to it.' It may be stated as a general rule that, where from the whole in- strument it appears to have been the intention of the party to bind himself by any agreement, a covenant to do the thing in question may be collected from the whole of the lease taken together, or from any form of expression in any part of it,^ and the courts have gone to great lengths in extracting covenants from the various parts of a deed, where, possibly, the parties never in fact intended to covenant, as from recitals in the deed, &o.^ Oral evidence admissible 'when to e:splain, Sec. Sec. 303. The general rule is too well established to need rejietition, that parol evidence is not admissible to explain, add to, or vary the meaning of express terms employed in a deed or other written instru- ment," but like most general rules, it is subject to numerous exceptions. scription will govern a particular one. matter are merged in the written con- Sawyer B. Kendall, 10 Cush. (Mass.) teact, and it cannot be added to or sub- 241 ; Wortliington v. Hyler, 4 Mass. 196. tracted from by proof of a different "Seventy acres lying and being in the agreement, or of any agreement in any south-west corner of a section," is a wise affecting it. Smith v. Higbee, 12 good description, and the land will lie Vt. 113 ; Cole v. Spann, 13 Ala. 531 ; in a square. Walsh «. Ringer, 2 Ohio, Albert ». Zeigler, 29 Penn. St. 60 ; Pil- 327. mer v. Banlt, 16 Iowa, 321 ; Bradley c. i Jackson v. Clark, V John. (N. T.) Bentley, S Vt. 243 ; West ». Kelly, 19 217; Worthington v. Hyler, 4 Mass. 196. Ala. 359; Walker v. Engler, 30 Mo. 130; 2 Worthington v. Hyler, ante. Vaughn v. Lynn, 9 Mo. 870 ; Norton v. 8 Peck 0. Mallams, 10 N. Y. 509. Woodruff, 2 X. T. 153 ; Hoffman v. < Duke of St. Albans v. Ellis, 16 East, Hammer, 14 N. J. L. 269 ; Hair v. La 352; Deering «. Farrington, 1 Mod. 113; Brouse, 10 Ala., 548; Lockett i). Tobey, Seldon u. Senate, 13 East, 63 ; Russell b. 10 La. An. 713 ; Faukboner v. Faukbo- Gulwel, Cro. Eliz. 657; Brice D.Carre, ner, 20 Ind. 62 ; Dean ». Mason, 4 Conn. 1 Lev. 47; Pordage v. Cook, 1 Saund. 428; Brandon Mfg. Co. v. Morse, 48 Vt. 319. 322 ; Walters v. Vandervee^, 17 Kan. SBarfoot v. Freswell, 3 Keb. 465; 425; Di.x;on v. Clayville, 44 Md. 573,; Severn v. Clark, 2 Leon, 122; Graves v. Slocum v. Smith, 2 Low. (U. S. D. C.) White, 1 Eq. Cas. Abr. 84; Hollis v. 212 ; McMillen v. Parkell, 64 Mo. 286 ; Carr, 2 Mod. 87. Church ». Town, 49 Vt. 29. The fact that " All previous conversations, contracts a lease is in the hands of a third person 01 agreements relating to the subject- will not authorize parol evidence as to 30 466 CONSTEUCTION OF LEASES. It is not competent to show hj joarol that certain other premises were intended to be included in the lease ; or that certain premises named therein were intended to have been excluded ; ■"■ or to show that more or less rent ,was agreed upon ; or that it was to be apportioned ; ^ or that it was to be paid at a different time from that named in the lease ; ^ or that the lease was to commence at a later date ; ' or that the tenant was to pay the taxes, &c. ; ^ or that other rights and privileges than those named in the lease were given ; ^ or that the landlord agreed to repair the prem- its contents, unless the person has first been subpoenaed to produce it. Kucker V. McNally, 5 Blacld. (Ind.) 123. Nor will the fact that he is out of the State, and has been notified to produce it, change the rule. Mc®or v. Mont^ gomery, , 4 , Penn. St. 237. Where the " lease contains no warranty, express or implied, that the premises are fit for occupation, it is not competent to show that the landlord represented them to be so. Dutton v. Gerrish, 9 Cush. (Mass.) 89. Where an assignment of a lease is made in writing, it is not com- petent to show that the assignee agreed to pay the accrued rent. Graves v. Porter, 11 Barb. (N. T.) 192. Where a lease abrogates a previous written agree- ment, it is not competent to show that it was not Intended to have thjit effect. Tibbetts v. Percy, 24 Barb. (N. Y.) 39. Under a lease of coal mines, containing no stipulation as to the quantity of coal to be rained, but fixing a certain sum per bushel as the rent to be paid, parol evidence is not admissible to show that the lessee agreed to mine ahy particular quantity, or even all that he could. Lyon V. Miller, 24 Penn. St. 392. Wlien a party seeks to enforce a written con- tract, although the defendant cannot ifi- troduce parol evidence to alter or vary it, yet, if the plaintiff introduces evi- dence as to a contract not embraced in the writing, the defendant is at liberty to Introduce evidence of a differeilt con- tract for the purpose of contradicting the plaintiff's evidence, although it has the effect to vary the terms of the writ- ten contract. Arbeiter d. Day, 38 Conn. 155. Where there 'is no latent ambigu- ity, parol evidence is not admissible. Thus, where lands leased were bounded on the north, line of a town, parol evi- dence was held Inadmissible to show that a different line had been understood by the parties to be the true boundary. So where a lease was in writing, and there were only two exceptions therein, it was held that it could not be shown by parol that the lessor intended to mal^e still another, Haney b. Newton, 7 Pick, (Mass.) 29, and generally it may be said, that parol evidence is not ad- missible to prove an agreement that di- rectly contradicts the lease, Jungerman V. Bovee, 19 Cal. 854 ; Carpenter v. Shanklin, 1 Blackf. (Ind.) 808, or that it was intended to have a different ef- fect from that which itpurports to have. As, that it was intended as a mortgage, Stewart b. Murray, 13 Minn. 426, or thai it was understood that the lessee might occupy the premises for any purpose, when the vise was specially restricted in the lease. Sientes v. Odier, 17 La. An. 153. 1 Barton v. Dawes, 10 C. B. 261 ; Meres v. Ansell, 8 Wils. 275 ; Norton v. Webster, 12 Ad. & El. 442; Hope v. At- kins, 1 Price, 143. 2 Fhnn v. Calow, 1 M. & G. 589; Pres- ton V. Merceau, 2 W. Bl. 1249. But if no rent is named in the lease, parol ev- idence is admissible to show what rent was agreed upon. King c. Woodruff, 2S Conn. 56. ^ Thus, in Carpenter v. Shanklin, 7 Blackf. (Ind.) 308, by lease of real es- tate executed by the lessor and lessee, under their seals, for one year, the time fixed for the payment of the last half year's rent was February 1, 1841. It was held, that parol evidence that the said rent was not due until March 1, 1841, was inadmissible ; also, that the landlord, in such case, had a preference for said rent over an execution levied February 1, 1841, on the tenant's goods. * Henson v. Cooper, 3 Scott's N. E. 48. 5 Eich D. Jackson, 4 Br. P. C. C. 514, cited and reported in full in note c, 6 Yes. 334. " .Jungerman v. Bovee, 19 Cal. 354; Sientes v. Odier, 17 La. An. 153. But where the lease provides that he shall hold the lease subject to "manor regu- lations," or "municipal regulations," &c., the lessee may show by parol what such regulations are. Dorsey v. Eagle, 7 G. & J. (Md.) 321. Where certain specific exceptions are made iu a lease, it cannot be shown by parol that other exceptions were agreed upon. Hovey V. Newton, 7 Pick. (Mass.) 29. Oeal Evidence admissible when to Explaist. 467 ises ; ^ or, indeed, where the lease is explicit, is parol evidence even ad- missible to aid in its construction.'' But as previously stated, there are exceptions to the rule, and in addition to those exceptions it may be said that parol evidence is always admissible to defeat the lease, as, to show that it was made for an illegal purpose," or that certain formalities re- quired by law were not observed ; * or, indeed, fraud or anything that tends to show that the deed is void in law may be shown.^ So, too, it is competent to show by parol evidence to what premises the lease ap- plies, when, although the lease upon its face is clearly enough ex- pressed, yet an ambiguity arises from extrinsic circumstances. Thus, where the lease is of " The Lanier House ; " or it is competent to show what premises are connected and used with it, and what extent of building and grounds are included under the expression, and testi- mony as to what was ordinarily meant in that locality by the words is admissible ; ° or what premises are understood to be embraced in the words " my home farm," or any other general description of premises.'' 1 Mayer -b. Muller, 1 Hilt. (K T. C. P.) 491; Post V. Vetter, 2 E. D. S. (N. Y. C. P.) 248 ; New York v. Price, 5 Sandf. (N. Y. Supr. Ct.) 542. In How- ard V. Thomas, 12 Ohio St. 201, the plaintiff and defendant executed a written agreement for the lease of a house for tlie term of one year, at the rent of f 100. In an action by the plaintiff against the defendant for not repairing the roof of the house, the plaintiff offered to prove, by parol, that, at the time of the execution of the writ- ten agreement, he refused to sign it, unless the defendant would promise to repair the roof of the house ; and there- upon the defendant promised to do so, and he, the plaintiff, in consideration of such promise, signed the written agree- ment. It was held, that such evidence was inadmissible. 2 2 Best on Evidence (Wood's Edn.), note, page 888. 8 Doe V. Allen, 8 T. E. 148 ; Rex v. Northwingfield, 1 B. & Ad. 912 ; Light- foot 1). Tenant, 1 B. & P. 555. Where fraud or illegality are averred, parol ev- idence is always admissible to establish it, whatever may be its effect upon the contract. Thus, it may be shown that a material part of the contract has been inserted or altered by the fraud of the other party. Baltimore Steamboat Co. V. Brown, 54 Penn. St. 77 ; Pierce v. Wilson, 34 Ala. 596 ; Townsend v. Cow- ler, 31 id. 428; Hunter w. Biglyon, 30 III. 228; Hamilton c. Congers, 28 Ga. 276; Sanford v. Handy, 23 Wend. (K. Y.) 126; Akin d. Drummond, 2 La. An. 92; Gatting v. Newell, 9 Ind. 572 : Davis V. Stern, 15 La. An. 177; Bartle v. Vos- burg, 2 Grant's Cas. (Penn;) 277 ; Sel- den V. Myers, 20 How. (U. S.) 506, or that the other party by fraud has pre- vented the reduction of the whole con- tract to writing. Phyfe v. Wardwell, 2 Edw. Ch. (N. Y.) 47; Elliott v. Con well, 13 Miss. 91; Wesley v. Thomas, 6 H. & J. (Md.) 24; Kennedy v. Kennedy, 2 Ala. 571 ; Chetwood v. Britain, 2 N". J. Eq. 438 ; Sull v. Cass, 43 N. H. 62 ; Martineau v. May, 18 Wis. 54. As to proof of illegality, see Lazare v. Jacques, 15 La. An. 599 ; Corbin v. Sistrunk, 19 Ala. 203. * Kelfe V. Ambrosse, 7 T. E. 551. ^ Goodwin b. Hubbard, 15 Mass. 219 ; Boyer ». Grundy, 3 Pet. (M. S. ) 219 ; Russell ij. Rogers, 15 Wend. (N". Y.) 351; Prentiss b. Russ, 16 Me. 30; Wren ». Woodlaw, 1 Ala. 363. Where fraud is alleged, any consideration or fact, however contrary to the averment of a deed, may be proved to show the fraudulent nature of the transaction, Roscoe's Ev. (13th ed.) 22; Paxton ». Popham, 9 East, 421, for fraud is an ex- trinsic and collateral matter that avoids all transactions, and the same is true as to illegality. Chandler '». Ford, 3 Ad. & El. 649; Collins b. Blantern, 2 Smith's S. C, notes. ^ Harris v. Dub, 57 Ga. 77; Sargent ». Adams, 3 Gray |Mass. ), 72. "> Hutchins v. Scott, 2 M. & W. 816; Hutchins v. Groom, 5 C. B. 515. Where there was an agreement in writing to lease for a term of years " The Adams House, situate on Washington Street, Boston," it was held that it might be 468 CONSTEUCTION OF LEASES. Thus, a building misdescribed as number 38, may be sliown in fact to mean number 35 ; ^ especially would this bo so, if it was sliown that the Itessor owned number 35, and did not own number 38, and the tenant had gone into possession of 35 under the lease. But if the landlord owned both, and there was nothing in the lease to indicate that 35 in- stead of 38 was intended, and the tenant had not gone into possession under the lease, it would not be competent in a court of law to show that 35 was intended. Where a grant is in general terms, the addition of particular terms operate as a restriction and limitation upon the grant. Thus, if a lease is of "the premises on the corner of College and Centre Street," the whole of the jiremises there situated owned by the lessor will pass ; but if, in addition thereto, the words " recently occupied by E. Laporte, as a French Hotel " are added, the latter clause limits the grant to such part of the premises as were occupied by E. Laporte for a French Hotel, and no more, and no less will pass. Therefore, the extent of the grant being rendered uncertain by such restrictive clause, parol evidence is admissible to show what part of the premises was occupied by E. Laporte for a French Hotel, and thus, to define the extent of the demise.' proved by parol to have been intended by the parties toinclude only so much of the building as was fitted up as a hotel, by the name of the Adams House, and not the separate shops which occupied the whole of the ground floor, except the entrance to the hotel. Sai'gent v. Adams, 3 Gray (Mass), 72. Whether certain premises are or are not embraced in the lease, when the lease does not explicitly de- scribe them, is always open to parol proof. Crawford v. Morris, 5 Gratt. ( Va. ) 90 ; Guy v. Barnes, 29 Ind. 103 ; Corbett V. Costello, 8 La. An. 427 ; D'Aquin v. Barbour, 4 id. 441. In Chamberlain v. Letson, 5 N. J. L. 152, the lease demised a " house and lot con- taining three acres, more or less." The lessee claimed seven acres, the whole being in one lot not separated by a fence. Parol evidence was admitted to show that the original lot connected with the house was about three acres ; that the lessor added about four acres by purchase, {ind occupied the whole at the time of the demise, and that the lea;se was intended by the parties to cover only the original three acres, visi- ble remains of the old original line being still visible. A call in a grant for a line beginning at the "nortli corner of R's store," wliere the stoi'e stands sqtiarely east and west and has tiiio north cor- ners, is a latent ambiguity, and may be explained by parol proof. Lawrence ». Hyraan, 79 N. C. 209. 1 Hutchins v. Scott, ante. And even though such a lease was void to create any interest, if the tenant went into possession of the premises intended, it would be admissible to prove the terms of the tenancy. Bealand v. Hurst, 3 Starkie, 60. ^ Alger V. Kennedy, 49 Vt. 109 ; 24 Am. Rep. 117. See also. Nutting v. Herbert, 35 jST. H. 125. In Conolly b. Vernon, 5 East, 51, the rule was thus stated : "Wliere there is a grant of a particular thing once sufficiently ascer- tained by some circumstance belonging to it, the addition of an allegation, mis- taken or false, respecting it, will not frustrate the grant ; but where a grant is in general terms, there the addition of a particular circumstance will oper- ate by way of restriction and modilica- tion of such grant. Therefore, where one having customary tenemen'.s, com- pounded and uncompounded, surren- dered to the use of his will ' all and sin- gular the lands, tenements, tike, icltatso- ever, in the manor, which he held of the lord by copy of court-roll, in whose ten- ure or occupation soever the same were, being of the yearly rent to the lord in the whole of 41. 10s. 8id., and com- pounded for:' held, that the words ' and compounded for,' restrained the operation of the surrender to that de- scription of copyholds then belonging to the surrenderor. And. that the words 'being of the yearly rent, . Ellis, 16 the language of a sealed instrument is East, 352 ; Hollis v. Carr, 2 Mod. 87 ; such as to show that the parties thereto Comyn's Digest, tit. Covenant; Lunt v. have assented to the performance or for- Norris, 1 Burr. 290 ; Hill k. Carr, 1 Ch. bearance of a future act. Marshall v. Cas. 294 ; Brett v. Cumberland, Cro. Craig, 1 Bibb (Ky.), 379; Yocum v, Jac. 399. These words in a lease, " and 480 COVE^TANTS. employed, but of themselves they do not raise a covenant, nor does their absence prevent the agreement from being a covenant. The only indispensable requisites are, that there shall be an agreement between the parties, and that it shall be under seal. Thus, the words " I hereby agree to pay A four dollars a day for his services, &c., and to pay him the amount of wages due him each week," signed and sealed by a party, is a sufficient covenant ; ' or, " I hereby agree not to carry on the trade of a blacksmith in A for the period of ten years from the date," predicated upon a good consideration, and signed and sealed, is a covenant, though the word " covenant " is not used.° A mere recital in a lease, or an exception, may amount to a covenant, if, from the whole instrument, such appears to have been the intention of the par- ties.' Thus, in a lease of land, the lessee covenanted to plough and sow certain land, " except the rabbit warren and sheep walk," and he having ploughed and sowed a part of the rabbit warren and sheep walk, it was held a breach of the covenant, the court holding that the exception was as much a covenant or agreement as the rest of the stip- ulation, and that the word " except," in the covenant, was to be read the same as though the words " but not " had been used.* So, where the lessee shall repair the mill (being the thing leased) as often as need shall require, and shall leave them sufficiently repaired at the end of the term," amounts to a covenant to repair, and leave in repair, because it is a clear agree- ment of the parties. Bret v. Cumber- land, Cro. Jac. 399. See also, Anony- mous, 1 Rolle's Rep. 359, pi. 391. So where a lease contained a stipulation that, the lessee should repair, " provided always, and it is ar/reed, that the lessor shair find great timber, &c.," it was held that this amounted to a covenant on the lessor's part to find great timber, because it amounted to an agreement on his part to do so, and that it was not a mere qualification of the lessee's cov- enant. Holder v. Taylor, Brownl. 23. But in the same case it was held, that except for the use of the words, " and it is agreed," the words "the lessor shall find great timber," would not have amounted to a covenant on his part to do so absolutely, but would have been a mfere qualification of the lessee's cov- enant. -A lease from A to B, "upon condition that he shall acquit A of or- dinary and extraordinary charges, and shall keep and leave the houses at the end of the term in as good condition as he found them," is a covenant. 6 "Vi- ner's Abr. tit. Covenant, 379. What- ever shows an intention on the part of parties thereto to bind themselves to the performance of a stipulation, is a covenant. Taylor b. Preston, 19 Penn. St. 461. 1 Eandel B. Canal Co. , ante. " Grundy v. Edwards, 1 J. J. Marsh. (Ky.) 368. 8 Sampson b. Easterby, 9 B. & C. 505; Say V. Mattram, 19 C. B. N. S. 479; Farrall v. Hilditch, 5 id. 840; St. Albans V. Ellis, 16 East, 352 ; Horry b. Frost, 10 Rich. (S. C.) Eq. 109; Penn v. Preston, 2 Rawle (Penn.), 14; Lowell b. Hilton, 11 Gray (Mass.), 407; Huff v. Nickerson, 27 Me. 106. ■* St. Albans u. Ellis, ante. In Grave- nor V. Parker, And. 19, pi. 38, a lease for life from A to B, 2)rovided that if the lessee dies his executor shall hold it for the balance of the term, was held a cov- enant, because the words of the proviso purported an agreement. When the lessor recites that he is possessed of a certain interest in an estate, he thereby covenants that he is possessed of such an interest. Severn's Case, 1 Leon, 122 ; Aspdin b. Austin, 5 Q. B. 683. Thus, if A makes a lease to B, and re- cites therein that he is termor for 99 years if three lives so long continue, and that one life is in being, it is held to amount to a covenant that the life continued. Holies b. Carr, 3 Swanst. 648. So the recital in a deed of a pre- vious agreement to do a certain act, amounts to a covenarit in a deed for the performance of it, for the recital oper- ates as a solemn confirmation of the ExPEEss Covenants. 481 a lease of the lessor's interest in certain mines contained a recital of an agreement made by the lessee with the lessor and the cfwners of the other two-thirds interest in the mines, for pulling down an old smelting " agreement and intent precedent." Barfoot v. Freswell, 3 Keb. 465. But a recital does not necessarily imply a cov- enant, and whether it does so or not in each case depends on what is to be col- lected as the intention of the parties from the whole instrument. Ivens u. Elwes, 24 Law J. Ch. 249. Words of proviso and condition will also be con- strued as an express covenant, when such a construction is necessary to give effect to the apparent intention of the parties. Thus, where a conveyance was made by the plaintiff of an incorporeal right to the defendant, provided that out of the first profits the defendant should pay the plaintiff 500!., it was holden that an action of covenant might be maintained on these words of proviso for the non-payment of the money. Clapham v. Moyle, 1 Keb. 842, 897. Where a lease executed by the lessor and lessee contained a covenant on the part of the lessee to maintain and repair a farm-house and premises, " the said farm-house and buildings being pre- ■fiously put into repair " by the lessor, it was held that these words amounted to an absolute covenant on the part of the lessor to put the house into repair, and not merely to a qualification of the covenant of the lessee. Connoch v. .Tones, 3 Exch. 2.33. So, where a lease w?.s granted on condition that the lessee should keep and leave the demised premises at the end of the term in as good plight as he found them, it was iholden that an action of covenant would lie for a breach of this condition. Where, however, the proviso or condi- tion is by way of qualification of the covenant, or defeazance of the deed or of the estate and interest thereby cre- ated, and not in the nature of an agree- ment ; as, if a lease be granted, provided and on condition that the lessee collect and pay the rents of the other houses of the lessor, an action of covenant is not maintainable. If lessee for years cove- nants to repair, "provided always and it is agreed that the lessor shall find great timber, &c.," a covenant is ere-, ated on the part of the lessor to find the timber by reason of the word "agreed ; " but if the lessee had covenanted to re- pair provided the lessor found the tiTn- ber, without the word "agreed," Ihe proviso Would not have amounted to a covenant on the part of the lessor, but to a qualification only of the covenant of the lessee. 1 RoUe Abr. 518 ; Bac. Abr. Cov. ; Geery v. Eeason, Cro. Car. 128 ; Simpson v. Titterell, Cro. Eliz. 242 ; Wolveridge v. Stewart, 3 M. & S. C. 566. A lessee covenanted that he would at all times during the continu ance of his lease fold his flock of sheep which he should kc'cp upon the demised promises upon such parts where the same had been usually folded. It was held that this amounted to a covenant to keep a flock of sheep upon the prem- ises, and that it would consequently be no answer to an action upon the cov- enant for the defendant to say that he kept no sheep, and therefore had none to fold. Webb v. Plummer, 2 B. & Aid. 749. A landlord demised certain limestone quarries and lime-kilns to a tenant, who covenanted, amongst other things, that he would, at all times and seasons of burning lime, supply the les- sor and his tenants with lime at a stip- ulated price, for the improvement of their lands and the repaii-of their houses; and it was held that this amounted to a coven- ant to burn lime at such seasons, and that it was not a good defence to plead that there ivas no lime burned on the premises out of which the lessor could be supplied. Earl Shrewsbury v. Gould, 2 id. 4ST. If two persons covenant together that it shall be lawful for the one to hold possession of the other's property for a certain time, the law infers therefrom an agree- ment that he shall not detain it for a longer time, but shall then give it up to the owner ; if, then, he detains it be- yond that time, it is a breach of cove- nant. Therefore, where it was cove- nanted and agreed in a charter-party of affreightment, that " forty days should be allowed for unloading a vessel and loading her again," it was held that this amounted to a covenant not to detain the ship for loading and unloading be- yond the forty days. Randall v. Lynch, 12 East, 182. Where recitals are made by a party under misapprehension and mistake, -or in consequence o^' the fraud of the other parly, it will not be i-e- garded as conclusive upon the party in equity, and he will be permitted to show by parol that the recital is not true, and that it was inserted in the covenant under a misapprehension and mistake. Rich r. Atwater, 16 Conn. 409. But at law the recital is conclusive and cannot be contradicted or attacked by parol ev- idence. Jackson c. Munroe, 9 Wend. (N. Y.) 209; Shelton v. Allcox, 11 Conn. 240 ; Stow V. Wyse, 7 Conn. 214 ; Car ver «. Jackson, 4 Pet. (U. S. ) 82; Shelley V. Wright, Willes, 9. 31 482 Covenants mill and building another of larger dimensions upon a waste near the mines, and the lease contained a covenant to keep such new mill in repair, and so leave it at the expiration of the term, but did not con- tain any covenant to build the mill; it was held, that a covenant to build the mill was to be implied from the recital and other covenants in the lease, and that the lessor might sue thereon for damages for its breach in respect of his third interest. And so, generally, the question as to whether or not a recital, exception, proviso, &c., contained in a deed is a covenant or a mere qualification of a covenant, is to be ascer- tained from the facts whether it amounts to an absolute agreement on the part of the person sought to be charged with the covenant to do or not to do the thing named, or whether it merely amounts to a qualifi- cation of a covenant on the part of the other party, excusing him from performance because of the non-jierformance of the person seeking to charge him as covenantor.^ Covenants for payment of rent. Sec. 305. The words " yielding and paying " in a lease make an im- plied covenant at least, and the lessee is liable thereon for the non- payment of the rent.^ So if the lease provides that the lessee sh.all yield and pay such a rent and all maimer of taxes, charges and impo- sitions whatever, it is held a covenant to pay the whole rent discharged of all taxes before or afterwards imposed.'* An expi-ess covenant to pay rent should be inserted in all leases, as if there is only an implied covenant it is inoperative if the lessee assigns his term, as such cov- enants rest merely upon a privity of estate ; * but where there is an ex- press covenant it rests upon privity of contract, and the lessee remains liable as well after as before he assigns his estate.*^ If, in case the premises are destroyed by fire or other casualty, it is intended that the rent shall cease, an express provision to that effect must be inserted in the lease, or liability for rent will continue on the lessee's part as well after the destruction of the premises as before, and the fact that the lessee covenants to repair, &c., " except damages by fire," does not limit the operation of the covenant to pay rent,' or excuse the tenant therefrom.'' In New York, however, by statute, the tenant is excused from his 1 Esterby v. Sampson, 6 Bing. 644. Adams v. G-ibney, 6 Bing. 656 ; Staines See also, Hayes i). Kershaw, 1 Sandf. Ch. v. Morris, 1 V. & B. 8. (N. T.) 2.58. 3 Giles v. Hooper, Garth. 135. ■* Bret D. Cumberland, ante; Kimpton 2 Porter v. Swetnam, Styles, 406 ; v. Walker, ante. Kimpton v. Walker, Vt. 191, but in "^ 2 Piatt on Leases, 163 ; Auriol v. the case last cited, it was held that such Mills, 4 T. R. OS. words, creating an implied covenant « Hore v. Groves, 3 Anst. 387. See only, tlie lessee was not liable thereon Chapter on Rent, post. after he had assigned his term. See ' 2 Piatt on Leases, 166. See post, pp. also, Bret u. Cumberland, Cro. Jac. 523; FoK Payment of Rent. 483 covenant to pay rent, if the buikling, without his fault, is so de- stroyed or injured as to be untenantable or untit for occupancy, so long as such premises, from such causes, remain untenantable or unfit for oc- cupancy, unless there is an express covenant to the contrary.^ But, under this statute it is not only held, that, in order to suspend the tenant's liability for rent the premises must, from such causes, have become unfit for occupancy, but tJve tenant must not have remained in the occupancy tliereof^ and he is not excused from liability because the landlord refused to accept a surrender upon the ground that the alleged causes do not exist.* But it seems that the tenant may remain temporarily in possession of premises injured by fire for the purj^ose of selling off goods damaged by the casualty without incurring liability upon the covenants in his lease, for the rent of the premises during such temporary occupancy, but he is liable for use and occupation.'' The advantages incident to an express over an implied covenant have already been hinted at ; " but Mb. Platt, in his work on Leases, thus clearly expresses the advantages of an express covenant. He says: " The tenant's liability to pay rent under the implied covenant being founded on privity of estate only, determines on his assigning the property to another ; ^ but under the privity of contract ai'ising from the express covenant, he remains chargeable during the whole jieriod of tenancy,' and as it is in his power, unless expressly restrained by agreement, to assign the premises to another, without regard to the assignee's character or responsibility," the express covenant possesses an ob^'ious advantage over the implied one. So again, as the lessee invariably covenants for his heirs, as well as for himself, his executors, &c., the lessor has the security of the lessee's real estate in the heirs' h.ands for the payment of rent, an advantage not conferred by the implied covenant." " An express covenant for payment of rent runs with the land and binds an assignee, even though the lessee does not covenant for his assigns.^" 1 Laws of 1860, Chap. 345. Sec. 1. " Bret ». Cumberland, ante ; Barhel- ^ Willard v. Tillman, 19 Wend. (N". cuse o. Gage, W. Jones, 223; Anony- Y.) 3.58. In Jolmson D. Oppenheimer, 55 mous, 1 Sid. 447; Staines v. Morris,! N. Y, 280, an adjoining pi'oprietor made V. & B.' 8. an excavation uijon his premises that ' Edwards o. Morgan, 3 Lev. 233 ; caused the walls of the demised prem- Bucl-cland u. Hull, 8 Ves. 95 ; Staines v. ises to settle, and thus rendered them Morris, ante; Auriol u. Mills, 4 T. K. 98. untenantable, but the tenant refused * Pitcher v. Tavey, 1 Salk. 81 ; Le to give the landlord permission to enter Keux c. Nash, 2 Stra. 1221 ; Onslow v. for the purpose of putting in proper Corrie, 2 Madd. .330; Taylor ?;. Shum, 1 supports to the walls, and it was held, B. ; Hogg's Ap- peal, 11 Penn. St. 479; Watson v. Boyl- ston, 5 Mass. 411; Alton v. Trans. Co., 11 111. IS. And where the instrument will inure suveral ways, the grantee may elect which way to take it. Jack- son V. Hudson, 3 John. (N. Y.) 375. The particular intent will govern the general intent, Dawes v. Prentice, 16 Pick. (Mass.) 435, and the grammatical sense will not be adhered to when such a construction would be contrary t > the apparent intent of the parties. Han- cock r. Watson, 18 Cal. 137. A very good ilkistration of the e.xtent to which the courts -iiill go in construing the words of a covenant so as to carry out the real intent of the parties, is to be found in Jowett r. Spencer, 1 Exchq. 048. In that case, an action of cove- nant was brought upoji an indenture, by whicli the plaintiff granted to the de- fendant all tlie coals and mines of coal under certain land. The defendant covenanted to pay the plaintiff £49 for every statute acre of the coal which should 1)0 found under the lands referred to in the lease until the said price should be fully paid, and to pay the plaintiff C40, pait of thi' price, each year, by two jqual half-yearly pa\inents, whether the whole of an acre of tlie coal should be gotten each year or not. Tlie plaintiff averred that at the time of the making of the indenture there were under the said lands fourteen acres of coal, and that thirteen acres of coal still remained under the said land, and the plaintiff claimed to recover £40 for two half-yearly payments. The defence in- sisted that the flndinj of coal upon the land was a condition precedent to a right of recovery, and that, as the plain- tiff had not averred that any coal was found no recovery could be had, and the court of exchequer sustained this view and gave judgment for the defendant. See Jowett v. Spencer, 15 M. & W. 6G2. But this judgment was i-eversed at ex- chequer ghainber, whicli held that the finding of coal was not a condition pre- cedent to the plaintiff's right to recover. LoKD Denman, C. J., in passing upon this question, said: — "The question is, whether the Jindiny of coal is a co]idi- tion precedent to the plaintiff's recover- ing the annual sum of £40. It appears to us that it is not. The parties seem to have assumed, that there were coals within and under the premises, and the indenture operates as an absolute sale and conveyance of that coal to the de- fendant, but without any covenant on his part to work or get that coal. The words of the conveying part arc, ' all the coals lying and being within and uiuler the premises.' Whether the defendant at any tinre should think fit to find and get them, was left entirely to his will and pleasure. The consideration money is £40 per acre for cnsds found, not for coals gotten. By the word ' found ' we apprehend the parties to mean, ' ascer- tained to lie and he.' It is necessary that the quantity should be ascertained at some time, in order to fix the ulti- mate amount of the consideration money. That quantity might be found and ascertained without working or get- ting the coal. Wlio, then, is the projier person to find and ascertain tlie quanti- ty ? Not the plaintiff, for he had parted with all his interest in and possession of the coal, but the defendant, who has taken them. In order to secure his so finding and ascertaining the quantity, tlie covenant of tlie defendant to pay £40 per annum till the cousideratioii money should be fully paid is inserted, otherwise, as there is no covenant to work or get the coal, the quantity might never be ascertained. The right of the plaintiff to sue for the annual sum is absolute and without condition, and if, Construction op 487 involves a forfeiture it will be construed strictly against the jsarty claiming the forfeiture.' Express covenants are construed more strictly than implied,^ and if the covenant is betvi^een several persons, the language is to be applied to the one to whom it evidently belongs." De. Palby, in his work on Moral Philosophy, very succinctly states the rule in ethics for the construction of agreements as follows : — - "Where," says he, " the terms of a promise admit of more senses than one, the promise is to be performed iu that sense in which the promisor apprehended at the time that the promisee received it." * He adds : " It is not the sense in which the promisor actually intended it that always governs the interpretation of an equivocal promise, because, at that rate, you might excite expectations which you never meant nor would be obliged to satisfy. Much less is it the sense in which the promisee actually received the promise ; for, according to that rule, you might be drawn into engagements that you never designed to under- take. It must, therefore, be the sense in which the promisor believed that the promisee accepted the promise." This rule, subject to the exception that the contract when reduced to writing cannot be altered or varied by parol evidence, so far as the intention of the parties can be gathered from the language used, is, says Me. Chitty,^ also the rule of law.^ LoED Ellenboeough says : "^ " The same sense is to be j^ut by finding and ascertaining the qviantity species oi; contracts to be in writing, and of the coal, and paying tlie annual sum expressly prohibits the admission of oral stipulated, the defendant has fully paid evidence against the contents of a writ- the consideration money for the pur- ten contract. Pothier's Obligations, chase of the coal, it is for him to plead No. 785. And it is a fundamental rule those facts. We think, then, that the of the common law, that oral evidence plaintiff is entitled to keep his verdict, shall not be permitted to alter or vary and the judgment of the court belOw the terms of a written instrument of any should be reversed." description; upon the principle that a 1 Presbyterian Church v. Pickett, writing, whether a specialty or a sim- "VVright (Ohio), 57. pie contract, stands higher in the scale 2 Shubrick v. Salmond, 3 Burr. lQ?id. of evidence than oral testimony, and 5 Eandel 15. Canal Co., 1 Harr. (Del.) that the stronger evidence ought not to 154. And the intention of the parties is be controlled by the weaker. In obe- to be ascertained ex antecedihus et con- dience to this rule, it is held that an sequeittibus rather than from particular oiul agreement entered into before or at expressions, or the general structure of thetww of the signing of a written agree- the instrument, or the order of arrange- ment for a lease, cannot be given in evi- ment in which the covenants appear, dence, to change, qualify, or vary any of Hopkins v. Young, 11 Mass. 304; (Jood- the provisions of the writing; as, to show win V. Lynn, 4 Wash. (U. S. ) 714; that the rent was to be less, or was Speake v. Sheppard, H. & .J. (Md.) 85; agreed to be paid at a different time. Davis V. Lyman, 6 Conn. 249; Westcott Henson v. Coope, 3 Scott, N. E. 48. B. Thompson, 18 N. Y. 367. Nor is parol evidence admissible to add * To this extent tlie rule is almost to or detract from the terms of a written literally adopted in Gunnison v. Ban- lease; as, to show that the tenant agreed croft, 11 Vt. 493. to pay the ground rent, Preston v. Mer- 5 Chitty on Contracts, 75. ceau, 2 W. Bl. 1249, or taxes, Eich v. 8 Most systems of jurisprudence have Jackson, 4 B. & C. C. 515, or that more manifested a decided preference for land was agreed to be included than written over verbal contracts. The that described, Meres v. Ansell, 1 Wils. French civil law requires nearly all 175; Henson d. Coope, ante; Dickson d. 488 Covenants. upon the words of a contract in an instrument not under seal as would be put upon the same words in an instrument under seal, for the same intention must be collected from the same words of a contract in writing, whether with or without a seal." ^ The object, in the interpre- tation of contracts, is to arrive at the real intention of the parties, whatever may be the nature of the instrument ;^ and, if necessary, after all other rules fail, punctuation will be resorted to,'' the grammatical sense will be repudiated,'' words and sentences will be transposed,*" and when unavoidably necessary to give effect to the instrument a repugnant or meaningless clause will be rejected." If the covenants refer to, or are dejDendent upon each other, they will be construed to- gether, and every part will be given effect if possible, and every word Zizina, 10 L. J. C. P. 71, or, indeed, any contemporaneous parol agreement that goes against the written contract, because the writing is treated as merg- ing all prior agreements relating to the matter, and if anything was left to rest in parol it is the foUv of the parties, Kain V. Aid., 4 D. & K. 61, and, unless equity will reform the contract, it will be enforced according to the intention of the parties as evidenced by the usual sense in which the words used are em- ployed. But a contract may be evi- denced by several writings, as well as by one, provided it is shown that they re- late to the same transaction and it does not appear that one was intended to entirely supersede the other. Brown u. Langley, 5 Scott, N. E. 48. As to how far parol evidence is admissible to ex- plain a deed, see post p. ^ Seddon v. Senate, 13 East, 73. ■^ Wadlington v. Hilt, 18 iliss. 5fi0 ; Winnipiseogee Co. v. Perley, 4fi N. H. 83; Peyton v. Ayres, 1 Md. Ch. fi4 ; Chouteau v. Suydam, 21 X. Y. 179 ; Benedict v. Gaylord, 11 Conn. 332 ; Muiford V. Le France, 26 Cal. 88; Mills V. Catlin, 22 Vt. 9S; Pike v. Monroe, 36 Me. 309; Deering v. Long Wharf, 25 id. .51 ; Wallis v. Wallis, 4 Mass. 135 ; Brvan v. Bradlev. 16 Conn. 474. 3 Ewjng V. Burnett, 11 Pet. (U. S.) 41. ' .Tackson v. Topping, 1 Wend. (N. Y. ) 3S8 ; Hancock ii. Watson, ante. ^ But not unless there is that in the deed or instrument which shows that to read the instrument as it is would de- feat the intention of the parties, and that by doing so the instrument will be rendered effectual in the manner in- tended by the parties. Kew v. Robin- son, 5 Ired. (N. C.) Eq. 373. "Too much regard," says Wili.es, C. .J., in Parl2, for the proviso clearly refers to some future in- evitable accident, and that, durbvi the continuance of the term, which did not begin until that day, whereas the acci- dent which caused the failure of the salt, is found by the special case to have occurred tiefore the date of the lease, but after the date of the agreement for a lease and the commencement of opera- tions under that agreement, by the dis- covery of brine in such quantities as to prevent the getting the rock salt at all. If the lease had been execulcd when the agreement was, viz., on the 2.")th Aug., IS-Jl, the influx of brine, which aijpears to have taken place after sink- ing the shaft in Sept., 18.51, might have been, on the evidence, such an inevita- ble accident as to be within the proviso." 1 Woodfall's L. & T. 111-122. - A lessee cannot discharge his liabil- ity upon either the express or implied covenants in the lease, by assignment, Flinn v. Callow. 1 M. & O'. .589 ; Worth- ington r. McCann, 19 Ohio St. 60 ; Tan Rensselaer i\ Chadwick, 24 Barb. (N". Y. ) 333 ; Broom v. liore, Cro. El. 633 ; WadhaTu v. Marlow, « East, 314 n. : JNIarsh r. Brace, Cro. Jac. 331 ; Staines V. Morris, 1 V. tt B. 11; Fifty Associates V. Howland, .5 Cnsh. (Mass.) 214, and the lessee is not absolved from his lia- Liability of Parties and Assigns. 497 is therefore liable to the lessoi" and his assigns for those breaches only which occur during the continuance of such privity of estate, and before bility upon an express covenant, even thougli the lessor assented to the as- signment and has accepted rent from the assignee. Lodge v. White, 30 Ohio St. 569; 27 Am. Eep. 492 ; Taylor v. Be Bue, 31 Ohio St. 468; SutlifE b. Atwood, 15 id. 194; 2 Piatt on Leases, 355. While the' lessee remains tenant, the lessor has his option to sue him for arrears of rent in debt, Rushden's Case, 1 Dy. 4 6,- Anon., 2 Dy. 247 b. pi. (77); Sicklemore V. Simonds, Cro. Eliz. 797, or covenant; Fisher v. Ameers, 1 B. & Gold. 20 ; Sicklemore v. Simonds, ante; but when the privity of estate is transferred, and the lessor has once accepted rent of the assignee, or othervcise assented to his tenancy, Fisher v. Ameers,' ante ; Anon., 2 Dy. 247 b. pi. (77) ; Walk- er's Case, 3 Coke, 24 6 ,• Iremonger v. Newsara, Latch, 260 ; Marsh v. Brace, Cro. Jac. .334; March c. Brace, 2 Bulstr. 151 ; Arthur v. Vanderplank, 7 Mod. 198 ; Mills i;. Auriol, 1 H. Bl. 453 ; Au- riol V. Mills, 4 T. K. 98 ; Thomas v. Cooke, 2 Stark. 408 ; Wadham u. Mar- low, 8 East, .314 n., and not before, Has- sel's Executrix, Lit. 53; Auriol v. Mills, 4 T. R. 94 ; Whitway v. Pinse»t, Sty. 300. See Anon., Dy. 247 b. pi. (77) ; Marrow v. Turpin, Cro- Eliz. 715, the right to maintain an action of debt against the lessee is determined ; the right to an action of covenant, however, survives the assignmeiit ; Fisher o. Ameers, 1 B. & Gold. 20 ; Ventrice v. Goodcheape, 1 Rol. Ab. 522 (N), pi. 1 ; cited, Cro. Jac. 309; Countess of Devon V. Collyer, 1 Rol. Ab. 522 (N); 1 Saund. 240 ; Ashurst v. Mingay, 2 Show. 132 ; Parker v. Webb, 3 Salk. 5 ; Edwards v. Morgan, 3 Lev. 233 ; Overton v. Sydal, Cro. Eliz. 5.55 ; Arthur v. Vanderplank, 7 Mod. 198 ; Jodderell v. Cowell, Ca. temp. Hardw. 343 ; Jenkins b. Hermi- tage, Freem. 377 ; Hornby v. H6ulditch, 1 T. R. 93 n. ; Mills v. Auriol, 1 H. Bl. 443; Auriol v. Mills, 4 T. R. 94; Steven- son 11. Lambard, 2 East, 575 ; Staines v. Morris, 1 V. & B. 11 ; Burnett v. Lynch, 5 B. & C. 589 ; Manning v. Flight, 3 B. 6 Ad. 211 ; Thomas v. Cooke, 2 Starls:. 408; and the lessor may sue, at his elec-' tion, -either the lessee, or the assignee ;. Barnard B..Godscall, Cro.' Jac. 309; Var- nisB. Goodcheape, cited Cro. Jac. 309 ; Bacheloure tj'. Gage, W. Jo. 223 ; Horn- by,!). Houiditch,- Andr. 40; Walker's Case, S Coke,- 24 b ; 'Norton b.' Acklarie,. Cro. Car. 580 ; Devereu?: i). Barlow, 2 Saund. 181' ; BiirnettB. Lynch, 5 B_. & C. 589 ; the former, in covenant, on the personal privity of contract ; the latter, either in debt on the privity of estate, Walker's Case, 3 Coke, 22 b, argo ; Mills V. Auriol, 1 H. Bl. 445; Stevenson V. Lombard, 2 East, 57-5-9 ; Cui'tis v. Spitty, 1 Bing. N. C. 756, or in cove- nant, on the privity of contract in re- spect of estate. Stevenson b. Lombard, 2 East, 575 ; Staines b. Morris, 1 V. & B. 8 ; Burnett v. Lynch, 5 B. & C. 589. And it is observable, that the assignee cannot plead that the landlord on a pre- vious occasion refused to accept him as tenant. Devereux v. Barlow, 2 Saund. 181 ; Iremonger v. Newsam, Latch, 260. The lessee is also liable to an action of covenant at the suit of the grantee of the lessor's reversion, although he, the lessee, may have assigned over, and the grantee of the reversion may have ac- cepted rent of the assignee of the term. Thursby v. Plant, 1 Saund. 236; Nurstie B. Hall, 1 Vent. 10; Ashurst b. Mingay, 2 Show. 133: Parker b. Webb, 3 Salk. 5: Twynam b. Pickard, 2 B. & Aid. 105.' These remarks, however, are applicable, only to an express covenant for payment of rent ; for, on an implied covenant arising on the reddendum, after an as- signment by the lessee, and acceptance by the lessor of rent from the assignee, Fisher v. Ameers, 1 B. & Gold. 20 ; Bacheloure b. Gage, Cro. Car. 188, or other assent to his being tenant. Wad- ham B. Marlow, 8 East, 314 n., or, ac- cording to one authority. Anon., 1 Sid.' 447, pi. 9. And see Staines v. Morris, 1 V. & B. 5 ; Brett v. Cumberland, Cro. ' Jac. 523, after an assignment merely, neither debt nor covenant will lie against' the lessee. Fisher v. Ameers, ante ; Bacheloure i'. Gage, ante;' Brett b. Cum- berland, sup.; Anon., 1 Sid. 447, pi. 9. On all the other covenants contained in the lease, whether inherent or collateral, the lessee's liability continues during- the term. Bacheloure b. Gage, ante ; , Whitway v. Pinsent, Sty. 300 ; Barnard V. Godscall, Cro. Jac. 309 ; 1 Rol. Ab. 522 (N), 1 ; Ventrice b. Goodcheape, 1 Rol. Ab. 522 (N), 1. The assignee be-- comes charged with tliose that run with the' land ; but this does not relieve the lessee ; either may be sued at the option of the lessor. Bacheloure b. Gage, W. Jo. 223; Brett B. Cumberland, Cro. Jac. 521; Barnard b. Godscall, ante ; Norton B. Acklane, Cro: Car. 580 ; Hornby b. ; Houiditch, Andr. 40, 44 ; Burnett v. Lyncli, o B. & C. 589; Walker's Caee, 3 32 • -■ ' • 498 Covenants. he assigns over.^ But he continues liable to lis immediate assignor, his executors or administrators, upon any express covenant by him in the deed of assignment, for payment of the rent and performance of the covenants contained in the original lease.^ A covenant may be divisi- ble and follow the land ; wherefore an action of covenant will lie against an assignee of part of the thing demised.' If a covenant by two lessees is joint and several, it will bind the executors of the de- ceased lessee, although the whole term, interest and benefit survived to the other lessee.* When covenants are void or nugatory. Sec. 308. A covenant to do a thing which upon the face of it ap- pears to be prejudicial to the public interest, or otherwise contrary to law, is absolutely void ;" so is a covenant to do a thing which is im- possible, if the impossibility exist at the time of making the covenant; but not otherwise.^ Where a covenant is founded on a conveyance of ah estate which proves to be void, and no estate passes, the covenant is void also : thus, where the conveyance was " a grant of so much of a term as should be unexpired at the death of A," and there was a covenant for quiet enjoyment, and a bond for performance, the con- veyance being void on account of the uncertainty of the time when the Coke, 24 h; Devereux v. Barlow, 2 Saund. 181 ; Boulton o.Canon, Freem. K. B. 336. A right of action once accrued to the lessor against the lessee is not de- feated by the expiration of the lease ; Kinlyside «. Thornton, 2 W. Bl. 1111; Walker's Case, 3 Coke, 23 6. And see James v. Landon, Cro. Eliz. 36; nor by the surrender by the lessor of his rever- sion ( as if he be tenant for life) to a para- mount reversioner; Ognel's Case, 4 Coke, 49 6 ; nor by the lessee's surrender of his term to the lessor. Walker's Case, 3 Coke, 23 b. And if the lessor in his declaration in covenant makes profert of the " said indenture," it is no variance if at the trial )ie produces the counterpart. Pearsei). Morrice, 3 B. & Ad. 396. The lessee in J (leading to an action of debt for rent, an assignment by hira, and acceptance by the lessor of rent, from the assignee, need not aver that the lessor had notice of the assignment, the acceptance being considered of itself prima facie evidence that the assignee paid the rent in that capacity, and not as the lessee's agent. To avail himself of want of notice, the lessor must allege it. Man-h i: Brace, 2 Bulstr. 151 ; Marsh v. Brace, Cro. Jac. 334; Hassel's Executrix, Lit. 53. The lessee's representatives, as executors, •fee, are equally liable thereon, although the lessee assigned before his decease. Brett B. Cumberland, Cro. Jac. 552; Eaton V. Jacques, 2 Doug. 455 ; Chancellor v. Poole, 2 Doug. 764; Orgill v. Kemshead, 4 Taunt. 642 ; 1 Smith L. C. 47 (4th ed.). 1 Harley v. King, 5 Tyr. 692; Taylor V. Shum, 1 B. & P. 21 ; Le Keux ». Nash, 2 Stra. 1222; Odell v. Wake, 1 Camp. 394; Onslow v. Corrie, 2 Madd. 330; Paul V. Nurse, 8 B. & C. 486; 1 Smith L. C. 47 ; Cole Ejeo. 540. An assignee is bound in favor of the lessor by all the lessee's covenants, and is presumed to know what they are, JJarroilhet v. Bai- telle, 7 Cal. 450 ; McMurphy c. Minat, 4 N. H. 251 ; Willison si Watkins, 3 Pet. (TJ. S.) 50 ; Hintze v. Thomas, 7 Md. 346, and this is the rule whether he comes in by contract or by operation of law, provided he stands in the relation of assignee. Prettyman v. Wallston, 34 111. 175 ; SutlifE v. Atjvpod, 15 Ohio St. 186 ; D'Aquin v. Armont, 14 La. An. 217. , . ''Harris v. Goodwyn, 9 D owl. 409; Burnett v. Lynch, 5 B, cfe C. 589; Wol- veridge v. Steward, 1 Cr. & Mee. 644. 8 1 Roll. 522, 1. 5; Jones, 245; Cong- ham V. King, Cro. Car. 221. * Enys V. Donnithorne, 2 Burr. 1190, 1197. 6 1 Smith L. C. 278-286 (4th ed.). 6 Shop. Touch. 163. When Void. 499 terra was to commeBce and end, the covenants were adjudged to be void, as they depended ' on the estate ;' but although this is the case with respect to all dependent covenants, it is otherwise of covenants which are independent.^ A covenant in a lease to repair, &c., during the term, 6.oes not take effect where the lessor does not execute the lease.' If a lease is made for the express purpose of the premises being used to boil oil and tar, contrary to the provisions of the statute, the lessor cannot sue on it for rent.'' A covenant not to replevy goods distrained until the rent is paid is void.^ A covenant with the lessor to indemnify the town or county against any paupers which the lessee may cause to be settled in it is valid." But it does not run with the land nor bind an assignee of the lessee.' General rule as to covenants being real or personal. Sec. 309. Covenants are either real or personal ; the former are such as are annexed to an estate, or are to be performed on it, and are said to " rtm with the land," so that he who has the one is subject to the other. In order to run with the land and bind the assignee it must respect the thing granted or demised, and the covenant must concern the land or estate deinised? A grant of a mere privilege, as, of the right to draw water from a certain pond, is not a conveyance of land, consequently, a covenant respecting it does not run with the land and cannot be enforced by an assignee of the grantee.' And, in order to run with the land, it must not only relate to the estate, but there micst aiso be a privity of estate between the contracting parties.^" Therefore, where an estate was conveyed to a trustee in fee to the use of such person as W should appoint, and in default of appointment to the use of W, in fee, and W covenanted in the same conveyance, for himself, his heirs and assigns, to pay a certain fee farm rent reserved out of the estate to the vendors, their heirs and assigns, it was held that the land was not bound in the hands of W's appointee by Ws covenant, for the appointee did not take the estate of TF, to which his 1 Capenhurst v. Capenhurst, Sir T. * Gas Light Co. v. Turner, 5 Bing. N. Eaym. 27; Hayne u. Maltby, 3 T. E. G. 666; 6 Id. 324. 438; Co. Lit. 456. ^ 1 Inst. 145 h. 2 Northcote v. Underhill, 1 Salk. 199; <> Walsh v. Fussell, 6 Bing. 163. 1 I-,d. Eaym. 380. ' Mayor, &c., of Congleton ». Patti- i* Pitman ». Woodbury, 3 Exch. 4; son, 10 East, 130. Lin wood v. Squire, 5 Exch. 234; Wheat- » Nesbit t>. Nesbit, 1 C. & M. (K. C.) ley V. Boyd, 7 Exch. 20; Swatman v. 324; Wheelers. Schad, 7 Nev. 204. Ambler, 8 Exch. 72; 22 L. J. Exch. 81. ^ Wheelocku. Thayer, 16 Pick. (Mass.) Compare these cases with Hughes v. 68 ; Mitchell v. Warner, 5 Conn. 497. Clarice, 10 C. B. 905 ; Morgan v. Pike, lo Webb b. Eussell, 3 T. E. 402 ; Tall- 14 C. B. 473; Wood v. The Copper man v. Coffin, 4 N. T. 134; Columbia Miners' Co., 14 C..B. 428; 17 C. B. 594; College v. Lynch, 47 How. Pr. (N. Y.) Northampton Gas Co. o. Parnell, 15 C. 273, but the covenantee may sue, al- B. 630; Bowes ». CroU, 6 E. & B. 255: though his assignee cannot. Stokes b. Hew ». Greek, 3 H. & C. 391. Eussell, 3 T. E. 393 ; Co. Litt. 384 6. 500 Covenants. covenant icas annexed, hut took as if the original conveyance had been made to himself} A covenant by the lessor of ii mine, quarry, or pit, that neither he or his assigns shall sell any such articles as are pro- duced from the mine, quarry, or pit, is personal and does not run with the land.^ But it has been held tliat a covenant, in a lease of a mill- site, by the lessor, for himself and his assigns, with the lessee and his assigns, not to erect and put in operation a rival mill during the term, runs with the land, and passes by an assignment of the lease ; and the assignee may, in his own name, sue the assignee of the reversion for a breach of it.* A covenant in a lease of a ferry that the lessor shall, during the existence of the term, have the right to pass toll free, is a mere personal covenant.^ A covenant between the several owners of mills, drawing water from the same dam, as to the use of the water, does not run with the land, because of a lack of privity of estate be- tween such owners, and is not binding upon a grantee or lessee of either of the owners.* Nor does a covenant not to permit a mill to be erected on other premises than those demised,^ or to name an arbitra- tor to settle disputes,' or to paj'' a part of the expenses of a 'pa.rtj wall.' A covenant is said to run with the land when either the lia- bility to perform it, or the right to take advantage of it, passes to the assignee of the land. A covenant is said to run with the rever- sion when either the liability to perform it, or the right to take ad- vantage of it, passes to the assignee of that reversion.' A joint cove- nant with tenants in common does not run with the land or with the reversion.^" Covenants personal are such whereof some person in particular shall have the benefit, or whereby he shall be charged, as, when a man covenants to do any personal thing." If the lessor cove- nants to pay rent or repair ; or if he grants to the lessee so many estovers as will repair, or as he sliall burn within his house during the term, these covenants, as belonging to things appurtenant, go with the land, into whosesoever hand it comes.^^ A covenant which relates to something not in being at the time of the demise," or which is merely 1 Eooch V. Wadham, 6 East, 289. « 1 Smith L. C. 42 (4th ed.). 2 Bower V. Marshall, 19 N. J. Eq. 537. i" Roach v. Wadham, 6 East, 289; 8 Norman v. Wells, 17 Wend. (N. Y. ) Thompson v. Hakewill, 19 C. B. N. S. 136. 713. * Morse v. Garner, 1 Strob. (S. C.) " Bac. Abr. tit. Covenant (E), 2, 5; 514. Shep. Touch. 161. ' Hurd !). Curtis, 19 Pick. (Mass.) 459. 12 Martyn «. Clue, 18 Q. B. 661. 6 Harsha u. Reid, 45 N. Y. 415. w Doughty «. Bowman, 11 Q. B. 444; ' Gray v. Cuthbertson, 4 Doug. 351. 1 Smith L. C. 47 (4th ed.). Where the 8 Brown v. McKie, 57 X. Y. 084; Cur- covenant relates to a thing not in e.s.se, tis V. White, Clarke's Ch. (IST. Y.) 33!) ; but to be done upon the land demised, Bluck V. Isham, (Ind.) 7 Am. L. R. U. tlie assignee is bound, if named ; but if S. 8. But contra, and holding that such not named, he is not bound. Tallman a covenant does run with the land, see 11. Coffin, 4 jST. Y. 134. The rule laid Burlock D. Peck,2 Duer (N. Y, Superior down in Spencer's Case, 5 Coke, 16, is Ct.), 90. that generally adopted, and furnishes Whes^ Real oe Persona n. 501 personal or collateral to the thing demised, — as to pay a sum of money in gross, to build de novo, or the like, — does not run with the land, and therefore assignees are not bound, even though they be expressly named.' Although a covenant to put fixtures into a building runs with the land, yet, as it relates to a thing not in esse, but to be done, an action will not lie in favor of the lessee against the lessor's assigns, the word " assigns " not being used, although it is expressly provided that the " heirs, executors, &o.," of the parties, shall be bound there- by.^ A covenant by a lessor to purchase at the end of the term at a valuation all improvements, &c., made by the lessee, will bind his ex- ecutors or administrators in their representative capacity, but not as assignees of the reversion.^ If a man leases animals, or anything per- sonal, and the lessee covenants for himself and " his assigns " at the end of the term to deliver up the animals or things so let, or to pay such a price for them, if the lessee assigns, this covenant will not bind the as- signee, for it is but a personal contract.* Covenants which run with the an accurate test by which to determine what covenants do, and what do not run with the land. It is there resolved — 1st. When the covenant extends to a thing in esse parcel of tlie demise, the cove- nant runs with the land and binds the assignee, though notiiamed therein. Oth- erwise, when it relates to a thing not in being at the time of the demise. 2d. Although the covenant extends to a thing not in esse at the time of the de- mise, yet the assignee shall be bound if named, unless the thing to be done is merely collateral to the land and does not concern the thing demised. 3d. In a lease of personal goods, as, sheep or other cattle, a covenant by the lessee for himself and his. assigns does not bind the assignee. Where a lease embraces both real and personal estate the cove- nants, as, a covenant to surrender, does not, as to the personal property, run with the land. Allen v. Culver, 3 Den. (N. Y.) 284. 1 Spencer's Case, 5 Coke, 16 ; 1 Smith Ij. C. -36 (2d Res.). A covenant to pay off a certain mortgage is personal, even though it is expressly stated in the lease or grant that the covenant shall run with the land, Campbell v. Johnson, 4 Dana (Ky. ), 177, and the parties cannot by contract make a personal, a real cove- nant. Id. 2 In Hansen v. Meyer, 81 111. 821 ; 25 Am. Eep. 282, a lease like that stated above was executed, the lessor cove- nanting to put " counters and slielves " into the building, but the word "as- signs " not being used, it was held that the lessor's assignees was not liable on the covenant, upon the principle stated in Spencer's Case, 3 Coke, 16 a. See also, Gray v. Cuthbertson, 2 Chitt. 482, where the lessor covenanted for him- self, but not for his assigns, to take and pay for all trees and bushes planted by the lessee, growing at the end of the term, and the lessor's assignee was held not chargeable upon the covenant, al- though it was admitted that, if the word " assigns " had been used, liabil- ity would have existed. 8 Gorton v. Gregory, 3 B. & S. 90; but see Coffin v. Tallman, 8 N. T. 46S. A lease of a house and lot with a provision that the lessor, &c., should pay at the end of the term for buildings erected by the lessee, Bally V. Wells, 3 Wils. 25 ; Brewer v. Hayley, 12 East, 464. 11. Hill, 2 Anst. 413. is Simpson v. Clayton, 4 Bing. N. C. " Vyvyan v. Arthur, 1 B. & C. 410, or 758. "What Run with the Land. 505' lease, whereby the lessor covenanted (not naming his assigns) to observe and perform and effectually to indemnify the lessee against the covenants in the superior lease, one of which was to build several houses on the land, does not run with the land so as to make the assignee of the covenantor liable.' A covenant to build a new smelt- ing mill in lieu of an old one in a lease of mines, has been considered as a covenant which runs with the land, as it tended to the support and maintenance of the thing demised.^ A covenant to repair and leave in repair (inter alia) all buildings which should or might be thereafter erected during the term on the demised premises, is not con- sidered as a covenant absolutely to do a new thing, but to do something conditionally, viz., that if new buildings were erected on the demised premises during the term to repair them; and, as when built they would be part of the thing demised, the assignee of the lessee would be bound by the covenant, although not named therein.^ A covenant by a lessor to supply houses with good water, at a rate therein men- tioned for each house, runs with the land ; and for a breach of it the assignee of the lessee may maintain an action against the reversioner ; ^ but a covenant by a lessor (not vientioning his assigns) to. pay on a valuation for all trees planted by the lessee during the term, does not run with the land so as to bind an assignee of the reversion.^ A cove- nant by a lessor, for himself and his assigns, to purchase by appraise- ment at the end of the term all improvements, &c., made by the lessee, will not bind the assignees of the reversion.^ But a covenant to pay for all improvements made upon the premises demised runs with the land :' so does a covenant to renew the lease,' or that the lessee may purchase the land at his option during the term,^ as such a covenant for many purposes may be regarded as a continuation of the former term.'" The executors of the lessor should be charged upon such a covenant in their representative capacity and not as assignees of the reversion.'^ Where there was an exception in a lease of an entry, and liberty to wash in the kitchen, and a passage for that purpose ; it was held that an ac- tion would lie against an assignee for hindering the lessor, because a covenant relating to a way or other profit appurtenant goes with the 1 Doughty V. Bowman, 11 Q. B. 444. 230; Piggots. Mason, 1 Paige Ch. (N.T.) - Sampson v. Easterby, 9 B. & C. 505 ; 412; Barclay v. Steamboat Co., 6 Phlla. Easterbyu. Sampson, 6 Blng. 644. (Penn.) 5.58; Vernon v. Smith, 5 B. & 8 Minshull v. Oakes, 2 H. & N. 793. Aid. 11 ; Hyde u. Skinner, 2 P. Wms. 4 Jourdain v. Wilson, 4 B. & Aid. 266. 196; Wlnslow ». Tighe, 2 B. & B. 195; 5 Grey v. Cuthbertson, 4 Doug. 351; Koe v. Hayley, 12 East, 469. 2 Chit. 482; 1 Selw. K. P. 534 (12th ed.). »Hagar v. Buck, 44 Vt. 285; Napier «. « Gorton v. Gregory, 3 B. & S. 90; but Darlington, 70 Penn. St. 64; Willard v. Bee Coffin v. Talman, ante. Taylor, 8 Wall. (U. S.) 557. ' Lockett V. Howard, 34 Md. 121. I'J Id. 8 Wilkinson v. Pettitt, 47 Barb. (N.T.) ^i Gorton v. Gregory, supra. 506 GoTENAlfTS. tenement, and binds the assignee : ^ but where in a lease of ground, with liberty to make a watercourse and erect a mill, the_ lessee covenanted for himself, his executors and assigns, not to have persons to work in the mill who were settled in other parishes without a parish certificate, it was held that this covenant did not run with the land, nor bind the as- signee of the lessee.^ Where the lessee of a theatre by deed agreed, to repay money lent to him by the plaintiff on a day certain, and that until payment the plaintiff and such persons as he might appoint should have the free use of two boxes in the theatre, no specific boxes being mentioned, and afterwards assigned his interest in the theatre, it was held that it was a mere personal contract, and that no action could b^ maintained against the assignee for refusing to permit the plaintiff to use the boxes.* A mere personal covenant in a lease is. not aSected by a surrender of the lease.^ When a covenant is broken, it, be- comes mere personalty, and ceases to run with the land;^ and, even though a covenant may run with the land, yet it does not so run against the clear intention of the grantor, or unless there is such language used as shows that it was intended to pass the benefit or burden. This was illustrated in a recent English case,^ in which the owners in fee of a residential estate and adjoining lands sold part of the adjoining lands to the defendants' predecessor in title, who entered into covenants with the vendors and their assigns, restricting their right to build on and use the purchased land. The sa,me. vendors after-? ward sold the residential estate to the plaintifii's predecessor in title. The conveyance contained no reference to the restrictive covenants, nor was there any contract or representation that the purchasers of the residential estate were to have the benefit of them. There was, more- over, in the plaintiff's conveyance a covenant linjiting their use of the purchased property, but such covenant was not co-extensive with the covenants above mentioned. In an action by the plaintiffs to restrain the defendants, who had purchased the land first sold, as above men- tioned, with notice of the first-mentioned restrictive covenants, from huilding in contravention of those covenants, it was held, that a,lthough the plaintiffs were " assigns of the original covenanters, they were not entitled to sue upon the original covenants." ' As there can be no 1 Cole's Case, 1 Show. 388; 1 Salk. 196. Indiana, Martin c. Baker, 5 Blackf. 2 Mayor, &c., of Congleton v. Pattisoji, (Ind.) 232, and Ohio, Devone v. Sunder- 10 East, 130; and see Walsh ». Fussell, land, 17 Ohio, 52, as well as in England, 6 Bing. 163. Kingdom v. STottle, 4 M. & S. 53, such 8 Flight V. Glossop, 2 Bing. K. 0. covenants ' are treated as continuous, 125. and pa,ss with the land, though broken * Wilder v. Maine Centl. R. E. Co., 65 before assignment. Me. 332; Atty. Gen. v. Cox, 3 H. L. Cas. « Renols v. Cowlinshaw, 41 L. T. N". S. 240. 116. 6 Shelby v. Hearne, 6 Yerg. (Tenn.) 'See KeatesD. Lynch, 20 L. T. N. S. 512. But in Maine by statute, and in 255; Child «. Douglass, 23 L. T. 0. S. Missouri, Dickson v. Desire, 23 Mo. 151 ; 140, 282. ' DiTISIBIJ.ITT OT" 507 covenant except the contract is under seal, it follows that no burden can be imposed- upon the land except by contract under seal,^ nor by a cove- nant entered into after the original lease or grant has been delivered ; " but, while such a covenant neither creates an easement or runs with the land, yet it will be enforced in equity against a subsequent grantee with notice. So held, in a case where an agreement under seal was made, subsequent to a conveyance of a lot, that the purchaser would, within one year, build a residence upon such lot, to cost not less than a certain sum, and in a certain specified manner.'' Divisibility of liability on covenants. Sec. 311. A covenant which runs with the land may be divisible and follow the land ; therefore an action of covenant will lie against an assignee of part of the premises leased ; ^ thus, where two houses were leased, with a covenant on the part of the lessee for himself and his assigns to repair, and the lessee assigned one of them, an action against such assignee for not repairing it was held to be maintainable ; so in case of eviction the rent may be apportioned as in debt or re- plevin ; ° so, it seems, an action lies by an as^gnee of part of the estate demised, or the assignees of several parts may join.° An assignee of five-sixths of an underlease, who is tenant in common with the as- signee of the other sixth, may sue on a covenant by the original lessee to procure a renewal of the original lease.' The assignee of part of an estate is not liable for rent for the whole ; ' but if a lessee grants or as- 1 Elliott V. Johnson, 8 B. * S. 38. Spitty, 1 Bing. N. C. 756, Tindal, C. ^ Kirkpatrick b. PesWne, 24 N. J. Eq. J., said : "The proposition contended 206. for by the plaintiff, is this : — that the ^ Id. lessor may charge the assignee of 'part * When a covenant running with the of the land in an action of debt with the land is divisible in its nature, and the rent of the whole of the land comprised entire interest in different parts of the in the original demise. He may un- land passes by assignment, the assignee doubtedly, after an assignment of part, of each part will be exclusively liable distrain upon the whole ,■ because the for a breach which relates to that part rent for the whole becomes due out of alone. Astor v. Miller, 2 Paige Ch. (N. every part of the land ; but in that case T. ) 68. Where, from the subject-mat- it must be remembered that the avowry ter of the covenant, it is the evident in- would be for the rent due from the orig- tent of the parties, that they should be inal tenant, and nothing would appear taken distributively, they may be so upon the record as to the assignment." taken, although there he no words of Covenants are joint or several, accord- severalty. Ludlow v. M'Crea, 1 Wend, iug to the interest of the parties, unless (ST. Y.) 228; Ernst b. Bartle, 1 Johns, expressly made either joint or several, Cas. (N. T. ) 319; Walker v. Webber, 12 in which case they cannot be construed MJe. 65;lKoll. 522, 1. 5;Conan». Kemise, otherwise than as the parties intended. W. Jon. 245 ; Congham ». King, Cro. Withers v. Birchem, 3 B. & C. 254; Sors- Car. 221. bie v. Park, 12 M. & W. 1.58 ; James v. * Stevenson c. Lambsurd, 2 East, Emery, 8 Taunt. 245 ; Bradburn v. Bat- 615. field, 14 M. & W. 559 ; Anderson v. Mar- 6 Com. Dig. tit. Covenant (B), 3- tindale, 1 East, 497 ; Keighley v. Wat- ' Simpson v. Clayton, 4 Bing. N. C. son, 3 Exchq. 716 ; Eccleston ?). Clip- 758. sham, 1 Wm. Saund. 153 ; Slingsby's ' Holford V. Hatchj 1 Doug. 183 ; Case, 5 Coke, IS a ; WoUaston v. Hake- Hare r. Cator, Cowp. 766. In Curtis v. will, 3 M. & G. 297. 508 Covenants. signs part of his estate, yet the entire privity of the contract is not at an end, and the lessee would, it seems, remain liable on his covenant to pay the entire rent, for he cannot apportion it.^ Dependent or independent. — General rule -with respect to such covenants. Sec. 312. As to what covenants shall be construed to be conditions precedent or not, it is held that the dependence or independence of covenants must be collected from the sense and meaning of the parties ; and that in whatever order covenants may stand in a deed, tlieir pre- cedency must depend on the order of time in which the intent of the transaction requires their performance.^ No precise technical words therefore are required in a deed to make a stipulation a condition pre- cedent or subsequent ; neither does it depend on the circumstance whether the clause is placed prior or posterior in the deed : the merits, therefore, of a question of this kind must depend on the nature of the contract and the order of time in which the acts are to be pei-formed by the contracting parties, and any subsequent facts disclosed which have happened in consequence of the contract. When one act is to be done by one party, before another act which is the consideration of it is to be done by the other, the covenants are dependent, and the other is not bound to perform until the first act has been done, because the first act is a condition precedent to performance of the other, and in all cases, where covenants are dependent, they are in the nature of conditions precedent, and must be performed in the order of time in which performance is provided for in the covenant ; and in determining whether covenants are dependent or independent the intention of the 1 Broom v. Hore, Cro. Eliz. 633; Ards to be done by one party before another V. Watkin, Cro. Eliz. 637; Stevenson o. act, which is the consideration of it, is Lambard, 2 East, 575, 579. to be done by the other, the covenants 2 Grrant v. Johnson, 6 N. Y. 247 ; Bab- to do those acts are independent. Tiles- coclv V. Williams, 17 Me. 372. Covenants ton v. Newell, 13 Mass. 410 ; Couch v. are to be regarded as dependent or Inde- IngersoU, 2 Pick. (Mass.) 300; Goodwin pendent, according to the intention of v. Holbrook, 4 Wend. (N. Y. )377; Cun- the parties and the good sense of the ningham »). Morrell, 10 Johns. (N. Y.) case ; and technical words shall give 203 ; Barmso v. Madan, 2 Johns. (N". way to such intention. 1 Eoot, 170 ; 4 Y.) 145 ; Craddock v. Aldridge, 2 Bibb Rand. (Va.) 3.52 ; M'Crelish d. Church- (Ky.), 15 ; Mullins b. Cabiness, Minor man, 4 Eawle, 26 ; Tileston ». Newell, (Ala.), 21. Thus, A covenanted withB 13 Mass. 410 ; Tompkins b. Elliot, 5 to dig a canal and keep it open, and B Wend. (N. Y. ) 496 ; Barruso v. Madan, covenanted that all suits as^ainst A 2 Johns. (N. Y.) 145. And the intention should cease and determine. Held, that of the parties is to be discovered rather the covenant to keep open, being with- from the order of time in which the acts out limitation of time, was indepen- are to be done than from the structure dent, and that when the canal was dug, of the instruments or the arrangement A might compel B to enter satisfaction of the covenants. Goodwin v. Lynn, 4 on a judgment remaining open against Wash. (U. S. C. C.) 714; Speake v. him at the suit of B. Barksdale v. Sheppard, 6 H. & J. (Md.) 85; Gardiner Toomer, 2 Bailey (S. C), 180 ; Jones d. I). Corson, 15 Mass. 504 ; Hopkins v. Barkley, 2 Doug. 684. Young, 11 Mass. 304. Where one act is Dependent or Independent. 509 parties and the good sense of the case will be regarded, rather than the technical sense of the words used.^ Where a covenant is part only of the consideration on one side, and the breach of it may be paid for in damages, it is an independent covenant, and not a condition prece- dent.^ If one party covenants to do one thing, the other party doing another, it is not a condition precedent, but a mutual covenant.^ A contract to grant a lease upon payment of a certain sum by certain in- stalments at stated times, the granting of such lease is not a condition precedent to a right to recover the sum agreed upon.'' So where A agrees to sell and B to purchase an estate, and B covenants to pay A on or before a specified day a certain sum as the consideration of such sale, with interest to the time of completion of the purchase, but no time is fixed for executing the conveyance, A may maintain an action for the purchase-money and interest, without first tendering a convey- ance.^ It is a general rule that covenants are to be treated as inde pendent rather than as conditions precedent, especially where some iHotham v. East India Co., 1 T. R. 645 ; Newson v. Smythies, 3 H. & N. 840 ; Toddi). Summers, 2 Gratt. (Va.) 167 ; M'Crelish v. Churchman, 4 Rawle (Penn. ), 26 ; Bean v. Atwater, 4 Conn. 3 ; Tileston v. Newell, 18 Mass. 410 ; Gardiner v. Corson, 15 Mass. 500 ; Tompkins v. Elliott, 5 Wend. (N. Y.) 496; Howland v. Leach, 11 Pick. (Mass.) 154 ; Church v. Ingersoll, 2 Id. 300 ; Mullins V. Oabiness, Minor (Ala.), 21 ; Parmalee v. Oswego E. R. Co., 6 N. T. 74 ; Dwiggins v. Shaw, 6 Ired. (K. C. ) L. 46 ; Barruso v. Maddan, 2 John. (N. Y.) 145. Unless a contrary intention clearly appears, our courts are inclined to construe covenants as dependent, Clapton V. Bolton, 23 Miss. 78 ; Mecum V. Peoria, &c., R. R. Co., 21 111. 533 ; Liddell v. Sims, 17 Miss. 569 ; Bangs v>. Lowber, 2 Cliff. (U. S. C. C.) 157, es- pecially where one party may enforce performance by the other party and yet refuse to perform himself. Mecum v. R. R. Co., ante. Where covenants are once established as independent, they remain so throughout. Evans «. Harris, 19 Barb. (N". Y.) 416. Where acts are to be done simultaneously, and each forms the consideration for the other, they are dependent. Darkin v. Williams, 11 Wend. (N. Y.) 67 ; Hounsford v. Fisher, Wright (Ohio), 150 ; Parker v. Parmalee, 20 John. (N". Y.) 130; Day V. Essex Bank, 1.3 Vt. 97. It does not necessarily follow that a covenant is in- dependent because it goes only to a part of the consideration ; nor that the con- sideration is divisible in its nature ; nor that a part of it has been received ; nor that one or more of the covenants in an instrument are independent. The order of time in which they are to he performed is the test for determining the question. Grant ». Johnson, 6 N". Y. 247. In But- ler D. Many, 52 Mo. 497, it was held that in order to be dependent the covenants must be mutual and to the entire con- sideration. 2 Nelson v. Owen, 41 111. 18 ; Ober- myer D. Nicholls, 6 Binn. (Penn.) 166 ; Bennett ». Pixley, 7 John. (N. Y.) 249; Payne v. Bettisworth, 2 A. K. Mar. (Ky.) 166 ; Boone v. Eyre, 1 H. El. 273, n. a ; St. Albans v. Shore, 1 id. 270 ; Pordage v. Cole, 1 Wm. Saund. .320 6 ; Bagallay v. Pettit, 5 C. B. N. S. 637 ; Carpenter v. Crosswell, 4 Bing. 409. 3 Boone v. Eyre, 2 W. Blac. 1312 ; Pordage v. Cole, 1 Wms. Saund. 319 6, 320 c ,• Newson t. Smythies, ante ; Mac- intosh !). Midland Counties Railway Co., 14 M. & W. 548 ; London Gas Light Co. V. Chelsea Vestry, 8 C. B. N. S. 215. * Freeland v. Mitchell, 8 Mo. 487 ; Champion v. White, 5 Qov. (N. Y.) 509 ; Manning v. Brown, 10 Me. 49 ; Wilcox V. Ten Eyck, 5 John. (N. Y.) 78 ; Benson !). Hobbs, 4 H. & J. (Md.) 285 ; Baggallay v. Pettit, 5 C. B. N. S. 637. 5 Mattock V. Kinglake, 10 Ad. & El. 50 ; Wilks v. Smith, 10 M. & W. 355 ; 2 Dowl. N. S. 215; Dunlop v. Grote, 2 C. & K. 153 ; Dicker v. Jackson, 6 C. B. 103 ; Sibthorp v. Brunei, 3 Exch. 826 ; Thames Haven Dock Co. v. Brymer, 5 Exch. 696, 710. 510 ' Covenants. benefit has been derived by the covenantor;* and where a penalty is attached for a breach, the covenant is always independent.'' Particular cases decided respecting repairs. Sec. 313. A covenant to keep a house in repair, from and after the lessor has repaired it, is conditional ; and it cannot be assigned as a breach that it was in good repair at the time the lease was made, and that the lessee suffered it to decay ; for the lessor must repair before the lessee is liable.' "Where the plaintiff let to the defendant a mes- suage, barn, stable and buildings, and the defendant agreed to repair the said messuage, buildings and premises, the same heing first put into repair hy the plaintiff ; it was held that the repair by the plaintiff was a condition precedent to the obligation on the defendant to keep in re- pair; that that condition precedent could not be divided, and that the plaintiff was not entitled to recover for the non-repair of any part of the premises without having first repaired the whole.* So if a lessee covenants to repair, " provided always and it is agreed that the lessor shall find great timber," &c., this makes a covenant on the part of the lessor to find great timber by the word "agreed," and it shall not be a qualification of the covenant of the lessee ; * but where the words were, "he, the said lessor, finding, allowing and assigning timber sufficient for such reparations during the said term, to be cut and carried by the lessee ; " it was held not to be a covenant to provide timber, but a mere qualification of the covenant to repair." Where a lease for lives contained a covenant by the lessee, at his own expense, to keep the demised premises in proper repair, " having or taking in and upon the said demised premises competent and sufiicient house- bote, hedge-bote, fire-bote, plough-bote and gate-bote for the doing thereof, without committing any waste or spoil : " held in an action for not repairing, that the covenant to repair was absolute, with a license to the lessee to take competent and sufficient house-bote, &c. ; and that the finding such house-bote, &c., was not a condition precedent to the liability of the lessee to repair." Where the lessee covenants to put and keep the demised premises in repair, "being allowed rough timber but not on»the stem." upon the demised premises, the timber to be fetched and carried at the expense of the lessee : " in an action of cov- enant for not repairing, it is sufficient to allege that the lessor was ready and willing \C) allow and provide sufficient rough timber not on the 1 Newson i). Smythies, 3 H. & N. 843, * Keale v. EatcIifE, 15 Q. B. 916; Hunt Pollock, C. B. ». Bishop, 8 Exch. 675 ; HutcMnson ». 2 Freeland ». Mitchell, 8 Mo. 487 ; Read, 4 Exch. 761. Dawson v. Fitzgerald, 1 L. K. Ex. Div. ' Bac. Abr. tit. Covenant (A). 257. ' 6 Thomas b. Cadwallader.Wllles, 496. 3 Slater ». Stoiie, Cro. Jac. 645 ; but ' Dean and C. of Bristol ». Jones, 1 see 4 Jarm. Byth. 407 (3d ed.). E. & E. 484. Relating to Repairs. 511 stem, without stating that he did actually furnish it.^ Where a lessee bovenanted to repair a house before the first of JUne, 5000 slates being found by the lessor towards the repair, and afterwards to keep in repair during the term ; it was held, that finding the slates was tiot a condition precedent to the covenant to keep in repair, but only to the covenant for putting the premises in repair before the first of Juiie-.'' In a farm- ing lease the lessee covenanted with the lessor that the lessee should at all times during the term repair and glaze the windows and also the hedges, &c., when necessary, " the said farmhouse and buildings being previously put in repair and kept in repair by the lessor ; " the latter clause was held to amount to an absolute and independent covenant on the part of the lessor to put the premises in repair.' A covenant by the lessor to do certain work, containing at the end the words " and the whole of which is agreed to be left to the superintendence of the lessee and the lessor's son," is neither a condition precedent to, nor concurrent with, the covenant.* The covenant to repair generally, and to repair within three months after notice in writing, are independent covenants ; ' and Avhere a lessee covenanted toleaye premises in repair at the expiration of the term, and also that the lessors might direct the lessee to complete the repairs by giving six months' notice in writing, it was held, that these were two distinct and separate covenants, the former of which was not qualified by the latter;^ but where a lease contained a covenant by the lessee to j'cpair the premises at all times (as often as need or occasion should require) and " at farthest within three months after notice," it was held to be one entire covenant, the former part of which was qualified by the latter.' Where there was an agreement that the lessee should spend a certain sum in repairs, to be inspected and approved of by the lessor, and to be done in a substantial manner, and the lessee was to be allowed to retain the money out of the first year's rent of the premises, it was held, that the lessor's ap- proval was not a condition precedent to the lessee retaining the rent.^ Where a lessee covenanted to expend a certain sum in substantial and beneficial improvements,' under the direction or with the approbation of some competent surveyors to be named by the lessor, the appoint- ment of the surveyors was held to be a condition precedent to the lessee's liability to expend the money.* Where the lessor covenanted to pay the lessee for the manure, &c., at the end of the term, upon the > Martyn v. Clue, 18 Q. B. 661. ' Horsefall v. Testar, 7 Taunt. 3S 2 Mucclestone ». Thomas, Willes, 146. cited 4 C. B. N. S. 551. » Cannock v. Jones, .3 Exch. 233. ^ Dallman v. King, 4 Bing. >[. C. 105, * Jones V. Cannocli:, 5 Exch. 713. recognized in Stadhart v. Lee, 3 B. & S, 6 Morecraft v. Meux, 4 B. & C. 606 ; 364. Wood V. Day, 7 Taunt. 646 ; Baylis v. * Cobmbe «. Greene, 11 M. & W. 480 Le Gros, 40. B. N. S. 537. Cannock v. Jones, 3 Exch. 233 : 6 Id, 6 Wood V. Day, ante. 713 ; Hunt v. Bishop, 8 Eich. 675. 512 Covenants. lessee delivering up the farm, ifin tlie mean time he cultivated it on the four-course system, and performed and kept all and singular other his covenants in the lease : held, that the delivery up of a certain agreement pursuant to a covenant in the lease was not a condition precedent to the tenant's right to recover for the manure, &c.^ Where, by deed reciting an agreement to let copyhold premises, A covenanted that as soon as he had procured a license from the lord of the manor he would lease them to B for the then residue of a term of years from a certain day, and B covenanted that he would repair during the term so to be granted, it was held, that B was liable on this covenant after having occupied the premises for the whole term, though no license had been procured from the lord nor any lease ever made.^ Cases decided respecting other matters. Sec. 314. Where a lessee covenanted to leave sufficient compost on the soil of the landlord at the end of the term, he, the lessee, having the yard, barn and a room to lodge in and dress diet ; it was held to be a mutual and not a conditional covenant, as it differed from a case where the tenant covenants to repair if the lessor finds sufficient tim- ber, for there the proviso restrains the covenant ; but in this case, said LoKD Mansfield, there is not the least foundation for such con- struction.' Where in a lease for seven years, containing the usual covenants that the lessee should pay the rent, keep the premises in re- pair, &c., there was a proviso that the lessee might determine the term at the end of the first three or five years, giving six months' previous notice, and that then, from and after the expiration of such notice, and payment of all rents and duties to be paid by the lessee, and perform- ance of all his covenants until the end of the three or five years, the indenture should cease and be utterly void, it was held, that the pay- ment of rent and performance of the other covenants were conditions precedent to the lessee's determination of the term at the end of the first three years,^and that his merely giving six months' notice, expiring with- in the first three years, was not sufficient for that purpose.* A mining lease contained numerous covenants by the lessees, and also a proviso that if they should desire to quit the premises at the end of the first eight years, and should give eighteen, months' notice thereof to the lessor, then, all arrears of rent being paid, and all and singular the covenants and agreements on the part of the lessees having been observed and performed, the lease should at the expiration of the eighth year be utterly void ; but, nevertheless, without prejudice to any claim or 1 Newson V. Smythies, 8 H. & N. 840 ; » Dodd v. Innis, Lofft. 56. 28 L. J., Exch. 97; 1 F. & F. 477. * Porter v. Shephard, 6 T. R. 655. 2 Pistor V. Cater, 9 M. & W. 315. Cases decided eespecting other Matters. 513 remedy wllich any of the pavties might then be entitled to for bi-each of any of the covenants ; it was held, in error, that the performance of all the covenants by the lessees was a, condition precedent to their right to determine the lease. ^ Another court of error, however, ap- pears to have entertained a different opinion.^ A lease contained a proviso, that if the lessor should give notice for the delivery up of the land to him, the lessee covenanted to surrender it up, and that the lessor might take possession of it, paying the lessee compensation for money expended thereon : it was held, that the proviso did not oper- ate as a mere covenant by the lessee to give up on notice, but ex- pressly gave the' lessor power to take possession ; and that he might do so without having first paid compensation.^ Where A covenanted to pay an annuity to B, who covenanted for the assignment and quiet en- joyment of premises, the entering into which covenants was the con- sideration, it was held, that they were not dependent.* So where it was agreed that the lessor should, within eighteen months from the date of the lease, build a cattle-shed, the whole to be left to the supei'- intendenoe of the lessee and her son, it was held, that this latter pro- vision was not a condition precedent to or concurrent with the lessor's Covenant to build.' On a lease of some coal mines, the lessees cov- enanted that the lessor should, when he thought fit, employ a fit and proper person to weigh the coals and keep the accounts, the person so weighing and keeping the accounts to be paid by the lessees ; but in case such person did not duly attend to his duties, the lessses were au- thorized to discharge him : held, that the appointment of a fit and proper person was a. condition precedent to the liability of the lessees to pay the wages, and that therefore they were not bound to pay the wages though they had not dismissed him." An assignee of a term in coal mines covenanted with the lessee that he would, so long as he should be in receipt of the rents of the premises, pay to the lessors the rent payable, by the original lease, and would keep the lessee harmless and indemnified against t'he rents and covenants of the lease : it was held, that the words " so long as he should be in receipt of the rents " did not extend to the covenant to indemnify.' A covenant in a farm- ing lease provided that the tenant should consume and convert into manure, and spread on the premises, all the turnips, &o., grown thereon ; but that in case he should sell off any part thereof, which he was at liberty to do, then that he should for every ton of turnips, - iny, it would not have been a forfeit- ure." Stanhope v. Skeggs, E. & Tr., 21 Geo. 3 B. R. 8 Seers v. Hind, 1 Ves. Jr. p. 295 ; Roe V. Harrison, 1 T. R. 425 ; Croft v. Lumley, 6 H. L. Cas. 672. ' Doe ». Bevan, 3 M. & S. .3-53 ; Hun- ter V. Galliers, 2 T. R. 133; Goodbehere c. Bevan, 3 M. & S. 353 ; Witherell v. Geering, 12 Tes. 512; Wadham v. Mar- low, S East, 314, n. ,• Dyke v. Taylor, 6 Jur. N". S. 1329; Lockwood c. Clarke, S East, 185 ; Goring v. Warner, 2 Eq. Cas. Abr. 100, pi. 3; S. C. 7 Vin. Abr. 85, pi. ». But taking the benefit of an Insolvency Act is treated as a voluntary assignment, and such would doubtless he the effect where a person becomes a bankrupt on his own petition. Shee v. Hale, 13 Ves. 404; Holland u. Cole, 1 H. & C. 67; Hill B. Cawdry, 1 H. & IST. 360 ; Billiter v. Young, 6 E. & B. 1. And a lease may expressly provide that it shall be void if the lessor becomes bankrupt. Lloyd v. Ingleby, 15 M. & W. 465 : Church ii. Brown, 15 Ves. 2.58; Griffiths b. Pritch- ard, 5 B. & Ad. 765; WiUiams v. Davis, C. ■& P. 514; Bridgman b. David, 16 M. & R. 405 ; Gatehouse v. Rees, 4 Bing. N. C. 384. Where the lessee becomes a bankrupt (not on his own petition), and hy the operation of the bankrupt acts ' Goring v. Warner, ante ; Slipper v. Tottenham, &c., Ry. Co., L. R., 4 Eq. 112 ; Sir William Moore's Case, Cro. Eliz. 26; Crusoe v. Bugby, 3 Wils. 234 ; Mitchison b. Carter, 8 "T. R. 57 ; Stan- hope B. Skeggs, 2 id. 428; Weatherall v. Geering, 12 Ves. 513 ; Shee v. Hale, 13 Ves. 404; Brandon v. Astor, 2 Y. & C. 24. How Broken. 533 is the condition broken by a bequest of the term/ nor by simply de- positing the lease with a creditor as security for a debt,^ or otherwise parting with the possession of the lease, when no transfer is executed so as to make the party receiving it liable upon the covenants of the lease as assignee ; ° nor even an assignment which is void in law,^ nor by the marriage of a feme sole tenant ; ° nor does the tenant violate this condition by a mei-e offer to assign, as by advertising that he will underlet or assign. There can be no breach unless he does in fact assign or underlet in a manner that is operative and effectual in law." If a man leases a house and land,, upon condition that the lessee shall not parcel out the land, nor any part thereof, from the house; and afterwards the lessee leases the house and part of the land to one, and the residue of the land to another, it is a breach of the condition ; for by the word " parcelling " is intended a division or separation of the land from the house ; and every division and severance of the house and land is within the meaning of the condition.' Where a lease con- tained a proviso for re-entry, in case the tenant should demise, lease, grant or let the demised premises, or any part or parcel thereof, or convey, &c., to any person whomsoever, for all or any part of the the property becomes vested in the as- signees, such transfer of interest does not create a breach of the contract against alienation. Wadham v. Marlow, 2 Chit. 600 ; 8 East, 314, n. Nor even a subsequent assignment by tliem to a purchaser. Goodbehere ». Bevan, 3 M. & S. 353, 360, 361 ; Cole Ejec. 436. But see Dylce v. Taylor, 6 Jur. N". S. 1.S29. The assignment being done by the authority of a statute, supersedes any private agree- ment between the parties, and is, there- fore, no breach of the condition. Hun- ter ». Galliers, 2 T. E. 133 ; Weatherell v. Geering, 12 Ves. 512 ; Lockwood v. Clarke, 8 East,' 185 ; Goodbehere v. Be- van, 3 M. & S. 353. But if he became bankrupt upon his own petition that may amount to a voluntary assignment, and consequent forfeiture. Hill u. Cow- dery, 1 H. & N. 360 ; Billiter v. Young, 6 E. & B. 1 ; Holland ». Cole, I H. . Jones, 2 Barb. (N. Y. ) 643. Phill. (N. C.) Eq. 302; Johnston b. ^ Farley b. Thompson, 15 Mass. 18; Smith, 3 Penn. St. 496 ; York v. Jones, Fitchburgh Corporation v. Melvin, id. 2 N. H. 4.54 ; Kornegay «. Collier, 65 268. N. C 69 ; Rogers «. McKenzie, 65 id. " Id. 218. '^ Frederick v. CallaghaTi, 40 Iowa, ' Page V. Esty, 54 Me. 319. 311; Bailie t. Eadway, 27 Wis. 172. 540 Covenant kot to Assign oe TJndeklet. in esse does not run with the land, and, unless assigns are expressly mentioned, an assignee takes no benefit from the covenant.^ Persons become assignees either by act of the party or by act of law; under the first head may be classed those who become so by an instrument of assignment, or by act of attornment: under the latter head may be stated, those who have thrown upon them the interest in the premises — in consequence of the property having been taken under writs of execution — by bankruptcy — by marriage — or by death. Assignments of the reversion. — Hovr made. — 32 Hen. 8, c. 34. Sec. 326. A lessor may by deed as.sign his I'e version. At common law such an assignment would only have given the assignee a right to the rent reserved, to distrain for it, and to sue for breaches of cove- nants in law, but not for breaches of express covenants entered into by the lessee with the lessor ; ^ to remedy this, the statute 32 Hen. 8, c. 34, enacted that all grantees of reversions should enjoy all the advantages, benefits and remedies by entry for non-payment of the rent, or for doing of waste or other forfeiture,^ or by action only, for non-perform- ance of conditions, covenants or agreements, contained or expressed in leases, which the grantors or lessors themselves had or enjoyed. So that now the grantee of a reversion may take advantage of all express covenants which run ivith the land, as well as of covenants in law, though only the lessor and his heirs are named in the lease.* Causes of action which accrued previous to the assignment of the reversion will not pass with it, so as to enable the assignee to sue for them in his own name.' The remedy is mutual, for the same statute gives the lessee a right of action against the grantee of the reversion." The statute does not extend to mere collateral covenants ; ' but it includes devisees, grantees of part of the reversion,' and, for some purposes, assigyees of the reversion of part of the demised premises.' HoTBT assignments of the reversion may be made. Sec. 327. An assignment of the reversion must be by deed, unless otherwise provided by statute. Indeed, all conveyances of real estate, or an interest therein, must be in conformity with the statute ' Cronin v. Watkins, 1 Tenn. Ch. 119. = Hunt x>. Bishop, 8 Excli. 675; Hunt 2 1 Wms. Sauntl. 240 a, note [z) ; 1 v. Remnant, 9 Exch. 635 ; Martyn v. Smith L. C. 42 (4tli ed. ) ; Martyn v. Williams, 1 H. cS: N". 817. Williams, 1 H. cfe N. 817, 826. " Sect. 2; Jourdain o. Wilson, 4 B. & 8 Bennett v. Herring, 3 C. B. N". S. Aid. 266. 370. ' Webb v. Russell, 3 T. R. 393. 4 Thursby v. Plant, 1 Saund. 237; 1 * Macbell v. Dunton, 2 Leon. 33. Smith L. C. 43. This statute is not in ' Attoe b. Heiumings, 2 Bulst. 281; force in Ohio and a grantee cannot sue Wright v. Burroughs, 3 C. B. 685; Co. upon the covenants in his own name Lit. 215 o ,• Rawliugs v. Morgan, 34 L. unless they are specially assigned. J. C. P. 185. Masury n. Southworth, ante. What Amounts to ajst Assignment. .541 in the State wliere the estate is located, and it would be useless to attempt to give any general rule relative thereto, as the statutes in the several States vary as to the necessary requirements.' A let a house to B, as tenant from year to year, and afterwards gi-anted a lease by deed to C of the house for twenty-one years : this was held to transfer the reversion to C, and to disentitle A to recover from B the rent due after the lease.^ A conveyance in fee, whether absolutely or by way of mortgage, will pass a term which has been carved out of it, and afterwards re-assigned to the grantor, subject to an underlease.' Effect of a mortgage of the reversion. Sec. 328. Mortgages subsequent to a lease operate as grants of the reversion, and carry with them, as incidental to such revei'sion, a right to the rent and the benefit of the landlord's remedies for the recovery.* The mortgagee, therefore, may enforce the payment of the rent from the lessee tjithei- by distress or action ; and the lessee will bo exoner- ated by such payment fi'oni any dem.and on the part of the mortgagor or those claiming under him ; even though actual compulsion on the part of the mortgagee has not been resorted to, but the lessee has paid the rent voluntarily.^ Payments agreed to bo made by an occupier of the soil, under a parol license to dig earth and make bricks, are in the nature of rent ; and as such, a subsequent mortgagee is entitled, after notice in tlie usual manner, to all sums in arrear at the time of the notice, or which may become due afterwards. ° A mortgagee of a term who has never taken jJossession is not an assignee of the whole term, or liable for rent in arrear, as the mortgage is not an absolute conveyance of the term, but a conditional one, the title remaining in the moi'tgagor.'' What amounts to an assignment. Sec. 329. An assignment must be by deed, and must pass the legal estate of the assignor ; for a transfer of a mere equitable interest will not make a man liable as an assignee. An agreement to take an assign- ment of a lease, followed by possession on the part of the equitable ' Twynam v. Pickard, 2 B. & A. 105; of the agreement ; and he is not liable Simpson V. Clayton, 4 33ing. N. C. 758; to the reversioner on the ground of Badeley v. Vigurs, 4 E. & B. 71 ; 1 ijrivily of contract, but by privity of es- Smith L. C. 44. tate, or the actual occupation and bene- 2 Beely v. Perry, 3 Lev. 155 ; Brawley ficial enjoyment. Engels v. McKinley, ». Wade, M'Clel. 664. 5 Cal. 153 ; Burton v. Barclay, 7 Bing. SHarmer v. Bean, 3 C. & K. 307; 745. Burrows v. Gradin, 1 D. & L. 213; but ^ Moss v. Galimore, 1 Doug. 279 ; 1 see Edwards v. Wickwar, L. E., 1 Eq. Smith L. C. 470 (4th ed.). 413. ° Ex parte Hankey, 1 M. & M. 247. * The assignment of a lease as collat- ' Tallman v. Bressler, C5 Barb. (N. eral security for a loan, does not entitle T. ) 369 ; Astor v. Hoyt, 5 Wend. (N. the assignee to the possession of the de- Y. ) 603. mised premises, except upon a breach 542 Covenant not to Assign oe Underlet. assignee, is not sufficient to give the lessor any right to sue the equita- ble assignee in equity on the covenants in the lease. ^ The delivery and depositing of a lease as a security for money, without any written assignment, passes no interest at law, although it may ci-eate a right which may be enforced in equity ; ^ but the tr.insfer may be complete, although the assignee has never in fact got possession of the deed of assignment, by reason of a claim of lien on the part of the assignor's attorney for the expense of preparing it.^ The covenant will not be extended by construction ; thus, a covenant not to assign for the benefit of creditors, will not be broken by an assignment tiot for the benefit of creditors;' nor will a covenant not to assign to a certain ijerson named be broken by an assignment to a third person, who subse- quently assigns to the person against whom the covenant provides,^ unless made with the intention that such third person should assign over to him.' Distinction betiveen an assignment and an underlease. Sec. 330. An assignment, as contradistinguished from an under- lease, signifies a parting with the lohole term ; and when the whole term is made over by the lessee, although in the deed by which that is done the rent and a power of re-entry for non-payment are reserved to himself, and not to the original lessor, yet the instrument amounts to an .assignment, and not an underlease ; ' and in such a case, the 1 Cox ». Bisliop, 8 De G. M. & G. 815. mesne assignments to T, from whom it ^ Doe d. Maslin v. Eoe, 5 Esp. 105 ; was further assigned to the defendant. Williams «. Evans, 23 Beav. 2.39. In a suit to foreclose tlie mortgage to ' Odell 15. Wake, % Camp. 394. which tlie defendant was made a party, ■* Phila., &c., K. R. Co. v. Catawissa, it being claimed that his estate was &c., R. R. Co., 53 Perm. St. 20. merged for tlie benefit of the mortgagee 5 In J). , Dyer, 45 a, a ques- by the union of the two estates in Y, it tion was raised whether a condition in was held, that there was no such merg- a lease to A upon condition that he er ; that the original lease could not be should not assign to ,1 S, was broken by merged in the smaller estate ; that the his assignment to R B, who sxtbseqnent- rights of the mortgagee passed by the ly assigned to J S, and the court held transfer of the original lease to Y ; but that it was not, because the condition that the effect of this assignment was to must be taken strictly. . reduce the rent to the rate of $150 fixed " Co. Litt. 223 6. by the original lease. See also, Post v. ' In Collamer v. Kelly, 12 Iowa, 319, Kearney, 2 N. Y. 394; Martin v. O'Con- it was held that an instrument under ner, 43 Barb. (N. Y. ) 514. A sublease which a lessee transfers the estate re- vests only a. part of the term in the les- served to him, but at an increased rent, see, but an assignment carries the whole. and with a covenant for a redelivery of Constantine v. Wake, 1 Sweeney (N. Y. possession to him, was a sublease, and Superior Ct. ), 239. See also, Martini), not an assignment. It; that case, W O'Conner, 43 Barb. (N. Y.) 514, where holding at a rent of $150 per annum, it was held that where a lease of the sublet for his whole term at $250 per an- lessee's whole term was made, but a num, possession to be delivered to him right of re-entry was reserved, the con- at the last day of the term. This sub- veyance amounted only to a sublease, lease was assigned to Y, who mortgaged Hiclis v. Downing, 1 Ld. Raym. 99 ; his " leasehold interest " under the lease Palmer v. Edwards, 1 Doug. ISt; Thorn and assignment. Afterward, W as- v. Woolcombe, 3 B. & Ad. 595 ; Preece signed his lease and it came through d. Corrie, 5 Bing. 24 ; Parmenter v. Assignment ok Underlease. 543 person to whom it is made over may sue the original lessor or his assignees of the reversion, or be sued by them as assignee of the term, on the respective covenants in the original lease, which run with the land, even though new covenants are introduced into the assignment.^ It is necessary that the person sought to be charged as an assignee should claim and be in possession through the same estate as the person whom he succeeds ; for if he comes in by an elder title, he is not an as- signee.' Nor is a person who enters into possession under a decree with- out a sale, where the law requires a sale, although he enters by the permission of the lessee, an assignee of the lease, so as to render him liable upon its covenants.' If a lessee for years make a lease for a time exceeding his interest, it operates as an assignment : therefore, if a lessee for three years assigns his term for four years, or demises the' premises for four years, it operates as an assignment of his interest.'' A conveyance by a lessee of the remainder of his unexpired term, though it employs words ordinarily used in a demise, and contains a reservation of rent, and the right of re-entry on covenants broken, is not an underletting or sublease, but is considered in law as an assign- ment of his whole interest, as there remains in him no reversion of the estate ; it being one of the essentials of a lease that it should contain a reversion in favor of the grantor. The reconveyance of the leasehold estate by mesne conveyances of such description to the grantor, passes the entire estate of the lessee, which thereby becomes merged in the fee and extinguished.^ Where a lessee in a lease containing the usual Webber, 8 Taunt. 593; Wollaston v. be that the occupants are in as assignees, Hakewill, .S M. & G. 297 ; Pascoe v. and not as undertenants. Bedford o. Pascoe, 3 Bing. N. C. 898; Langford v. Terhune, 30 N. T. 408. But this pre- Selmes, 3 Kay & J. 220; 2 Prest. Conv. sumption may, in either case, be re- 124; Cole Ejec. 223. butted by proof tliat tliere never was in 1 Palmer v. Edwards, 1 Doug. 187, n. fact such an assignment. In an action 2 Eoach D. Wadliam, 6 East, 289. for rent on a lease of a store-room, it ap- ' Merchants' Ins. Co. v. Muzange, 22 peared that the lease was for five years Ala. 168. from May 1, 1857; that by its conditions * Hicks V. Downing, 1 Ld. Eaym. 99; the lessee could not, without forfeiture. Bull. N. P. 106. assign or underlet except upon the writ- ^ Smiley v. Van Winkle, 6 Cal. 605. ten consent of the lessor, which was It is essential to an underlease that it never given ; that the defendant bought be of a part only of the unexpired term, the lessee's stock of goods, and occu- When the transfer is of the whole term, pied the premises from December, 1857, the person taking is an assignee, and and paid the lessor the rent named in not a subtenant, even if the form be the lease for two quarters; that he then that of an underletting. In the absence agreed with the lessor for the use of the of any evidence of the agreement under premises for one year at a reduced rate; which parties entered into possession of that at the expiration of that year the demised premises, subsequent to the lessor demanded tlae rent named in the lessees, if it is shown that they occupied lease for the rest of the term ; that the during tlie whole of the unexpired term paties disagreed, and the defendant, af- of the lease, the fair presumption is that ter occupying the premises six months they entered for the whole of such un- longer, left them. The defendant in- expired term. And as such an interest troduced evidence tending to show that is given, not by an underlease, but by there was no assignment in fact. Held, an assignment, the presumption must that it was error for the court to iu- 544 Covenant not ro Assign or Underlet. covenants, assigns by deed his interest in the whole of the unexpired term to another, the latter stands in the relation of assignee, not of sublessee, to the landlord, and is liable to him on the covenants con- tained in the lease. And it is so if a part of the premises is excepted in the deed of the last assignor.' In an action by the lessor against a person as assignee of the terra, to whom the lessee demised for a longer term than he himself had, and at a higher rent ; it was held to operate in law as an assignment, and that it might be so described in pleading.^ Where the lessee of two farms had agreed in writing with another that the latter should have them during the lease, remaining tenant to the lessee during that period : the undertenant accordingly took jjossession and paid a year's rent to the lessee, who afterwards distrained for rent in arrear : it was held that the agreement amount- ed to an absolute assignment of all the lessee's interests, and that he (having no reversion) was not enabled to distrain.^ But it by no means follows that an action for use and occupation, or of debt for rent, or of covenant, could not have been maintained. A parting with the whole term by verbal agreement has been held to create the relation of landlord and tenant, as between the parties, although there struct the jury, that the agreement as to rent for one year at a rate less than that called for by the cU'ed, " did not amount to a new lease, but was merely an agreement to reduce the rent for one year upon the existing lease; that upon the statement of all the parties it only had the effect to temporarily diminish the rent ; and that, after that year, all the provisions of the lease would be in force." The question whether the de- fendant, at the time of such agreement, was in under the lease, should have be^n subn)itted to the jury upon the in- ference raised by the law in favor of an assignment, and upon the opposing evi- dence, and not upon that inference alone as though it were conclusive. Upon the facts put in evidence by the defendant, he became an undertenant at will of the lessee; but as to the les- sor, before the reletting at a diminished rent, he might, by virtue of the cove- nant against underleasing, with the con- dition for a forfeiture, have been re- garded as a quaH tenant by sufferance. Cross V. Upson, 17 Wis. 018; Mariner r. Crocker, IS id. 251. Where by the terms of a lease it is made a ground ol forfeit- ure of the term if the lessees shall let or underlet without the written consent of the lessor, and parties other than the lessees are iu possession without such consent, in the absence of any proof as to the agreement under which they en- tered, the presumption (if any presump- tion is to be indulged in) is that the transfer to the occupants was by as- signment, and not by underletting. Where the defendants entered by con- sent of the lessees, had the lease in their hands, and paid the rent thereon, to the lessor, for the benefit of the lessees, and occupied for the whole residue of the term, and there was no evidence of a holding in any other character, it was held, that under these circumstances the law would presume they were in as assignees of the lease ; and that they were liable as such on the lease, for the rent. But when the law infers an as- signment of a lease from cerlain facts proved, the inference must be of a valid, operative nfisii/ninent, xuch a one as would he sufficient to transfer the term, and it is incumhent upon persons sought to be charr/ed loith the rent, as assignees, to prove either that there loas no assign- ment, or that it toas one void in law. Bedford v. Terhune, ante. iLee w. V:\ge, 4 Mich. 105. 2 WoUaston v. Hakewill, 3 M. & G. 29*7. 8 Parmenter v. Webber, 8 Taunt. 593 ; V. Cooper, 2 Wils. 375; Preece v. Corrie, 5 Bing. 24; Pascoe v. Pascoe, 3 Bing. N. C. 898; Langford «. Sehnes, 3 K. & J. 220. Opeeative Woeds in Assignments. 545 was no reversion.^ So a lessee wlio had underleased by indenture for a terra of years longer than his own, the underlessee covenanting to pay him rent, has been held entitled to sue the underlessee for such rent.^ Where a lessee demised to another for the whole of his term at a weekly rent, it being the intention of the parties to create the relation of landlord and tenant : it was held, that such demise was not to be deemed an assignment against the intention of the parties; and that an action for use and occupation might be brought by the lessee in respect of the whole term, although the lessee had given a week's notice to quit before the expiration of the term, and had quitted accordingly.' A tenant. from year to year who underlets for a long term, does not thereby assiga all his estate, which may possibly continue longer than the term expressed to be granted by the underlease.* An assignment of a, part of the premises amounts only to an underlease, and the lessor can sustain no action against the assignee, either for rent or upon the covenants in the lease.^ There is this important distinction to be observed between the effect of an assignment and an underlease. An assignee is directly liable to the lessor upon all the covenants in the lease, that run with the land, while a subtenant is only liable to his immediate landlord — the original lessee — or his assignee, and then, only upon such covenants as the underlease contains." An under- tenant cannot be charged by the original landlord, for use and occupa- tion even.' Operative -words in assignments. Stsc. 331. An assignment is usually made by the word " assign," but sometimes " grant, assign, and set over," are used ; no particular words are necessary, provided the intention of the parties is suffi- ciently expressed. Where a lessee for life granted all his estate and interest to A and his executors : it was held not to amount to an assignment, because a grant to a man and his executors could not con- vey an estate for life, being a freehold.* Woods excepted out of the lease, but subsequently granted by the lessor to the lessee, will not pass by an assignment of the lease.' An agreement to assign on pay- ■■ Preece ». Corrie and Pascoe v. Pas- Hilt. (N. T. C. P.) 311 ; Jackson v. , coe, ante. Davis, 5 Cow. (K. Y.) 129; McFarlan v. 2 Baker B. G-ostling, 1 Blng. K. C. 19; Watson, 3 N. T. 286 ; Harvey «. Mc- Willianis v. Haywai-d, 1 E. & E. 1040; Graw, 44 Tex. 412, but the landlord In Re Turner, 11 Ir. Ch. Rep. 304 ; may eject him if he violates any of the Adams v. Beach, 1 Phila. (Penn. ) 99. covenants in the lease for which a right 3 Pollock V. Stacy, 9 Q. B. 1033. of re-entry is reserved. Samson v. Rose, * Oxley V. James, 13 M. & W. 209. 65 N". Y. 411. 6 Fulton V. Stewart, 2 Ohio, 215. ' Way v. Holton, ante ; Jennings v. 6 Way V. Hallon, 46 Vt. 184 ; Quack- Alexander, 1 Hilt. (?f. Y. C. P.) 154. enboss'i). Clarke, 12 Wend. (N. Y.)555; « Earl of Derby v. Taylor, 1 East, Babcock v. Scoville, 56 III. 461; Halford " Godb. 188. u. Hatch, Doug 183 ; Kain v. Hoxie, 2 502. 35 546 Covenant not to Assign or Underlet. ment of a sum by instalments, the assignee in the mean time to perform the covenants in the lease and keep the assignor harmless, and the assignor to re-enter on non-payment of any instalment, is merely an agreement for and not an assignment.^ Where a lessee agreed to exe- cute an effectual assignment of two leases of premises, " as he held the same for terms of twenty-eight years," and the assignee agreed to accept a proper assignment of the leases as above described, with- out requiring any guaranty as to the lessor's title, it was held that he was bound to take an assignment of two consecutive leases, though the second was void, because executed under a power which had not been pursued." Usual covenants in assignments. Sec. 332. The proper and usual covenants on the part of the assignor of a term of years are, that notwithstanding any act or thing by him made, done, executed or knowingly suffered, the lease is valid, and in full force : that all the rents, covenants and conditions Iiave been paid, performed and observed to that time : th.it notwithstanding any such act or thing as aforesaid he has ])ower to assign : and for quiet enjoyment by the assignee during the remainder of the term, without interruption by the assignor or any person claiming under him : free from incumbrances by him : and for further assurance. The proper covenants on the part of the assignee are, that he will pay the rent and perform the covenants in the lease, and save harmless the assignor from any breach thereof by him or his assigns.' On an agreement to assign a lease, and to indemnify the lessee from the rent, the assignee entered before any legal assignment was made, some goods of the lessee being left on the premises ; it was held that the assignee was liable on his indemnity, those goods having been taken as a distress for rent, and that it was immaterial whether the goods were left with the leave of the assignee or not.* General liability of lessee and assignee. Sec. 333. A lessee continues liable upon express covenants in the lease, notwithstanding any assignment ; therefore an action of covenant will lie against a lessee for years, on an express covenant, notwith- standing he has assigned his term, and the lessor has accepted rent fi-om the assignee ; ^ but an action of debt will not lie after assignment and 1 Hartshorne ». Watson, a Eing. N. ' Groom o. Bluck, 2 M. & G. 567. C. 477. 6 Port V. Jackson, 17 John. (N. T.) 2Spratt V. Jeffery, 10 B. & C. 249; 239, 479; Damb v. Hoffman, 3 E. D. S. Tweed v. Mills, L. R., 1 C. P. 39. (N. Y. C. P.) 361 ; Barnard u. Godscall, 3 Staines ». Morris, 1 V. & B. 10; Cro. Jac. 309 ; Thurs by u. Plant, 1 Wms. Walveridge v. Steward, 1 Cr. & M. 644; Saund. 240 ; 1 Smith L. C. 47. Harris v. Goodwyn, 9 Dowl. 409 ; Bur- nett e. Lynch, 5 B. & C. 689. Assignee is Liable. 547 acceptance of rent." The executor of a lessee is liable to the lessor and his assigns on such covenants, though the lessee may have assigned his term, and the lessor or his assigns accepted rent of the assignee of the term ; ^ but as the assignee of the term is a stranger to the original contract between the lessor and lessee, there can only exist a privity of estate between himself and the lessor or the assignee of the reversion ; and he is only bound to the performance of the covenants during the time such privity exists, and then only to such covenants as run with the land." The lessor may at the same time sue the lessee upon his express covenant, and the assignee upon the privity of estate ; but he can have execution against one only.^ An eviction out of part of the land will only amount to a discharge of an assignee pro tanto.^ On TJvhat covenants the assignee is liable. Sec. 334. An assignee must take the thing assigned subject to all the equity to which the lessee was subject ; and is bound to perform all the covenants which are annexed to the estate, for by the accept- ance of the possession of the land, he makes himself subject to all the covenants which run with the land, »s well as to covenants in law, which are inherent in the estate ; and to such he is bound without being named by the special word " assigns." ° Thus, on a covenant by a lessee, not naming assigns, to repair and yield up in repair all buildings and erections erected and to be erected during the term on the demised premises, an assignee is liable in respect of the non-repair of buildings erected during the term ; ' but the assignee of a lease is not liable to the original lessor for a breach of covenant not running with the land.' He is, however, liable to his immediate assignor upon any express ' Esp. N. P. 201. he did not know them, or that he has 2 Batchelor v. Gage, Cro. Car; 188 ; been deceived by the lessee in reference Barnard i\ GcdsGaIl,"Cro. Jac. 309; Nor- thereto, is no defence. Barraelhet v. ton ». Acland, Cro. Car. 579; Glover u. Battelle, 7 Cal. 450 ; Lee v. Payne, 4 Cope, 4 Mod. 81 ; Marsh v. Bruce, Cro. Mich. 106. But in order to nialve a per- Jac. .334; Brett v. Cumberland, Cro. son liable as assignee, the lessee's whole Jac. 522 ; 1 Smith, L. C. 47. term must be conveyed. If he reserves 8 See Sec. on Covenants that Eun a reversion even for one day or even a with the Land. shorter period, the conveyance is a sub- * 1 Chitty, Arch. 544. lease, and the lessee alone is liable to 5 Stevenson v. Lombard, 2 East, 575; the lessor. Davis v. Morris, 36 N". Y. Campbell v. Lewis, 3 B. & Aid. 392. 569. An assignee by accepting the as- ^ Graves ». Porter, 11 Barb. (N. Y.) signment of the lease takes it subject to 592; Bull. N. P. 159; Parker u. Webb, 3 all the liabilities of the lessee. Cox v. Salk. 4. Whether he takes as mortgagee Fenwick, 4 Bibb (Ky.), 538; Graves or direct purchaser from a tenant, or v. Porter, 11 Barb. (N. Y. ) 592 ; Over- buys the right at sheriff's sale. Wilson man ». Sanborn, 27 Vt. 54 ; Blake c. V. Watkins, 3 Pet. (U. S.) 60 ; McMur- Sanderson, 1 Gray (Mass.), 332 ; Mc- phy V. Minat, 4 N. H. 251. But holding Qormick v. Young, 2 Dana (Ky. ), 294 ; that a mortgagee in possession is not Journey v. Brackley, 1 Hilt, (N. Y. ) liable as assignee upon the covenants in 447. the lease, see Johnson v. Sherman, 15 • Minshull b. Oakes, 2 H. & N. 703. Cal. 287. and he is bound to know the * Grey v, Cuthbertson, 4 Doug. o5] ; 1 provisions of tlie lease, and the fact that Sehv. N. P. 534. 548 Covenant not to Assign oe Undeelet. covenants lay him in the deed of assignment.^ The assignee of a tera is not liable to the lessor or his assigns on mere collateral covenants _ therefore, where the lessee of certain premises covenanted to pay annu- ally, during the term of twenty-one years, twenty shillings to the church-wardens of the parish, his assignee was held to be not liable.^ Where a lessee of tithes covenanted for himself and his assigns not to take tithe in kind from the other party (the owner of lands in the parish), nor from his tenants, but to accept a reasonable composition, not exceeding three shillings and sixpence per acre, his underlessee of the tithes was held not to be an assignee within the meaning of the covenant, and not bound by such a covenant of the lessee.'* Though generally a personal or collateral covenant does not affect an assignee, yet if the covenant regards something to be done upon the land, and the assignee is named, though it was not in being at the time of the demise, and is in some measure collateral — as to build a wall or new house upon the land — it binds the assignee.^ Eights and liabilities of assignee. Sec. 335. A mere deposit of a lease by way of equitable mortgage does not render the person with whom it is deposited liable at law,^ or, perhaps, in equity,^ for the rent or xipon the covenants. An agreement to take an assignment of a lease, followed by possession on the part of the equitable assignee, does not entitle the lessor to sue him on the covenants in the lease.' A person who has accepted a valid assign- ment from the lessee, although he has not taken possession of the premises,* becomes liable for rent subsequently accruing, and for breaches committed subsequently to the assignment, of such of the lessee's covenants as run with the land.^ On the other hand, he is entitled to sue the lessor for breaches, committed subseqnentl}^ to the assignment, of such of the lessor's covenants as run with the land.^" The doctrine of covenants running with the land applies only to cove- nants which are annexed to the estate by the indenture which creates the estate, and it seems that there is no case in which a mere assign- 1 Harris v. Goodwyn, 9 Dowl. 409 ; But see Close v. "Wilberforce, 1 Beav Burnett v. Lynch, 5 B. & C. 589; Wol- 112. veridse v. Steward, 1 Cr. & M. 644. « Williams v. Besanquet, 1 B. & B. 2 Mayo V. Bucldnirst, Cm. Jac. 438; 238 ; Burton v. Barclay, 7 Bin''. 745 Bateman d. Allen, Cro. Eliz. 4.37. 761. " ' 3 Brewer v. Hill, 2 Anst. 413. ^ St. Saviour's, Southwark v. Smith, 1 * Com. Dig. tit. Covenant (C), 8; Bull. "W. Bl. 351. See Hawkins v. Slierman, N. P. 159. 3 C. & r. 459. 6 Doe V. Eoe, 5 Esp. 105. -lo Lewes v. Eidge, Cro. Eliz. 863. The " Moores v. Choat. 8 Sim. 508 ; Eob- assignee succeeds to the lessee's right inson v. Kosher, 1 Y. & C. C. C. 7. See to compensation for improvements or Lucas B. Comerford, 1 Ves. 23 ; Wil- new erections made upon the promises liams V. Evans, 23 Beav. 239. wliich the lessor has covenanted to pay ' Cox V. Bisop, 8 De G. M. &. G. 815. for. Hunt v. Danforth, 2 Curtis (IJ. S.), 592. Rights and Liabilities of Assignee. 549 ment of a parol tenancy has been held to pass to the assignees the right to enforce collateral stipulations, unless the landlord has consented to the substitution of the assignee in the place of the original tenant, so as to create a new contract between them upon the tei'ms of the pre- vious tenancy.^ The assignee of part of the premises is liable to an action on every covenant running with the land and affecting such part.^ He is not chargeable as assignee of the land for the entire rent,^ but after an assignment by the lessee of his interest in part of the demised land, the lessor may distrain upon that part for the rent which has accrued due for the whole.' He assumes all the liabilities of the lessee under such of the covenants of the lease as run with the land, whether he goes in under a voluntary assignment by the assignee or under an assignment by ojseration of law,* and succeeds to all his rights under such covenants so long as he stands in the relation of assignee.* Where the assignee expressly covenants to perform all the 1 Lush, J., in Elliott v. Johnson, L. R.,2Q. B. at p. 127. 2 TiNDAL, C. J., in Wollaston ». Hakewill, 3 M. & G. 322 ; Com. Dig. tit. Covenant (C), 8 ; Congham?). King, Cro.Car. 221 ; Stevenson v. Lambard, 2 East, 580. 3 Curtis B. Spitty, 1 Bing. N. C. Y60. * D'Aquin ». Armant, 14 La. An. 217; Sutliff V. Atwood, 15 Oliio St. 186; Dor- rance b. Jones, 27 Ala. 630; McMurphy 1). Minat, 4 N. H. 251 ; Wilson v. "Wat- kins, 3 Pet. (U. S.) 50. He is liable upon covenants for husbandry and re- pairs. Gordon v. George, 12 Ind. 408. The lessee for a year of a fulling-mill covenanted in the lease to pay $300 rent, to repair the mill, machines and dam (deducting the expense out of the rent), and to deliver the same to the lessor, in good repair, at the end of the term. The lessor covenanted in the lease tliat, after the repairing of the daui, he would keep it in repair, and that the lessee should.enjoy the premises quietly. Held, that the assignment of the lease, on the day of its date, did not authorize the as- signee in his own name to sue the lessee for a breach of the covenants. Allen v. Wooley, 1 Blackf. (Ind. ) 148. An as- signment, though in writing, of an agreement to pay rent, contained in a written lease, does not operate as a transfer of the legal title thereto ; and the assignor must, in a suit thereon by the assignee, be made a defendant to answer as to his interest. ,Hopkins v. Organ, 15 Ind. 188. An assignee is not liable where the word " assigns " is not used in the lease upon any covenant re- lating to things not in esse when the lease was executed. Thus, when the lease ijrovided that the lessee sliould put in counters and shelving, " which said counters and shelving " and the les- sor covenanted to purchase of the lessee such counters and shelving at the end of the term, for a reasonable price, and there was a clause in the lease provid- ing that the lease should be binding upon the parties, ' ' their executors and administrators," but the word " as- signs" was not used, it was held, that tlie lessee could not enforce the covenant as to the purchase of the counters and shelves, against an as- signee of the lessor. Hansen v. Meyers, 81 111. 321 ; 25 Am. Rep. 282. See also, Grey v. Cuthbertson, 2 Chit. 482. But the rule is otherwise where the word "assigns" is used. Hunt)). Danforth, 2 Curtis (U. S.), 592. Where the right to the unexpired term of a lease, to- gether with the movables on the prem- ises, were sold under an execution against the lessee, and the leased prem- ises were afterwards destroyed by fire, it was held, that the purchaser had no right of action against the lessor for the recovery of the rent which had been paid to him on the distribution of the proceeds of the sale. Hayden v. Heirs of Shiff, 12 La. An. 524. ^ Hintze v. Thomas, 7 Md. 346 ; Page U.Hughes, 2 B. Mon. (Ky.)445 ; Sien- teaud V. Jeanneauil, 20 La. An. 327. He may sue a subtenant of his assignor for rents accruing subsequent to the as- signment. Patten v. Deshon, 1 Gray (Mass. ), 325. But his rights under the lease may be restrained by the terms of the assignment. Halbert v. Bruce, 2 A. K. Mar. (Ky.) 591. 550 Covenant not to Assign ok Underlet. CQ-venants contained in the lease, he assumes the same position to the lessor, so far as liability upon such coventants are concerned, as the original lessee stood in, whether the covenants run with the land ornot. He may enforce against the lessor all covenants running with the land, as a covenant for a renewal of the lease,* for further assurance,' to supply the premises with water,* to insure where the money is to be used in repairing or rebuilding the premises;^ or indeed any covenant that concerns the estate and consequently runs with the land.^ Wliere covenants run with, the laud. — Where "assigns" are not men- tioned. Sec. 336. Where a covenant in a demise of corporeal or incorporeal '' hereditaments relates to a thing in esse, a part of the demise, the thing to be done by force of the covenant is quodam modo annexed and appurtenant to the thing demised, and goes with the land, and binds the assignee, although he is not bound by express words, and the word assigns is not used : * as covenants by the lessee to repair ; ' to leave in repair ; " to pay rent ; -"^ or render services in the nature of rent ; ^^ to allow deductions out of rent ; ■'' not to plough more than a certain quantity of land ; ^* to reside upon the demised premises during the demise ; ^"^ to use a house as a private dwelling-house only ; or to use a building for the prosecution of a particular trade or business, or not to permit certain trades to be carried on, or things to be done therein ; ■'^ to insui'c against fire ; ^^ to pay compensation for damage done to the surface under a mining lease ; ^' covenants for quiet enjoyment ; '^ and to pay taxes.'"' 1 Eawlings v. Duvall, 4 H. & J. (Md.) i» Matures v. Westwood, Cro. Eliz. 1 ; Jackson v. Tort, 17 John. (K. Y. ) 599 ; Martyn d. Clue, 18 Q. B. 661. 479, 239. " Stevenson v. Lombard, 2 East, 575; '•^ Blackmore c. Boardman, 28 Mo. Parker ».\"Webb, 3 Salk. 5; Williams v. 420, but the assignment of an expired Bosanquet, 1 Br. & B. 238. lease, containing a covenant for re- '-^ Vyvyan b. Arthur, 1 B. & C. 410; 2 newal, does not give the assignee a My. & K. 541. right to enter upon tlie land. Clason v. ^^ Baylye v. Offord, Cro. Car. 187. Kankin, 1 Duer (IST. Y. Supeiior Ct. ), i* Cockson b. Cock, Cro. Jac. 125. 337. Upon the point made in the text, ^^ Tatem v. Chaplin, 2 H. Bl. 133. see Bamford c. Hayley, 12 East, 464. i'' Wilkinson v. Rogers, 2 De G. J. & " Campbell u. Lewis, 3 B. & Aid. 392; S. 62. A recital in a lease that the Middlemore v. Goodale, Cro. Car. 503 ; premises ''now are occupied and to be Spencer 1!. Boyes. 4 Ves. 370. occupied as a lumber yard" runs with * Jourdain v. Wilson, 4 B. & Aid. 267. the land, and is broken by the erection ^ Ternon v. Smith, 5 B. & Aid. 1. of buildings by an assignee of the lease. Webb V. Russell, 3 T. R. 402. See De Forest o. Bryne, 1 Hilt. (N". Y. C. P.) sec. entitled Covenants that Run with 43. the Laud. '" Vernon v. Smith, 5 B. & A. 1. ^ Hooper v. Clark, L. R., 2 Q. B. 200; Js Norval v. Pascoe, 34 L. J. Ch. 82. Martyn v. Williams, 1 H. & N. 817. " Noke s. Awder, Cro. Eliz. 373 , ' Spencer's Case, 5 Coke, 16. Campbell v. Lewis. 3 B. & Aid. 392. 3 Windsor's C.ise, 5 Coke, 24 ; Wakn- =' Kearney b. Post, 1 Sandf. (IST. Y.) field V. Brown, 9 Q B. 209, 223. 597. Rights and Liabilities of Assignees. 551 ■Where " assigns " are mentioned. Sec. 337. Where a covenant relates to a thing not in esse at the time of the demise, yet if it directly touches or concerns the thing demised, ^ and the word assigns is used in the covenant, the as- signee will be bound by, or may take advantage of it. The follow- ing covenants belong to this class: — Covenants to build a wall,'' or a house,' on the demised premises ; to build a ^lelting mill on waste land not demised ; * to convey upon a railway, for making which, land is demised, all coal got in a certain colliery ; ' to leave the land at the end of the term in as good condition as it was at the time of the de- mise ; or not to assign without the consent in writing of the lessoy.^ Covenants -wrhich ■will not run -with land. Sec. 838. If the thing to be done under the covenant is merely col- lateral to the land, and does not touch or concern the thing demised in any way,' the assignee will not be charged.' Therefore, covenants to build a house upon land not demised ; ' to pay a collateral sum to the lessor or to a stranger ; " not to hire a certain class of persons to work in a mill ; *^ by the lessor to give the lessee an offer of pre- emption of an adjoining piece of ground ; '^ not to permit a certain business to be carried on upon the demised premises, or within a cer- tain distance thereof upon premises controlled by the lessee ; ^^ a condi- tion for re-entry if the lessee or his assigns, or any occupier of the land demised, shall at any time during the term be lawfully convicted of committing any offence against the laws.'^ ■When the assignee's liability commences. Sec. 339. An assignee of a term may be sued on the covenants which run with the land, although he has not taken actual possession ; '' so the assignee of an assignee is liable, although he has not taken actual possession, for breaches of covenant happening after the assignment to him, and before any assignment over by him : " so a mortgagee by ' Spencer's Case, .5 Coke, 16 a ,• Thorn- ' Thomas v. Hayward, L. E., 4 Ex. as 11. Hayward, L. B., 4 Ex. 311; Mayor .311; Spencer's Case, 5 Coke, 16 a. of Congleton v. Pattison, 10 East, 1-35; ^Sampson v. Easterby, ante ; Spen- Doiighty V. Bowman, 11 Q. B. 444. But cer's Case, ante, see Minshull v. Oakes, 2 H. & N". 793. '» Mayho v. Buckhurst, Cro. Jac. 438. 2 Spencer's Case, .5 Coke, at p. 16 a. i" Mayor of Congleton v. Pattison, 10 » Doughty ». Bowman, 11 Q. B. 444 ; East, 130. 17 Ij. J. Q. B. 111. ^^ CoUison v. Lettsom, 6 Taunt. 224. * Sampson v. Easterby, 6 Bing. 644. is Thomas v. Hayward, L. K., 4 Ex. ^Hemingway ». Fernandes, 13 Sim. 311. 228. " Stevens v. Copp, L. K., 4 Ex. 20. ' Hooper v. Clark, L. R., 2 Q. B. 200. ^^ Walker u. Beeves, 2 Doug. 461, n. ; ' •Williams v. Earl, L. K., 3 Q. B. 739; 3 id. 19 ; Babcock v. Scoville, 56 111. as explained by BLACKJSiTEif, J., in 461. West ». Dobb, 38 L. J. Q. B. at p. 291. i« Taylor v. Shum, 1 Bos. & P. 21. 552 Covenant not to Assign oe TJndeelbt, assignment of the term, though not in possession, is liable to perform the covenants in the lease which run with the land.^ Where a lessee covenanted for himself and his assigns to pull down certain old houses ;ind build others within seven years, but did not perform the covenant, and after the end of seven years assigned, an action of covenant was held not to lie against the assignee because the breach was complete before the assignment, and the liability of the assignee depends solely upon the privity of estate ; had the covenant, however, been broken after the assignment, as if the lessee had assigned before the seven years expired, the assignee would have been liable.^ And he would liave been liable to an ejectment for the forfeiture committed prior to the assignment to him, unless such forfeiture had been waived.^ An assignee of a lease under seal remains liable upon all the covenants in the lease until he has assigned it by a valid assignment which is operative to convey his title ; consequently, although he assigns by parol or by a writing not under seal, or which is not recorded, where those formalities are required, and his assignee does not enter, the original assignee still remains liable upon the covenants in the lease,* and an assignee, although he has only been in j^ossessiou for a day or two, cannot absolve, himself from liability for rent by abandoning the possession. Thus, a lessee made a general assignment of all his prop- erty for the benefit of his creditors, and the assignee went into posses- sion of a store leased by the lessee and sold the goods therein at auction, and then tendered the key to the landlord and abandoned the possession, but the court held, that having taken possession he was bound as assignee for the rent/ Effect of an assignment over. Sec. 340. An assignee being liable to the original lessor or his assigns only in respect of privity of estate, may get rid of such liability by an assignment over,^ except as to previous breaches ; with res])ect ^ Stone «. Evans, Peake, Ad. Ca. 94; d. Nash, 2 Stra. 1222; "Walker d. Reeves, Burton v. Barclay and Perkins, 7 Bing. 2 Doug. 461, -n. ; .S id. 19 ; Taylor v. 745; Williams v. Bosanquet, 1 Brod. & Slium,'l B. & P. 21; Co. Litt. 3 a. 3.5(5 B. 238; overruling Eaton v. Jaques, 2 6; Boulton v. Canon, Freem. 336; Chan- Doug. 455 ; Myers v. Burns, 33 Barb, cellor v. Poole, 2 Doug. 704. He is only (N. Y.) 401. liable so long as he remains assi£;nee, ■^ Soiithwark v. Smith, 3 Burr. 1272; and he may at any time discharge "him- Grescott v. Green, 1 Salk. 199; Brittin self from further' liability by assigning B. Vaux, Lutw. 109; Hawkins v. Sher- over the term. Armstrong «. Wheeler 9 man. 3 C. & P. 459. Cow. (N. Y.) 88; Childs b. Clark, 3 3 Bennett v. Herring, 3 C. B. N. S. Barb. (N. T.) Ch. 52 ; Bayley v. Free- 370. man, 1 Hilt. (N. Y. C. P.) 196. Nor is * Sanders v. Partridge, 108 Mass. 556. he liable for any breaches that accrued 5 Dorrance D. Jones, 27 Ala. 630. either before assignment to him, or af- ° Valiant v. Dodmede, 2 Atk. 546; ter he has assigned. Armstrong v. Pitcher v. Tovey, 12 Mod. 23 ; Le Keux Wheeler, ante ; Astor v. Hoyt, 5 Wend. Rights and Liabilities of Assignees. 553 to which he will continue liable both at law ^ and in equity.^ Such an assignment may be made even to a beggar or to a married woman.' After such assignment over the assignee will continue liable upon any express, covenant entered into by him in the assignment to himself. The assignee of a term, declared against as such, has been held not to be liable for rent accruing after he had assigned over, though it was stated that the lessor was a party executing the assignment, and agreed thereby that the term, which was determinable at its option, should be absolute ; * yet if the breach had been continuing, it would have been otherwise : as on a covenant to repair within a certain time after notice, and the repairs not done according to such notice, though the premises were out of repair before the assignment." Where the lessee assigned to A his interest in demised pi'emises by indenture, executed by both parties, " subject to the jsayment of the rent and performance of the covenants and agreements reserved and contained in the original lease : " and A took possession and occupied the premises under this assign- ment, and before the expiration of the term assigned to a third person ; after such assignment the lessee was called upon by the lessor to pay rent which the assignee had suffered to be in arrear ; it was held, that the lessee could not maintain an action of covenant against A in respect of such breach, the words " subject to the payment of rent, &o.," being words of qualification and not words of contract." If a man lease for years, and the lessee covenant for himself and his assigns to pay the rent, so long as he and they shall have the possession of the thing let, and the lessee assigns, and the term expires, and the assignee continues in possession afterwards ; an action will lie against him for rent which accrues after the expiration of the term, for though he is not an assignee strictly according to the rules of law, yet he shall be accounted such an assignee as will make him liable to perform the covenants." An execu- tor or administrator of a lessee for years may, like any other assignee, assign the term and divest himself of all liability upon the privity of estate, but not upon the privity of contract : ' so may the assignees of a bankrupt lessee.' (N. T.) 60.3; Tillotson». Boyd, 4 Sandf. 480; Treade ». Coke, IVern. 165; 2 Eq. (N T Superior Ct.) 516; Carter v. Ca. 47; Onslow t). Corrie, 2 Madd. 3-30. Hamraett, 18 Barb. (N. T. ) 608 ; Astor ' Le Keux v. Nash, 2 Stra. 1221 ; Tay- V. L'Amoreux, 4 Sandf. (N. T. Superior lor v. Slium, 1 Bos. & P. 21 ; Onslow v. Ct.) 524. But the fact that the assignee Corrie, 2 Madd. 330; Cole Ejec. 540. is not in possession, but has sublet the ^ Chancellor v. Poole, 2 Doug. 764. premises to a tenant who, by his order, ^ Com. Dig. tit. Covenant (B). has paid the rent to the lessor, does not ^ Wolveridge v. Steward (in error), 1 relieve him from liability. Carter b. Cr. & M. 644. Hamniett, ante. ' Bac. Abr. tit. Covenant (E), 3. 1 Harley v. King, 2 C. M. & K. 18; ^ Auriol v. Mills, 4 T. K. 94 ; 1 Smith Pitcher v. Tovey, 1 Salk. 81. L. C. 660. 2 Philipot ». Hoare, 2 Atk. 219; Amb. ' Onslow v. Corrie, 2 Madd. 880. 554 Covenant not to Assign or Underlet. Assignment of part of the land. Sec. 841. An assignee of jjart of the land cannot be charged, in an action of debt, with the whole rent, but only for a proportionate part thereof.^ If an issue is taken on the usual allegation that all the estate of the lessee became vested in the assignee, and the proof shows that only a part of the estate became vested in him, it is a fatal variance, unless amended. But an assignee of partis liable to a distress for rent due for the whole of the demised premises.'^ An assignee cannot discharge himself of all his liability to the lessor or his assigns, unless he assigns the whole of the estate, for covenants running with the land are in their nature divisible ; therefore, if he assigns a part only of the estate, he will remain liable for so much as remains in his hands.' Eights of assignees of a term. Sec. 34^. Assignees of a term may sue the reversioner, or his assigns, for breaches of covenant running with the land which are com- mitted by him or them after the assignment ; * and an assignee of a lease by estoppel is no exception to the rule.° But an assignee cannot have an action upon a breach of covenant before the assignment to him," nor for the breach of any covenant which does not run with the land or the reversion, as a covenant to purchase improvements, & E. 1040 : Rights and Liabilities of Assignees. 557 An underlease for years made by a lessee for years, to commence immediately on his death, is good, if he dies during his own term ; therefore, a man possessed of a term for twenty years may grant the lands for nineteen years to commence after his death, and it will be good for so many of the twenty years as shall be unexpired at the time of his death. Where a lessee has poM'erto renew his term upon giving six months' notice of his intention before its expiration, and upon his preparing a new lease, &c., he cannot, though he gave notice of such intention, demise the premises to another party beyond the expira- tion of the first term, unless he prepares such new lease and gets it executed, or at least endeavors so to do.^ Sales of underleases. Sec. 348. A contract to sell a lease is not satisfied by the convey- ance of an underlease, for the underlease might become void if the covenants and conditions in the original lease were not duly performed.^ But on the purchase of an underlease it is not a valid objection to the title that the underlease may become forfeited by the non-performance of the covenants in the original lease.^ It is the duty of a person con- tracting for an underlease to ascertain the contents of tlie original lease.* So, also, a purchaser of leasehold property is bound to inform himself of the contents of the lease, and cannot avoid specific perform- ance on the ground that it contains an unusual covenant (not to exer- cise certain trades, &c.,) which was not mentioned in the particulars of sale, or at the sale. An underlease should always contain an express covenant by the underlessee, to observe and perform all the covenants and conditions in the original lease, excejit those which he is not to perform. It is not sufficient that he enters into similar covenants, copied vei-batira (except as to names, &c.,) from the original lease, although this is frequently done." Effect of re-assignment. Sec. 349. The assignee may rid himself of all future liability to the lessor for rent, and the covenants in the original lease, by re-assign- ing the lease to any person.* He may do this without giving notice to the lessor, or obtaining his leave ; ' and, notwithstanding a covenant Preece «. Corrie, 5 Bing. 24 ; Baker o. ^ Grosvenor v. Green, 5 Jur. 'N. S. Gostling, 1 Bing. N. C. 19 ; In Ee Tur- 117; Logan v. Hall, 2 C. B. .598; Walker ner 11 Ir. Cli. R. 302. v. Hatton, 10 M. & W. 229; Ponley v. 1 Mackay v. Mackretli, 2 Doug. 213. "Watts, 7 M. & W. 601 ; Clow o. Brogden, 2 Madeley v. Booth, 2 De G. & Sra. 2 M. & G. 39. 718; Darlington v. Hamilton, Kay, 550; " Paul v. Nurse, 8 B. & C. 486: Odell Blake i). Phinn, 3 0. B. 976 ; Muston v. v. Wake, 3 Camp. 394 ; Chancellor v. Gladwin, 6 Q. B. 953 ; I>ogan v. Hall, 2 Poole, 2 Dougl. 764. G. B. 598. ' Valliant v. Dodemede, 2 Atk. 546 ; 8 Hayford v. Griddle, 22 Beav. 277. Le Keux v. Nash, 2 Stra. 1221 ; Onslow * Cesser ». Colllnge, 3 Myl. & K. 283. v. Corrie, 2 Madd. 330. 558 Covenant not to Assign ok TJndeelet. in the original lease, that the lessee, his executors or administrators, should not assign without the license of the lessor.^ There is no fraud in the assignee of a lease re-assigning his interest with a view to getting rid of the lease ; hence he may re-assign it to a beggar,^ or a married woman,^ or a person leaving the kingdom,^ for the express purpose of relieving himself of liability under the covenants. It is not even ne- cessary that the person to whom the re-assignment is made should take possession of the premises, or assent to the lease.^ In one case it was held that a re-assignment of a lease might be lawfully made to a pris- oner in the Fleet, who was paid a sum of money to accept of the as- signment.'' Continued liability of lessee. Sec. 350. A lessee cannot, by assigning his lease, rid himself of lia- bility under the covenants. The effect of an assignment is to make the lessee a surety to the lessor for the assignee ; wlio, as between him- self and the lessor, is the principal bound whilst he is assignee to pay the rent and perform the covenants.' If the lessor, tacitly or expressly, accepts the assignee as his tenant, it appears that an action of deit for rent will not lie against the lessee ; * but if the lease contains an express covenant by the lessee, an action on such covenant may be brought against him or his executor ° at anytime during the term, notwith- standing the lessee has assigned his interest and parted with the pos- session of the premises, and the lessor has received rent from the as- signee.'" The lessor may sue either the lessee or his assignee, or both at the same time, but he can only have execution against one of them. Rights and liabilities of assignee as against lessee. Sec. 351. To protect themselves from this continued liability, les- sees, on assigning their leases, are entitled to require the assignees to indemnify them against future payment of rent and performance of covenants. Even executors, who cannot be compelled to enter into the ordinary covenants for title, may require a covenant of indemnity from their assignees.'^ Upon a covenant of indemnity, contained in the assignment, the assignee will be liable to the lessee during the res- 1 Paul D. Nurse, 8 B. & C. 486. Wadham x>. Marlowe, 8 East, 314, note 2 Taylor v. Shum, 1 B. & P. 21, 23. (c). See Odell v. Wake, 3 Camp. 394. ^ Brett v. Cumberland, Cro. Jac. 521. 8 Barnfather u. Jordan, 2 Dougl. 452. See Bachelour v. Gage, Cro. Car. 188. * Per Eyke, C. J., Taylor v. Shum, 1 '» Barnard d. Godscall, Cro. Jac. 309. B & P. 23. See Auriol v. Mills, 4 T. R. 98 ; Staines ^ Taylor v. Shum, ante. v. Morris, 1 V. & B. 11 ; Orgill v. Kems- « Valliant v, Dodemede, 2 Atk. 546. head, 4 Taunt. 642. ' LoBD Dknman in Wolveridge u. " Staines ». Morris, IV. & B. 8. As Steward, 1 Cr. & M. 659 ; Parke, B., to the construction of covenants of in- lu Humble xi. Langston, 7 M. & W. 530. demnity, see Crossfield v. Morrison, 7 » Auriol V. Mills, 4 T. E. 98. See C. B. 286. Rights and Liabilities op Assignees. 559 idtie of the term, and he cannot relieve liimself from this liability by re-assigning the lease. An assignee who has covenanted to indemnify the lessee against the covenants in the lease may, on re-assigning the lease, require a similar covenant from his assignee.-' During the continuance of the interest of each successive assignee, there is a duty on his part to pay the rent and perform the covenants.^ If the lessee, in his capacity of a surety as between himself and the assignee for the payment of rent and performance of covenants, has paid the rent or discharged the obligation, he has his remedy over against the principal ; ^ and he has the remedy over against each subse- quent assignee, in respect of breaches committed during the continuance of the interest of each of them ; for the lessee is in effect a surety for each of them to the lessor.* The assignee is liable for a breach of any covenant running with the land, incurred in his own time, though the action is not commenced until after he has assigned the premises.' Rights as to title. Sec. 352. Unless there is an exi^ress stipulation to the contrary, every contract for the sale of a lease contains an implied undertaking, available at law as well as in equity, to make out the lessor's title to demise as well as that of the vendor to the lease itself." But upon the sale of an agreement for a lease, there is no implied contract that the lessor has power to grant the lease.' Grant by the landlord of his reversion. Sec. 353. By the statute 32 Henry 8, chapter 34, sections 1 and 2, it is provided that upon a grant by deed by a landlord of his reversion, tlie grantees " and the heirs, executors, successors and assigns of every of them, shall have like advantages against the lessees, their executors, administrators and assigns, by entry for non-payment of rent, or for doing of waste or other forfeiture ; and the same remedies by action for not performing of other conditions, covenants or agreements (run- ning with the land) contained in the indentures of their said leases as the said lessors themselves, or their heirs or successors had." All lessees of hereditaments for term of years, life or lives, their executors, administrators and assigns, shall have like remedy again.st all persons and bodies politic, their heirs, successors and assigns, who ' See Staines v. Morris, 1 V. & B. 8. * Mule v. Garrett, 39 L. J. Ex. 73 ; 2 See Wolveridge v. Steward, 1 Cr. & Wolveridge v. Steward, 1 Cr. <$: M. 660. M. 659 ; Mule v. Garrett, L. K, 5 Ex. ^ Burnett ». Lynch, 5 B. & C. 589 ; 132. Harley v. King, 2 Cr. M. & E. » Paekb, B., in Humble v. Langston, ^ lu. Denman, C. J. , in Souter v. 7 M. & W. 530; Burnett v. Lynch, 5 B. Drake, 5 B. & Ad. 1002; Purvis v. Kayer, & C. 589 ; Wolveridge v. Steward, 1 Cr. 9 Price, 488. & M. 650. 'Kintrea b. Perston, 1 H. & ST. 357. 560 Covenant not to Assign oe ITndeelet. shall have any gift or grant of the reversion of the same hereditaments, or any parcel thereof, for any condition, covenant or agreement con- tained in the indentures of their leases, as the same lessees might have had against the said lessors, their heirs and successors.' Conveyances good ■without attornment of tenant. Sec. 354. By 4 Anne, chap. 16, section 9, all grants or conveyances, of any manors or rents, or of the reversion or remainder of any mes- suages or lands, shall be good and effectual without any attornment of the tenants of any such manors, or of the land out of which such I'^nt shall be issuing, or upon whose estates any such reversions or remain- ders shall be expectant or depending ; and by section 10 it is jjrovided that no such tenant shall be prejudiced or damaged by jDayment of any rent to any such grantor, or by breach of any condition for non-jjayment of rent, before notice shall be given to him of such grant by the grantee. Effect of death of the lessor. Sec. 355. Arrears of rent accrued and payable in the lifetime of the landlord go to his executor or administrator as part of his personal estate.'-* Executors may sue upon any covenant M'ith the testator which has been broken in his lifetime.' But where the covenant runs with the land and descends to the heir, though there may have been a fonnal breach in the ancestor's lifetime, yet if the substantial damage has taken place since his death, the heir is the proper plaintiff.* Death of lessee. Sec. 356. Upon the death of a tenant from year to year, or for a term of years, the lease vests in his executor or administrator.^ Even where a term of years is specifically bequeathed, it will, in the first in- stance, vest in the executor, by virtue of his office, for the usual pur- poses to which the testator's assets are applied, and the legatee has no right to enter without the executor's special assent." The executor or administrator cannot, generally speaking, refuse the lease, though it is worth nothing, for he must renounce the executorship ^■w toto or not at all ; ' but if the value of the land is less than the rent, and there is a deficiency of assets, he may waive the lease.' He is liable, to the extent of the lease, for ari-ears of rent accruing and breaches of covenant com. mitted during the life of the tenant." Although the executor or admin- ^ Standen b. Christmas, 10 Q. B. 135; is Doe v. Porter, 3 T. E. 13; James v Webb v. Eussell, 3 T. E. 393. Dean, 15 Ves. 241. 2 See 1 Williams on Exors. 733 ; Dollen « 1 Williams on Exors. 601. I). Batt, 4 C. B. N. S. 760. ' Den M AN, C. J. , in liubery B. Stevens. 3 Eaymond b. Fitch, 2 Cr. M. & E. 588 ; 4 B. & Ad. 244. Kioketts w.AVeaver, 12 M. & W. 718. s 2 Williams on Exors. 1591. ^ Kingdon v. Nottle, 1 M. & S. 355. '' Id. 1587. See 2 Cr. M. & E. 598. Rights and Liabilities of Assignees. 561 istrator does not enter into possession of the demised premises, lie may- be sued as assignee of the lease for rent due and breaches of covenant committed subsequently to the death of the lessee.^ But he may, by proper pleading, discharge himself from personal liability, by alleging that he is no otherwise assignee than by being executor or administrator of the lessee, and that he has never entered or taken possession of the demised premises ; and he may also discharge himself from all liability as executor, by alleging that the term is of no value, and that he has fully administered all the assets which have come to his hands.^ If the executor or administrator enters ujjon the demised premises, he becomes personally liable, so long as he continues in possession, for so much of the rent accruing due after the testator's death as the jsremises are worth,^ i. e., the amount of rent for which they could have been let.' When an executor is sued for use and occujjation in his own right, he must show that his occupation is as executor, and that he entered in that character ; that he has no assets, and that the value of the land is not equal to the rent. Where the land yields some profit, but less than the rent, he may tender the amount of profit and plead a tender, or he may pay it into court.^ The executor is liable to the same extent as any other assignee for any breaches of the covenants in the lease com. mitted since the death of the tenant.^ But by assigning the term the executor or administrator may free himself from liability for subsequent rent and breaches of covenant.' ' WoUaston v. Hakewill, 3 M. & Gr. « Patten v. Eeid, 6 L. T. N". S. 281. 297, 320. 2 Id. 321. 6 Tremeere v. Morison, 1 Bing. N. C. sSee 1 Wins. Saund. 112, note (c); 89, 97; Sleap u. Newman, 12 C. B. N. S. Kubery i). Stevens, 4 B. & Ad. 241 ; Hop- 116. See Buckworth. v. Simpson, 1 Cr. wood t). Whaley, 6 C. B. 744; Hornidge M. &■ E. 834. V Wilson, 11 Ad. & El. 645. ' Taylor v. Shum, 1 B. & P. 21. See ^Hopwood V. Whaley, 6 C. B. 744. Collins v. Crouch, 13 Q. B. 542. 36 662 Pakticltlae Oovjsnants. CHAPTER XXXIV. PAETICULAB COVENANTS. — QUIET ENJOYMENT. Sec. 357. Covenants for quiet enjoyment. Sec. 358. No implied covenant or promise when an express one. Sec. 359. Cessor of implied covenant. Sec. 360. Form of usual qualified covenant for quiet enjoyment. Sec. 361. Unqualified covenant for quiet enjoyment. Sec. 362. Any express covenant excludes an implied one. Sec. 863. Decisions on express covenants for quiet enjoyment. Sec. 364. What is a breach of. Sec. 365. Damages for breach of covenant. Sec. 366. On whom binding. Sec. 367. Breaches. — How plead. Covenants for quiet enjoyment. Sec. 357. The object of a covenant for quiet enjoyment is to afford to the lessee an assurance against the consequences of a defective title, and consequently it necessarily imports that he shall enter and enjoy the premises without the permission of any one ; therefore, if any other person is in possession of the premises, either under a person having a better title thereto than the lessor, or under a lease or deed from the lessor, and the lease takes effect in prcesenti, there is an immediate breach of the covenant, and an action lies therefor at once.* But the ' 1 Garfield W.Williams, 2Vt. 327; How- covenant ceases with the estate of the ell V. Richards, 11 East, 6-33 ; Ludwell lessor ; hence if, under a lease made by I!. Newman, 5 Bing. 440; Holders. a tenant for life not containing any ex- Taylor, Hob. 12 ; Racket u. Glover, 10 press covenant for quiet enjoyment the Mod. 142; Cloak ri. Hooper, Freem. 122; lessee is evicted by the remainderman Levett V. Wirthington, Sutw. 97. A. after the death of the lessor, the lessee contract for quiet enjoyment is implied cannot maintain an action upon an im- under a parol demise of a tenement. plied covenant for quiet enjoyment Bandy 11. Cartwright, 8 Ex. 913 ; Hallu. against the executor of the tenant for City of London Brewery Co., 2 B. . 'WilUams, 1 M. & W. 6. ^ Jeffryes ». Evans, 19 C. B. IST. S. 2 Evans ». Curtis, 2 C. & P. 296. ,246. » Hancock n. Coffvn, 8 Bing. 358. . « Thackeray v. Wood, 5 B. & S * Merrill v. Frame, 4 Taunt. 329 ; 325. Smith L. & T. 290 (2(3 ed.) ; 2 Piatt on ' Stanley t). Hayes, 3Q. B. 105. Leases, 285, > 568 Paeticulab Covenants. TJnqnalified covenant for quiet enjoyment. Sec. 361. A lesseelRs a purchaser />?•£) to/i. liobert- son, 2 Strobh. (S. C.) 366, and the evic- tion and disturbance must be under rights or a title existing at the time when the lease was made, and not un- der rights subsequently acquired. Ellis K. Welch, 6 Mass. 246. The rule is as expressed In Knapp v. Marlboro, 34 Vt. 235, that, to sustain an action for the breach of a covenant for quiet enjoy- ment, it is necessary for the plaintig to prove that he was evicted by a person who had a lawful and paramount title, existing before, or at the time when the covenant was entered into, as the cove- nant relates only to the acts of those claiming title and to rights existing at the time it was entered into. See also, Grist V. Hodges, 3 Dev. (N. C.) L. 200. A mere demand of possession by a per- son having title does not operate as a breach of this covenant. Cowan v. Silli- man, 4 id. 46, nor does an eviction from a part of the premises under a statitte, or municipal-authoritv. Frost v. Earn- est, 4 Whart. (Penn.)'86. Quiet Enjoyment. 57? in ejectment,' or in trespass where the title is involved.^ But the lan- guage of the covenant must be looked to, and it may be such that a mere judgment in an action involving the title will not operate as a breach. Thus, if the covenant is that " the lessee shall enjoy the prem- ises without lawful eviction," ' it has been held that a bill iu equity in- volving the title, brought against the lessor alone, does not operate as a breach.* The covenant may be either general or qualified, but in either case it runs with the land.'' Even though the language of the^ covenants is that, " subject to the payment of the rent and the per- formance of the covenants," the lessee shall quietly enjoy, yet such words do not constitute a condition precedent, and a recovery may be had by the lessee for a breach of the covenant, although he has not paid the rent or performed his covenants.* Any descrijDtion of annoy- ance to the occupation of the premises, which prevents the lessee from enjoying his property in so ample a manner as he is entitled to do by the terms of the lease, amounts to a bi-each of the covenant for quiet enjoyment of the second sort : thus, if a man covenants that he will not interrupt the covenantee in the enjoyment of premises, the erection of a gate which intercepts them is a breach of the covenant, although he had a right to erect it.' So if, after a demise of mines containing the usual covenant for quiet enjoyment, the lessor digs a quarry over the mines and makes holes, through which water percolates and escapes into the mines, although he had a legal right to work the quarry, his doing so in such a manner amounts to a breach of the covenant for quiet enjoyment of the mines." An action on the covenant for quiet i Cobb D. Wellborn, 2 Dev. (N. C. ) L. N. T. 151 ; Valet v. Herner, 1 Hilt. (N. .">8S ; Mitchell v. Warner, 5 Conn. 522. Y. C. P. ) 149 ; Lounsbury v. Snyder, But contra, and holding that it does not 31 N. Y. 514, nor does an unlawi'ul act constitute a bi-each, see Kerr v. Shaw, of another disturbing the tenant's pos- 1.3 John. (N. Y.) 236. session amount to a breach. There ^ Cobb V. Wellborn, ante. But contra, must be a rightful interruption by a see Webb v- Alexander, 7 Wend. (N. paramount title, Rootin w. Robertson, 2 Y. ) 281. Strobh. (S. C. ) 366, but there may be an ^ Anonymous, 3 Leon. 71, pi. 109. eviction and a consequent breach with- * See also, Selby v. Chute, 1 Eol. Ab. out a judgment. Cobb v. Wellborn, 2 430, pi. 15. Dev. (N. C.) L. 3S8 ; Stewart v. Drake, ^ Campbell v. Lewis, 8 Taunt. 715 ; 9 N". J. L. 139; McGary b. Hastings, 39 ISToke V. Awder, Cro. Eliz. 373. Cal. 360 ; Grist v. Hodges, 3 Dev. (N". ^ Dawson v. Dyer, 5 B. & Ad. 584 ; C. ) L. 200. Such a covenant may be Allen u. Babbington, 1 Sid. 280 ; Hayes said to be broken whenever there has V. BickerstafE, 2 Mod. 34 ; Anonymous, been an involuntary loss of 2^ossesaion 2 Show. 202 ; Wakeman v. Waker, 1 by the hostile assertion of an irresistible Vent. 294. title, whether with or without jud;iment, ' Andrews ». Paradise, 8 Mod. 318. A , or whether an actual dispossession has mere demand of rent by a person hav- transpired or not. It is enough if the ing a superior title does not amount to title is paramount, and is asserted so a breach, nor does any act of the lessor that the tenant must either quit posses- that merely amounts to a trespass, sion or yield to it. McG-ary v. Hast- There must be either an actual or con- ings, 39 Cal. 360. structive eviction. Cowan v. Silliman, 4 * Shawu. Stenton, 2 H. & N. 858. Dev. (N. 0.) L. 46 ; Mayor v. Mabie. 13 574 Paeticulae Covenants. enjoyment may be maintained for the disturbance of a way of neces- sity ; ^ or of a way by grant from the covenantor.'^ It must be remem- bered, however, that the act done must be in the asseriion of title, and not a mere tortious act for which an action of trespass miglit be main- tained." A covenant for quiet enjoyment does not oblige the lessor to rebuild or repair, in case the" buildings are destroyed or injured by fire, tempest or otherwise.* The covenant only extends to lawful interrup- tions, whether the word lawful is used in the covenant or not.^ But a disturbance of the lessee by the lessor himself is not regarded with the same lenity as an eviction by a stranger ; it being clear, that the lessor exposes himself to an action on his covenant, although he enters wrongfully, notwithstanding the covenant provides against law- ful evictions only; ° for, in such a case, the court will not consider the word lawful ; nor drive the plaintiff to his action of trespass, when by the general implied covenant in law the lessor has engaged not to avoid his own deed, either by a rightful or tortious entry.' Indeed, it would hardly be consistent with reason to allow the lessor to defeat the tenancy by pleading his own wrong. So, if a lessor covenants for quiet enjoyment against himself and his executors, the lessee, on eviction by the executor, need not show that the executor entered by title, any more than in the case of the lessor himself.* To supiDort an action against the lessor, it is not necessar}^ that he should have a title to enter ; it is sufficient if he enters under a claim of one.^ And in the case just cited, where a vendor prevented a pur- chaser from enjoying a new appurtenant to the house sold, by locking 1 Morris v. Edgington, 3 Taunt. 24. v. Essex, Hob. 35, and in an action for ^.Poiiifret I). Iticroft, 1 Saund. 322. a breach of such a covenant, the plaiii- ^ Sedden u. Senate, 13 East, 72. tiff's declaration must set up an evic- 1 * Brown. «). Quilter, Ambler, 620. tioii by title paramount. Walton v. ^ Foster «. Pierson, 4 T. E. 617 ; Dud- Hele, 2 Saund. 177 ; Lanning ». Lover- ley b. Falliott, 3 id. 584 ; Major I). Grigg, ing, Cro. Eliz. 916: Nokes' Case, 4 2 Mod. 213, and an allegation of a Coke, 80 6 ; Bloxam b. Walker, Freem. breach that does not show an interrup- 124 ; Foster ». Mapes, Cro. Eliz. 212 ; tion by title is bad ; Eantin «. Robert- Brooking b. Cham, Cro. Jac. 425; Ham- son, 2 Strobh. (S. C. ) 366 ; Mayor v. ond j). Dod, Cro. Car. 5 ; Cowper b. Mabie, 13 N. Y. 151; Perry ». Edwards, Pollard, W. Jo. 197. 1 Strange, 400 ; Nicholas n. PuUin, 1 " Corus v. , Cro. Eliz. 544 ; An- Lev. 83 ; Holmes t\ Seller, 3 id. 305 ; drew's Case, Cro. Eliz. 214; Penning d. Bailey v. Hughes, W. Jo. 242; Hamond Plat, Cro. Jac. 388; Pemberlonu. Piatt, V. Dod, Cro. Car. 5; Anonymous, LofEt. 1 Eol. 267 ; Cave «. Brookesby, W. Jo. 460 ; Chaundflower v. Priestley, Telv. .360 ; Crosse ». Young, 2 Show. 425 ; 30; and it makes no difference whether Lloyd «. Tomkies, 1 T. E. 671. And the word " lawful " is used in the cove- see Seaman v. Browning, 1 Leon. 157. nant or not. General covenants for ' Crosse b. Young, ante ; Lloyd s. quiet enjoyment are not broken by a Tomkies, ante. tortioun eviction, but by an eviction hy * Forte v. Vine, 2 Eol. 21 ; Eatcliff v. title only, Hayes i'. Bickerstaff, Vaughn, , 1 Bl. & Gold. 80. 118; Hunt v. Allen, Winch, 25; Tisdale ^ Lioyd i-. Tomkies, 1 T. E. 67L Quiet Enjoyment. 575 it up against the purchaser's will, the court held that this was such an assertion of right as to render the lessor liable to an action.^ An accidental trespass on the premises in hunting,^ or an entry for the purpose of beating the lessee, would not have that effect.^ If the lessor covenants for quiet enjoyment against the acts of a ])erson^a;-- ticularly specified, a disturbance by that person will amount to a breach, whether it is a rightful or tortious disturbance.^ So, where one covenanted for quiet enjoyment without interruption by any per- son " having or claiming, or pretending to have or claim," any right of common ; and a breach was assigned, alleging an interruption by one J B, who claimed common, &c. ; it was held, that the plaintiff need not show any title in J B ; for the covenant expressly extended not only to those who had right, but to those who claimed or pretended to a right ; and, therefore, whether the claim were rightful or groundless, the covenantor was liable.' If a general covenant for quiet enjoyment contains an exception of particular persons, the exception will be construed strictly, so as not to include any others than those expressly named." A covenant for the quiet enjoj'ment of certain premises demised, excepting from the demise to one E K a certain close, parcel thereof, does not amount to a covenant for quiet enjoyment against an interruption by E K as to the lands actually comprised in the lease.' In assigning a breach of a covenant for quiet enjoyment, where the interruption is the act of a third party, against whom the covenant has not specifically provided, it is not sufficient to allege that having lawful right and title he entered, without alleging also tJMt he had such lawful title before or at the time of the date of the lease to the plaintiff, for possibly he might have derived title from the plaintiff himself.* It is not necessary, however, for the declaration to show what title he had. A different rule would impose insuperable difficulties on the plaintiff, a knowledge of the title being only to be acquired by inspec- 1 Lloyd V. Tomldes, 1 T. E. 671. * Kirby v. Hanksaker, Cro-. Jac. 315 : 2 Sed'don v. Senate, 13 East, 72. Wooten v. Hele, 2 Saund. 177 ; Proctor * Penn v. Glover, Cro. Eliz. 421. v. Newton, 1 Vent. 184 ; Norman v. * Foster v. Mapes, Cro. Eliz. 212; Tis- Foster, 1 Mod. 101 ; Porte v. Vine, 2 dale V. Essex, Hob. 35; Hill v. Browne, Eol. 21 ; Sldnner v. Kilbys, 1 Show. 70; Freem. 142 ; Perry v. Edwards, 1 Stra. Anon., 2 Vent. 46 ; Eashleigh v. "Wil- 400 ; Nash v. Palmer, 5 M. & S. 374 ; Hams, 2 Vent. 61; Buckley v. Williams, Fowle 11. Welsh, 1 B. & C. 29. But 3 Lev. 325; Jordan d. T wells, Ca. temp, see Hayes v. Bickerstaff, Vaugh. 118. Hardw. 171 ; Foster v. Pierson, 4 T. E. 5 Southgate v. Chaplin, 10 Mod. 383 ; 617 ; Hodgson v. The East Tndia Com- Perry v. Edwards, Stra. 400. pany, 8 T. E. 278; Campbell v. Lewis, 3 s Woodrosse v. Greenwood, Cro. Eliz. B. & Aid. 392. And see Noble ». King, 517. 1 H. Bl. 34 ; Brookes v. Hi-raphreys,"5 ' Woodroff ». Greenwood, Cro. Eliz. Bing. N. C. 55 ; Fraser v. Skey, 2 Chit. 517; Eashleigh v. Williams, 2 Vent. 61. 646. 576 Paeticulae Covenants. tion of the deeds, to whicli he could not have access.^ But where the interi'uption is by the lessor himself,^ or by a person against whose acts the covenant has specially provided, it is sufficient to allege an entry by him, without stating under what title or pretence, or whether by right or wrong.' Some particular act, however, by which the plaintiff is interrupted must be shown, otherwise the breach will not be well assigned.** In an action on a covenant that the lessor is seized in fee, a breach may be assigned in terms as general as the covenant, viz., that he was not seized in fee, without showing that another was so seized, nor why the defendant was not so seized.^ So, on a covenant that the lessor has good right to demise, the lessee may assign as a breach that he had not good right, without showing in whom the right was vested.^ In an action on a covenant for quiet enjoyment, an allegation, as a breach, that the plaintiff (lessee) entered and was evicted by the de- fendant (lessor), is not supported by proof that he made a demand of possession and w^as refused, an expulsion, which is a putting out, not having taken place ; for a party who comes to claim, but has never entered, cannot be expelled. The breach is not for expelling, but for not letting in.' The, ordinary covenant, by%he lessor, fo7' quiet enjoy- ment as against any person claiming by, from or under him, is broken by an eviction of the tenant by the lessor's widow entitled under a con- veyance taken by the lessor to the use of himself and his wife ; ° also by an eviction by a person claiming under a prior appointment by the covenantor and another person ;^ but a distress for arrears of land tax due from the lessor at the time of the demise will not operate as a breach.-"' The lessee of a house and garden, forming part of a large area of building ground, is not entitled under this covenant to restrain the lessor or persons claiming under him from building on the adjoining land so as to obstruct the free access of light and air to the garden.^^ Wiien contained in a lease of the exclusive right of shooting and sport- ing over a farm, this covenant does not hinder the tenant of the farm from using the land in the ordinary way, or from destroying furze and underwo'od in the reasonable use of the land as a farm ; and the lessor will not be liable for wrongful acts committed by such tenant contrary 1 Proctor v. Newton, ante ; Foster ». man ». Bradshaw, Cro. Jac. 304 ; Lan- Pierson, ante ; Hodgson d. The East cashire b. Glover, 2 Show. 460. India Company, ante. ' Hawkes v. Orton, 5 Ad. & El. 367 ; '^ Corns ». , Cro.. Eliz. 544. Warn d. Bickford, 9 Pri. 43. " Foster v. Mapes, ante. * Butler d. Swinnerton, Cro. Jac. 657. < Anon., Com. 228. » Calvert -o. Sebright, 15 Beav. 156. 5 Muscot D. Ballet, Cro. Jac. 869 ; Ae to what constitutes an eviction, see (rlinister u. Andley. T. Raym. 14 ; Chapter on Eviction, post. Glimston v. Audly, 1 Keb. 58. ^'> Stanley v. Hayes, :! Q. B. 105. Bradshaw's Case, 9 Coke, 60 h ■ Sal- " Potts v. Smith, L. R., 6 Eq. 311. Quiet Enjoyment. 577 to the reservation of his landlord.^ Under a covenant in the form above mentioned contained in a lease of a stream of water, excepting so much as should be suiScient for the supply of persons with whom the lessor should have already contracted, diversions occasioned by con- tracts made previously to the demise will not constitute breaches.^ Where the covenant provides that the lessee shall quietly hold and enjoy the premises for and during the said term, the last words must be taken to refer to the term which the lessor assumed to grant by the lease, and not to the term which he actually had power to grant.' A general covenant for quiet enjoyment extends only to the acts of persons claiming under a lawful title ; ' for the law will never, adjudge that a lessor covenants against the wrongful acts of strangers, except his covenant is express to that purpose.^ The construction, however, is different where an individual is named ; for there the covenantor is presumed to know the person against whose acts he is content to cove- nant, and may therefore be reasonably expected to stipulate against any disturbance from him, whether by lawful title or otherwise.' Under a general covenant for quiet enjoyment contained in the lease of a coal mine, the working of iron-stone lying between the surface and the demised coal in such a manner as to interrupt the lessee in his occupation of the mine, will constitute a breach.' Under a covenant hy the lessor, in an underlease, that the lessee shall hold the premises without any lawful eviction, t&c, by the lessor, or any persons whomsoever claiming by, from, under or in trust for her, or by or through her acts, means, right, d;o., an eviction of the underlessee by the original lessor for a forfeiture incurred by the use of the premises as a shop, contrary to a covenant in the original lease, of which the underlessee had not been informed, is not an eviction by means of the lessor within the meaning of the covenant.^ Under a covenant that the tenant, paying the rent and performing the cove- nants, shall quietly enjoy, the payment of rent is not a condition pre- cedent to the performance of the covenant for quiet enjoyment.' A clause in a deed, whereby the lessor ^'■for himself, his heirs and as- signs, the premises unto the lessee, his executors, administrators and assigns, under the rents, covenants, tfcc, before expressed, against all persons whatsoever lawfully claiming the same, shall and will, during 1 Jeffryes v. Evans, 19 C. B. N. S. ", Ld. Ellenboeough, C. J. , in Nash 246. See Newton v. Wilmot, 8 M. & v. Palmer, 5 M. & S. 380 : Eowle ». W. 711. Welsh, 1 B. & C. 29. 2 Blatehford v. Plymouth, .3 Blng. N. ' Shaw v. Stenton, 2 H. & N. 858. C. 691. 8 Spencer v. Marriott, 1 B. & C. 457. 3 Evans v. Vaughan, 4 B. & C. 261, See Woodhouse v. Jenkins, 9 Bine. 268. ■ 431. * Dudley v. FoUiott, 3 T. R. 584. » Dawson v. Dyer, 5 B. & Ad. 584. s Wotton V. Hele, 2 Wms. Saund. 178, note (8). 578 Paeticulae Covenants. the term, warrant and defend,'''' operates as an express covenant for quiet enjoyment during the whole term granted by the lease.^ Damages for breach of covenant. Sec. 365. Upon the breach of a covenant for quiet enjoyment in a lease, which turns out to be void, and under which the lessee has en- tered, the lessee is entitled to recover the value of the term and the costs of defending an action of, ejectment, and also the sum recovered as mesne 2)rofits by the plaintiff in such action. The same rule .applies where the lessee has not actually entered, but has only an interesse tertnUd ;'■ and where he has accepted a newlease of the premises from the pei'soK entitled to them, the difference in value between the two leases may be used as a list of the amount of damages to which he is entitled.^ The rule was formerly to give nominal damages, and such mesne profits as the tenant has been compelled to pa}', with costs,* and nothing for the market value of the term.* But a more just and liberal rule is now adopted, and, especially where the lessor has been guilty of fraud, or negligence in omitting to prevent an ouster when he had the power to do so, it is held that the tenant may recover the difference between the rent he was to pay, and the actual value of the unexpired term,^ as well as such damages and extra expenses in addition thereto as are the natural result of the breach.' Indeed, the true rule seems to be, and the one now generally adopted, that the true measure of dam- ages is what the tenant has lost by the breach,' and if the circum- 1 Williams v. Burrell, 1 C. B. 402. injury sustained by the person with 2 Williams v. Burrell, ante. whom he has contracted." Farther on ^ Lock V. Furze, L. R., 1 C.'P. 441. he says: "I thinlc the proper principle * Baldwin v. Munn, 2 Wend. (KT. Y. ) upon which the damages should be as- 99 ; Flureau v. Thornhill, 2 W. Bl. sessed, is a full compensation to the j078; Conger v. Weaver, 20 N. Y. 140 ; plaintiff for that which he has lost, not Trull 0. Granger, 8 N". Y. 115. limited to the amount actually paid by ^Burnett v. Fromberger, 4 Dall. him." The same' rule is laid down iu (Penn. ) 441. Robinson v. Hannan, 1 Exchq. 855, and * Dyer v. Wightman, 66 Penn. St. the case of Flureau v. Thornhill, 2 W. 455 ; Rickett v. Losteller, 10 Ind. 125 ; Bl. 1078, is distinguished, as applying Wilson V. Raybould, 56 111. 417 ; Shaw to an executory, rather than an exe- r. Hoffman. Chatterton v. Fox, 5 Duer cuted contract. Williams v. Burrell, 1 (N. Y.), 64. C. B. 402 ; Mack v. Patchin, 42 N. Y. ' In Chatterton v. Fox, ante, it was 167, hold that the measure of recovery held proper to consider the difference is the value of the unexpired term less between the expense of moving at the the rent reserved. In Maine and Mas- time when the tenant was ousted, and sachusetts the value of the term at the at the season of the year when the lease time of eviction is held to afford the expired, and that the excess of expense true test, Hardy v. Xelson, 27 Me. 525 ; might be recovered. See also, to the Dexter k. Manly, 4 Cush. (Mass.) 14; same effect, the cases cited in the last Smith v. Strong, 14 Pick. (Mass. ) 128, note. and where the disturbance or eviction * BLACKBTjnif, J., in Lock v. Furze, only extends to a part of the premises L. R., 1 C. P. 441. "I take it," says the recovery is limited to the value of Channel, B., in the same case, p. 451, that part of the premises. Cornell v. "to be an Indisputable rule of law, Jackson, Cush. (Mass. ) 506 ; Hunt b. that, where a man enters into a con- Orwig, 17 B. Mon. (Ky. ) 73 ; Michael tract and fails to perform it, he must v. Mills, 17 Ohio, 601. make compensation to the extent of the Quiet Enjoyment. 579 stances are such as evince fraud on the lessor's part, and of an aggra- vating character, exemplary damages may also be given.^ On ■TO'hom binding. Sec. 366. The covenant for quiet enjoyment runs with the land,^ and is therefore binding on the assignees of the reversion ; and may be rendered available by the assignees of the term. Breaches — ho-w plead. Sec. 367. A declaration alleging an eviction as a breach of covenant for quiet enjoyment must not leave it a matter of doubt whether the evictor might not have come in under title from the plaintiff himself.^ When the covenant is general, the alleged breach must show an inter- ruption or disturbance by some person having lawful title and right of entry.* When the covenant applies to the acts of any particular person or persons therein named, an interruption or disturbance by any such person (whether lawful or imlawful) amounts to a breach.^ Where the covenant is qualified and confined to interruptions and disturbances by the lessor, his heirs and assigns, " or by any other person or persons claiming by, from, or under him, them or any of them," the breach must show an interruption or disturbance by the lessor,'' his heirs or assigns, or by some other person lawfully claiming by, from, or under him, them or some of them. One who claims under a deed of settlement made by, A is a person claiming under A within the mean- ing of the usual qualified covenant for quiet enjoyment.' So is a person who claims under a lease previously granted by the lessor, although such lease has expired.' So is a superior or ground landloi-d, because of the privity of estate between hiiji and the lessor.^ The alleged breach should always show an eviction, molestation or disturb- ance within the words and meaning of the covenant, and according to the real facts.^" And such breach must have happened during the 1 Smith B. Wunderlich, 70 III. 426. Welsh, 1 p. & C. 29; Nash v. Palmer, 5 2 Lewis V. Campbell, 8 Taunt. 715 ; 3 M. & S. .374. B. & Aid. 392 ; Noke v. Awder, Cro. « Corus v. , Cro. Eliz. 544; An- Eliz. 375. drews v. Paradise, 8 Mod. 318 ; Lloyd v. * Brooks V. Humphrey's, 5 Bing. N. Tomkies, 1 T. R. 671; Shaw v. Steuton, C. 55; Norman d. Fisher, 1 Mod. 101; 2 H. & N". 858. Hall V. City of London Brewery Co. ' Hurd f. Fletcher, 1 Doug. 43; Evans (Limited), 2 B. & S. 737; see a good «. Vaughan, 4 B. & C. 261 '; Carpenter form in Lock v. Furze, Executor, &c., v. Parker, 3 C. B. N. S. 200. 19 C. B. N". S. 96; Jeffryes v. Evans, Id. » Ludwell v. Newman, 6 T. E. 4.58; 246; BuUen & L. PI. 177 (2d ed.). Coe v. Clay, 5 Bing. 440 ; Jinks v. Ed- * Lucy I). Leviston, Freem. 103 ; 3 wards, 11 Exch. 775 ; but see Jeffryes v. Keb. 163 ; Dudley v. FoUiott, 3 T. R. Evans, 19 C. B. N. S. 246. 585 ; Foster v. Pierson, 4 T. R. 617; "Campbell ». Lewis, 3 B. & A. 392; Young V. Baincock, 7 C. B. 310 ; Hall Hall v. City of London Brewery Co. V. London Brewery Co., and Jeffryes v. (Limited), 2 B. & S. 737. Evans, ante. '^'' Carpenter w. Parker, 3 C. B. N. S. ■^ Foster v. Mapes, Cro. Eliz. 212 ; 206. Lucy 1). Leviston, Freem. 103; Fowle v. 580 Paeticular Covenants. term, and not prior to its commencement.' Where an eviction has actually taken place, in assigning a breach it is sufficient to allege that at the time of the demise to the plaintiff, A B had lawful right and title to the premises, and having such lawful right and title entered and evicted the plaintiff ; without showing that A B evicted the plain- tiff by legal process, or what title A B had ; the allegation that A B having lawful right and title entered, being tantamount to saying that he entered by lawful right and title.^ - Ireland v. Bircham, 2 Bing. N. C. 90. Hodgson v. East India Co., 8 T. E. 278; 2 Foster ti. Pierson, 4 T. K. 617; Bullen & L. PI. 177 (2d ed.). Covenants. 581 CHAPTER XXXV. EEP AIE S . Sbc. 368. General liability. Sec. 369. Express covenants to repair. Sec. 370. Covenant to repair and Iceep in repair during the term. Sec. 371. General covenant to repair. — How construed. Sec. 372. Buildings erected during the term. Sec. 373. In case of fire. Sec. 374. Covenant to rebuild. Sec. 375. Covenant to repair after notice. Sec. 376. Conditional or qualified covenants to repair, &c. Sec. 377. Liability of landlord on express covenants to repair. Sec. 378. To what lessor's covenant extends. Sec. 379. Landlord's right to enter to repair. Sec. 380. What tenant must do to charge landlord. Sec. 381. Neglect of landlord, under obligation to repair, will not relieve tenant from liability for rent. Sec. 382. No implied covenant that premises are, or shall remain fit for use for purposes for which they were leased. Sec. 383. Eent issues out of the estate and liability exists so long as estate remains. Sec. 384. Instances in which landlord is bound to repair. Sec. 385. Wliere there are several lessors. Sec. 386. When landlord has repaired. Sec. 387. Damages against assignee of lease. Sec. 388. When action is brought at the end of the term. Sec. 389. Subsequent erections. Sec. 390. Damages must arise from the defendant's neglect. Sec. 391. Meaning of a covenant to repair. — ^What amount of repair is necessary. — Evidence of previous disrepair. Sec. 392. Where there is a conditional precedent. Sec. 393. Action against the lessor. Sec. 394. Effect of entire destruction of the estate. Sec. 395. Furnished houses or apartments. Sec. 396. No implied covenants to repair by tenant. Sec. 397. Proof of custom. Sec. 398. To what tenancies applicable. Sec. 399. Covenants to repair. — When implied. Sec. 400. How to declare on a new implied tenancy. Sec. 401. Implied liability of tenant at will, or from year to year, as to repairs Sec. 402. Remedies of landlord for non-repair. — By entry or ejectment. Sec. 403. Damages recoverable. 582 Repaies. General liability. Sec. 368. Independently of any contract, a tenant from year to year, for years,, or for life, must keep the pj-emises wind and water tight,^ and make fair and reasonable repairs, as by putting up fences,^ or replacing or restoring doors or windows broken during his occupar tion,^ but he is not liable for the ordinary wear and tear of the prem- ises, nor bound to rebuild in case the buildings are destroyed by fire or becomes ruinous from any accidental cause,* nor to replace doors or win- dows worn out by time,"^ nor are they called upon to make lasting or substantial repairs, as, to put on a new roof, or make what are called general repairs.^ In the case of tenants for life or a term of years, in the absence of an express stipulation, there is no obligation upon either party as between theinselves to repair.' The fact that the lease con- ' Fislier v. Magiiire, Anns. Mac. & Of?. 51; Auworth o. Johnson, 5 C. hich ilic ten- building, built entirely on another lot, ancyisto hec/in, and if the condition is owned by another person. The owner not fulfilled the lessee is entitled there- of the brick building removed it, leaving upon to rescind the contract. The de- the wooden building unprotected from fendant agreed to rent the plaintiff's the weather on that side, in conse- furnished house for three months from Covenants. 587 Express covenants to repair. Sec. 369. A tenant is not liable for a breach of a covenant to repair, committed before the lease is executed, although after he went into possession. The lease does not oj^erate as a grant, nor create any term prior to its execution.^ The duration of the term is to be computed from the day mentioned in the habendum, and not from a subsequent day on which the lease was executed.^ Where the defendant, in an agreement for a lease, covenanted that he would from time to time during the term to he granted keep the premises in repair, and entered upon the premises and occui^ied them until the exjjiration of the term agreed to be granted : it was held, that he was liable to repair accord- ing to the covenant, although no lease had ever been made to him pursuant to the agreement, which was under seal.^ So the assignees of a void lease, which had been treated by all parties as valid, were held liable for rent and repairs up to the end of the term, according to the covenants in the lease.* It must be remembered, however, that in such cases an actual tenancy from year to year " upon the terms " of the intended lease, so far as they are apjDlioable to and not inconsistent with a yearly tenancy, is created by the entry.^ Where a tenant holds over, midcr a lease that contains covenants for repairs, he is treated as holding under the terms of the former lease, and is still liable to re- pair ; and if the premises are burned down or otherwise destroyed, he must rebuild them.'' An agreement made to take premises from a future day, the landlord agreeing to take back the fixtures at the end of the ter\n, provided they are in as good a condition as they now are, and the tenant agreeing to leave the premises in the same state as they noio are, there being at the time another tenant in posse'ssion, and the new tenant not taking possession until the day named, refers to the state of the premises at the time when the tenant is to take possession.' A covenant to put premises into repair at once must receive a reasonable construction, and is not limited to any specific time : there- fore it is for the jury to say, upon the evidence, whether the defendant the lib. of May, but having at the begin- rent or for use and occupation. "Wilson ning of the intended tenancy discovered e. Fincli Hatton, L. R., 2 Ex. D. 336. that the house was, owing to defective i Shaw v. Kay, 1 Exchq. 412; Jervis v. drainage, unfit for liabitation, refused to Tompkinson, 1 H. 'emises and all erec- tions, buildings anel imjwovenients erected thereon during the term, and yield up> the same in good repair^'' binds the lessee to leave a veranda erected by him, the lower part of A^hich is attached to posts fixed in the ground.^ A covenant by lessee of a farm v:ell and substantially to repair, and heepj in good substantial repair, and so v:ell and substantially repaired to yield lip at the end of the term ^'' binds the tenant to give up the premises in as good a state of repair as they were in when he took pos- session, and they must be inferred to have been then in a tenantable state." An agreement by a tenant to leave a farm in as goodcondiiion 1 Phillips V. Stevens, 16 Mass. 238 ; v. Macpherson, 5 Moore P. C. C. 83 ; Hallett 0. Wylie, 3 John. (N. Y.) 44; Coward v. Gregory, L. P., 2 0. P. 153. Wiesall v. Waters. 6 T. R. fiSO ; Orcen ^ Dean and Chapter o£ Bristol d. Jones, ». Bales, 2 Q. B. 225. In Allen v. Howe, 1 E. & E. 484. ]05 Mass. 241, the tenant took the prem- * Shaw ». Kay, 1 Ex. 412. ises upon condition that lie should use '' Penry v. BroM'n, 2 Stark. 403. them as a hotel. Held, broken by his '^ Brown r. Trumper, 26 Beav. 11. The failure to rebuild after tlieir destruction leaving of several loads of ashes and by fire. rubbisli lying upon the premises is not a " Xeale v. Ratcliife, 1.5 Q. B. 916; breach of sucli a covenant. Th(irndike Cannock v. Jones, 3 Ex. 233 ; Counter i). Burrage, 111 Mass. 531. Covenants. 591 as he found it, is an agreement to leave it in tenantable reijair if he found it so, as it will be presumed he did.^ A covenant by a lessee of a coal mine at the end of the term to yield up the works and mines, and all loays and roads, in such good repair, order and condition, that the works may be continued and carried on by the lessor, does not extend to movable chattels, such as iron tram- plates fastened to wooden sleepers not let into the ground.^ A cove, nant by the lessee of a farm, to repair and leave in good repair all buildings to be erected thereon during the term, extends to a farin-house as well as all other buildings erected during the term, j^artly on the land demised and partly on land adjoining belonging to the lessor.^ A covenant to repair and keep in repair all the external parts of the de- m.ised premises, extends to a partition-wall dividing the demised house from an adjoining liouse.' General covenant to repair. — How construed. Sec. 371. A general covenant to reisair is satisfied by the lessee keep- ing the premises in substantial repair ; and a literal performance of the covenant is not required.'' Where a lessee covenants to keep old premises in repair, he is not liable for such dilapidations as result from the natural 02^eration of time and the elements ; '' and with a view to determine the relative sufficiency of repair, the jury may inquire whether the house was new or old at the time the lease was made ; ' and what was its then state of repair and condition generally ; * but not in detail.^ A covenant to keep' old. premises in repair, and to leave 1 Winn B. White, 2 W. Bl. 840. it be established that tlie building was ^ Beaufort "o. Bates, 3 De G. F. & J. allowed to be out of .repair at any time, 381. the plaintilS is entitled to recover, from 2 White V. Wakley, 26 Beav. 17. whatever cause such defect may have * Green v. Bales, 2 Q. B. 22.5. arisen, notwithstanding such lease con- ^ In a lease of a first-class hotel, a tains and additional covenant by the covenant to keep the same in repair is lessee to " quit and surrender the prem- broken by permitting the flues to remain ises in as good state and condition as in such condition that the rooms cannot reasonable use and wear thereof would be used with fires. Myers v. Burns, 35 permit, damages by the elements ex- N. T. -Tifl. It seems that, under a land- cepted." There is no rule of construc- lord's covenant to do all necessary re- tion which would graft the cx.'.iption pairs within reasonable time after no- contained in the last covenant u.)un the tice, the landlord is bound not only to first, as they are entirely opposite in keep the premises in repair but to put character. Kling v. Dress, 5 Robt. (N. them inthat condition. Myers b. Burns, T.) 521 ; Harris v. Jones, 1 Moo. & E. 35 N. T. 269; Ward v. Kelsey, 38 X Y. 173. 80. In an action by a lessor to recover ^ Gutteridge v. Munyard, 1 Moo. & R. possession of the demised premises on 384. the ground of a forfeiture of the term ' Stanley v. Towgood, 3 Bing. N". C. 4. by reason of non-performance by the » Uurdett v. Withers, 7 Ad. & El. 136. lessee of a covenant contained in the ^ Mantz v. Goring, 4 Bing. N. C. 451 ; lease, "to keep the premises in good re- Young v. Mantz, 6 Scott, 277; Belcher pair, and do all necessary i-epairs upon v. M' In tosh, 8 C. & P. 720; Woolcock b. the building" (upon such premises), if Dew, 1 F. & F. 337. 592 Repairs. them in repair at the end of the term, means that the lessee will, if necessia-y, put them into repair ; for otherwise they cannot be kept or left in repair pursuant to the covenant. Their age, ajid class, and general condition, must be taken into consideration, but not particular lefects or want of repair at the time the term commenced.-' A covenant to repair contained in an underlease, though in the same words as the covenant in the original lease, lias not the same legal effect and meaning, because of the different ages and conditions of the prem- ises at the respective times of the lease and underlease.^ "It is now well settled that a general covenant to repair must be construed to have reference to the condition of the premises at the time lohen the covenant begins to operated * Where a very old house is leased with a covenant to repair and leave it in repair, it is not meant that the house shall be restored in an improved state, or that the consequences of the action of the elements shall be averted ; hut the tenant has the duty of keeping the house in the same state in which it was at the time of the demise by the tim,ely expenditure of money and care J' A covenant 1 Payne v. Haine, 16 M. & W. 541 ; Eastoin). Pratt, 2 H.& C. 676; Haldane V. Newcomb, 12 W. E. 135; Schroder v. Ward, 1.3 C. B. K S. 410. 2 Walker v. Hatton, 10 M. & W. 249. 8 Walker v. Hatton, 10 M. & W. 258; Opinion of Pakke, B. If the house is an old one, the tenant is only bound to keep it up as an old house, and is not obliged to give the landlord the benefit of new work. Tindal, C. J., in Harris V. Jones, 1 Moo. & Rob. 175. It is not meant, in fact, that the old building is to be restored in a renewed form at the end of the term, so as to make the value of it greater than it was at the com- mencement of the term. Diminution in value, resulting from the natural op- eration of time and the elements, falls upon the landlord ; hut the tenant must take care that the premises do nbt slifer more damage than the operation of these causes would effect, and he is bound, hy reasonable applications of labor, to keep the house as nearly as possible in the same condition as lohen it was demised. Gutteridge v. Munyard, 1 Moo. & Rob. 336. He is liable for repairs only, and not for alterations, such as laying a new floor on an impro^■ed plan. Saward v. Leggatt, 7 C. & P. 613. An agreement to keep a piece of ornamental water in good and substantial repair is performed liy keeping the water from bursting its banks and maintaining the sluices in working order. Bird v. Elwes, L. R., 3 Ex. 225. Unless the covenant by the tenant to repair contains an express ex- ception of damage by fire or other casu- alty, he will be bound to rebuild or re- pair the demised premises if they should be burned down, Bullock v. Dommitt, 6 T. E. 650 ; Digby v. Atkinson, 4 Camp. 275. See Clark j). Glasgow Ass. Co., 1 Macqueen, 668 ; Gregg v. Coates, 23 Beav. 33, or otherwise destroyed, or in- jured during the term. Brecknock Co. V. Pritchard, 6 T. E. 750. * Gutteridge v. Munyard, 7 C. & P. 129; Burdett, Bart. v. Withers, 7 Ad. & El. 136; Stanley v. Towgood, 3 Bing. N. C. 4; Mantz ». Goring, 4 id. 451. He is only bound to keep the premises in the condition in which they were when he went into possession. He is not bound to rebuild, to put on a new roof or lay down a new floor, although either would be more substantial, and serve the pur- poses for which the building is to be used much better. Harris v. .Jones, 1 Moo. & E. 173 ; Ardesco Oil Co. v. Eichardson, 03 Penn. St. 162; Harris r. Colbourn, 3 Harr. (Del.) 338 ; Stanley V. Towgood, 3 Bing. N. C. 4 ; Mantz v. Goring, 4 Bing. N. C. 451. But, as pre- viously stated, if he covenants " to keep and deliver them up in rjood repair," he is bound to put them in good repair, and cannot screen himself from liability for not doing so, upon the ground that the buildings were in bad repair when he went into possession. Paynei). Haine, 16 M. & W. 541 ; Easton v. Pratt, 2 H. & C. He must keep them in good re- pair, as he has covenanted to do, in view of their age and condition. He is Covenants. 593 to repair buildings and to rebuild them if necessary, compels the ten- ant always during the term to keep them in good repair, and a deduc- tion in damages for their age has been disallowed.-^ Where a tenant agrees to put the pretnises in habitable repair, he is to put them in a better state than that in which he found them, and into a state reason^- ably fit for the occupation of the class of persons likely to inhabit them} A direction in a will to keep buildings in good repair, has been held to mean not the state of repair in which they were at the testator's death, but in habitable repair? A tenant who covenants to bound to do this although the lease, so far as the duration of the term is con- cerned, is void under the statute of frauds. Richardson v. GiiiEord, 1 Ad. & El. .52. 1 Worcester School Trustees v. Row- lands, 9 C. & P. 734. 2 Belcher v. M'Intosh, 8 C. & P. 720. Under a covenant to pwt into habitable repair, the tenant must, if necessary, place the demised premises in a better state than that in which he found them. Belcher v. M'Intosh, 8 C. & P. 720. He is not bound to make a new house, but regard being had to the state of the premises at the time of the agreement, and to their situation, and to the class of ijersons who are likely to inhabit them, he is to put them into a condition tit for a tenant to inliabit. Belcher v. M'Intosh, 8 C. cfe P. 720. A covenant ,'■ forthwith " to put premises into com- plete repair is not construed as refer- ring to any specific time; it is for a jury to say, upon a reasonable construction, whether it has been performed. Doe «. Sutton, 9 C. & P. 706. A covenant to put in repair can only be broken once for all, and therefore if a breach has been committed in the time of the les- see, and damages recovered from him by the lessor in respect of such breach, the assignee of the lessee will not be lia- ble. Coward u. Gregory, L. E., 2 C. P. 153. A covenant to keep premises in flood repair binds the lessee to put them into good repair with reference to their age and class, to maintain them in that state, and in that state to deliver them up at the end of the term. Payne v. Haine. 16 M. & W. 541 ; Burdett v. Withers, 7 Ad. & El. 136 ; Woolcock u. Dew, 1 F. & F. 337. He must have them constantly in repair, and if at any time during the term they are out of repair he is guilty of a breach of covenant, which is the proper subject of an action before the expiration of the lease. Lux- more V. Eobson, 1 B. & Ad. 584, 585. A.S this covenant is a continuing one, 38 the recovery of damages upon it in a previous action is no bar to a subse- quent action against the tenant or his assignee, so long as the jjremises are out of repair, but the fact may be used in mitigation of damages. Coward o. Greg- ory, L. R., 2 C. P. 153. It is a breach of this covenant to pull down tlie demised premises either wholly or partially, or to open a doorway in a wall. Gauge v. Lockwood, 2 F. & F. 115 ; Doe v. Jack- son, 2 Stark. 293 ; Doe v. Bird, 6 C. & P. 195, unless by the terms of the lease it is implied that additions and improve- ments are to be made. See Doe i\ Jones 4 B. & Ad. 120. A tenant who has cove- nanted to substantially repair, uphold and maintain a house, is bound to paint the inside woodwork, cfec. Monk v. Koyes, 1 C. & P. 265. See Scales v. Lawrence, 2 F. & F. 289. Where there is a general covenatit by the lessee to re- 2>air and keep and leave in repair, it will be inferred that he undertakes to re- pair buildings which may be erected during the term. Douse v. Earle, 3 Lev. 264 ; 2 Ventr. 126 ; CHxVNNiiLi,, B., in Cornish v. Cleife, .34 L. J. Ex. at p. 22. On the otlier hand, a particular covenant to repair the demised build- ings will be construed as referring only to existing buildings. See Cornish v. Cleife, 3 H. & C. 446. Covenants on the part of the tenant to repair and keep in repair the demised premises .during the term, and to repair sj?ecifled defects within a certain time after notice, are considered separate and independent covenants, if they severally make a com- plete sentence, or are found in different parts of the same deed ; Horsefall v. Testar, 7 Taunt. 388 ; Roe v. Paine, 2 Camp. 520 ; Baylis v. Le Gros, 4 C. B. N. S. 5.37, 554. See Doe v. Lewis, 5 Ad. & EI. 277 ; Few v. Perkins, L. R., 2 Exchq. 92 ; but if the whole stands in the same sentence, it may be held to be one entire covenant. Horsefall v. Tes- tar, ante. ^ Cooke u. Cholmondely, 4 Drew. 326. 594 Repairs. repair is liaMe for r-cpairs only, and not for the extra expense of laying a new floor on an improved plan."^ It is well settled that a covenant to repair must be construed to have reference to the condition of the premises at the time when the covenant begins to oj^erate.^ If the house is an old one he is only bound to keep it up as such, and is not bound to give the landlord the benefit of new work.^ It is not meant that the old building is to be restored in a renewed condition at the end of the term, so as to make it more valuable than it was when the term commenced. Decrease in value resulting from the natural opera- tion of time and the elements, falls upon the landlord ; but the tenant must take care that the premises do not suffer more damages than the operation of these causes would effect, and he is bound to make a sea- sonable application of labor to keep the house as nearly as possible in as good a condition as it was when it was leased to him.' He is liable for repairs only, and is not bound to put on a new roof or lay down a new floor.^ In a case where the tenant contracted to keep a pond of ornamental water " in good and substantial repair," it was held that his covenant was met by keeping the water from bursting its banks, and maintaining the sluices and other necessary appendages.^ Under a covenant that the tenant shall and will substantially repair, uphold and maintain a house, he is bound to keep up the inside painting.' If the tenant breaks a doorway through the wall of a house into an ad- joining house it is a breach of the general covenant to keep in repair, and so is the continuing of it so broken; * but the enlargement of win- dows, the opening of external doors, or the taking down of partitions, are no breach of a covenant to repair and keep in repair a dwelling- house or other building, together with all sncli buildings, improve- ments and additions as should be executed, set up, or made by the lessee ; for the lease evidently contemplates such alterations, and allows them to be made.' A covenant by a lessee that he will, during the term, repair, uphold, support, maintain and sustain the walls to the demised piremises belonging, is broken if he pulls down a wall which divides the yard at the front of the house from another yard at the side of the house. ^° A covenant to repair the external parts of the demised house comprises the partition wall between it and an adjoining house." Ordinary and natural decay is held not to be a 1 Saward v. Leggatt, 7 C. & P. 61.3. ' Monk c. Noyes, 1 C. & P. 205. = Walker v. Hatton, 10 M. . Windsor, 12 M. & W. 78. As to wliat constitutes an eviction, see Chapter on "Eviction," ■post. 2 This doctrine has long been main- tained, and in Broolje's Abr. " Dette," fol. 220, pi. 18, is an account of an ac- tion for rent, in which the tenant plead that by the custom of London the land- lord was boxmd to repair and uphold the dwelling-hoiise sufficiently for habita- tion ; and that, before the rent accrued, the house, by reason of a tempest, be- came so ruinous that the defendant could not abide in it, and that the de- fendant thereupon requested the land- lord to amend the house, and he would not, whereupon the defendant quit the house. The court held that the plea was bad, and constituted no defence to the action for the rent. In Monk d. Cooper, Strange, 703, the lessee cove- nanted to repair the premises, casualties by fire excepted. The premises were destroyed by fire during the terra, and the landlord refused to rebuild. The court held that the defendant was nev- ertheless liable for the rent for the whole term, and could not offset his damages, by reason of the failure of the landlord to rebuild, against the rent, and the case previously cited from .411eyn, 27, was relied upon by the court. The doctrine of both these cases was approved by Lord Mansfield, in Shu- brick M. Salmon, 3 Burr. 1640. See Whitbecki;. Skinner, 7 Hill (N. Y.), 53; Kelsey ». Ward, 16 Abb. Pr. (N. Y.)98; Myres b. Burns, 35 N. T. 269. In the New Tork cases cited, it was held that while the failure of the landlord to re- pair as he had covenanted to do does not release the tenant from the payment of the rent, yet he may recoup his dam- ages in an action by the landlord to re- cover the rent. The principle deducible from all the cases is, that the rent issues out of the land without reference to the structures upon it ; and that, as a legit- imate consequence, the landlord's right thereto continues, although the struc- tures may he destroyed, or become un- fit for the purposes for which they were leased ; or, indeed, for any purpose. The principle is apparently harsh in its eifect upon the tenant, but nevertheless it is no more harsh in its operation upon him than a contrary rule M'ould be upon the landlord. Both parties are pre- sumed to know that buildings are ex- posed to destruction by the elements. That accidental fires may burn, or tem- i:iests, floods and inundations destroy them, or render them valueless, and if the tenant does not desire to take the risks incident to these casualties, it is his duty to provide against such contin- gencies in the lease, and failing to do so, his liabihty is unquestionable unless the statute relieves him therefrom, as is the case in New Tork Laws of ISGO, Chap. 345, page 592. In New York, prior to the adoption of this statute, the common law rule prevailed. Willard o. Tillman, 19 Wend. (N. Y. ) 358 ; Gates v. Green, 4 Paige Ch. (N. T. ) 355 ; Hallett v. Wy- lie, 3 John. (N. Y.) 44 ; Patterson v. Ackerson, 1 Edw. Ch. (N. Y.) 96. And it was held that this liability continued even though the lease contained a cov- enant to pay rent " so long as permitted to occupy the premises " in the manner stated in the lease ; Willard v. Tillman, ante ; or, although the landlord cov- enanted to rebuild, but failed to do so, Hallett V. Wylie, ante, or to repair. Al- len I). Culver, 3 Den. (N. Y.) 284. ^ Diggs V. Maury, 23 La. An. 59. * Where, in a lease of a dairy-farm for five years, the lessor agreed to put the barns on the premises in a good state of repair, hut neglected to do so, it was held, that the damages of the lessee, which he was entitled to recoup in a suit Covenants. 613 ute is broad enough to admit of it, may enforce liis damages by way of set-off, and in the latter case may recover any balance that he ought to have by way of damages in excess of the rent.^ No implied covenant that premises are, or shall remain, fit for use for purposes for ■which they virere leased. Sec. 382. There is no implied contract on the part of a landlord that the leased premises are tenantable,'^ or that they shall remain tenanta- ble during the tei-m, even though he stipulates to put the premises in repair before the tenant enters, but does not contract to keep them in repair.' He is not bound to repair unless he has expressly agreed to for rent, were the amount it would cost to put the barns in repair, and not the detriment which he suffered by their re- maining out of repair durino; the term. Dorwin v. Potter, 5 Den. (N". Y.) 306. In an action of covenant, by a lessor against two lessees, for rent due upon a lease containing a covenant on the part of the lessor that he will put the de- mised premises in repair, the plaintifl: will not be nonsuited for a failure to prove that the premises were put in re- pair, before possession was taken under the Jease, nor because it appears that one of the defendants never went into possession with the other lessee, the taking of possession by one of the les- sees being in law a possession by both, and a waiver of the condition precedent, of putting the premises in repair, and the fact that the premises were out of repair being a matter of defence, to he proved by the defendants. Harger v. Edmonds, 4 Barb. (N. T.) 256. Dam- ages occasioned to a '■•mant by great, unnecessary, and tortious negligence, and delay of the landlord's servants in making repairs upon the premises during the term, and by the unworkmanlike manner of doing the work, cannot be set up as matter of recoupment in an action by the landlord for the rent. Cram v. Dresser, 2 Sandf. (K. Y. ) 120. 1 See Set-off. 2 Witty V. Matthews, 52 K. Y. 512; Oov/ell !). Lumley, 39 Cal. 151 ; 2 Am. Am. Rep. 430; Hart v. Windsor, 12 M. & W. 68 ; Sutton v. Temple, 12 id. 52. These two cases overrule tlie doctrine of Collins ». Barrow, 1 M. & R. 112 ; Salisbury v. Marshall, 4 C. & P. 65; Ed- wards V. Etherington, Ky. & M. 268, and essentially qualify and limit Smith V. Marrable, 10 M. & W. 5, if they do not in fact overrule its doctrine entirely. The landlord cannot be treated as hav- ing impliedly covenanted to repair, or that the building is or shall continue to be fit for the purposes for which it was let. Robbins v. Mount, 4 Robt. {N. Y. Supt. Ct. ) 553. A recital in a lease that the leased premises are to be used as a " boarding-house," even if it implies a covenant that the premises are suitable for occupation as a boarding-house, can- not be so extended by implication as to apply to any particular description of boarding-houses not expressly designated in the lease. Roosevelt v. Abbatt, 2 Robt. (X. Y. S. C.) 156. AVhere a mill, with water sufficient to run the same, is leased, the lessor is not bound either to keep the mill in repair, nor to keep water enougli to drive the machinery. But he is bound to let the tenant have the benefit of sucli water as will go to the mill, and if he wrongfully diverts or withholds it, he is liable tlierefor. In other words, he is not liable for non- feasance, but is liable for misfeasance. Morse v. Maddox, 17 Mo. 569. There is no implied contract on the part of a lessor that there is any means of getting access to premises, and, unless the les- sor is guilty of fraud in inducing the lessee to believe that there is a road or other feasible means of communication with the premises, the lease is not in- validated because there is none. Hand- rahan d. O' Regan, 45 Iowa, 298. The rule is, that a tenant mvist ascertain at his peril whether or not the land is ac- cessible, and the landlord is not guilty of fraud if he fails to appraise the ten- ant that tliere is no mode of communi- cating with the premises. Handrahan I). O' Reagan, 45 Iowa, 298. 3 Banks v. White, 1 Sneed (Tenn.), 613. There is no implied covenant that the building will endure during the entire time. Arden v. PuUen, 10 M. & W. 321; Keates v. Earl of Cadogan, 10 C. B. 591 ; Gott v. Gandy, 2 E. & B. 845. G14 Repairs. do so in the lease, or the contract of hiring ; ^ and a promise to repair, made after the lease is entered into, is a mere nudum pactum, and no liability exists for a failure on his part to make such repairs.^ Nor is there any implied covenant on his part that the premises are fit for the purposes for which they were let ; " and the same rule applies in this re- spect whether the lease relates to lands merely, or buildings.* Nor is there any implied condition that buildings or land will remain fit for the purposes for which they were leased ; and in the case of a house or other building, "if it is blown down or destroyed by fire,^ or 1 Brown «. Burrington, 36 Vt. 40 ; Brewster v. DeFremery, 33 Cal. 841 ; Estep !). Estep, 22 Ind. 114 ; Fowler u. Bott, 6 Mass. 63. And even if he has expressly agreed to repair, in the ab- sence of a provision to that effect the tenant cannot quit the possession. Sur- plice D. Farnsworth, 7 M. & G. 576. - Gottsberger u. Eadwav, 2 Hilt. (X. T. C. P.) 342; Libbey ». Tolf ord, 48 Me. 316. 8 In Sutton v. Temple, 12 M. & W. 52, this was well illustrated. In that case the defendant agreed in writing to take the eatage of a pasture at a cer- tain rent. It turned out that the pas- ture was covered with some poisonous substance that poisoned the cattle, and several of them died. The defendant thereupon took his cattle away and re- fused to occupy the pasture or pay the rent. It appeared that paint had been strewed over the premises, which pro- duced the ill results, and that the plain- tiff had no knowledge of the fact at the time of letting. The court held that the plaintiff was entitled to recover. Lobd Abingeb, C. B., in the course of an able opinion, says : " I take the general rule of law to be, that if a person con- tracts for the use and occupation of land for a specified time, and at a specified rent, he is bound by that bargain, men thoucjli he took it for a particular pur- pose, and that purpose be not attained. Suppose, for instance, he took it with the object of making a handsome in- come out of it, as a farm ; if his object fail altogether, is it to be said that he is not liable for any rent ? * » The gen- eral rule must therefore be, that where a man undertakes to pay a specific rent for a piece of land he is obliged to pay that rent whether it answer the purpose for which he took it or not. Suppose the defendant had put into the field no cattle at all ; he must have paid his rent, althour/h, in one sense, he had no bene- ficial occupation. The. right of the landlord to the rent does not depend upon that." In a case decided by the same court, at the same time, the same I'ule was applied to a dwelling. In that case, the defendant, to a declaration in debt upon a lease for rent, set up in de- fence, that the house was demised to him for a dwelling-house, for the purpose of inhabiting the same, and that before, and at the time of the agreement, as well as wlieii he entered the same, it was not fit for habitation, and that he could not reasonably inliabit it by reason of its being infested with bugs, and that in con- sequence of tlie untenantable condition of the house he, quit the possession of the same before any rent became due. The defendant insisted that in a lease of a dwelling there is an implied con- tract that it is fit for habitation ; but the court held otherwise, Parke, B., saying : " We are all of opinion that there is no contract, still less a condi- tion, implied by law on the demise of real property only, that it is fit for the purpose for which it was let. The prin- ciples of the common law do not war- rant such a position ; and though, in the case of a dwelling-house, taken for habitation, there is no apparent injvis- tice in iirterring a contract of this na- ture, the same rule must apply to land taken for other purposes — for building upon, or for cultivation ; and there would be no limit to tlie consequences that would ensue." And the same principle is applied in cases of a verbal lease from month to montli. See opin- ion of SMrrH, J., in Laughin v. Kief, Buffalo Superior Ct. Dec. T. 1876, briefly reported, vol, 15, page 255, Albany Law Journal. * Sutton V. Temple, 12 M. & W. 52 ; Hart V. Windsor, 12 id. 66. _ See pre- vious note . for a full resume of these cases. 5 Monk V. Cooper, 2 Stra. 763 ; Bal- four V. Weston, 1 T. R. 310 ; Ainsley ». Rutter, cited 1 T. R. 312; Linn u. Ross, 10 Ohio, 412 ; Bussman v. Ganster, 72 Penn. St. 285 ; Willard.i). Tillman, 19 Wend. (N. Y.) 358 ; Gates v. Green, 4 Paige Ch. (N. Y.l 355: HallettB. WyUe, Covenants. 615 gained upon by the sea,^ oi* the occupation is rendered impracticable by the king's enemies or the casualties of war,'' or is swept away by a freshet,' the ebtate of the lessee continues, and he is liable for the rent thereof for the full term.^ And the same rule prevails when build- ings become untenantable by reason of inherent defects therein, unless the landlord has been guilty of fraud or improper concealment, or there has been some default in respect of a positive duty to the tenant on the part of the landlord.^ 3 John. (N". T.) 44; Patterson v. Acker- man, 1 Edw. Ch. (N. T.) 96 ; Cowell ». Liimley, 39 Cal. 151 ; 2 .Am. Rep. 430 ; Izon V. Gorton, 5 Bing. N". C. 501 ; Brown v. Qnilter, Amb. 619 ; Baker u. Haltpzaffell, 4 Taviut. 45 ; Sheets v. Sel- den, 7 Wall. (U. S.) 423; White v. Ma- lyneanx, 2 Ga. 126 ; Beach ». Farrish, 4 Cal. 349. And the rent may be recovered in an action for use and occupation, be- cause the tenant is treated as being in the occupancy of the premises so long as his interest therein continues; and as his interest is not determined by the de- struction of the buildings by fire, this mode of declaring against him is proper. Izon 0. Gorton, ante. Upon this point, TiNDAL, C. J., in the case last cited, said : " The Statute 11 G. 2, c. 19, en- ables landlords ' to recover a reasonable satisfaction for lands, &c., held or oc- cupied by the defendant in an action on the case for the use and occupation of what was, &c., held or enjoyed,' from which it seems to follow, that if there is an actiial holding, and the power to oc- cupy or evjoy is given by the landlord to the tenant, so far as depends on the landlord, the action is maintainable." Robinson v. L'Engle, 13 Fla. 482. 1 Tavener's Case, Dyer, 56 a. Where, liowever, the land ia swept away or gained upon by the sea,as to that so swept away or rjained upon by the sea the rent ceases, because as to that portion of the estate the tenant ceases to have any in- terest, and the estate of the landlord therein also ceases, because it becomes a part of the public domain by the act of God. 7 Bacon's Abr. 63 ; EoUe's Abr. 236. But the mere fact that the land is permanently covered with fresh water does not excuse the tenant from rent, because the' estate remains. RoUe's Abr. 230. But this would depend upon the question whether it thereby became a part of a fresh water navigable stream, and whether the land, by the law of the State, is treated as thereby becoming the property of the State or as still being the property of the landlord. 2 Paradise v. Jane, AUeyn, 26 ; Coy V. Downie, 14 Fla. 544; Robinson v. L'Engle, 13 id. 482. " Cai-ter k. Cummins, 1 Cha. Cas. 84; Robinson v. L'Engle, 13 Fla. 482. * Baker v. Haltpzaffell, 4 Taunt. 45. 6 Arden v. Pullen, 10 M. & W. 321 ; Gott V. Gaudy, 2 E. & B. 845. This doctrine is well illustrated by a case re- cently decided by the Special Term in the First Department of New York. The Hartford & N. Y. S. B. Co. v. The Mayor, &c., of New Yark, 12 Hun (N. Y. S. C. ), 550. In that case the city of New York leased a wharf to the plain- tiffs for the period of ten years from the 1st of May, 1865. The lease contained a covenant on the part of the plaintiff to keep the wharf in repair, but the plain- tiff insisted that, before the making of the lease the defendant represented that the substantial repairs would be made by it. That the wharf was old and in- secure, and in 1867 fell down, and the plaintiffs rebuilt it at an expense of about $30,000, to recover which this ac- tion was. The plaintiff insisted that, inasmuch as it was the duty of the de- fendant, as to the public, to keep the wharf in repair, and in a safe condition as a part of the public street, and had represented to it that it (the defendant) would make the substantial repairs, it was liable to the plaintiff for the expense and loss sustained by it in rebuilding the wharf. But the court held that, as in the lease the plaintiff had stipulated to make all repairs of every kind at its own expense, and as there was no fraud or concealment on the part of the defend- ant, the. defendant could not be permit- ted to vary the express covenants of the .lease by sh,owing representations made by the defendant before the lease was made, nor did the fact that the defend- ant was bound, as to the public,' to keep the wharf in repair, and in a safe con- dition, change the relative liabilities of the parties under the lease, and that no recovery could be had for the expense of the repairs. The court might have gone further and held that there could be no recovery in any event for the expense of 616 Repairs. Rent: issues out of the estate, and liability exists so long as estate remains. Sec. 383. The ground upon which this doctrine rests is, that the rent reserved on a demise issues out of the land, andis payable in every event and in every state and condition of the demised premises ; ■" and so long as the estate remains, there is a liability to pay rent, whatever may he its state or condition.^ In South Carolina it is held, that where there is a substantial destruction of the subject-matter out of which the rent is reserved in a lease, by the act of God or of public enemies, the tenant may, if he elects to do so, surrender the possession of the entire prem- ises to the landlord, and thus absolve himself from the payment of rent ; and this rule is applied in all cases where the tenant is deprived of the beneficial enjoyment of the premises according to the intent of the lease^ within the ineaning of the terms used, whether there is a. physical destruction of the premises or not. But in order to relieve himself from liability under this rule, the tenant must surrender, or offer to surrender, all the benefits that remained to him under the lease. Thus, where a tenant set up in defence to an action for rent, that he had, by the casualties of war, been deprived of the beneficial use of the prem ises for a large part of the term for which rent was sought to be recov- rebuilding the wharf, because it was not done under such circumstances that any request on the part of the defend- ant to tliat end could be implied. The plaintiff having stipulated to repair was not bound to rebuild, but if it elected to do so it could not charge the defend- ant with the expense, because it was a voluntary act on its part, and, as no duty under the contract existed on the part of the defendant to it to rebuild, or could be implied from their relation, it was remedyless. See also Lockrow v. Horgan, 5S N. Y. 635 ; Witty v. Mat- thews, 52 id. 512. ^ Kichard Le Taverner's Case, Dyer, 56 a ; Lord Movmtjoy's Case, 5 Coke, ia ; Spencer's Case, 5 id. 17 a. '^ Gilbert on Rents, 33; Noble's Case, 4 Coke, 80 b ; Holder v. Taylor, Hob. 12. In Paradise v. Jones, Alleyn, 27, the defend- ant plead that Princfe Rupert and an army of aliens entered upon the demised premises and drove away his cattle, and expelled him from the premises, and kept him out so that he lost the use of the premises for the balance of the term ; but the court held that this did not re- lieve the tenant from liability for the rent for the whole term. And in Rich- ard Le Taverner's Case, Dyer, 56 a, the court say : — " If the sea gain upon part of the land demised, or part be burned with wild fire, the entire rent shall issue out of the remainder." In Harrison ». North, 1 Ch. Ca. 84, the lessee of certain buildings was expelled therefrom by the government, and the biuldings taken possession of and used for a hospital, and were so occupied by it for several years, to the entire exclusion of the les- see. The plaintiff brovight an action for the rent, and the defendant there- upon applied to the court of equity for relief, upon the ground that he had no remedy over against the government, but the court refused to interfere. In Carter v. Cummins, cited in 1 Ch. Cas. 84, the plaintiff was the lessee of a wharf for a term, which was carried away by an extraordinary rise of the water, and he brought a bill in equity praying to be relieved against the lessor's action for rent, and in this case also the court re- fused to interfere, except to relieve him from the penalty of his bond for the non-payment of the rent. Thus it will be seen that, in the absence of an ex- press stipulation to that effect, there is no exemption from liability for the rent of the premises for the full term, even though the premises are partly destroyed by the elements, or the lessee is deprived of their beneficial, enjoyraent by any cause other than that wliich results from the act of the lessor himself or his agents. Gates d. Green, 4raige Ch. (N. Y.) 354. Covenants. 617 ered, but there was no allegation that he surrendered, or offered to surrender, the premises to the lessor, and it appeared in evidence that he in fact remained in possession of the premises until the end of the term, it was held that he was not relieved from the payment of rent for the whole term.^ In New York, by statute,^ it is provided that "the lessees or occupants of any building which shall, without any fault or neglect on their part, be destroyed or be so injured by the elements, or any other cause, as to be untenantable and unfit for occupancy, shall not be liable or bound to pay rent to the lessors or owners, thereof, after such destruction or injury, unless otherwise expressly provided by written agreement or covenant," and further providing that the tenant may thereupon surrender and quit the possession of the premises ; and even when in the lease itself there is a condition which exonerates the tenant from rent in case the building is rendered untenantable by fire, it is held that the tenant is not exonei-ated, unless the entire building is rendered untenantable,^ nor unless he surrender the entire possession of the premises to the landlord, because of their becoming untenantable during the period of his actual occupancy.* The surrender is not an additional privilege, but is a condition upon which the exemption from rent depends ; and if he retains atiy part of the premises, the statutory exemption is not available to him ; ^ and the fact that the premises were untenantable when he went into possession, or that they became un- tenantable after he quit possession, will not be available under the statute. They must be shown to have become untenantable during the period of his actual occupancy ; ^ nor does the statutory exemption apply to relieve him, when by the terms of the lease the tenant is bound to repair the premises, and the premises become or are untenantable by reason of a failure on his part to make repairs according to the terms of his contract ; ' nor when he knew at the time that the lease was made that they were to be made untenantable, by repairs to be made thereon, or otherwise, and the lease was made with a view to the occu- pancy while they were in that condition.^ ISTor does this statute pro- tect the tenant against natural wear and deterioration, or absolve him from making ordinary repairs.' In Louisiana ^^ the tenant, upon the 1 Coogan V. Parker, 2 S. C. 255. untenantable while he was in the actual 2 Laws of 1860, Sec. 354. occupancy of them. 2 Kip ». Mer win, 34 N. Y.Superior Ct. ^Johnson v. Oppenheimer, 12 Abb. 531 ; Home, &c., Ins. Co. v. Sherman, 46 N. Y. N". S. 449 ; 55 K. Y. 280. N. Y. 370. ^Murray 13. Waller, ante; Bloomer ». *In Murray v. Waller, 42 How. Pr. Merrill, I'Daly (N. Y. C. P.), 4S5. (N. Y.) 64, the premises were rendered ' Truesdell v. Booth, 6 T. & C. (N. Y. unfit for occupancy by blasting done S. C.) 379; Wolcott ». Sullivan, 1 Edw. upon an adjoining lot, and the tenant Ch. (N. Y. ) 399. moved from the premises the next day ^ Alseheimer v. Krohn, 45 How. Pr. after he took possession, and it was held (N. Y.) 127. that in order to exeftipt himself from ^ Smydam v. Jackson, 54 N. Y. 550 ; liability' for the rent for the whole term, Johnson v. Oppenheimer, ante. he must show that they were rendered '<> La. Civ. Code, § 2667. 618 Repaies. destruction of a building by fii-e, may exempt himself from liability for after-accruing rent by cancelling the lease, or surrendering the premises to the landlord and demanding an abatement of the rent. But under this statute it is held that the tenant must cancel the lease in toto or surrender the entire premises, and that he can claim no abatement of the rent if he retains possession of any part of them.' Instances in 'which landlord is bound to repair. Sec 384. There are instances in which the landlord is bound to re- pair, whether the lease contains a covenant to that effect or not ; as, where the law imposes a certain duty upon him with respect to the premises, which cannot be said to devolve upon the tenant under the lease, as where he is by law required to furnish the building with suitable fire-escapes. In such a case, if be fails either to furnish suit- able fire-escapes, or to keep them in a safe condition, he is liable to the tenant for all damages resulting to him, without negligence on his part, from the use of such fire-escapes.''^ And the same rule applies in the case of any statutory duty imposed upon the landlord ; where, how- 'ever, the defect is one that comes under the head of ordinary rejjairs, the fact that the law imposes the duty of keeping the premises in re- pair upon the landlord will not render the landlord liable to the tenant for injuries from non-repair, or exempt him from liability to third persons sustaining injuries from such want of repair, even though the tenant has covenanted to repair ; but where a nuisance results from such want of I'epair, and there is no covenant to repair iij)on the part of either the landlord or tenant, an action may be maintained against either of them therefor,^ and the tenant cannot avail himself of the legal obligation of the landlord to the public, and, as to him, com- pel the landlord to repair, or make him answerable to him for damages resulting to him from non-repair.* Another instance is, where the landlord retains the possession of a part of the building. In the latter case he is bound to keep the part retained by him in proper repair and condition, so that the tenant will not, through his (the landlord's) fault or negligence, be damaged or injured either in his person or goods.^ So, too, it seems that if he owns adjoining premises and perniits them to be or remain out of repair so as to render the demised premises untenantable, 1 Penn v. Kearney, 21 La. An. 21. A chargeable to the tenant for Injuries tenant for one year who holds ofrer for resulting to a child, by reason of the de- ho'wever short a period, is liable for the fective condition of the fire-escape, who rent for the -whole year, although the was improperly thereon, premises are destroyed by fire. Hibbard ^ Swords ». Edgar, 59 K. T. 28. V. Newman, 58 Tenn. 285. "* Hartford, (fcc, Steamboat Co. ». Kew SMcAlpine «. Powell, 1 Abb. (K. Y.) York, 19 N. Y. S. C. 550. Cas. 427. But in this case it was held ^ Toole v. Beckett, 67 Me. 544. t}iat the lanilord could not be held Coven-ants. 610 the tenant may treat such act or neglect as an eviction, and abandon the possession. As, where he permits a drain in tlie cellar of adjoining premises owned by him to remain out of repair, rendei'ing the demised premises unhealthy and unfit for occupancy.^ This liability grows out ■ of the fact that the landlord impliedly covenants not to do any act that will render the demised premises untenantable, and to so exercise his control over the parts of the premises retained by him as to inflict no injury upon his tenants. If he does not exercise proper care and prudence in the management of those parts of the building over which he retains control, and the tenant sustain damages thereby, he is liable to them therefor.^ But, unless he is guilty of negligence in the con- struction, repair, or care of the building, and injury results from such want of care, he cannot be held chargeable for damages resulting to a tenant, as for an injury resulting from the flooding of a cellar, because of its faulty construction, during an extraordinary storm.' Nor is he responsible for the negligent or illegal use of the premises by other tenants, or from such tenant's failure to keep premises in proper repair, where the)' were in proper repair when the tenant went into possession,* unless the landlord has expressly covenanted to keep the premises in repair, nor then if the injury results from the improper or careless acts of another tenant, in the use of parts of the premises that were in repair.^ The rule may be said to be that, where the building is occupied by several tenants, the landlord, having exercised proper care in the construction and repair of the several parts, is not respon- sible for injuries resulting to any of the tenants from the improper or negligent use of the premises or any of its appliances by other tenants of the same building,^ or from the acts of God, or from a reasonable and lawful use of the premises, or causes that could not reasonably ' Alger 15. Kennedy, 49 Vt. 109. ted up." The store, as well as an ad- 2 Peteks, J., in Toole b. Beckett, joining one built on the same premises, ante ; Priest v. Nichols, 116 Mass. 401 ; extended back some distance beyond the Norcross v. Tlioms, .51 Me. 503 ; Kirby upper stories. D afterwards rented out 1). Boylston Market Association, 14 Gray the upper portion of the building, to be (Mass.), 249; Gray b. Boston Gas Light used as a boarding-house, and, for the Co., 114 Mass. 149. In the case of Toole accommodation of the tenant, constnict- V. Beckett, supra, the defendant- let the ed a kitchen over the extensions of the lower portion of the building to the stores. The accumulation of trash un- plaintifi! for a store, the upper portion re- der this kitchen choked the gutters, and maining in the possession of the defend- C's stock was damaged by water in con- ant, and under his care or control. A sequence. Held, that D was liable tb rain storm poured a great volume of C for the damage sustained. Center v. water between the roof and the chim- Davis, 39 Ga. 210. ney down upon the plaintiff's goods, ' Loupe i;. Wood, 51 Cal. 586. causing some injury. He. was held liable * White v. Montgomery, 58 Ga. 204. for the damage. I> leased to C, to be ^ White v. Montgomery, ante ; Kob- used as a store, a room on the ground bins v. Mount, 4 Robt. (N. Y. ) 553. floor of a building then in process of ^Ross v. Fedden, L. R., 7 Q. B. 661 ; erection, and stipulated, in the lease, Robbins v. Mount, ante ; White «. Mont- that he would have said store " well fit- gomery, ante. 620 Repaies. have been anticipated.^ For injuries resulting from apparent defects, or defects known to him, or that would have been known if ho had exercised ordinary care, liability exists ; but not when the results are purely accidental, and in no measure attributable to the negligence of the landlord.^ The landlord is responsible for injuries resulting from 1 Carstairs v. Taylor, L. E., 6 Ex. 217; Loupe V. Wood, ante. In Wilson v. Wad- del, 3') L. T. N. S. 6.39, the parties to tlie action were lessees under the same landlord, of the minerals of contig\;ous pieces of land. The soil, which lay over the minerals, was naturally impervious to water, but in working his mine the respondent caused the surface water to flow through, a number of cracks having opened during the progress of his min- ing operations. This water flowed through the respondent's mine, and thence into that of the appellants, which was at a lower level. The latter there- upon claimed damages for the loss they had sustained by reason of the increased expense cast upon them by the inflow- ing of the water. The House of Lords decided that this was a case of damnum absque injuria, Loud Blackisuhn, who delivered the opinion, saying : " The general rule of land is that the owner of one piece of land has a right to use it in the natural course of user, unless in so doing he interferes with some right crea- ted either by law or contract, and as a brancli of that law, the owner nf the minerals has a ]'ight to take away the whole of the minerals in his land, for such is the natural course of user of minerals ; and a servitude to prevent such user must be founded on something more than mere neighborhood." A sim- ilar conclusion was reached in the case of Swett ■!). Cutts, 50 N. H. 43i) ; 9 Am. Eep. 276. See also Miller v. Laubach, 47 Penn. St. 154 ; Waffle t. N. Y. Cent- ral Railroad Co., 58 Barb. (N. Y.) 413 ; Rawstron v. Taylor, 11 Exch. 209. 2 Carstairs v. Taylor, ante ; White v. Montgomery, ante ; Eobbins li. Mount, ante. Nor is the tenan t liable for an in- jury resulting to other tenants which is not attributable to his negligence. In Eoss V. Fedden, L. R., 7 Q. 13. 661, the plaintiff was tenant from year to year of the grotmd floor of a building where he carried on the business of an iron-mon- ger. The defendants were also tenants from year to year of the second floor of the same building, which they occupied as offices. Some time between Saturday night, Nov. 26th, and Monday morning, Nov. 28th, 1876, water cscajied from a water closet in the defeiulant's pi-emises, found its way down through the first floor to the ground floor, and there did damage to the plaintiff's premises and goods to the extent of £79 5s. 3d. This damage the plaintiff sought to recover from the defendants in this action. The plaintiffs claim to recover upon two gi'ounds. First, tliat the mischief arose from the negligence of the defendants. Upon this matter the evidence was very slight, and there was no inconsistency in it. The closet was inside the defend- ant's private office, and no one had ac- cess to it but the two partners in the defendant's firm, and it was for their exclusive use. One of the partners was from home at the time of the occur- rence; the other partner, who was called as a witness, stated that the closet had previously to the Saturday been in good order; that he believed he had used it on the Saturday morning and found noth- ing amiss, and no one could have used it afterward; that on the Saturday even- ing at about 6 or 6.30, he washed his hands at the wash-stand in the same room with the closet, and nothing then appeared to be the matter with it. He then left the (jffice and no one entered it again until Monday morning. On the Monday morning when the plaintiff came to his shop, he found the damage done. Together with a plumber, whom he had sent for, he traced the escape of water upward to the second floor. They obtained access to the defend.ant's office and the closet inside, and found that tlie water had overflowed the pan. On examination it .appeared that the cause of this was tli.it the valve admitting the supply of water to' the pan had given way and failed to close, and the overflow pipe had become stuffed with paper; the valve, the defect in which was the real cause of the mischief, was under the seat of the closet, and could only be reached or seen by removing the wood- Avork. Upon this evidence the court held that the defendants were not guilty of any negligence. Up to Saturday even- ing there was no reason to suspect that the valve had given way, or was in any danger of giving way, or that anything was wrong with the closet, and there was no reason to anticipate any danger therefrom. But it was insisted, on be- half of the plaintiff, that he was entitled to recover, even in the absence of any CoVEtfANTS. G21 his own negligence, l»ut not for injuries resulting from the negligence or misconduct of his tenants.^ In such cases the tenant alone is negligence an the part of tlie defend- ants. The court say: " It is argued up- on the authority of Rylands v. Fletcher, Law Rep., 3 H. L. 330, and other cases similar in principle. In that case it was decided that, as between adjoining own- ers, one who diverted water from its natural flow, and accumulated it on his own land for his own purposes, is bound, at all hazards, to i^reveut its escape, and if it does escape, negligence or no negli- gence, he is responsible to his neighbor for the consequences. It is contended that the same rule applies to this case. On the other hand, the case of Carstairs 0. Taylor, Law Kep., 6 Ex. 217, has been cited. In that case the plaintiff was*the occupier of the ground floor of a ware- house, and the defendant of the upper part. The water from the roof was collected by gutters into a box. The water escaped and injured the plaintiff's goods in his warehouse below ; and it was held that the defendant was not liable for this damage. That case is not, I think, at all a direct authority for the decision of the present; it differs in two important particulars. The appa- ratus for conducting the water was there as much for the benefit of the plaintiff as of the defendant, a fact upon which much stress is laid in tlie judgment of Bbamweli,, B., while here the water- closet was solely for the defendant's benefit ; and further, in that case, the circumstance that caused the damage was one falling under the head of vis major, a fact to which much weight is given by the Lobd Chibf Babon and Maetin, B. This cannot be said in the present case. I think, however, that the judgment in Carstairs v. Taylor leaves it very doubtful whether the rule of law laid down in Rylands v. Fletcher, Law Rep., 3 H. L. 330, in the case of adjacent owners, applies to the case of two persons occupying two floors of the same house. But assuming the rule to apply, is the present case within it ? As between the occupiers of part of a house — a thing wholly artificial — it is rather a straining of language to speak of any one state of things as more natural than another. But I think that in the words of MABTiisr, B., in the case already re- ferred to, " one who takes the floor of a house must be held to take the premises as they are." As far as he is concerned, I think the state of things then existing may be treated as the natural state of things, and the flow of water through cisterns and pipes then in operation as equivalent to the natural flow of water. I think he takes subject to the ordinary risks arising from the use of the rest of the house as it stands ; and that one who merely continues to use the rest of the house as It stands, and in the ordi- nary manner, does not fall within the rule laid down in Rylands r. Fletcher, L. R., 1 Exchq. 203, and in the absence of negligence, is not liable for the conse- quences ; and, in the present case, there is nothing to show, nor has it been sug- gested, that it has been in any way alter- ed since the plaintiif became tenant of the ground floor, or that it has been used in any but the ordinary manner. The question is one of some difficulty, but my opinion is that, under the circum- stances of the case, in the absence »f negligence on the part of the defendants, they are not liable for the damage which the plaintiff has sustained. Black- burn", J., said: " Ithinkit is impossible to say that defendants, as occupiers of the upper story of a house, were liable to the plaintiff under the circumstances found in the case. The water-closet and the supply-pipe are for their convenience and use, but I caimot think there is any obligation on them at all hazards to keep the pipe from bursting or otherwise getting out of order. The cause of the overflow was the valve of the supply- pipe getting out of order, and the escape- pipe being choked with paper, and the judge has expressly found that there was no negligence, and the only ground tak- en by the plaintiff is, that the plaintiff and defendants, being occupiers under tlie same landlord, the defendants, being the occupiers of the upper story, con- tracted an obligation binding them in favor of the plaintiff, the occupier of the lower story, to keep the water in at their peril. I do not agree to that; I do not think the maxim ' Sic utere tuo ut alienum non laedas,' applies. ]Sregli- gence is negatived, and probably, if the defendants had got notice of the state of the valve and pipe and had done noth- ing, there might have been ground for the argument that they were liable for the consequences ; but I do not think the law casts on the defendants any such obligation as the plaintiff contends for. The judgment must, therefore, be affirmed. Mellob, J. — I am of the 1 Murray v. Richards, 1 Allen (Mass.), 414. 622 Repaies. resijonsiblc.^ Nor, in the absence of an express covenant to repair, is the landlord in any case responsible to one tenant for injuries resulting same opinion. I was prepared to listen to any authority in favor of the plaintiff, but none has been found. In the ab- sence of negligence, there is nothing in the relative position of the parties which would make the defendants liable. The statement in the case rendered the judge's decision doubtful, but this was cleared up when the judgment was read. I was very glad that this was done. I am quite satisfied with the reasoning in it. Rylands v. Fletcher does not apply; and Carstairs v. Taylor is a much stronger case than the present, as it seems to me in favor of the defendant." The case of Marshall v. Cohen, 44 Ga. 4S9, 9 Am. Rep. 170, might be regarded as in conflict with the doctrine of this case, but an examination of the facts of the case shows that the defendant was clearly chargeable with negligence, and that this was the ground upon which the court upheld the action. It appeared that the plaintiff ^\■as the occupant of the ground floor of a bitilding owned by the defendant; the upper portion of the building was occupied by otlier tenants; there was a Mater-closet on the upper floor for the convenience and use of the tenants of that floor ; the water-closet and pipes were not in a defective con- dition, and, therefore, were not a nuis- ance when the plaintiff rented the store. But it did appear that the closet was used not only by the tenants, but was open night and day for the use of out- siders, and Mas at times in very bad con- dition, and the phnnber who had been called by her on one or two occasions to repair the closet, advised her to close it up. It also appeared that previous to the damage sued for there had been a leakage and her attention was called to it, and she promised to repair it, but neglected so to do, and the result was that the water overflowed and injured the plaintiif's goods. Locheam, C. J., says: "There is nothing clearer, as a principle of laiv, than that a party is liable for damages done by himself, his servants or agents, in maintaining or keeping up a private nuisance. The evidence in this case shows that this closet was, at times, in very bad order and condition; that it was kept in this condition. * * * * And it appears, previous to the damage sued for, there was a leakage of M'hich she was notified, and she promised to fix it." Thus it will be seen that in this case there was the most flagrant negligence on the part of the defendant in not kefeping the water-closet closed, except as to her tenants, and in not repairing it when she was notified of its leaky condition, and particularly when she had agreed to do so. Nothing is better settled tlian that defective water-closets, defective water-pipes, or the negligent mainte- nance of anything which may become a nuisance except by the exercise of proper care, becomes a nuisance when jiegligently or carelessly maintained. That the court in this case put the de- fendant's liability squarely upon the negligence of the defendant is apparent. " i^ general principle may be recog- nized," says the judge farther on in his opinion, "that one who j^ermits a wrong to be done is as liable as he who does it. In torts all are regarded as principals. This damage was the result of a nuis- ance kept by the landlord upon the premises; and that it was done by his own tenants does not change the charge or remove the liability. One who erects anything upon his land which, by igni- tion, biirns down the house of one ad- joining, is liable. * * * * xhe act was produced by a water-closet which, if not kept clean and in proper order. Was per se a private nuisance, and the natural and ordinary consequence of which was to produce a nuisance in the inherent'conseauenceof the thing itself. And when there was proof, as in this case, of this defect being known to the defendant by information and by actual notice of a previous leak, we think the reasons of this liability appear. " Rob- bins !). Mount, 4 Bobt. (N. Y.) 553 ; Tread-vveil c. Davis, 39 Ga. 240; Ball v. Nye, 99 Mass. 582; Whitehouse v. Birm- ingham Canal Co., 5 H. & N. 928: Blyth V. Birmingham Water Works Co., 11 Exchq. 781; Bagnall v. R. R. Co., 1 H. & C. 544 ; Harrison v. Great Northern R. R. Co., 3 id. 231 ; Bell v. Twenty Men, 1 Q. B. 766; Bell v. Armstrong, 10 Ind. 181; Warren v. Kauffman, 2 Phila. 259; Killon ». Power, 51 Penn. St. 429; Moore v. Goedel, 7 Bosw. (N. Y.) 591 ; 34 N. Y. 527 ; Ortmayer v. Johnson, 45 111. 469 ; Weston v. Ineorp. of Tailors, 1 In the ease of Firth v. The Bowling Iron Co., recently decided in the Brad- ford County Cotivt, England, the lessees of a colliery, who were under covenant with their lessor to erect fences either by stone walls or posts and rails, erected a fence of posts and two lines of wire Covenants. 623 to another tenant from defects in a part of the premises not embraced in the lease of the tenant injured, if such tenant expressly assumed all Hay, 66. In Carstairs v. Taylor, pre- viously referred to, the plaintiff and de- fendant were the occupants of the same building. The plaintiff of the lower ■ story and the defendant of the upper story. For their mutual use and benefit a tank was erected iu the upper story, connected witli the gutters and tlie roof, so that the rain falling upon the build- ing was collected and gathered in the tank, and was used by both occupants. A rat having eaten a hole through tlie tank, the water escaped, and flooded tlie plaintiff's premises. The court held that, under the circumstances of this case, the rule in Eylands v. Fletcher did not apply, for the water was collected for the use of both parties, and the in- jury resulted, not from any negligence of the defendants, but rather was at- tributable to vis major. In Eobbins v. Mount, 4 Robt. (N. Y.) 553, the build- ing was occupied by numerous tenants, and the landlord provided a janitor to take charge of the building, who was paid for his services by the tenants, ac- cording to the space that each occupied. A faucet was left open in a room of an upper tenant one night and the water left running into a urinal, which being choked up with tobacco overflowed and damaged the tenants below. Upon the trial in the court below the judge charged the jury, that if the overflow rope which had become unfit for colliery purposes. The fence divided the col- liery works from pasture lands in the occupation of a tenant under the same lessor. The wire rope in course of time rusted, decayed, dropped in pieces, and fell upon the pasture. The tenant's cattle, in grazing, got pieces of the wire with their food into their system, and were injured. In 1867 two heifers died from eating this wire. With the lessor's sanction, complaint was made by the tenant to the lessees, and compensation asked for, but no notice was taken by the lessees, and they continued to use the wire rope as before, doing such re- pairs only as were required for their own purposes. In 1876 a cow of the tenant, which was pastured in the same field, became ill, and was ultimately killed, being pronounced by a veterinary sur- geon to be incurable. In the carcass a piece of wire was found imbedded in the under fold of the pericardium, which the cow must have taken up with the grass when feeding. For this cow corn- was caused by the negligence of the de- fendant, or if the fixture was improper- ly constructed, or should not have been thereat all, or if all the safeguards that could jiossibly have been placed there, were not placed there, ai\d the fixture was unsafe, the defendants were liable irrespective of the question of negli- gence. The jury having found for the defendant, the ruling of the judge was fully sustained. There is a wide dis- tinction between acts lawful in them- selves, done by one upon his own prem- ises, which may result in injury to an- other if not properly done or guarded, and those which in the nature of things must so result. In the former case a party could only be made liable for actu- al negligence in tlie performance of the act or mode of maintaining it. Rock- wood !). Wilson, 11 Cush. (Mass.) 2L', while in the latter case he would be liable for all the oonsequences of his acts, whether guilty of negligence or not. Bagnall v. London N. W. R. E. Co., 7 H. N. 423. The one act only becomes a nuisance by reason of the negligent manner in which it is per- formed or maintained, while the other is a nuisance per ne. Caliill v. Eastman, 18 Minn. 824, 10 Am. Rep. 184; Phinzey V. City of Augusta, 47 Ga. 263 ; Wood on Nuisances, 125-134. pensation was demanded, and refused, and thereupon this action was brought. The court held that the action could not be maintained, on the ground that the wire fence was not a proper performance of the covenants in the lease, there being no privity of contract between the tenant and the lessor, nor upon the ground of negligence merely, there not being any relation between the parties out of which any duty on the part of the lessees toward the tenant would arise. But the lessees were held liable, upon the ground that they knew that their mode of using their property was pro- ductive of damage to the lawful rights of the tenant, which they were hound to respect. The principle upon which the court proceeded is supported by Green- land B. Chapin, L. R., 5 Exch. 248. See also, Grumott i>. Williams. 32 L. J. Rep. (N. S.) 237 ; Losee v. Buchanan, 51 N". T. 476; Wilson v. City of New Bedford, 108 Mass. 261 ; Cahill v. Eastman, 18 Minn. 324; Ryland v. Fletcher, L. R., 8 H. L. 330. t)24 Repairs. the risks/ oi- if the tenant had access to and the means of remedying the defect;" and especially is this the case where the injury is pro- duced by a defect that results from his own act, as, for damages by leakage occasioned by his turning off the water in pipes in the build- ing to prevent its freezing.^ Nor, in the absence of a covenant to re- pair, is he liable for injury resulting from the faulty construction or condition of the premises, the control over which is in the hands of a tenant, either to th-e tenant or third persons,^ unless he has been guilty of fraud in having misrepresented the condition of the premises, or has concealed certain facts relative to their condition that it was his duty to inform the tenant about, and it seems that, where certain de- fects exist that are likely to injuriously affect the health of the tenant or his family, it is the landlord'' s duty to disclose the facts, and failing to do so, he is liable to the tenant for all the damages resulting to the ten- ant which are the imm.ediate and proximate result of such failure} 1 MoAlpine v. Powell, 70 N. Y. 126. In Fera v. Child, 115 Mass. 32, the les- see ' stipulated that the lessor should not be liable for damages occasioned " by fire, water or otherwise, or by the use or abuse of the Cochituate water, or by the leakage or bursting of -water-pipes, or in any other way or manner," and it was held that this included damages result- ing from a bursting of water-pipes in any part of the building, although not occupied by the tenant. 2 Taylor ». Bailey, 74 111. 178. ^ Taylor v. Bailey, ante. * Jaffe !). Harteau, 56 N. T. 398 ; Brewster v. Defremeny, 33 Cal. 341 ; Haz- lett V. Powell, 30 Penn. St. 293 ; Sher- wood V. Scullan, 2 Bos. (N. T. ) 127 ; Joyce V. DeGinervide, 2 JIo. App. 596; Douppe V. Gennin, 45 N. Y. 119. ^ In Minor v. Sharon, 112 Mass. 477, the defendant let the plaintiff a tene- ment to reside in with his family, in which, as the plaintiff stated in his dec- laration, the defendant knew had oc- curred cases of the small-pox, and that the same was tainted with the said dis- ease, and was dangerous, and the de- fendant was bound to inform the plain- tiff of the same, so that precautions might he taken, and to take himself reasonable precaution, against the ex- posvire of the plaintiff to said disease : but the defendant carelessly and negligently omitted to inform the plaintiff, or to take any precautions against the exposure of the plaintiff to the said disease, and the plaintiff, using the said house, was made sick with the said disease. The evidence tended to support the allegations of the declara- tion. The court instructed the jury as follows: "1st. If the owner of a tene- ment leases the same, to be occupied by the lessee and his family, the owner at the time having knowledge that the tenement was so infected by the small-pox as to be unfit for occupation, and to endanger the health and lives of the occupants on account thereof, the lessee having no knowledge of said fact, and the lessor conceals his knowledge to induce the lessee to hire and occupy the same, and the lessee and his family, while in the occupation of the said tenement under said lease, on ac- count of the said infection thereof, are taken sick, the lessee^ is entitled to re- cover the damages resulting to him from said siclaiess ; but if the want of due care on the part of the plaintiff con- tributed to his taking the disease, he cannot recover. And the minor chil- dren are entitled to recover for the dam- ages personal to themselves, as are stated, if the father exercised due care. 2d. That it was the plaintiff's duty to take all such precautions as a man of ordinary care and prudence would take under like circumstances. 3d. No spe- cific rule can be laid down. The cir- cumstances and facts known to the plaintiff must he considered, the extent of the disease, the opportunities and dangers of exposure. 4ih. If vaccina- tion was a proj)er precaution, it should have been attended to by the plaintiff, within a reasonable time after he had knowledge of danger of exposure. He should have employed a proper person, or one whom he had reasonable cause to believe was qualified to vaccinate his family. 5th. Whether he was in fault in not causing his family to be vacci- Covenants. 625 So, too, there is a strong tendency on the part of the courts to hold that the tenant is absolved from the lease, if there are latent defects in the premises, or causes not readily discoverable upon examination, ren- dering the premises unfit for occupancy, and of which the landlord knew and did not inform the tenant.^ But it should be stated that the last proposition is not well established, and is contrary to the weight of authority, and even the same court that has given expression to that doctrine has since held otherwise ; ' and it is doubtful whether it would be expedient to open the door to such defences, excejJt in the class of cases where fee life or health of the tenant is involved. Where there are several lessors. Sec. 38.5. Where a lease is made by several joint owners of premises, but in various proportions, and the lessee covenants to pay each of them separately his proportion of the rent, a covenant to repair, though expressed to be made with them jointly and severally, is nevertheless a, joint covenant, because their interests are necessarily joint, and an action for its breach must be brought in the names of all.^ ■When landlord has repaired. Sec. 386. When the landlord, who holds under a lease, is forced to repair himself, in the middle of his tenant's term, in order to save a forfeiture of his own estate to his landlord, it seems that the damage he will be entitled to recover will depend upon tlie covenant on which he sues. If there is a covenant to repair after notice, and he nated, or in not procuring a proper per- 1.56, 4 Am. Rep. .377, the defendant oc- son to vaccinate them, is for tlie jury, cupied a certain pasture as licensee un- If they consider tliat a proper preventa- der tlie plaintiff, and pastured a flock of live, the jury will consider whetlier, with sheep there that were infected with an aknowledgeof tlie existing state of facts, infectious disease. Immediately after the plaintiff unreasonably delayed, or the defendant took his sheep away, the employed an imsuitable person. If lie plaintiff turned his sheep into the past- did, he was in fault. 6th. If the chil- ure, and the disease was communicated dren caught the disease in consequence to them. The plaintiff was ignorant of of entering rooms not leased to the the nature of the disease or its mode of father, but separate and distinct from communication, and was falsely inform- their tenement, the defendant is not ed by the defendant that there was no liable." The jury found for the plain- danger. He was held entitled to re- tiff in each action ; in the first for $325; cover. See Scott d. Simons, 54 N. H. in the second for $125; and in the third 426; Wilson v. Finch Hatton, 2 L. R., for S450; and the verdict was sustained Exchq. Div. 236. upon appeal. In passing upon the ques- i Wilson ». Finch Hatton, ante ; Eakin tion MoBTON, J., said: "In this case v. Brown, 1 E. D. S. (N. Y. C. P.) the defendant knew that the tenement 36; Wallace v. Lent, 1 Daly (N". Y. C. was so infected as to endanger the health P.), 481; Staples v. Anderson, 3 Robt-. and life of any person who might occu- {Jf. Y. Superior Ct. ) 327. py it. It was a plain duty of humanity ^ Meeks v. Bowerman, 1 Daly (N. Y. on his part to inform the plaintiff of C. P.), 100. this fact, or to refrain from leasing it ^ Calvert ». Bradley, 16 How. ( Y. S. ) until he had used proper means to dis- 580. infect it." In Eaton ». Winue, 20 Mich. 40 62(5 Repairs. has given notice to liis sublessee, and the time has expired, and he hag then entered himself and repaired, the measure of damages will be the cost of such repairs, so far as they are fit and necessary. And it is not necessary for the plaintiff to prove that the defendant assented to the repairs being done by him, because, if there is no assent, the plaintiffs would be trespassers and liable to an action for the entry. In such a case it would not operate in mitigation of damages, that the plaintiff had, before the commencement of the action, assigned the premises to a third party, who pulled them down and entirely rebuilt them. The injury was done when his breach of covenant compelled the plaintiff to lay out money.^ But if he sues upon the general covenant to repair, after giving notice under the special covenant, but before the time fixed by the notice lias exjsired, it has been held that he can only recover nominal damages; because he cannot recover under the special cove- nant, and under the general covenant he cannot show that there has been any damage done to the reversion.^ Probably in this case it was thought that the the notice calling upon the defendant to repair within two months, under the special covenant, operated as an election to pro- ceed under that covenant, and estopped the plaintjff from demanding substantial damages until the expiration of the time fixed by himself. But it is not believed that the existence of a special covenant to repair after notice would prevent the landlord from recovering full damages in a suit upon the general covenant to repair, if he chose to rely exclusively upon it. Damages against assignee of lease. Sec. 387. The assignee of a lease is, of course, only liable for a breach of covenants committed during his own holding. But where the lease has passed through several hands, and the premises are out of repair when the action is brought, and are proved to have been so when they were held by the defendant, it will be for him to show how much of the injury arose subsequent to his occupation. And in default of evi- dence by him, the jury may assess the damage at the whole amount to which he would have been liable had all the dilapidations taken place in his own time.'' Of course strict proof must always be given of the amount of disrepair. Accordingly, where the jury were instructed that this action was not like one for goods sold and delivered, and that the plaintiff might rest upon genera! evidence in support of his partic- ulars of demand, without proving every item, especially as they had viewed the premises with the particulars of demand in their hands, ' Colley V. Streeton, 2 B. & C. 273. ^ Shaw v. Kay, 1 Ex. 412 : Smith v. ' Williams v. Williams, L. R., 9 C. P. Peat, 9 Ex. 161." 8.59. Covenants. G27 and would therefore be able to judge if the plaintiff had made out his case, — a new trial was granted.^ When action is brought at the end of the term. Sec. 388. Where the action is brought upon the covenant to repair at the end of the term, the damages iye such a sum as will put the premises into the state of repair in which the tenant was bound to leave them ; where, besides the covenant to repair, there is also a cove- nant to insure against fire for a specific sum, the defendant's liability, in case of the premises being burnt down, is not limited to this sum. The condition is only intended as an additional security to the land- lord.^ The defendant, however, is not liable to pay for improved modes of doing the work, by means of which the parts repaired are more durable than they were on their former principles of construc- tion.' Subsequent erections. Sec. 389. When the covenant is only to repair the demised premises, the defendant is not bound to repair any building afterward erected, even though he was wrong in erecting them, and no damages can be recovered in respect of the disrepair into which they may have fallen.^ It is no answer to a claim for not repairing, that the plaintiff's interest in the premises has ceased. The plaintiff may be liable over to his superior landlord ; but independently of this the objection cannot be set up by a party who is himself in fault.* Damages must arise from tlie defendant's neglect. Sec. 390. Of course no claim can be maintained for any damages which do not flow immediately from the defendant's neglect. For instance, the plaintiff held land under several covenants, one of which was a covenant to repair, with a right of entry by the landlord on breach of the covenants, and made a sublease to the defendant, with a covenant to repair, which was broken by the defendant. The head landlord ejected the plaintiff for breach of all the covenants, including that violated by the defendant. It was held that the plaintiff could 1 Smith V. Douglas, 16 C. B. 31. see Davies v. Underwood, ante. In an- '•^ Digby V. Atkinson, 4 Camp. 276. other case, a lessor recovered substantial ' Seward v. Leggatt, 7 C. & P. 613. damages for dilapidations,although at the * Worcester School Trustees v. Eow- expiration of the term the premises were lands, 9 C. &. P. 734. Every such cove- pulled down under a verbal arrangement nant must be construed according to its for that purpose made previously with a particular words ; Cornish v. Cleife, 3 proposed new lessee. But in this case H. & C. 446 ; and sometimes a distinc- the court laid stress on the fact that tion may exist between a liability to re- the agreement with the proposed new pair newly erected houses and a liability lessee was verbal only, and therefore not to repair newly erected additions to ex- binding on either party. Kawlings v. isting houses. B., id. Morgan, 18 C. B. (N. S.) 776. ' Clow V. Brogden, 2 M. & G. 39; and 628 Repaies. Dot recover from the defendant the value of the term so forfeited, since there were other breaches besides those in the defendant's lease, and it did not appear on which of them the ejectment had turned. And Maule, J., and Bosauquet, J., doubted whether, in any case, the sub- tenant could be liable in such an action for all the consequences to his landlord of a breach of covenan* contained in a lease to which he was not himself a party.* Meaning of a covenant to repair.— What amount of repair is necessary. — ^Evidence of previous disrepair. Sec. 391. In estimating the amount of damages, it is, of course, im- portant to know what state of repair the tenant was bound to put the premises into. Where the covenant is, " to put the premises into re- p.iir," this clearly means to put them into a better state of repair than tlie tenant found them in.^ It has also been decided, however, that a covenant to"keei3"in repair involves a covenant to put in repair. For they cannot be kept in- good repair without being put into it.^ But the amount of repair, of course, depends on the age and class of the hoiise, and must differ, as that may be a palace or a cottage. No one is bound to give his landlord a new house instead of an old one.* A house in one locality may be repaired with materials inferior to those requisite for repairing a house in another.^ And, accordingly, where a lessee took premises, which at the time were old and out of repair, under a covenant to repair, and they were destroyed by fire, and it ap- peared that the cost of re-instating them would amount to 16S5Z., but they would then be more valuable by GOOl. than they were at the time of the fire ; it was decided that defendant was only liable to pay 1035Z. that being the amount which the plaintiff had really lost.'' This is all quite clear, but a more difficult question arises as to how far evidence of actual disrepair, as distinguished from mere inferiority, may be ad- mitted. The rule is, that evidence may be given as to the age and class of the premises, with their general condition as to repair; but the defendant cannot prove in detail that a certain part is out of order.' ^ ' Clow V. Brogden, ante; 2 Sco. N. E. beyond this rule. In that ease the de- SOS, ;J14, S. C. fendant's counsel soiightto examine the " Belcher v. Mcintosh, 8 C. & T. witnesses as to the condition of tlie 720. premises when the plaintiff went into 3 Payne v. Haine, 16 M. & W. 541 ; possession. The evidence was refused, Easton I). Pratt, 2 II. & C. 676. and a new trial was granted >ipon that ■> Per Ai.DEKSON, B., Belcher v. Mc- ground. Loed Desman said : " It is Intosh, 8 C. & P. 723. very material, with a view both to the ''Per Pahke, B., Payne v. Haine, 16 event of the suit and the amount of M. & W. 545. damages, to show wliat the previous 6 Yates B. Dunster, 11 Ex. 15. state of the premises was." And in ' Stanley v. Towgood, 3 B. & C. 4 ; Payne v. Haine, Aldeksos, E., says : Muntz V. Goring, 4 id. 451; Payne u. "The marginal note of Bui-dettu. With- Haine, 16 M. - A lessor of land for a specified animal tion of the land, erect certain fences, ground-rent covenanted in the lease to pay the taxes, &c. To an action by the build upon it within a stated time and to lessor upon the lease, alleging a failure let the building to the lessee of the land on the part of the lessee to discharge his at a certain rent. The lease further pro- covenant, the defendant, for a defence, vided that if the lessor " shall decline to set up that the plaintiff had failed for 15 erect said building " within the specified months to clear out the ditch, as he time, " it is agreed that " the lessee agreed, for which cause the defendant " may go forward and erect the same." had abandoned the land and the lease. Held, in an action by the lessee for a Held, that the answer was no bar to the breach of the covenant, that the latter suit, no damages being alleged to have stipulation was not a full defence, and resulted from the failure of the plaintiff that it could not be relied on in reduc- to perform his covenant. The agree- tion of damages if the jury sliould find nient of the lessor was not a condition tliat the lessor had thrown obstacles in precedent. Handschy u. Sutton, 28 Ind. the way of the reasonable perforinance 159. of the' lessee's stipulated rights. Ed- 2 Q-reen -o. Bales, 2 Q. B. 225. wards ». Gale, 52 Me. 360. In a con- ^ Green «. Bales, 2 Q. B. 225. tract for the lease of land for a term of ^ Shortbridge v. Lampleigh, 2 Ld. years, it was agreed that the lessor Kaym. 803. should clear out a ditch oh the laud, Covenants. 631 the upper story of a building, or a cellar, for a term, and it is blown down, or destroyed by fire, his entire estate ceases, and there is nothing from which the rent can issue, as he has no interest in the land upon which the building stood, and, as his entire estate in the premises is destroyed, he is, from tliat time, relieved from all liability for rent, because all his interest as lessee is gone.^ But so long as the estate re- mains, and there is any thin ff left out of which the rent can issue, his liability therefor remains, although he is deprived of its beneficial enjoyment, either by public enemies,^ the act of the government,' or the agency of the elements.'' Thus, if land is completely covered with water by an inundation, and permanently remains so covered, yet, as the estate still exists, the tenant must pay the rent, although he is deprived of all beneficial use thereof, by reason of the presence of the water upon it.^ Furnished houses or apartments. Sec. 395. A different rule prevails as to a lease of a furnished house ; and as to those, it is held, that there is an implied condition or obliga- tion that the house is in a fit state to be inhabited.^ In the case last referred to, the defendant rented of the plaintifl: a furnished house for five or six weeks at a weekly rent of eight guineas, the option as to whether the lease should endure for five or six weeks being with the defendant. The rent was to commence on the 15th of September, and on the 22d, the defendant, having previously given the plaintiff notice of his intention to do so, moved out and delivered up the keys, and iln Womack v. MoQuarry, 28 Ind. ner v. White, 4 I-Iar. & J. (Md.) 564; 103, it was held that when a lease, or Coy o. Downie, 14 Fla. 544. contract for a lease, relates to a part of ' Harrison ». North, 1 Ch. Cas. 84. a building, as an upper story, or a cellar, * Carter c. Cumins, cited 1 Ch. Cas. its destruction by fire, or any cause, re-, 84 ; Trapnall v. Merrick, 21 Ark. 503. lieves the tenant from liability for the Thus, where the cellar and lower story rent, because there is nothing left upon of a building was rendered untenanta- which the demise can operate. See, also, ble by reason of water filling the lower to the same effect, Graves v. Berdan, 26 story, and depositing mud, &c., therein, ?^. Y. 498; Winton v. Comish, 5 Ohio, it was held that the tenant was not enti- 303 ; Preeland v. Burt, 1 T. E. 701 ; tied to any abatement from the rent for Kerr v. Merchants' Exchange Ins. Co., the full term. Neidelt v. Wales, 16 3Edw. Ch. (N. Y.)315. luTtbBacon's Mo. 214. So, where the building is de ■ Abr. p. 63, it is said: " If the use of the stroyed by fire, and there is no covenant thing be entirely lost, or taken away on the landlord's part to rebuild. White from the tenant, the rent ought to be d. Molyneaux, 2 6a. 124, or the lessee is abated or apportioned, because the title for a part of the term deprived of their to the rent is founded upon the pre- use by an accidental injury, or even by sumption that the tenant enjoyed the the entry of the landlord to make neces- thing during the contract." Baker v. sary repairs, does not relieve the tenant Holtzapfell, 4 Taunt. 45; Stockwell v. from liability for the rent. Peck o. Led - Hunter, 11 Met. (Mass.) 448; McMillan widge, 25 111. 109 ; Pindar v. Amsley, 1 B. Solomon, 42 Ala. 356 ; Buerger v. T. R. 312. Boyd, 25 Ark. 441; Austin v. Field, 7 ^ 1 EoUe's Abr. 236 (C). Abb. Pr. N. S. (N. T.) 29. i= Smith v. Marrable, 11 M. & W. 5. 2 Paradine ». Jones, AUeyn, 27 ; Wag- 632 Repairs. moved to another residence. In an action to recover the rent for the whole term, the defence was that the house was so infested with vermin as to be unfit for occupancy. Loed Abingee, C. B., instructed the jury that, " in point of law, every house must be taken to be let upon the implied condition that there was nothing about it so noxious as to render it uninhabitable, and that if they believed that the defendant left the plaintiff's house on account of the nuisance occasioned by these vermin being so intolerable as to render it impossible that he could live in it with any reasonable comfort, they ought to find a verdict for the defendant." Upon a rule for a new trial this ruling was sustained, so far as it applied to a lease of furnished houses. The doctrine of this case was predicated upon the authority of some nisi prius cases,' which have been strictly overruled ; ^ and the doctrine of Smith v. Marrable was greatly shaken by the cases last cited, and held untenable, except, perhaps, as applied to the lease of a furnished house, and only sus- tainable in that respect, upon the ground that the contract is of a mixed nature, beins; for a house and sufficient and comfortable furniture.^ ■■ Edwards v. Etheriugton, Ky. & M. 268 ; Cullins v. Barrow, 1 M. & Rob. 112; Salisbury v. Marshall, 4 0. & P. 65. Ill the case of White v. Montgomery, decided by the Supreme Court of Geor- gia, April 10th, 1877, the doctrine of this case was followed, in its most ex- tended sense, but was predicated upon the provisions of the statute. In that case, the court say : " It is the duty of the landlord, when he rents a tene- ment to a tenant at full price, to make it suitable for the purpose for which it is rented, unless the tenant knows as much about its condition as he does ; and he must, upon notice of any defect, keep it by repairs in such condition as to be suitable for such use. The tenant is not the agent of the land- lord, in the sense that the latter is re- sponsible for the damages which result to third persons from tbo illegal or negligent use of tlie rented premises by the latter; the landlord is responsible for any damage which may flow from the defective structure of the tenement or from his failure 1o keep it in proper repair; but if It be properly constructed and kept by the landlord in proper re- pair, the tenant alone is responsible for liis bad or negligent use of a thing good in itself and kept good by the landlord, but made bad and working damage by (he tenant's improper or negligent use of it. Therefore, if a landlord rent different tenements in the same build- ing to different tenants, and the store- room rented to one tenant is under rooms used as a hotel rented to another, and immediately over the store-room there is a M'ater-closet properly con- structed, and kept in proper repair by the landlord, but so improperly or negli- gently used by the occupants of the hotel as to cause damage to the goods in the store below, the tenant of the hotel is responsible for the damage to his co-tenant of the store-room, and the landlord is not." See, also, Scott v. Simons, hi K. H. 426, where it was held that a landlord is liable for injuries re- sulting to his tenant if the house is negligently constructed, or he carelessly permits it to remain in a state of disre- pair. '■' Hart V. Windsor, 12 M. & W. 68 ; Sutton V. Temple, 12 id. -52. ^ Opinion of Parke, li., in Sutton v. Temple, 12 M. & W. 65; also in Hart r. Windsor, 12 id. 87. In the former case, he says: "As to the case of Smith t. Marrable, it is sufficienlly dislinguishod from the present case, on the ground on which the Lord Chief Baron has put it, that there, the contract was of a mixed nature, being a bargain for a house and furniture, whicli was necessarily to be such as was fit for the purpose for which it was to be used. It resembles the case of a ready furnished room in a liotel, which is hired on the uiulerstandiiig that it shall be reasonably (it for imme- diate habitation. In such case, the bar- gain is not so much for the house as the furniture, and it is well understood that the house is to be suppUed with (it and proper furniture, and that if it be de- fective, the landlord is bound to leplace Covenants. 633 When the landlord is under obligation to repair, whether this obliga^ tion arises by express contract or operation of law, unless he docs so before the term commences — when the term is to commence infuturo, and there is a reasonable time for him to repair — it is held by a late English case that the tenant is absoh-ed from his contract ; ^ but if he has entered into possession, he must give the landlord notice to repair, and unless he does so within a reasonable time, must make the repairs himself, or cause them to be made, and deduct the expense from the rent ; or he may bring an action against him to recover the amount, if the rent is not sufficient to cover the expense ; ^ and according to the doctrine of some English cases, he is not liable for rent until the repairs are made,^ provided the jury find that the contract to pay rent is not absolute, but conditional upon the rejDairs being made.* But the tenant cannot, upon that ground, abandon possession and absolve himself from liability for rent for the balance of the term, but must make the repairs himself within a reasonable time, or bring an action against the landloi-d for damages resulting from the breach of his contract. But if the payment of rent is conditional upon the landlord making repairs, even though the tenant has entered, there is no present demise created, but only a conditional one, that becomes oijerative when the it." The doctrine is re-affirmed in the case of Wilson et al. v. Finch I-Iatton, L. I-i., 2 Exch. H. 336, in which the de- fendant agreed to rent the plaintiff's furnished house for three months, from the 7tli of May, but liaving at tlie begin- ning of tlie intended tenancy discovered tliat the house was, owing to defective drainage, unfit for habitation, refused to occupy. The plaintiffs repaired tlie drains, and on tlie 26th of May tendered the liouse in a wliolesome condition to the defendant, who refused to occupy or to pay tlie rent. The plaintiffs hav- ing sued for tlie rent and for use and occupation, the court lield that, in an agreement of this kind, there is an im- plied condition tliat tlie house shall be fit for occupation at the time at wliich tlie tenancy is to begin, and if the con- dition is not fulfilled, the lessee is enti- tled tliereupon to rescind the contract; and that the state of the house in ques- tion, at the beginning of the intended tenancy, entitled defendant to rescind, and that he was not liable for the rent or for use and occupation. In the case of Dutton V. Gerrish, 11 Cush. (Mass.) 89, Shaw, J., says that in the case of furnished rooms in a lodging-house, let for a particular season, a warranty may be implied that they are suitably fitted for such use. See, also, Campbell v. Wenlock, 4 F. &. F. 716. In Tully v. Howling, L. E., 2 Q. B. T>. 182, the same principle was applied to a contract for the cliarter of a ship. See, liowover; Francis v. Coclierill, L. R., 5 Q. B. 501, Jones 1). Just, L. R., 3 Q. B. 197; Keates V. Earl Cadogan, 10 C. B. 591 ; Surplice V. Farnsworth, 8 Scott (N. R.), 307 ; Heard v. Camplin, 15 L. T. (O. S.) 437; Searle v. Lavericli, L. E., 9 Q. B. 122; Hart 0. Windsor, 12 M. & W. 68; West^ lake V. Be Graw, 25 Wend. (N. Y.) 069; Foster 1). Peyser, 11 Cush. (Mass.) 243 ; McGIashan v. Tallmadge, 37 Barb. {N. Y.) 313; Murray v. Mace, Ir. Rep., 8 C. L. 396. 1 Wilson V. Finch Hatton, L. E., 2 Exchq. Div. 343. ■^ In Green v. Eales, 2 Q. B. 225, it was lield that where the landlord, upon request, rejuses to repair, the tenant may go on at once and repair. It was also held that he could recover of the landlord no more tlian the expense of repairs, and could not recover in addi- tion thereto the expense of fitting up quarters elsewhere, or the rent of other premises, while the premises were being repaired. « Mechlen v. Wallace, 7 Ad. & El. 54, n.; Vaughan v. Hancock, 3 C. B. 766. * LOBD Kbnton, C. J., in Mecblen ». Wallace, ante. In Wood v. Clarke, 7 Q. B. 211. 634 Repaies. condition precedent is performed.^ The question as to whether the instrument under which the tenant enters is to be treated as a lease, or merely as an agreement for one, depends upon the intention of the parties, to be gathered from the whole instrument,^ and is a question for the jury.^ No implied covenants to repair by tenant. Sec. 396. No covenant or promise as to repairs, upon the part of the tenant, can be implied where there is any exi^ress stipulation on the subject,'' but an express covenant or promise may sometimes be in- sufficient to exclude the custom of the country to use the premises in a ten.ant-like manner. Where buildings and land are leased without any express stipulation as to repairs, cultivation, &c., a covenant or promise on the part of the lessee is implied by law, that he will use the pnn:- ises in a tenant-like and proper manner^" and that he will manage and cultivate the lands in a good and husband-like manner according to the custom of the country ; but not that he will spend a certain quantity of manure thereon, or keep the buildings in repair ; or any other spe- cial stipulation not arising out of the bare relation of landlord and ten- ant." In declaring on such implied covenants the jiarticulars of the alleged custom should not be stated, but only any breaches pf it ; ' or the breaches may be alleged in general terms ; as, that the defendant did not cultivate according to the custom of the country, without spe- cifying the particular instances.' If the breach assigned is, " that the defendant has not used the demised premises, or any part thereof, in a good and husband-like manner, hut on the contrary thereof has committed waste," the plaintiff cannot give evidence of the defendant's using the farm in an unhusband-like manner, if it does not amount to waste." On a declaration alleging that the defendant, being tenant to the plaintiff, cut down and destroyed trees on the premises, and other- wise used the premises in so untenantable and improper a manner that they thereby became, and were and are, dilapidated and in bad and 1 Gore 1-. Lloyd, 12 M. & W. 463 ; " Brown b. Crump, 6 Taunt. 300 ; Wood i). Clarke, ante. Granger j). CoUins, G M. & TV. 461. ■•^ Bacon 0. Bowdoin, 22 Pick. (Mass.) ' Angerstein b. Handson, 1 0. M. & 401 ; Jackson b. Delacroix, 2 Wend. (N. R. 189 ; Legh b. Hewitt, 4 East, 154 ; Y.) 433; Curling b. Mills, 7 Scott, N. E. Powley b. Walker, 5 T. R. 373 ; Harris 709. B. Mantle, 3 T. R. 307 ; Martin b. Gil- 3 Meclalen b. Wallace, 7 Ad. & El. ham, 7 Ad. & El. 540. 54. 8 Martyn v. Clue, 18 Q. B. 662 ; Earl ■1 Merrill b. Frame, 4 Taunt. 329; Line of Falmouth b. Thomas, 1 Qr. & M. 89. B. Stephenson, 4 Bing. K. C. 678 ; 5 id. » Harris b. Mantle, 3 T. E. 807. The 183 ; MessentB. Reynolds, 3 C. B. 194 ; words "but on the contrary thereof" Standen b. Chrismas, 10 B. B. 135. always may and generally should be s Morrison v. Chadwick, 7 C. B. 266 ; avoided. Edge b. Pemberton, 12 M. & 6 D. & L, 567 ; White b. Nicholson, 4 W. 187 : 1 D. & L. 467 ; Carpenter «. M. & G. 95. Parker, 3 C. B. N. S. 207. Covenants. 635 untenantable condition, the plaintiff cannot recover for jpe?-wiissi>e waste.^ Proof of custom. Sec. 397. A strict legal custom from time immemorial need not be proved, but only the prevailing course of good husbandry and manage- ment in the neighborhood, and a breach or breaches thereof.^ The onus of proving any custom lies upon the party claiming under it.^ The wit- nesses to prove it must speak to facts, and not to mere matter of opin- ion.* A custom at one place will not extend to another place some miles distant, nnless shown by evidence to extend to that jilace also ; ^ nor will a custom confined to any particular estate, however large, be sufficient." To Tjsrliat tenancies applicable. Sec. 398. Where a custom of the country is proved to exist, it will bo considered applicable to all tenancies in whatever way created, whether orally, or by writing, or even by deed, unless expressly or im- pliedly excluded by the terms actually agreed on.' But if the lease or agreement contains terms or stipulations which are inconsistent with the custom of the country, such custom will be excluded upon the prin- ciple expression facit cessare taciturn.'^ If, however, the custom and stipulations of the lease or agreement are not wholly inconsistent with each other, both of them may sometimes prevail." Whether the cus- tom, as proved, are or are not excluded by the terms of the contract, is a question of law for the court.'"' Covenants to repair. — ^When implied. Sec. 399. Sometimes a covenant as to repairs, cultivation, &c., may be implied from words used in other covenants in the lease, or from the recitals. But such covenants are implied and found as matter of fact, and are not covenants implied by law from the mere relation of the parties as landlord and tenant. In declaring on a covenant of this nature, it is proper to plead it the same as if the deed actually con- tained an express covenant to that effect,-*^ and the same rule prevails 1 Martin v. Gilham, 7 Ad. & El. 540. » Hutton ». Warren, 1 M. & W. 466 ; 2 Legh XI. Hewitt, 4 East, 154 ; Dalby Holding v. Pigott, 7 Bing. 465 ; Sutton V. Hirst, 1 Brod. & B. 224 ; Senior v. v. Temple, 12 M. & W. 63 ; Faviell v. Armytage, Holt, N. P. C. 197. Gaskoiu, 7 Exch. 273; Muncey v. Den- 8 Caldecott v. Smythies, 7 C. cfe P. 808. nis, 1 H. & N. 216; Whiter. Nicholson, * Henderson v. Charnock, Peake, 4. 4 M. & G. 95 ; Martyn v. Clue, 18 Q. B. ■'- Brown v. Wilkinson, Co. Lit. 270 b, 661, 682. note (228). ^' Parker v. Ibbitson, 4 C. B. K. S. 846. « Wormersley v. Dally, 26 L. J. Ex. " Hall v. Betty, 4 M. & G. 410; Wool- 219. ley v. Redilieii, 5 M. & G. 316; Williams '' Cole Ejec. 249. v. Taylor, 5 Q. B. 17o ; Courteney «. 8 Webb 13. Plummer, 2 B. & Aid. 746 ; Taylor, 6 M. & G. Sol ; Wills v. Murray, Roberts s. Barker, 1 Cr. & M. 808 ; 4 Exch. 843 ; Easlileigh v. The South Clarke u. Eoystone, 13 M. & W. 752. Eastern E. Co., 10 C. B. 312. 636 Repairs. where tlie contract is not under seal, and some promise is to be implied in addition to the express stipulations/ In such cases, if the plaintiff omits to state the implied covenant or stipulation he cannot allege any breach of it, or the declaration will be bad in arrest of judgment.^ It would be improjjer to declare upon the express contract, and upon the implied covenant or promise, in two counts, as though they were two distinct contracts ; the plaintiff could not recover under both counts, there being onl)' one conti'uct.' Where a person is let into possession under a mere agreement for a future lease (not amounting to an actual demise), he becomes a mere tenant at will ; but when he pays, or expressly agrees to pay, any part of the annual rent therein mentioned, his tenancy at will changes into a tenancy from year to year, upon the terms of the intended lease, so far as they are applicable to and not inconsistent with a yearly ten- ancy.* So where a person is let into possession under a void lease, as a lease for more than three years not made by deed, and pays, or ex- pressly agrees to pay, any part of the annual rent therein expressed to be reserved, he becomes a tenant from year to year, upon the terms of such lease^ so far as they are applicable to and not inconsistent with a yearly tenancy.'* So where a tenant holds over after the expiration of his lease, he becomes a tenant on sufferance; hut when he pays, or ex- pressly agrees to pay, any subsequent rent, at the previous rate, a nevi tenancy fro7n year to year is thereby treated, upon the same tei'ms and conditions as those contained in the expire'd lease, so far as the same are applicable to and not inconsistent with a yearly tenancy." But it may be otherwise where the parties to the express and implied leases are different. Where a remainder-man accepts rent under a lease granted by the previous tenant for life, which became void on the death of such tenant for life, or at the end of the then current year of the tenancy, a new implied tenancy from year to year on the old terms is thereby created. So where a mortgagee compels a subsequent tenant of the mortgagor to attorn to him, a new tenancy from year to year is thereby created between them upon the terms of the previous lease, so far as they are applicable to a yeaiiy tenancy.' How to declare on a nevr implied tenancy. Sec. 400. The proper mode of declaring for the breach of any such 1 Callander v. Oelricks, 5 Bins;. N. C. ^ Tempest v. Rawling, 1.3 East, IS. 58; Messent, ti. Reynolds, 3 C. B. 194; ^ ^rden v. Sullivan, 14 Q. B. 832; Mosley v. Attenborough, 3 Exch. 500 Davenish v. Moffatt, 15 Q. B. 257. (1st ooi}nt); Elderton v. Emmens, 6 C. <■ Digby b. Atkinson, 4 Camp. 275. B. 160 ; 5 D & L. 489. ' Johnson b. The Churchwardens of 2 Duim V. Sayles, 5 Q. B. 685. St. Peter, Hereford, 4 Ad. & El. 520, 8 Holford V. Dunnett, 7 M. & W. 348; 556 ; Oakley v. Monck, 3 H. & C. 706. Deere u. Ivey, 4 Q. B. 279. Covenants. 637 implied stipulation is to allege, that the defendant became, and was tenant from year to year, to the plaintiff, of the property (describing it concisely) upon the terms (amongst others) that [&c.J, stating only the particular stipulations broken, and alleging a breach or breaches thereof.-' It is not necessary to state the whole of the agreement, if the part omitted does not qualify that which is stated.^ But any part which qualifies that which is stated must not be omitted.^ An agree- ment by the tenant to leave a farm as he found it has been held to be an agreement to leave it in tenantable repair, if ho found it so, and will maintain a declaration so laid.* Implied liability of tenant at -will, or from year to year, as to repairs. Sec. 401. In the absence of any express or implied stipulation on the subject, a tenant at will, or a tenant from year to year, is not liable to general repairs ; nor for permissive waste ; nor to make good mere wear and tear of the premises ; but only to keep them wind and water tight.^ He is bound to commit no waste, and to make fair tenantable repairs, such as putting in windows or doors that have been broken by him, so as to prevent waste and decay of the premises ; but he is not bound to do substantial and lasting repairs, such as new roofing, &c.^ A tenant from year to year of farming premises is bound by law only to reasonable and tenantable repairs, so as to prevent waste or decay of the premises; and, in the absence of any express stipulation, is not bound to substantial and lasting repairs,' for the law only implies a contract to use the farm in a husband-like manner, accoi-ding to the custom of the countrj', if there is any, and does not raise an implied agreement on his part to do any particular acts, or to repair generally.^ He is not liable iov permissive^ but only for commissive waste, and as the non-repair of buildings is of the former class, he is not liable there- for." Liability for permissive waste attaches to tenants for lives or for J Bnllen &■ L. PI. 112 ; Tempest v. B. & P. New R. 290; Martin v. Gilham, Bawling, 13 East, 18; Eichardson !). Gif- 7 A. & E. 540; Hartnett v. Maitlaiid, 16 ford, 1 Ad. & EI. 52; Burdett, Bart. v. M. & W. 2.57. Withers, 7 Ad. & El. 1.36 ; Dietriclisen " Ferguson v. , 2 Esp. 500. V. (Mubilei, 14 M. & W. 845 ; Massey v. ' Ferguson i;. ■ — — , 2 Esp. 500. Goodall, 17 Q. B. 310 ; Bickford v. Par- « Gibson v. Wells, 2 B. & P. 291 ; son, 5 C. B. 920 ; White o. Nicliolsoii. 4 Horsefall v. Mather, Holt, 7. M. & G. 9-=) ; Johnson v. The Church- " i'ellowley v. Gower, 11 Exchq. 294 ; wardens of St. Peter, Hereford, 4 Ad. & Hartnett v. Maitland, 16 M. & W. 257 ; El. 520. White v. Wager, 4 H. & J. (Md.) .373 ; 2 Tempest v. Bawling, 13 East, 18. Sackett o. Sackett, 8 Pick. (Mass. ) 300 ; ' Horsefall v. Testar, 7 Tauut. 385. Hertie v. Beiibaw, 4 Taunt. 764 ; .Tones * Winn !). White, 2 W. Blac. 840. i'. Hill, 7 id. 392; Greeue v. Cole, 2 Wm. ■■' Leach u. Thomas, 7 C. & P. 327 ; Sauud. 252. The statutes of Marlbridge Torriano v. Young, 6 C. & P. 8 ; Au- and Gloucester have no application to worth t). Johnson, 5 C. & P. 2,39; Horse- permissive waste. The words of the fall V. Matlier, Holt, N. P. C. 7; Count- former statute are "qui facit vastum," ess of Shrewsbury's Case, 5 Co. E. 13 a; and tlie latter introduces no new action Cro. Eliz. 777, 784 ; Gibson v. Wells, 1 for this species of wrong. It will be ob- 638 Repairs. years,^ but a tenant from year to year, being practically only a tenant at will, is not liable therefor unless there is an express stipulation that he shall be.^ Remedies of landlord f oi- non-repair. — By entry or ejectment. Sec. 402. As already stated, the landlord may proceed against the tenant at law for damages for not repairing according to his covenant,' but unless there is an express provision in the lease to that effect he cannot re-enter or bring ejectment because of a breach of such cov- enant, but is confined to an action for damages.* But when there is such a provision, either the lessor, his rejDresentatives or assignee may re-enter or bring ejectment if the covenant is broken in any respect;^ and unless there is a provision that notice shall be given, he may re- enter or bring ejectment without jDrevious notice to the tenant to re- pair." If, however, the lease contains a provision for re-entry in case of a failure to repair within a certain time aftei- notice from the land- lord to do so, re-entry cannot be made or ejectment brought until no- tice has been given and the time sjiecified in the lease has expired," unless the covenant as to repairs and the stipulation as to re-entry are independent. As, if there is a general covenant to repair, and a cov- enant to repair specific defects upon notice of a certain duration from the landlord, and a provision for I'e-entry upon a breach of any cov- enant in the lease, it was held that the covenants were distinct, and that the landlord might re-enter for a breach of the covenant to repair, without i)revious notice," or bring ejectment." But, under such a lease, if the landlord gives the tenant notice to repair within a certain time, he is treated as waiving the forfeiture during such period, and can neither re-enter or bring ejectment until the period named in the no- tice has elapsed : ^° but a notice to repair forthwith does not have that effect." When notice is required to be given it must be given to the served that all the cases go upon the dis- ^ See ante, p. tinctiou between permissive and com- * Cole on Ejectment, 403, 422 ; Fox ». missive waste. Martin d. Gilham, 1 Briscoe, 15 Cal. 223. A stipulation to Ad. & El. 540; Torriano d. Young, 6 C. quit on demand, if any of the covenants & P. 8. are broken, operates to give the landlord 1 See cases cited in the last note. a right to re-enter for a breach. Simons 2 Smith's Landlord and Tenant, 291 ; o. Marshall. 3 Iowa, 502. Gibson v. Wells, 1 N. R. 290 ; Heme v. » Baylis d. Le Gros, 4 C. B. N. S. Benbaw, 4 Taunt. 704; Martin v. Gil- 537; Hills t). Morris, 11 L. J. Exchq. ham, ante. The old action of waste has 313 ; Bennett ». Herring, 3 C. B. N. S. generally given way to an action on the 370. case in tlie nature of waste, and at the " See cases in last note, especially commoii law was confined to tenants by Baylis x>. Le Gros. dower and curtesy or guardian ; but by ' Rankin ». Brindley, 4 B. & Ad. 84. tlie statutes previously referred to (see ^ Baylis v. Le Gros, ante. note 3, ante), tlie action was extended " Goatleyi). Paine, 2 Camp. 520. to teiuuits for life, for years, and pwr au- ^ Moreoroft v. Meux, 4 B. & C. 406 ; tre vie, 2 Inst. 201, or their assignees. Pitman v. Sutton, 9 C. & P. 706 ; Eut- Saunders v. Norwood, Cro. Eliz. 683. zen u. Lewis, 5 Ad. LOCK, C. B., pointed out, that although the plaintiff had been ejected by his les- , sor for non-payment of rent, he still continued liable upon his own covenant to repair. The damages to which his lessor would have been entitled, would have been the amount necessary to put the premises in repair; for this amount would exactly measure the injury to his reversion. Obviously, therefore, he was entitled to receive exactly the same amount from his sublessee. As AYat- soN", B., put it, " the true foundation of the action is, not that the reversion is, but that it may be damnified by the con- duct of the lessee." The plahitiff was entitled to say to his sublessee, " My reversion was substantially injured by your failure to repair. The fact that I have subsequently lost the reversion has neither lessened the injury done to me, nor affected your obligation to pay for that injury." In the Irish case, too, it is obvious that the length of the tcrni was no reason why the reversion might not fall in at once ; e. g., from non-pay- ment of rent, or otlier cause of foi-feit- ure. If so, the argument for the de- fendant fell to the ground. iWard !). Kelsey, 42 Barb. (N. Y.) 582. The landlord, if he has covenanted to repair, is liable to an adjoining owner for damages sustained by him by reason of the falling of the buildings or any of them, upon the buildings of such adja- cent owner, and upon the same princi- ple he is. liable to a third person for in- juries sustained by him by reason of the defective condition of the premises, for which he would have been liable if he had himself been in the actual posses- sion of the premises. Benson v. Saurez, 43 Barb. (ST. Y.) 408. COTENANTS. 641 this covenant the tenant shall recover his actual loss. If he leased the premises for ,-i particular pui'pose, the rental value of the building for such jiurpose dui-ing the period that he was deprived of its use, or of any part thereof, is the measure of recovery. Thus, in a New York case,-* the defendant leased to the plaintiff a building and premises known as the Prescott House, in New York City, and five stories of a new building to be erected on adjoining lots in the rear of the hotel, for a term of years. The defendant covenanted to tear down the buildings on the premises upon which the new building was to be erected, and immediately erect a new building five stories high, a.s stipulated in the lease, and have the new building completed and ready for occupation on or before the 1st day of the ensuing September. The defendant failed to complete the new building within the time specified. The defendant also covenanted to make certain repairs in the old hotel building which the plaintiff occupied while the new build- ing was being erected. After the execution of the new lease the plaintiff stored his furniture in the new building. The defendant re- moved a balustrade in making repairs upon the hotel, and in doing so made openings in the roof covering, and dui'ing a storm in October the water penetrated through and rendered the upper rooms unfit for occupation. The plaintiff several times notified the defendant to re- pair the defects, but he did not do it, and after waiting about six weeks he made them himself, and then brought an action to recover the cost of the repairs, and his damages for the non-fulfilment of the contract to rejDair, as well as of the contract for the completion of the building. The damages claimed by the plaintiff upon the last named ground, was the value of the use of the rooms in the old and new building during the time he was deprived of their use in consequence of the alleged breaches. The lower court held that this was the true rule of damages, and instructed the jury that, as to such rooms as the plaintiff had furniture for, he was entitled to damages upon the basis of their value as furnished rooms. As to the defendant's failure to make reiiairs, the court instructed the jury that the plaintiff was en- titled to recover the loss ho sustained by being deprived of the use of tlie rooms until they were repaired, and that while he had the right, after notice, and waiting a reasonable time to enable the defendant to repair them, to repair them himself and charge the expense thereof to the defendant, that he was not bound to do so, but could proceed against the defendant for his damages by reason of the non-repairs. This ruling was sustained by the Court of Appeals. The rule of damages may be said to be, that the plaintiff is entitled to recover such a sum as will place him in as good a position as h& , 1 Hexter v. Knox, 63 N. Y. 561. 41 C42 Kepaiks. loould have been if the defendant had performed his covenant,^ tiiid this rule is equally applicable -vvhetlier the action is brought by the landlord or the tenant. If any special or particular damages, in addi- tion to the damage which naturally and ordinarily results from the breach, are claimed, the plaintiff must specially allege and prove them and show their connection with the covenant,^ and they must not be too remote, nor speculative.' In the case of an action by the ten- ant, he is, as we have seen, entitled to recover the rental value of the premises for the purposes for which they were rented to or used by him, and if he makes the repairs himself, the necessary expense of all reasonable repairs.* In the case of an action by the landlord, brought against the tenant before the term is ended,^ when the landlord has not himself made the repairs, he is entitled to recover the injury to his reversion by reason of the tenant's neglect to repair, and is not neces- sarily restricted to a recovery of nominal damages merely.^ The loss which he would sustain by reason of the dilapidations if he went into the market to sell the reversion is the true criterion,' and not, as held by LoKD Holt,* such a sum as would be required to repair the same.' But if the landlord goes on and makes the repairs he is entitled to re- 1 Smead d. Foord, 1 EI. & El. 602 ; Alder -o. Keightley, 15 M. ,& W. 117 ; Dunlop 13. Higgins, 1 H. L. Cas. .381 ; Koblnson u. Harman, 1 Exchq. 855 ; Simons -0. Patchett, 7 E. & B. 568 ; Fletcher v. Tajieur, 17 C. B. 21 ; Bram- ley -0. Chesterton, 2 C. B. N. S. 592 ; Mack u. Patchin, 42 N". Y. 167 ; Locke 11. Furze, 19 C. B. N. S. 96; Williams ». Barrel!, 1 M. G. & S. 402 ; Myers v. Burns, .^5 N. Y. 272. And the old rule that has latterly been much questioned, and at least partially overruled, both in Ihis country and England, that in case the landlord wrongfully evicts the ten- ant, or he is evicted by superior title as the rent ceases and the lessee discharged from its payment, he can merely recover nominal damages and such mesne prof- its as he is liable to pay tlie true owner; and the costs he has been compelled to pay in defending the title, Kelly v. Dutch Church, &c., 2 Hill (N. Y.), 105; Baldwin v. Mum, 2 Wend. (N. Y. ) 399, has been .essentially modified and re- laxed, because it was found to be harsh and unjust in most instances. Chatter- ton ». Fox, 5 Duer (N. Y. Supr. Ct.), 64; Driggs i). Dwight, 17 Wend. (N. Y.) 72 ; Duane v. Ruesler, 1 Hilt. (N. Y. C. P.) 420 ; Williams d. Burrell, ante ; Locke V). Furze, ante ; Myers u. Burns, ante ; Mack i). Patohin, ante. ^ Hadden v. Sott, 15 C. B. 411 ; Ran- dall V. lioper, E. B. & E. 84. •^ Smead «. Foord, ante ; Hadley c. Boxendale, ante ; Fletcher v. Tayleur, ante. ■* Hexter v. Knox, ante. ^ Luxmore u. Robson, 1 B. tt Aid. 584. « Smith V. Peat, 9 Exchq. 161; Colley u. Streeton, 2 B. & C. 27.3 ; Turner v. Lamb, 14 M. & W. 412. Practically, the injury to the reversion is never shown in evidence, and the damages actually recovered are such as would be suflftcient to put tlie premises in the state of re- pair into which the tenant was bound to put them, and such other special dam- ages as the plaintiff alleges and proves to have arisen from a breach of the cov- enant. Davies d. Underwood, 2 H. & N. 570. In Macnamara d. Vincent, 2 Ir. Ch. 481, the master was required to ascertain what damages the plaintiff sustained by reason of the dilapidations, and the court refused to direct a verdict for nominal damages, although the lease had more than 800 years to run. ' Martin, B., in Smith o. Peat, 9 Exchq." 161. * Vivian v. Champion, 2 Ld. Rayd. 1125; S. C. 1 Salk. 141. See sustaining the rule in this case, Nixon b. Denliam, 1 Ir. L. R. 100; S. C. 1 .Tebb. & S. 416 ; Penley b. Watts, 7 M. & W. 601. * Turner v. Lamb, ante ; Smith c. Peat, ante; Bell b. Hayden, 9 Ir. C. L. 301 ; Mills B. E. L. Union, L. R., 9 C. P. 659 ; Williams b. Williams, L. R. , 9 C. P. 659 ; Worcester, &c., u. Rowlands, 9 0. & P. 734. Covenants (M'! cover the reasonable an3 necessary expenses thereof in addition to any other damages which he may sustain by reason of the tenant's de- fault, and this includes the loss of the rent of the premises during the 1 In Williams v. "Williams, L. R., 9 C. P. 659, plaintiffs wore assignees of a lease of the premises in question ; that lease contained a general covenant to repair, and also a covenant to re- pair after three calendar months' no- tice. The plaintiffs .demised the prem- ises to the defendant on similar cove- nants to those contained in the original lease, except that the notice stipulated for was a two, and not a three months' notice. In September, 1S72, a notice to repair the premises was left by the su- perior landlord on the premises, calling on the plaintiffs to repair. This notice was left with the defendant, but he, being no party to the original lease, took no notice of the requisition. Notice was given to the plaintiffs on 17th Jan- uary, 1873. The plaintiffs, thereupon, called on the defendant to repair in vei-y general terms, and on 20th March, 1873, the defendant received a formal notice from the plaintiff'' s attorney, requiring him to repair the premises "in accord- ance witli the terms of his lease." The plaintiffs, being pressed by their supe- rior landlord, in order to avoid a for- feiture, themselves did the necessary repairs, which were finished shortly be- fore the present action was brought, which was to recover the amount so ex- pended. At the trial it was held that the plaintiffs could not recover upon the breaches which charged an omission to repair the premises, not being out of re- pair at the time of bringing the action, and that the first notice served by the plaintiffs in January was not sufficient. On the plaintiff's appealing to the full court, they strongly relied on CoUey v. Streeton, 2 B. & C. 273, to sustain the proposition that, where the superior landlord gives a notice to repair to his lessee, and the latter gives notice to his 'sub-lessee, and upon his default goes in and does the necessary repair, the lessee can recover against his sub-lessee. That case, however, went upon the ground that the sub-lessee had proper notice to repair, before the commencement of the action. It was admitted by Lobd Coleridge, in the present case, that, had there been a breach of the specific covenant to repair within two months after notice, the measure of damages which the plaintiffs would have been en- titled to recover toould have been the ex- penses which they had incurred in put- tint/ the premises in repair. That view of the case is fully in accordance with the opinion of Justice Baylby, ex- pressed in his judgment in CoUey v. Streeton, that " the measure of dam- ages was properly tlie loss which the plaintiffs sustained by reason of the de- fault of the defendants. That was the sum reasonably expended by them in doing such repairs as were necessary, for the purpose of avoiding a forfeiture of the lease." On this point of the case, however, it was held that the two months' notice, which was requisite to be given, had not been duly given by the plaintiffs, and in consequence the plaintiffs could not rely on a breach of this covenant. The plaintiffs, however, fell back upon the breach of the general covenant to repair, and upon that point also the court decided against them, holding that no substantial damages can be recovered under the general cov- enant where do damage has been done to" the reversion, and the reversioner has not been injured by anything done, or omitted to be done by the defendant. Justice Ekett observed,: "The les- sors would, also, have an implied right to sue for damages, but they had no right to go upon the premises and do the repairs themselves. It is admitted that the premises were out of repair ; but, instead of availing themselves of the right of forfeiture, the plaintiffs do the necessary repairs themselves, in order to save a forfeiture as between themselves and a superior landlord ; and they claim to be entitled to recover the expenses thus incurred as damages under the third breach (v/hich was founded upon the general contract). That they cannot do." The court sub- sequently intimated that, had the point been taken at the trial, the plaintiffs would have been entitled to nominal damages under the third breach. The court treated the case of Davis v. Un- derwood, 2 H. & N". 570, where substan- tial damages were recovered, as merely deciding that where the mesne landlord had determined his lease by his ovra act, this did not prevent his recovering substantial damages for the defendant's breach of covenant (in not repairing) while he remained owner of the rever- sion. Upon the whole, we think that the decision of the common pleas in the present case, although no doubt it at 644- Repairs . period necessary to mate the repairs.* In eS'timating the damages the tenant may show the age and condition of the buildings at the time when the covenant was entered into, and the damages are to be meas- ured Avith reference thereto, and ^ this is the rule even though the cov- enant is " to keep the premises in good repair^'' the rule being that the tenant is merely to keep them in good repair with reference to their state and condition when leased to him, although under such a cove- nant the tenant cannot defeat his liability by showing that the prem- ises are in an as equally good condition as when they were let to him, be- first tears rather a harsli aspect, will be found consistent with the principles of justice, as well as law. The plaintiffs -had, in the present case, a right to re- enter on the premises and forfeit the in- terest of the sub-tenant, which right they neglected to avail themselves of. Having chosen not to make use of this right, they had no legal claim to create a new remedy for themselves; and hav- ing elected themselves to perform the defendant's duty, they could not then demand satisfaction, when they had neglected the proper means of setting themselves right which were offered them by the law. In the case of JNXe- ronyi). Ferguson, 8 W. K. 551, in the Queen's Bench, in Ireland, a somewhat similar question arose. The action there was brought on a covenant to repair in a lease ; the evidence went to show that the premises had fallen into disrepair, but that after the action was brought considerable sums of money were spent by the defendant in rep.airing them. Tlie action was brought before the end of the term for which the premis'-s were leased. The jury found for the defend- ant. Justice Baeky, wlio tried the case, certified that, in his opinion, the verdict was against the v/eight of evi- dence, but that, " according "to the rule laid down by the cases as to the meas- ure of damages when the action is brought before the end of the term, a verdict for the plaintiff could only have been for nominal damages." On the new trial motion the defendant relied on a series of authorities, among others. Watts D. Judd, 5 M. & Gr. 593, and Young V. Harris, 2 C. Sc J. 14, to show a new trial will not be granted, on the ground that the verdict was. against the weight of evidence, if merely nominal damages can be obtained. The plain- tiffs relied on Macnamara v. Vincent, 2 Ir. Ch. il. 504, to show that they were entitled to substantial damages. The court, however, acquiesced in the view set out in the report of Justice Barbt, that nominal damages only could have been recovered, but held "that this ac- tion differed in its nature from a new action for tlie recovery of a sum of money, and granted a new trial. Al- though this decision seems to differ from Young -5. Harris, and thi.t cIsk- of cases, it appears to be in accordance with the English authorities on the subject of the measure of damages in cases of this na- ture. 1 Woods n. Pope, 1 Bing. K. C. 467 ; S C 6 C & P 78'^ '■* Burdett v. Withers, 7 Ad. & El. 138; Mantz v. Goring, 4 Bing. K. C. 451 ; Stanley v. TowgooJ, 3 id. 4. If the premises become more out of repair after the commencement of the action, it has been held in one case that the jury might consider that fact in estima- ting the damages. Mayne on Damages, 89,'238; Shortbridge t). Lain])Icigh, 2 Ld. Eayd. 803. A former recovery does not go in bar of the action, but may be shown in mitigation. Cowani v. Greg- ory, L. R., 2 C. P. 153. A covenant to keep in repair is continuous, and sep- arate actions may be brought thereon, but a covenant to mit in repair admits of but one breach and one action. Cow- ard II. Gregory, ante. So, too, when an action is broiight against a tenant for not rebuilding premises destroyed by fire, the jury are at liberty to and must deduct from the whole expense of a new building the difference between the value of the now building and a build- ing in the condition of the one de- stroyed. , Thus, in Yates o. Dunster, 11 Exchq. 15, the defendant covenanted to repair. The building was burned. In an action for not rebuilding the jury found (he expense of a new building would be £lfi35, but that the new building would be worth £800 more than the one destroyed. The court held that the plaintiff could only recover £1035. Covenants. 645 cause the words " to keep in good repair " presupposes their being put into good repair with reference to the subject-matter.' In an action for breach of a covenant in an underlease to repair, whereby the plaintiff's term in the premises was forfeited, the plain- tiff cannot recover the value of his term if the superior landlord has brought his ejectment for the non-repair, as well as for breach of other covenants not contained in the underlease, if it is not proved that the forfeiture was caused by the acts of the defendant ; hut lie may recover the amount of dilapidation at the tim.e of ejectment, though his own term, is determined.^ He may recover substan- tial damages for non-performance of the covenant to repair, contained in the underlease, notwithstanding both he and the defendant have been ejected by the superior landlord for non-payment by himself of the rent reserved in the original lease.'' In covenant on an underlease for not repairing, in which the covenants differed from those in the original lease, and in which there was no covenant to indemnify the lessee against breach of covenants in the original lease, the lessee can- not recover the costs of an action brought against him by the original lessor for the mere dilapidations, which he might have paid for before that action was commenced ; ^ or which he might have afterwards jjaid into court. A covenant to repair contained in an underlease, though in the same language as the covenant in the original lease, yet may be different in effect, owing to the underlease having been granted subse- quently to the original lease, and when the premises had become in a different condition.'' If a lessee assign over, subject to the perform- ance by the assignee of the covenants in the lease from the day of as- signment, and one of the covenants is a general one to repair and keep in repair, on which the lessor afterwards recovers against the lessee, the latter can recover over against his assignee for those dilapidations only which have taken place after the assignment.^ A tenant who has recovered damages of the landlord for not I'epairing, &c., is liable for the rent accruing during the period of non-repair.' A contract by a sub-tenant to make repairs is not a mere contract ■^ Eor^FE, B., Payne ». Haine, 19 M. si^ainst plaintiff, the lessor, for dam- & W. 541. ages in being deprived of the i.ise and 2 Clow K. Brogden, 2 M. cfe 6. 39. occupation of such premises during a * Davis ». Underwood, 2 H. & K. certain period, and recovered judgment, 570. for the whole value of the use and occu- * Penley n. Watts, 7 M. & W. 601 ; pation of such premises, no deduction Logan v. Hall, 4 C. 13. 598. being made for rent. It was held that 5 Walker u. Hatton, 10 M. & W. 249; the lessor was thereafter entitled to re- Smith L. & T. 275 (2d ed.). cover the amount of rent agreed to be ^ Hawkins v. Sherman, 3 C. & P. 459. paid for such premises during such pc- ' Knox ■0. Hexter, 70 N. T. 461, de- riod. Opinion by Andbews, J. See re- cided by Court of Appeals, N. Y., port of the case of Hexter d. Knox at a Dec. 1877. In that case the defendant, fofmer term, 63 N. T. 561. a lessee of premises, brought action 646 Repaiss. of indemnity, but, if he fails to perform in that respect he is liable to his lessor therefor, whether the lessor has paid the original landlord or not ; ^ but in such a case there is no liability on the part of the sub-ten- ant to the landlord ; nor, where one of several tenants of a building has covenanted to repair, can a co-tenant maintain an action against him for damages resulting from his failure to repair, especially if the injury resulted fi-om an inherent defect in the building or any of its fixtures.^ 1 Smitli V. Coe, 1 Sweeney (ST. Y. Su- 2 Martin v. Washburn, 23 La. An. perior Ct.), 332. 427. Against Paeticulae Trade. 647 CHAPTER XXXVI, MISCELLANEOUS COVENANTS. Sec. 404. Against particular trade. Sec. 405. Waiver of forfeiture. Sec. 408. Covenants to worli mines. Sec. 407. Other covenants. Sec. 408. Contracts to deal with particular persons. Sec. 409. Contracts in restraint of trade within a given distance. Sec. 410. How the distance is to be computed. Sec. 411. Covenants to re-deliver fixtures, etc. Sec. 412. Covenants to give up part of land. Sec. 413. Obligation of tenant of farm as to cultivation of land. Sec. 414. As to expenditure of produce on premises. Sec. 415. Express covenants as to mode of cultivation. Sec. 416. To renew. Sec. 417. To pay taxes. Sec. 418. Against incumbrances. Sec. 419. Miscellaneous covenants. Against particular trade. Sec. 404. Covenants restricting the lessee to a certain use of premises, and prohibiting the carrying on of particular trades upon the premises, ,are regarded as reasonable, but are not what are technically termed usual covenants.^ A sub-tenant is presumed to know the terms of the lease ' Chinsley b. Langley, 1 RoUe's Abr. sale of certain leasehold premises stated, 427; Casser v. CoUyage, 3 My. & K. that under the original lease no oft'en- 283 ; Propent u. Parker, o id. 280 ; Par- sive trade was to be carried on, and that ker V. Whyte, 1 H. I'i M. 167 ; Gas- the premises could not be let to a coflfee- kell V. Spry, 1 B. & Aid. 61f) ; Mitchell house-keeper or working hatter ; and t). Ileynolds, 6 Ad. & El. 43S ; Leatlier the original lease prohibited the busi- Clotli Co. V. Lorsout, L. R., 9 Eq. ness, among many others, of a brewer, 845. In an English case an agree- baker, sugar-baker, vintner, victualler, meat for a lease stipulated that the butcher, tripe-seller, poulterer, fisli- lease should contain the usual cove- monger, cheesemonger, fruiterer, herb- nants between landlord and tenant, seller, coffee-house-keeper, working hat- and that the house shoukl not be con- ter, and the use of the premises for the verted into a school, the intended lessor sale of coals, potatoes, or any provisions ; being himself but a lessee, and his it was held, that the misdescription of lease containing a covenant not to car- the property proposed to be sold was so ry on the trade of a slaughterman, material and substantial as to entitle butcher, tallow-chandler, soap-boiler, a purchaser to rescind his contract. &c., "or any other offensive trade what- Flight v. Barton, 3 My. & K. 282; soever," the court held that the stipu- Casser v. Coilynge, ante. Thus, in a lation respecting the school could not be recent English case, A sold an estate extended to prohibit the exercise of to B, who covenanted that no building other trades. Van v. Corfe, 3 My. & to be erected thereon should be used as K. 269, So, where tlie particulars of a beer-shop. B erected a building 648 MlSCELLASTEOUS COVENANTS. under which his lessor holds, and is bound by any lawful restriction imposed by the original lease as to the use of the premises.^ But where the lessor knows that the person contracting with him for a lease in- tends to use the premises for a purpose that is prohibited in the con- veyance to him, and he omits to inform the intended lessee that the exercise of certain trades, or the use of the premises for certain pur- poses, are so prohibited, the intended lessee is not bound to take a lease subject to such restrictions, as the conduct of the lessor is treated as equivalent to a representation that thei-e is no restriction upon the exercise of that particular trade upon the premises.^ Such cove- nants run with the land,' and are binding upon an assignee of the lease/ But, while as between the lessor and an assignee of a lease containing a restrictive clause of this character, and also for re-entry upon its breach, the landlord may re-enter if the assignee commits a breach,^ thereon, and sold the estate to C, who sold to D, who let the premises to E, as tenant from year to year, without ex- press notice of the covenant : it did not appear whether the deeds to C and D disclosed the covenant. Held, that the rule, that a purchaser, who does not in- quire into his vendor's title, is affected with notice of what appears on it, ap- plies to a tenant from year to year, and that E should be enjoined from using the premises as a beer-sliop. Wilson v. Hart, L. E., 1 Ch. 463. But it was inti- mated in this case that the covenant could not have been enforced against E if D had told him that there was no restriction. In the absence of any re- striction the lessees have, by implica- tion, the right to put the premises to such use and employment as they please, not materially different from that in which they are usually employed, to which they are adapted, and, for which they were constructed ; they have also the common law right to assign or trans- fer their interest to a third person, to put him in possession of the property, and to clothe him with all their rights and privileges under the contract, and this right can only be restrained by ex- press stipulation. Thus, when a house is leased which was built for a hotel, and the lease contains no stipulation as to (he employments which shall be car- ried on in it, the lessee may use it as a seminary for young ladies, or he may underlet it to another to be used for that purpose. Nave ». Berry, 22 Ala. 382. Wliere a lessee covenanted to make no alterations in the premises without the consent of the lessor, and he did make alterations therein without such con- sent, but they were decided to be im- provements, rendering the premises more valuable to the lessor, the court held that the plaintiff was not entitled to judgment, and that the defendant should put the premises in the same condition they were before the altera- tions.' Eagle J). Owen, 3 Duer (N. Y. ), 1.5. 1 Casser ». Collynge, ante. In other words, he is hound to know ; and if he takes a lease or assignment without in- quiry, he is bound by the restriction. Wilson V. Hart, ante. 2 Flight V. Barton, 3 My. &. Z. 282 ; Wilson V. Hart, ante. But a person who has contracted to take a lease, oi- a renewal of a lease, cannot shield luni- self from liability for refusing to accept one, upon the ground that the agree- ment was for a lease with certain cov- enants, some of which were omitted from the lease tendered, {f tlie covenants ,vo omitted are s^icli as are inipUed from the demise itself. Thus, a lease con- tained a covenant for its renewal, at the expiration of the term thereof, for an- other specified term, and a further cove- nant for quiet enjoyment. The new lease tendered contained neither of such covenants. It was held, in an action against the lessee to recover damages for his refusal to execute the new lease, that such omission Avas no defence. Eyder v. Jenny, 2 Robt. (N. Y. ) 56. ' Bush 1). Keeling, ants ; Gaskell b. Spry, ante ; Caughton ». Pattison, 10 East, 130; Wilkinson u. Rogers, 2 De G. J. & S. 62 ; Ee Forest v. Bryne, 1 Hilt. (N. Y. C. P.) 43; Browner b. Lambert, 23 Barb. (N. Y.) 153. * Wilson J). Hart, ante ; Jay v. Rich- ardson, 30 Beav. 563. ^ Wilkinson v. Rogers, ante. Against Paeticular Tkade. 649 or may enjoy the use of the premises for a prohibited purpose ; ' yet the lessee can have no remedy, either at law or equity, against his sub-tenant, unless such sub-tenant knew that the particular business was prohibited in the original lease.'' But, if either a lessee, or an assignee, or sub-tenant, obtains a lease of premises by falsely and fraudulently representing that he intends to use them for a lawful business or pur- pose, and, having obtained possession, he uses them for an unlmoful purpose — as, if he, leases a dwelling-house, representing that he wants it for a private residence, and ho converts it into a brothel — in the absence of any restrictive clause in the lease, the landlord cannot re-enter or main- tain ejectment against him, bec;iuse such misrepresentation and subse- quent illegal use of the- premises are not sufficient, at law, to avoid the lease.' Therefore, if the' lessor desires to prevent certain uses of the premises he should insert a clause in the lease defining the purposes for which the premises shall be used; and care should be taken to use language clearly expressing his wishes in that respect. If the covenant merely provides that the premises shall not be used for the exercise of any " offensive trade or business," it would prohibit its use only for the exercise of such trades or business as in law or in fact amount to a nuisance. But all such uses, coming under the head of "trades or busi- ness," as amount to a nuisance would be embraced in the covenant ; but not such as arise from the use of the premises for any other pur- pose. Therefore, if the lessor desires to prohibit certain kinds of busi; ness, they should be particularly specified, as the question as to whether a nuisance exists or not is one of fact, and dejiends upon the results produced thereby.^ So, too, the covenant should be fortified by a proviso for re-entry in case of breach, otherwise the lessor cannot eject the tenant ; but is limited to damages for the breach of the covenant,^ or a bill in equity for an injunction. Such covenants will not be extended to prohibit the exercise of any other trade, or the use of the premises for any other purpose than that named or clearly embraced in the conveyance ; ° and if the covenant provides that "no trades or bus messes" (specifying them), " or any other offensive trade" shall be exercised upon the premises, omitting the words " or business" the word trade will not be construed as hav- ing the same meaning as the word " bitsiness " in the former clause, but will treat it as applicable only to a dealing by buying and selling ; "for," said Lord Denman, " although every trade is a business, every 1 Jay V. Richardson-,, ante ; Parkman * Wetherell v. Bird, 6 C. & P. 195 ; ». Arcaidi, 34 Ala. 393- Howard v. Ellis, reversed in part, 2 Ad. &. El. 161; James 4 Saudf. (N. Y.) 469 ; Doda;e v. Lam- v. Thome, 1 B. & C. 715. bert, 4 Bos. (N". Y. ) 570 ; Steward D.Win- ^ Woodfarrs I,. & T. (9th ed. ) 557. ters, 4 Sandf. Ch. (N. Y.) 587. « Van v. Corfe, ante; Flight B. Booth, 2 Wilson V. Hart, ante. 1 Bing. K. C. 370. sPerett). Hill, 15 0. B. 207. 650 Miscellaneous Covenants. business is not a trade." ^ Where the lease prohibitecl the exercise of " any trade or business " upon the premises, it was held that keeping a school upon the premises constituted a breach.^ A covenant on the part of the lessee that he will reside upon the premises during the term is reasonable,' but it is not a usual covenant ; but as it relates to the estate it runs with the land,^ and even though the lessee is divested of liis possession by execution or other legal process, a breach results therefrom, and, if there is a provision therefor, the landlord may re- enter.^ A covenant to use a building only " as a private residence " is broken by devoting any part of it to any business purpose, as holding public auction tlierein ; ^ or a covenant that the premises shall not be used 1 Welherell k. Bird, 2 Ad. & El. 161. In this case a lease was made of a house, containing a covenant with a clause of forfeiture, that the lessee would not "use or exercise the trades or busi- nesses of a butcher, baker, slaughter- man, neither of tallow, tallow chandler, tobacco-pipe maker, tobacco-pipe burn- er, soap maker, sugar baker, fellmonger, dyer, distiller, victualler, vintner, tav- ern keeper or coffee-house keeper, tan- ner, common brewer, or any offensive trade, without license." The defend- ant, who took the lease as assignee, used the premises as a private lunatic asylum. At Nisi Prius, 6 C. & P. 195, Lord Denman ruled that, using the premises for a private lunatic asylum came within the meaning of the cove- nant, notwithstanding the word " busi- ness " was omitted after the words " or any offensive trade." But, as has been stated, upon appeal, this ruling was re- versed, and the doctrine established that a covenant prohibiting the use of the premises for the purpose of carrying on any trade, does not prevent the lessee from (Carrying on there any business which is not a trade. In other words, the word "trade" in such covenants is only applicable to a business conducted by buying and selling. But the word " business " has a more extended signif- icance, and embraces any occupation for profit, as the keeping of a school. Kemp I). Sober, 1 Sim. N. S. 517; Bish V. Keeling, ante ; Wickenden v. "Web- ster, ante. 2 In Bush 0. Keeling, 1 M. & S. 95, the lease contained a covenant upon the part of the lessee not " to convert the premises into or permit them to be used as a shop, nor to have any mark or show of trade or business therein, nor to use or exercise, or suffer to be used or exer- cised, any trade or business thereon," was held to be broken by carrying on the business of a schoolmaster thereon, although there was no board or sign or other mark or sliow of trade or busi- ness whatever, the court placing its de- cision upon the ground that this busi- ness was likely to be productive of as much annoyance to the neighborhood as any other, and that the exhibition of the boys might be said somewhat to re- semble a show of business. It is no de- fence to an action to restrain the lessees from using the premises in a way which they covenanted not to do, that the use is not a public or private nuisance ; nor that it will not deteriorate the premises in value ; nor that the lessees have ex- pended large suras with a view to such prohibited use, which they will lose if not permitted to violate their covenant. Dodge V. Lambert, 2 Bos'.v. (N". Y. ) 570; Howard v. Ellis, 4 Sandf. (N. Y.) 369 ; Steward v. Winters, 4 Sandf. Ch. (N". Y.)5S7. ' Ponsonby v. Adams, 2 Bro. P. C. 431. * Tatum V. Chaplin, 2 H. Bl. 13-3. ^ Duke of Norfolk v. Hawke, 2 East, 4S1. 6 Sewell V. Taylor, 7 C. B. N. S. 16-;). A covenant of this character is broken by putting up a blind in a window with "A B, Dress-maker," or "A B, Coal Office," or advertising any business, in any wise calculated to make the prem- ises a place of resort for people who would not otherwise come there. Wil- kinson V. Rogers, ante. So by Icecping a day school and dancing academy on the premises, although the neighbors make no comi)laints. VVilkinson v^ Web- ster, 6 E. & B. 387 ; Johnston «. Hall, 2 Kay & J. 414. And if it provides that "the premises shall not be lot to a butcher, nor shall the said A (lessee) exercise the trade of a butcher thereon," Against Paeticulak Teade. 651 for the exercise of the trade of a butcher is broken by selling raw meat upon the premises, although the animals are slaughtered elsewhere.^ A covenant not to sell any articles at retail upon the premises is not broken by selling at wholesale ; " nor is a covenant not to use the jsrem- ises for the sale of certain articles in a way specified broken by selling them in a way not specified. Thus, a lease contained a covenant that the lessor should not "use the premises as a public house for the sale of bter, &c.," and it was held that the covenant was not broken by his taking out a license for, and using the premises for the sale of, beer, not to be drank iipon the premises ; ° and where the lease con- tained a covenant that the lessee would not use the premises to "carry on the trade or calling of hotel, or tavern keeper, publican or beer- shop keeper, or seller by retail of wine, beer, spirits, or spirifuous liquors," it was held, that the covenant was not broken by selling wine and spirits by retail, in bottles, not to be consumed upon the premises ; ^ and, generally, it may be said to be well established, that such cove- nants will be construed strictly, and will not bo extended by implica- tion to prevent a beneficial use of the property that is not expressly prohibited. Illustrative of this rule, we will take the use of a cove- nant prohibiting the use of premises for " any offensive trade or busi- ness." Such a covenant might be construed as covering any trade or business offensive to the lessor, or to the neighborhood, but, unqualified, it would not receive either construction. Even thoui^h such a tenant is qualified by the use of the words " any trade or business offensive to the neighborhood" or " other tenants " of the lessor, it would only cover such uses of the property as are "reasonably" offensive. That is, such uses of the property as, in view of the location and character the covenant is broken if the premises ^ Gaskell v. Spry, 1 B. & Aid. 017. In are let to a butcher who only uses them Davis v. Elsam, Moo. & M. 189, it was as a private residence. Tims a lease was held that a covenant not to carry on the made with a covenant that the lessee business of a pork butcher upon the should "not lease the shop, yard, or premises was broken by exposing the other thing belonging to the house to carcasses of dead pigs tlierein for sale, one who sells coals, nor shall the lessee although they were cut up, and the con- himself sell coals there," and the lessee tracts for their sale were made ehe- afterwards let the house to one who was where. engaged in the business of selling coals, '■' In Simons v. Farren, 1 Bing. N". C. and it was held a breach. Bacon's Abr. 120, the lease contained a covenant that tit. Condition (O). Using a house as a the lessee should not carry on vipon the boarding-house is a breach of this cov- premises the business of " a common euant, although the landlonl has con- brewer or retailer of beer ; " and it was seuted that the rooms may be let to held that carrying on the business of a scholars of a girls' school as sleeping retail brewer was not a breacli.' See, rooms. Gannett v. Albree, 103 Mass. also, Pease v. Coates, L. K., 2 Eq. 688 ; 372. And where a covenant provided London, &c., Railway Co. u. Garnett, L. that the lessee should erect a building E., 9 Eq. 20, where a similar doctrine to be used strictly as a private dwelling, was held. it was held to be broken by using the ° Pease ». Coates, ante ; Railway Co. building as a public house. Bray v. Fo- v. Garnetf, ante, gartv, 4 Ir. Eq. 544. * Jones v. Bone, L. R., 9 Eq. 074. 652 MiscELLAiTEous Cov:enaiii». of the neighborhood, afford a recoverable ground of complaint. The fact that the neighbors did not want to have the building used for the purpose to which the tenant devoted it, and that such use was offen- sive to some of them, would not operate as a breach, unless, in view of all the circumstances, the nature of the use, and the character, such use is reasonably offensive ; that is, such as would be offensive to reason- able people, possessed of reasonable rather than fastidious tastes and notions. Thus, where the lessee covenanted not to carry on " any noesome or offensive trade," it was held that this did not preclude the defendant from carrying on a "dangerous" trade,^ even though it largely increased the expense of insurance upon adjacent property, or rendered it uninsurable ; as, using the premises as a place of deposit for lucifer matches." So, where the lessee covenanted not to do any act upon the premises " which may lead to the damage, annoyance, or dis- turbance of the lessor, or anj^ of his tenants, or any part of the neigh- borhood, * * * or any other trade or business that may be, or grow, or lead to be offensive, or any annoyance or disturbance to any of (the lessor's) tenants," and certain trades were enumerated, but not that of a licensed victualler, it was held tli.at the opening of a public house upon the premises did not operate as a breach of the covenant.' A covenant not to convert a dwelling into a shop does not prohibit the sale of goods therein, but merely prevents a structural change of the building from a dwelling-house to a shop.* A covenant upon the tenant's part to use a building for a certain purpose, and to use his best endeavors to improve it for that purpose, is not broken by merely permitting it to remain unused for svich pur- pose for a jjart of the term. In such cases the question is, whether the tenant under all the circumstances has made such efforts to im- prove tlie property as the covenant contemplated, and is essentially a question for the jury, rather than a question of law, unless it is clearly ajjparent from the language of the covenant that a partial non-user is not operative as a breach. Thus, in an English case '' the defendant 1 Hickman u. Isaacs, 4 L. T. N. S. facture o£ travelling bags, was held not 285. Where a lease contained a cove- broken by using the ijremises for the nant that,the premises should "be used manufacture of caps, as cabinet vvare-rooins," it was held ^ Hickman j). Isaacs, ante. But where that U will not be inferred that Iheir a tenant covenants not to use the prem- use for any other purpose is pi'ohibited. isos for any purpose that shall make the Breymau' u. Noyes, Wis. 1. But a con- risk from fire above ordinary or coni- trary rule is eslablished by Deforest v. mon, is violated by any use of the prem- Bryne, 1 E. D. S. (N. Y. C. P. ) 45 ; and ises that, in the estimate of insurers, such a clause is lield to amount to a re- makes the risk- extraordinary, as by put- striclion. But in Shumway u. Collins, ting in a caloric engine. Harmony 6 Gray (Mass.), a rule similar to that in Lodge v. White, 2 Cin. (Ohio) 0. the Wisconsin case was established, and ' Jones v. Thorne, 1 B. & C. 715. See a provision in the lease " to be occupied also Mechler v. Foundling Plospital, 1 V. for the same purposes they now are," & B. 188. * Wilkinson o. Rogers, ante, they then beuig occupied for the manu- ' Croft ». Luniley, 6 H. L. Cas. 672. Waivbe of Foefeituee. 653 took a lease of an opera house, with such a covenant. At the end of the first season the house was closed and was not used at all the follow- ing year; the court held that the covenant was not broken.^ Where premises are leased to a person, either for a term of years or for life, upon condition that he shall occufiy them himself, the covenant is not broken if lie permits other persons to occupy the premises with him. In a Connecticut case- a lease for life was made to a, feme sole with a condition, " Lut only for herself to occupy as a resident," and also pro- viding tliat upon any violation of the covenants or conditions of the lease the lease should be void. The lessee subsequently married, andvnth tier Az«s5artf? occupied the liouse. The court held that the lease was not thereby invalidated. Sucli a covenant is broken by the tenant abandon- ing the promises personally, whether voluntarily or under compulsion of legal process.' But it has been hekl in California that such a cove- nant is not broken where the tenant occupies by an agent.^ Waiver of forfeiture. Sec. 405. If a lessee exercises a trade upon the premises, by which his lease is forfeited, the landlord does not, by merely lying by and witnessing tlio act for several years, waive the forfeiture, some positive act of waiver being necessary ; but if he permits the tenant to expend ' But to excuse a faiUire to use the term, to use and Icoop open the prem- premises during the entire term under ises as an inn, or to renew tlie licenses sucli a covenant tliere must be good from time to time, provided they could grounds for not doing so. Thus, a cove- be obtained, and from doing or causing nant by the lessee of a public-house to or permitting to be done any act where- use his best and utmost endeavors to by the licenses might become forfeited keep it open as a public licensed victual- or be refused ; the court, on the hearing, ling-house, is broken by the license refused to continue tlic iujuuclion, as it being taken away on account of irregu- was in effect the same as ordering him larities permitted ))y the occupiers, and to carry oti the business of an inn-keep- his neglect to apply for a re-hearing of er, though it might have restrained him the case, or to do some act with a view from doing, or causing or permitting to to obtain the continuance of the license, be done, any act wlucli would put it out and get the house open again. Liuder of his power, or the power of any other ». Pryor, 8 C. & P. 518. As to best en- person, to carry on that business on the deavors, see also Simpson v. Clayton, 4 premises. As it was not shown that the Bing. N. C. 7.>S. But where a lease con- defendant had threatened oi- intended to tained a covenant by tlte lessee to use do, or to cause or permit to be done, any and keep open the demised premises act whereby the licenses might become during the term as an inn, provided forfeited or be refnsed, the Injunclion the proper licenses could be obtained, was dissolved. Hooper b. Brodrick, 11 and to use his best endeavors to procure Sim. 47. Where a tenant is prevented the licenses to be renewed from time to from using premises iu a way that ho has time, atul not to do, or cause or permit covenanted to use them by oi)eration of to be done, any act whereby they might law, performance is excused. Anglesea iseoome forfeited or be refused ; and an v. Kugley, fi Q. E. 107; Grajitley ». But- injunctlon, ex parte, was obtained ler, 6 id. jlo, u. 6. against the defendant, who was an as- '■' Schroeder v. King, 38 Conn. 78. signee of the premises, and had threat- ^ Tatem v. Chaplin, 2 H. Bl. 133 ; Doe ened to do certain acts inconsistent with u. Clarke, 2 East, 481; Doc v. Carter, 8 the first branch of the covenant, restrain- T. R. 57. ing him from discontinuing, during the '' Clark v. Clark, 49 Cal. 586. 654 Miscellaneous Covenants. money in improvements to adapt tliem to that trade, it would be evidence for the jury of his consent to their being so used.^ If rent be received for twenty years, with full knowledge of the breach of covenant, and with- out any objection, a license under seal may be pi-esumed and found by the jury.^ Where there is a covenant against carrying on a particular trade without written license, the mere fact of the lessor's suffering the tenant to carry on one trade on the premises will not afterwards authorize his carrying on another without a written license." It seems that a covenant not to carry on or suffer upon the demised premises during the term any specified trades or businesses, or any trade or business whatever, is a covenant of a continuing nature, and broken from day to day so long as any prohibited trade or business is carried on.* Covenants to ■work mines. Sec. 406. A lease of a mine contained a proviso that it should be void to- all intents and pur2:)oses if the tenant ceased working at any time for two years: held, that a fraudulent working for a short time would not prevent a forfeiture.^ An agreement to work a mine as long as it is "fairly workable," does not oblige the tenant to work it at a dead loss." But whore lessees of mines entered into an absolute unqualified covenant to get 2000 tons of rock salt in each year during the continu- ance of the term, or pay for the deficiency, it was held, that they were liable, whether the salt could be got easily or with diffieulty, and that wheth.er it existed at all was immaterial. And where such lessees covenanted with all reasonable diligence to sink the shafts down to the 1 Where the lessee covenanted to use surface good arable land, and remove tlie premises only to keep a lager beer the engines and macbhiei-y and pay com- saloon, and after the term began com- pensation for damage done to the sur- menced fitting up a restaurant thereon, face after the working of the mine is at considerable expense and without ob- discontinued. Hodgson ji. Moulson, 38 jection from tlie lessor's agent, who C. B. N. S. .3.32. A lease of a quarry knew the facts ; it was held, that by having sevei'al faces contained a stipu- such omission to object the lessor must lation that the ''quarry shall be worked be treated as having waived the breach, as the face is now opened." It was held Malley r. Thallheimer, 44 Conn. 41 ; not to amount to a breach because the iSheppard v. Allen, !! 'J'aunt. 78 ; Bos- lessee worked one face to a greater cawen u. Bliss, 4 Taunt. 7.35 ; Bryan extent than the othei's, provided he !). Bancks, 4 B. & Aid. 401. A cov- preserved tlio general shape of the enant in a mining lease that the les- quarry and left tlie faces in good work- see would have pillars of solid stone of ing order. Keeler v. Green, 21 N. J. sufficient strength to support the roof Eq. 27. of the mine is broken if such pillars are ^ Gibson ii. Doeg, 2 11. & N. 615 ; not siifiicient to prevent the subsidence Bridges n. Longman, 24 Beav. 27. of the surface, when the demise is of all ^ Mechler r. Foundling Hospital, 1 V. the mining material under the surface, & B. 188. and is lo be determined when such ma- * Ambler c. Woodhridge, 9 B. & C. terial is exhausted, and contemplates 376 ; Cole Ejec. 433 ; Bray r. Fogarty, the removal of all such material, and 4 Ir. Eq. 544. such covenant is found among other ' Doe d. Bryan ». Bancks, 4 B. & A. covenants by which the lessee is to fill 401 ; Gow, 220. up the pits and shafts so as to make the " Jones d. Shears, 7 C. & P. 346. Othee Covestants. 655 salt, it was held, that they were bound to do so, although it might be an unreasonable application of time and labor. So where they cove- nanted to work it during the continuance of the term in a proper and workmanlike manner, it was held, that they must be taken to have cove- nanted to work the mine in some loay, in as prudent and proper a maimer as they could under the circumstances, and therefore had no right to abandon the works altogether, notwithstanding the mine was drowned by an influx of brine, which rendered it irajjossible to work the mine at a profit.^ A lessee of iron mines covenanted to work them, unless pre- vented by accident or want of materials, or unless the ironstone should be insufficient in quantity or quality, or would not by itself, or with a proper mixture or process, make good common pig-iron : held, that the mixture intended was not necessarily of ingredients i^rocurable on the demised premises.^ Where there was a demise of all mines which then had been, or thereafter during the demise should be discovered or opened under certain lands, and there was a covenant by the lessee that he would work the said mines in a proper and workmanlike man- ner, no action lies on the covenant if the mines have never been worked either before or since the demise.^ Other covenants. Sec. 407. The lessee often covenants not to do certain specified acts upon the premises — as not to plough up a certain piece of land, or not to cut down any trees upon the lands, or not to dig ground or clay,* ^ .Jervis v. Tomkirison, 1 H. & X. 195. lowing to the lessee 3^. for every acre 2 Foley c. Addeubrooko, 1.3 M. & W. which he should so' let ; and it was 174. further agreed, that it should be lawful ' Quarrington b. Arthur, 10 M. & W. for the lessee to break up and dig for 335. gravel any part of the demised land, he * Aldridge v. Howard. 4 M. & G. 921 ; covenanting to pay to the lessor 20/. for Webb I). Plummur, 2 B. & Aid. 746 ; every acre he should break up and dig, Dawson v. Baldwin, Hay. & Jo. 24. and to make good the saiue, at or before See Earl of Shrewsbury u. Gould, 2 B. & the expiration of the lease. It was argued Aid. 487, where a covenant by a lessee that the lessee might dig for gravel in of limestone, at all seasons of burning the two excepted acres without the lime, to supply the lessor with lime at a lessor's consent, or any obligation to stipulated price, imported a covenant make the ground good; but it was held, that he would also burn lime at such that the m'emoi'audum was a new agree- seasons. In the case of Flint v. Brandon, ment, and emliraced the ground excepted 1 N". R. 73, the lessee covenanted not to by the lease, and bound the lessee to dig gravel, brick-earth, &c., out of any make good any part of the two acres part of the demised premises without the which he should breakup. Where a consent of the lessor, or paying him 10.s. lease contained a provision that in case per load, except what should be dugout the tenant should observe and perform of two acres, part of the premises de- the covenants in the lease (om being mised. By a memorandum indorsed on for the payment of rent), and should the lease before execution, it was agreed, peaceably quit on notice, he should be that it should be lawful for the lessor to entitled to a way-going crop to be taken let to any person, for the purpose of from certain specified parts of the Lands making bricks or tiles only, any part of demised; and that the crop should be the demised premises, he (the lessor) al- left for the landlord or his incoming ten- C56 Miscellaneous Covenants. or open quarries or mines upon the land — and an}' covenant of this kind that does not defeat the purpose for which the premises were leased, as expressed in the lease itself, is valid and binding upon the lessee. ant at a valuation; it was decided, that this clause did not give the tenant tlie riglit of possession as against tlie land- lord after the determination of the ten- ancy; but that the tenant at most could only go on the land for the jjurposes of a way-going crop. Strickland ». Maxwell, 2 Cr. & M. .539. A covenant by a lessee to grind all his corn and grains that he sliould spend in domestic use at the mill of his lessor's manor, is not confined to such corn as shall grow upon the de- mised premises. Hamley v. Hendoii, 12 Mod. 327. Where a party agreed for a lease of two farms, with a condition, that in the lease to be granted sliould be contained " covenants, clauses, and agreements, for sowing and managing tliereof, and for disposing of the dung and straw, and quitting and yielding up the premises, agreeably to the manner in winch the same had been, and should be, respectively sown, managed, and quitted, by the then present tenants thereof; " it was determined, tliat the in- tended lessee was not bound by the cove- nants contained in a former lease; the terms being, not that he sliould hold as those tenants held, liut that he should manage the estate according to th; mode, and quit it in the condition, in which they should have managed and quitted it respectively; that is, as the landlord himself should have permitted them to manage and quit. ' Liebenrood v. Vines, 1 Meriy. 15. Common husbandry cove- nants in a lease are not the subject of equitable jurisdiction in the way of spe- cific performance. Eayner o. Stone, 2 Eden, 123. If a lessee of a coal mine covenants to pay to the lessor a certain proportion of the value of 9 cwt. of coals to be raised, unless prevented by un- avoidable accident from working the pit, he is not excused, at law, by the circum- stance of the mine becoming flooded, though the cost of raising the coal would be greater than its value when raised. Unavoidable accident means an accident physically unavoidable. Morris 1). Smith, 3 Doug. 270. In the case of Quarrington v. Arthur, Quarrington v. Arthur, 10 M. & W. 335, the defendant took a demise of all mines and beds of coal, ironstone, &e., which then had been, or thereafter during the continu- ance of the same demise should be, dis- covered or opened under the lands be- longing to Dyffwyn House, at the yearly rent of 201., to be paid whether any coals, &c., should be worked or not : tlie lessee paying also the yearly sum of 21. for every acre of surface taken or used by him, together with tiie sum of Id. for every ton of coal or ironstone I'aised ; and he covenanted, at all times during the said demise to work (he said mines in a proper and workmanlike manner. Upon this eovena.nt an action was brought, alleging as a breach that the defendant did not work the mines in a l^roper and workmanlike manner, but permitted them to lie niigotten and un- cleared. It was held, that, in order to show the defendant to have been guilty of a breach, it was necessary that the mines, the not working of which was the ground of the alleged bieach. should have been discovered or opened, the sub- ject-matter of (ho demise being, not the mines under the lands spocitied in the deed, but only such of the mines as liad been or should be discovered or opoied; and, as it appeared by the pleadings that the mines had not been worked at all, judgment was given for tlie defendant. And where a lessee of an ironstone mine covenanted at all limes during the term effectually to work the mine with- out intermission or Idss of time, save only for such time as Ihoro should be ab- solute necessity for slopping or discon- tinuing the furnaces for repairs, or in case the ironstone to be got and raised should be insufficient in quantify to sup- ply the furnaces, or would not, by 11 self, or with a proper mixture and process in the smelting and manufacturing thereof, make good common pig-iron ; it was held, that it was not necessary lliat the proper mixture mentioned should be found upon the demised premises ; but tliat it was to be prociu'ed by the lessee as some of the articles used in his trade as a manufacturer of ii-on. Foley v. Addenbrooke, 13 M. & W. 175. Where the lessees of a coal mine covenanted to get, by a certain time, the whole of the demised mines, beds, and veins of coal, lying under certain messuages and closes of land, not deeper than or below 'the level of the bottom of the mine, called the Arley mine, under a certain point at the surface ; in an action for breach of the covenant, it was lield, that evidence was admissible to show the sense in which the term level, was used among coal- miners. Clayton v. Gregson, 5 Ad. & El. 302 ; Smith v. Wilson, 3 B. & Ad. 728. Contracts to deal with particular Persons. 657 Contracta to deal with particular persons. Sec. 408. Covenants or undertakings entered into by the lessee to deal with the lessor alone in the way of trade, or indeed any other mode of binding a party to purchase articles of particular individuals, are not favored by the courts, although it has never been directly de- cided that they are illegal and nugatory. The question upon the va- lidity of such contracts has generally arisen with respect to leases granted by brewers to publicans ; and in many cases the courts have strongly censured that course of proceeding, not only as being extremely injurious to the public interest and welfare, but having an evident ten- dency to prejudice the health of the subject.^ Attempts were made to get over the difficulty by framing the contract in the alternative, either that the publican should take all his beer of |he brewer, or pay an ad- vanced rent ; but it was held, that even this could not be enforced, unless it was proved that good beer was supplied ; and the quality cannot be shown to be good by evidence that the brewer served good beer to his other customers at the same period of time.^ In another case, where a lease contained such a proviso, a plea in bar to an avowry for such advanced rent, stating the beer delivered by the plaintiff to be bad, nauseous and unwholesome, was considered to be a good defence on the merits." Where, in, the conditions of sale of a public-house, it was described as a free public-house, and the lease contained a clause of this nature, it was held, that the purchaser was not bound to com- plete his purchase, and miglit recover back his deposit, notwithstanding the lease was read over by the auctioneer at the time of sale.' Lord Kenyon, in a former case, doubted whether a covenant contained in the assignment of a lease, requiring the assignee and his assigns to buy the beer of the assignor, would bind a subsequent assignee : ^ and in a late case, where the lessee of a public-house covenanted for himself and his assigns, with his lessors (brewers), to take all his beer of them, or their successors in their said trade, and the lessors sold their trade, and the public-house, with other premises, to third persons, who removed their business to a short distance : it was held, that the trade of the lessoi'S was determined, and that their assignee could not take advan- tage of the covenant on the assignee of the lessee purchasing beer from another brewer.^ ^ Where there was a lease of lime-works, with a stipulation that the lessor should furnish, and the lessee take, coals from particular col- 1 Thornton b. Sherratt, 8 Taunt. 529 ; = Cooper v. TwibiU, 3 Camp, 286, n. Woodf all's L. & T. 562-3. « Jones v. Edney, 3 Camp. 285. ' Holcombe ». Hewson, 2 Camp. ' Hartley v. Pehall, Peake, 131. 391. « Calvert v. Reid, 10 B. & C. 849. 42 658 Miscellaneous Coteitants. lieries ; it was held, that the lessee could not, on failure by the lessor to raise the full quantity of coals, resort to other collieries for the whole of his supply, but only for the deficiency.' Contracts in restraint of trade within a given distance. Sec. 409. A covenant to restrain a person from exercising a trade is not illegal if it is not to the general prejudice of the public, and the consideration is reasonable ; ^ there is, therefore, no objection to a covenant by which a party binds himself not to exercise a 2:)articular trade within a specified distance of premises which he has transfei-red ' Wight V. Dicksons, 1 Dow, 141. " While a contract restricting one from exercising a particular trade in the country is void, and generally when the restriction applies to the ^"ole Stale, yet instances may arise when the latter class of restrictions would be lield valid. In a recent case, determined in the Su- preme Court of the United States, Ore- gon Steam Kav. Co. v. Winsor, 20 Wall. (U. S.) 04, this doctrine was announced, and the court, after a very al:ile and ex- haustive review of the cases and of the principles upon which the doctrine hold- ing such contracts void is predicated, held that a contract by which the de- fendant contracted not to run a steamer, which he had purchased of the plainliff, upon any waters of California, was valid, and an action for a breach of the con- tract was upheld, the court saying : "There should be no invariable rule that a contract restriction must be lim- ited by the State line. This country is substantially one country, especially in all matters of trade and business ; and cases may arise in which it would in- volve too narrow a \iew to coiuleran as invalid a contract not to carry on a par- ticular trade within a particular State." But this is an exception rather than a rule, and depends entirely upon the character of the business and the effect of the restriction ttpon the restricted party and the public. Price v. Green, 16 M. & W. .346 ; Maier v. Homan, 4 Daly (N. Y. C. P.), 168; Callahan v. Donnolly, 45 Cal. 152 ; as to nature of business, St. Joseph R. R. Co. v. Ryan, 11 Kan. 602 ; as to general doctrine, see Gale D. Kalamazoo, 2" Mich. .044; Ilub- baird v. Miller, 27 id. 15; More x\ Bonet, 40 Cal. 251; Jenkins v. Temples, :W Ga. 655 ; GiUis v. Hall, 2 Brewst. (X'enn.) 342 ; Treat v. Shoninger Melodeon Co., 35 Conn. 543; Crawford v. Wick, 18 Ohio St. 190 ; Perkins v. Clay, 54 N. H. 518 ; Dwight v. Hamilton, 113 Mass. 175 ,• Fox V. Scard, 33 Beavan, 327 ; Hoyt V. Holly, 39 Conn. 326 ; Gilman V. Dwight, 13 Gray (Mass.), 3."6 ; An- gler V. Webber, 14 Allen (Mass.), 211 ; Atkyns v. Kinnier, 4 Exch. 776 ; How- ard 0. Woodard, 10 Jur. 1123 ; Verges V. Forshee, 9 La. Ann. 294 ; Duffy" v. Shockey, 11 Ind. 70 ; McClurg's Ap- peal, 58 Penn. St. 284; Pylce v. Thomas, 4 Bibb (Ky.), 486 ; Butler i'. Burleson, 16 Vt. 17(i ; Heichen v. Hamilton, 8 Iowa, 5C6 ; Wood's Law of Master and Servant, 259-01. Thus, it is held noil unreasonable to restrict one from cariy- ing on a trade within Ihe city of Lon> don, with its four millions of inhabitants, Price B. Green, ante ; Mallan v. May, 11 M. & W. 653. and including one hun- dred and fifty miles from it, was not unreasonable ; Bunn v. Guy, 4 East, 190 ; so, within twenty miles, Haywarcl V. Young, 2 Chitty, 407, but including a district within two hundred miles, was held void. Horner v. Graves, 7 Eing. 735. A district of thirteen miles wa.s held valid. Davis v. Mason, 5 T. R. 118. So, five miles, in the case of a milkman. Proctor u. Sargent, 2 Man. & Gr. 20. In one case the whole King- dom of Great Britain was held valid. \Vliittaker v. Howe, 3 Beavan, 383. In this country, generally, it is held that a restraint extending to the whole State is void. Dunlop v. Gregory, 10 N. Y. 241 ; Taylor v. Blanchard, 13 Allen (Mass.), 370; Nobles i\ Bates, 7 Cow. (N". Y. ) 307 ; Cliappel v. Brockway, 21 Wend. (N. Y. ) 157 ; More v. Bonet, 40 Cal. 251. But that this is not the inva- riable rule, see Steam Nav. Co. v. Wili- er, ante, and in one case a restraint covering all the territory west of Alba- ny. Lawrence v. Kidder, 10 Barb. (N. Y. ) 641. But a contract not to run boats on a certain line of travel is held good; Steam Navigation Co. ». Wright, b Cal. 258 ; so, an agreement not to set up a trade witliin sixty miles of a town, Whitney v. Slayton, 40 Me. 224, within twelve miles, McClurg's Appeal, 51 Contracts in kesteaint of Trade. C59 tcj another, for the piirjjose of carrying on the same trade.' But a cov- enant by the lessor, that he will not, during the continuance of the de- mise, carry on a certain business in a certain town, or elsewhere^ or in any manner bo concerned in the business, is void.^ A bond not to fol- low or be employed in the business of a coal merchant for nine months (without any limit as to space or distance), is void.' A c()\'enant or promise in restraint of trade may sometimes be divisible and good in part, and bad as to the residue ; in such cases the breaches sliould be Penn. St. ; Butter n. Burleson, 16 Vt. 176, within tlie county, Holbrook u. Waters, . May, 11 M. & W. 6">3 ; Biiun b. Guy, 4 East, 193 ; II jrncr v. Graves, 7 Bing. 735 ; Stea'.u JfavigaUon Co. r. Wright, 6 Cal. 258. The consideration of such agreements is sufficient, however small, if it is a legal consideration, and the courls will not consi ler its adequacy, Hitchcock v. Coker, Ad. & El. 433, nor will it gen- erally consider llie consideration in de- termining the question of reasonable- ness ; Arjher u. Marsh, 6 Ad. &, El. 959 ; but in the absjuce of fraud the parties alone are the judges as to the sufficiency of the consideralion, and having agreed upon, are bo.ind by it. Duffy «. Shock- ey, 11 Ind. 70 ; Guerand y>. Bandelet,, 32 Md. 551. Contracts in total restraint'' of trade are void. Alger b. Thacher, 19 Pick. (Mass.) 51. So, those that are unreasonable as to territory, Nobles c. Bates, 7 Cow. (iST. Y.) 307, or that un- reasonably tend to limit or restrain the operation of trades. Kellogg u. Larkin, 3 Chand. (Wis. ) 133. See bearing upon the legality of such contracts, Lauben- heimer u. Mann, 17 Wis. 542 ; Gilman V. Dwight, 13 Gray (Mass.), 356; Pierce v. Woodward, C Pick. (Mass.) 206 ; People r. Brockwav, 21 Wend. (X. Y. ) 157 ; Wariield u. Booth, :33 :.Iil. 63 ; California Steam Navigation Co. v. Wriglit, 6 Dal. i-'iS ; Dean «. Emerson, 102 Mass. ISO ; Webb v. Noah, 1 Edw. Ch. (N. Y.) 604; Morse r. .Murse, 103 M iss. 703 i Maine o. Homan, 4 Daly (N. Y. C. P.), 16S; Guerand x,. Dandelat, 32 Md. 501 ; Pyke v. Tliomas, 4 Bibb (Kv.j, 486 ; Crawford d. Wick, 18 Ohio St. lOJ ; Billings i). Ames, 32 Tdo. 205 ; Jenkins u. Temple, 39 . Miller, 27 Mich. 15 ; Goodman u. Henderson, 58 Ga. 567 ; Curtis b. Go- key, 63 N. Y. 300 ; Arnott. r. Pittston Coal Co., 98 id. 638 ; Craft r. .AlcCon- ougby, 7i) 111. 3-16 ; Ellis v. -tones, 50 Ga. 504 ; Chesman u. Nainby, 2 SUa. 739 ; Davis B. Mason, 5 T. R. 118 ; Bumi v. Guy, 4 East, 190 ; Hayward r. Young, 2 Chit. 107 ; Morris r. Coleman, 18 Ves. 438 ; Homer «. Ashford, 3 Bing. .322 ; Crisdee v. Bolton, 3 C. & P. 210; Hitch- cock V. Coker, Ad. & El. 438 ; Archer ». Marsh, 6 Ad. & El. 959 ; Proctor r. Sargent, 2 "M. &. G. 20 ; Mallan c. Mav, 11 M. & W. 6.53 ; Avery b. Lan^ford, 1 Kay, 603 ; Mumford b. Gcthins,'77 C. B. N. S. 303. i Mitchell B. Reynolds, 1 P. Wins, 181 ; 1 Smith L. C. 289 (4th ed.) ; Baun v. Guy, 4 East, "90 ; Kannie b. Irving, 7 M. . Vanghaw, 10 Q. B. 87 ; Elves x>. Crofts, 1(^ C. B. 241 ; Bryson u. Wliitehead, 1 Sim. &. S. 74. 2 Hinde b. Gray, 1 M. & G. 195 ; and see Homer b. Graves, 7 Bing. 735 ; which appears to have been overruled in error, 6 Ad. & El. 966. s Ward B. Byrne, 5 M. & W. 548, 561; Hunlocke v. Blacklowe, 2 Wm. Saund. 156. 660 Miscellaneous Covenants. confined to the good j^art.' The court will not inquire into the ade- quacy of the consideration for the restriction, when it appears to pos- sess some bona fide legal value; but if it is merely colorable, the restraint will be void.^ A mere technical or nominal consideration is insufficient.^ The contract being under seal will not dispense with the necessity for a sufficient legal consideration to support a stijiulation in restraint of trade.* How the distance is to be computed. Sec. 410. Where the assignor of a lease of a public-house in Lon- don covenanted that he would not keep a public-house within the dis- tance of lialf a mile from the premises assigned, it was held that the half-mile, as mentioned in the covenant, imported half a mile measured by the nearest way of access between the premises assigned and any public-house afterwards kept by the assignor.^ But it appears to be now settled that the distance is to be measured in a straight line vjyoji a horizojital plaiie, i. e., as the croto flies. Covenants to re-deliver fixtures, Sec. Sec. 411. Where fixtures, furniture, or other goods and chattels, are leased together with houses, it is usual to attach a schedule of them to the lease, and to insert a covenant by the lessee to re-deliver them in the same condition at the end of the terra." The object in doing this is to give the lessor a remedy on the covenant (with clearer evidence) for any damage sustained by their being removed or injured during the term. Where a lessee of a coal mine had covenanted at the end of the term to yield up the works and mines and all ways and roads in good repair, order and condition, so that the works might be contin- ued and carried on by the lessor : held, that such covenant did not in- clude wooden sleepers, or iron train plates fastened to such wooden sleepers, used for the purpose of a railway or tramway from and to the mines.' 1 Green v. Price, 1.3 M. & W. 69.5 ; 16 " Duignan v. Walker, 1 Johns. 446 ; id. 346 ; Nicholls i>. Stretton, 10 Q. B. Eeg. u. Saffron Walden, 9 Q. B. 76 ; 346, 354. Stokes «. Grissell, 14 C. B. 678 ; Lake «. 2 Hitclicock V. Coker, 6 Ad. & El. 438- Butler, 5 E. & B. 92 ; Jewel o. Stead, 6 447 ; Archer ». Marsh, 6 Ad. & El. 959 ; E. & B. 350. Pllkinaiton v. Scott, 15 M. & W. 657. ' Duke of Beaufort b. Bates, 10 W. R. 8 Young D. Timmins, \ C. & J. 331. 200. In Parrott v. Barney, 2 Abb. (IT. ^ Prugnall v. Gosse, Aleyn, 67 ; The S. ) 197, under a covenant that, at the Tailors of Exeter v. Clarke, 2 Show. 350; end of Ihe terra, the lessee would deliver Claygate «. Batchelor, Owen, 143 ; Year up the premises in as good condition as Bk., 3 H. 5, fo. 5 ; Mitchel d. Reynolds, the reasonable use and wear thereof will 1 P. Wnis. 181 ; 1 Smith L. C. 289-304 permit, damages by the elements ex- (4th ed. ); Hutton v. Parker, 7 Dowl. cepted ; it was held, that the lessee was 739. not protected from liability for waste, i* Leigh B. Hind, 9 B. & C. 744; Woods although it was the result" of accident V. Dennett, 2 Stark. 89. without the fault of the tenant. Covenants to give up pakt of Land. 661 Covenants to give up part of laud. Sec. 412. Sometimes the lessor reserves the power of taking such portions of the land demised as he may want for building or other pur- poses, upon giving a specified notice to the lessee, and making a i3ro- portionable abatement out of the rent. Such provisoes may be per- fectly reasonable and just, and have often been recognized by the courts both of law and equity. Such a power has been extended to the whole of the land demised.^ Where the proviso was, that the lessor might from time to time have any part of the land leased, it was held, he might require possession of the whole ; ''• and it was held in the case last cited that as the proviso had gave the lessor power to take possession it did not operate by way of covenant merely. But, in another case,' where there was no such power, it was held to oper- ate only as a covenant. Frequently a lease contains a covenant that in case the lessor shall sell the premises, the lessee shall, upon a certain specified notice, quit and give up possession to the lessor, and some- times it is provided that the lessor shall pay the lessee such reasonable damages as he shall sustain thereby, or a reasonable sum, or a certain specified sum, and such provisions are regarded as reasonable and valid. But, where the lease contains such a provision the right does not exist, unless the lessor actually sells the premises,* and the sale must be hona fide, and not a mere sham for the i^urpose of getting rid of the tenant ; nor can it be operative unless the specified notice is given, unless the lessee waives such notice. If the lease is made de- terminable by either party, at their option, the lessee may quit at any time, and the lessor may put an end to the lease by a mere demand of possession ; but if any particular mode of putting an end to the term is named in the lease, that mode must be strictly conformed to ; and if notice of a particular duration is required to be given, a less notice will not suffice. If it is provided that the lease may be determined at the end of any two, three, four, or any other number of months, it is 1 Wilson c. Abel, 2 M. & S. 541. lessee neglects to appoint an appraiser. 2 Gardner v. Kenward, 12 Q. B, 244. Conner v. Jones, 28 Cal. .'J9. Where it 8 Wilson v. Phillips, 2 Bing. 13. was provided in a lease, that, if the les- * Doe t). Kenward, 12 Q. B. 244. Where sor should fail to obtain a deed of a a lease provides that the lessor shall not part of the property leased, the lease take possession until lie has given .30 should become void, or the lessee slionid days' notice to the lessee, and paid the have a right t-o a lease of the residne on value of improvements made by the lat- the same conditions, — Held, that if the ter, and that such value shall be ascer- lessee entered and occupied without tained by two appraisers appointed by such deed being obtained, he wonld be the lessor and lessee respectively, the taken to have elected not, to avoid the lessor Is entitled to the possession if he lease, but to hold the residue according gives said notice, and tenders the full to its terms. Hall m. Spaulding, 42 K. value of the improvements, although the H. 259. G62 Miscellaneous Covenants. incumbent upon the party to give reasonable notice of his intention.' If there is a provision that the lessor may put an end to the lease by paying the lessee for his improvements, or the loss he sustains by being required to quit before the time is ended, payment may or may not be a condition precedent to the exercise of the rights according to the language of the covenant. Obligation of tenant of farm as to cultivation of land. Sec. 413. Efery tenant, independent of any express covenant, is bound to cultivate his farm in a husbandlike manner according to the custom of the country, and to consume the produce upon it. This is an engagement which arises out of the letting, and which the tenant cannot dispense with uidcss by special agreement.'-' What is to be con- sidered as a good and husbandlike mode of cultivation must vary ex- ceedingly, according to soil, climate and situation ; therefore, the ■' cus- tom of the country," with reference to good husbandry, must be ap- plie(J to the improved habits of husbandry in the neighborhood under circumstances of a like nature. Evidence that an estate had been managed according to the custom of the country would always be a hieduim of proof that it had been treated in a good and husbandlike manner.^ In an action against a tenant for treating the farm' contrary to good husbandry and the custom of the country, if is not incumbent on the landlord to prove a definite known custom or course of hus- bandry ; it IS sufficient to show what is the prevalent course of good management ; and by proving that the estate was not so managed, the landlord will prove that it was treated contrary to good husbandry and the custom of the country.'' The fact that a tenant has half his farm under tillage at the same time, while no other farmer in the neighbor- hood tills more than a third, is clear proof of mismanagement, contrary ' Goo(lria;lil v. Richardson, 3 T. R. as to be rfgarcled as entering into and 462 ; Cadby «. Martinez, 11 Ad. & El. forming part of tlie conLract, it must be 720 ; Roe o. Iliirstsmonceaux, 7 B. & C. uniform, notorious, reasonable, and not 555. conflict citber with the law or the ex- 2 Per GiBiis, C. J., in Brown b. press terms of the contract. Cox v. Crump, 1 Marsh. .567 ; Powley v. Heisley, 20 Penn. St. 245 ; Van Dorens ■Walker, 5 T. K. .'m ; Onslow u. , 16 v. Everitl, 5 N. .J. L. 460. And it is not Ves. 173; Ilallifax u. Chambers, 4 M. binding except, so far as it is universally & W. 662 ; Beale v. .Sanders, ;5 Bing. obligatory. Newson c; Bmythes, 3 H. N. S. 8.50. It the lease under which & N. 84()'; 1 F. & F. 477. But it is not the tenant entered, expressly or by necessary that it slioukl have been im- necessary implication, excludes the cus- memorially eslalilished. It is sufficient torn, it will be binding upon a tenant if it is an established usage in reference holding over. Hutton v. 'Warren, 1 M. to such farms. Dalbv v. Hirst, 1 B. & & W. 466 ; Wllldns c. 'Wood, 17 L, J. B. 224 ; Legli n. Hewitt, 4 East, 1.54. Q. B. .'!in ; 'Wigglesworth v. Dallison, 1 ^ Per Loni> Ellknborough, C. J., Doug. 201 ; Clark v. Roystone, 13 M. & in Legh i'. Hewitt, 4 East, 159. W. 752 ; Senior v. Armytage, Holt, 197. ■> Legh v. Hewitt, 4 East, 161 ; Dalby But in order to amount to a custom so v. Hirst, 1 B. <& B. 224. ExpEESs Covenants as to mode op Cultivation. Go3 to the custom of the country in good husbandry.' Out of the bare relation of landlord and tenant, no obligation arises to make a certain quantity of fallow, and to spread a certain quantity of manure every year thereon.' As to expenditure of produce on premises. Sec. 414. The tenant must not carry manure or compost off the premises,' or remove anything except according to the custom of the country.* It has been said that the tenant may carry hay and straw off the premises, if the practice is not contrary to the custom of the countiy, or prohibited by the lease or agreement under which he holds. ^ The custom of the country relating to cultivation will be excluded by an express covenant or agreement inconsistent with it.° Express covenants as to mode of cultivation. Sec. 415. Of course it is competent for the parties to provide for a special and i:)articular mode of cultivation, and this is often done, and is advisable in all agricultural leases. They are generally formed in ac- cordance with the custom of the country, and in any event are so much dependent upon the language of the agreement as to render it impos- sible to furnish any definite rules to control a given case. They are generally incorporated in a lease for the benefit of the landlord, but may be inserted for the protection of the tenant in departing from the usual course of husbandry. If a particular sum is agreed ujDon to be paid in case of breach that is the measure of recovery; as if the cove- nant provides that certain parts of the land shall not be ploughed, and, if done, that a certain additional rent shall be paid, the additional rent is not a penalty but a liquidated satisfaction for the breach, and a court of equity will not i-estrain an action for its breach,'' but will rather aid the action by compelling a discovery.' A covenant to cultivate, on a certain system, according to the custom of the country, is held to mean that he will so cultivate only so far as is , universally obligatory by the custom of the country.^ A jury may find that the tenant has done al) he was bound to do by the custom.^' 10 ' Legh V. Hewitt, 4 East, 154. Webb d. Plummer, 2 B. & Aid. 746 ; '•' IJrown 1). Crump, 1 Marsh. 567 ; Roberts o. Barker, 1 Cr. & M. 808 ; Granger ij. Collins, M. & W. 461. Clarke v. Roystone, 13 M. & W. 752. 3 Powley V. Wallver, 5 T. R. UnZ ; Gough ' Jones b. Green, Si Y. & 3. 298 ; Rolfe V. Howard, Pealfe Add. Cas. 197. v. Peterson, 2 Bro. P. C. 436. * Onslow V. , 16 Ves. 173. '' Ricliards v. Cole, Metf. Pleadings, ° Gough V. Howard, Pealce Add. Cas. 196. 197. But see Brown ». Crump, 1 Marsh. ^ Fleming v. Snook, 5 Beav. 250. at p. 569. 1° Newson b. Smythies, IF. Jc F. 477, 6 Button ». Warren, 1 M. & W. 466 ; *479 ; Rankin ». Lay, 2 De G. F. & 3. 65. 664 Miscellaneous Covenants. Under an agreement to manage and quit premises agreeably to tlie manner in which the same have been managed and quitted by the former tenants, a tenant, without notice, is not bound by the terms upon which the former tenants held. Tlie only rule by which, according to the agreement, he is to be guided, is the condition of the estate and the mode in which it was managed at the time of his taking possession.^ A covenant to manage pasture in a husbandlike manner is equivalent to a covenant not to convert it into arable land." A covenant to permit the landlord in the last year of the term to sow clover among the tenant's barley binds the landlord to use due diligence to ascertain for himself when the tenant sows his barley." A covenant at the end of the lease to leave certain jjarts of the land ploughed for a certain crop for the incoming tenant, means such land as would, in the natural course of good hus- bandry, be ploughed and left for the purpose of being planted with such cro23s.* Under a covenant to pay additional rent for pasture land which the lessee should ear, plough, break up, dig, use or convert to tillage, or for brick-earth, or for any other purjjose whatsoe^•er, the question whether the use of the land as a race-course and ground for training horses is a breach of the covenant is one of fact for a jury.* Laying down the land to permanent grass again will not protect the lessee, who has once ploughed it up, from future accruing additional rent." Under a covenant not to remove from the farm, during the last year of the term, any of the hay, &c., which shall grow on the farm, the lessee is prohibited from removing hay, &c., which is on the farm in the last year of the term, at whatever time during the term it may have grown.' An agreement that the tenant shall not sell any straw or manure grown or produced on the farm without the license of the land- lord, under certain j)enalties, recoverable as additional rent, extends to straw sold by the tenant after the determination of the tenancy.^ Under an agreement that the tenant shall consume the hay on the premises, or for every load of hay removed shall bring two loads of manure, the bringing on of the manure is not a condition precedent to the carrying off the hay as between the landlord and tenant ; but after the tenant has quitted possession of the premises, the succeeding tenant may refuse to permit the hay to be removed until the manure is brought on.^ Under an agreement that tenant shall be paid " a fair price " for 1 Liebenrood v. Vines, 1 Mer. 15. See ^ Aldridge v. Howard, .4 M. & Gr. 921. Hood V. Kendall, 17 C. B. 260. <^ Birch v. Stephenson, -i Taunt. 469. 2 Drury c. Molins, Ves. 328. See ' Gale v. Bates, :j H. & C. 84. Hills V. Rowland, 4 De 6. M. & G. 430. ^ Massey v. Goodall, 17 Q. B. 310. " Hughes V. Richman, Cowp. 125. ^ Smith v. Chance, 2 B. & Aid. 753 ; * Hunter v. Miller, 9 L. T. N. S. 159. * Lowndes v. Fountain, 1 Exchq. 487. Express Covenants as to mode of Cultivation. 665 straw left on the premises at the end of his tenancy, not containing any stipulation as to payment for manure, the tenant is to be paid for the straw at a fodder jjrioe only, i. e., one-half the market pi'ice.^ So under an agreement, a tenant to pay an additional reiit for every ton of hay, &(>., sold off or removed from the premises, hay of very bad quality and unfit to be eaten by cattle is within the meaning of the agreement.^ But under a covenant that tlie lessee sliall not sell or carry away from the demised premises any hay, straw or manure grown or produced thereon without the consent of the lessor, under the increased rent of £10 for every ton so sold or carried away, but that the lessee will con- sume the hay and straw by his cattle, it has been held that the lessee is entitled to sell the hay and straw on payment of the increased rent." A condition not to sell or convey away any dung, &c., from a farm, extends to manure made on the farm by cows sold by the tenant and provided with provender by the buyer.^ Under a covenant to manure land with two sets of muck within the space of six of the last years of the term, the last set of muck to belaid upon the premises within three years of the expiration of the term, the tenant may lay on both sets of muck within the three last years of the term.^ Where a lease contained a covenant by the tenant to leave the manure on the farm and sell it to the incoming tenant at a valuation, it was hejd that the effect of the covenant was to give the tenant a right of onstand for his manure upon the farm, and that he had such a continuing possession of it and property in it, in the mean time, as to enable him to maintain an action of trespass if the incoming tenant takes it before the valuation has been made." Where a tenant covenanted to leave fodder, . Guy's Hospital, 3 Ves. 295 ; Moore u. ' Tritton v. Foote, ante. Foley, id. 232. A different rule would ^ Brown v. Tiglie, 2 CI. & F. 396 ; convert leases into perpetuities which Kenny b. Forde, Batty, 534 ; Job u. are odious to tlie law. Brend b. Frum- Bannister, 2 Ky. & J. 374. velle, 32 Mich. 215 ; Carr u. Ellison, 20 » Ryder ». Jenny, 2 Robt. (N. Y.) 256; Wend. (N". Y.) 178 ; Ti-acey o. Albany Willis d. Astor, 4 Edw. Ch. (N. Y.) Ex. Co., 7 N. Y. 472 ; Richardson -o. 504. Suydenham, 2 Vern. 447. i» Wells ». DeLeyer, 1 Daly (N. Y. C. ^ Iggulden D. May, 7 East, 237. In P.), 39. A lease contained covenants Copper Mining Co. v. Beach, 18 Beav. for two renewals of twenty-one years 478, it was lield, that when a covenant each. The language of the covenant provided that the lessor would at any was, that at the expiration of the term time, when reqviested by the lessee, to be granted by such i-enewed lease, as " demise the premises for a further term aforesaid, he would grant a "second of thirty-one years," such new leases renewal" of such lease for a further " to contain tho same rents, covenants, term of twenty-one years. The ownei To Renew. 671 lease, containing a privilege of renewal, provided that it t!ie parties ■were unaTale to agree upon the rent an arbitrator should be chosen by each party, the two to determine the value of the lot, and allow five per cent, thereon as rent ; and if they were unable to agree, that they should choose an umpire whose decision should be final. It also pro- vided that, if a renewal was refused by the lessor he should pay to the lessee the value of the building on the lot, to "be ascertained by three disinterested persons, on oath, to be chosen as aforesaid." It was held, that it was intended that the value of the building should be ascer- tained in the same manner as that of the lot for the purpose of fixing the rent, and that the parties were entitled to appear and be heard before the arbitrators as to the value of the building. Also, that even if a party waived his right to appear before the two original arbitra- tors, he was still entitled to appear and be heard before the umpire, and that an award by the latter where a party had had no opportunity to appear before him was void.^ In such cases, if the landlord elects not to renew, and appraisers are appointed, their aj^praisal is in the nature of an award and is binding upon the parties and their personal representatives.^ In case the landlord refuses to agree upon appraisers or arbitrators the tenant must resort to his remedy upon his covenant; and in such cases common prudence would suggest that as soon as may be after the term expires he should have the improvements ap- praised by competent persons, as the value is to be taken at the time when the term ends.' But the landlord may renew ; and if he tenders a new lease for the stipulated term, but which does not contain a cov- enant for renewal or quiet enjoyment, unless the covenant is clearly perpetual such tender is a bar to an action upon the covenant.^ And of the reversion renewed the lease, chosen, the annual rent for the next which renewal contained a covenant twenty years to, be eiglit per cent, of for such rent under the last renewal their assessment. Held, that a ma- "as should be agreed upon by them jority could not make a valid report, respectively ; but in the event of their and upon their disagreement, the case not agreeing upon such rent, each party should be referred to a master to ascer- shall choose a disinterested person to tain and report the " true value," — not ascertain the same." Held, that by the rental vaUie, but the real worth, these covenants, one party was bound to excluding improvements. Lowe u. give and the other to accept such re- Browne, 23 Ohio St. 463 newal. The rent, if changed, was to ^ Van Cortland jj. Undeiiiil], 17 John, be fixed by arbitrators chosen by the (K. Y.) 405; Kenwiciv v. Renwick, 1 parties, and no notice was necessary J3radf. (N. Y. Surrogate) 234 ; Halliday from the lessees before the expiration «. Marshall, 7 John. (IST. Y.)211 ; Wells of the lease. Johnson v. Conger, 14 v. DeLeyer, 1 Daly (IST. Y. C P ) 3!) • Abb. Pr. (X. Y.) 105. Beery v. Van Winkle, 2 \. J. E,]. 391). ' 1 Brown v. Lyddy, 11 Hun (N. Y. S. ^ Halliday v. Marshall, ante ; Berry C), 451. A lease for ninety-nine ». Van Winkle, ante ; Whittock t). Duf- years, renewable forever, stipulated field, Hoffm. Ch. (K. Y.) 110. If the for a revaluation of the "ground" lessee refuses to appoint an appraiser every twenty years by three disinter- the lessor may recover possession. Con- ested men, one to be selected by each ner v. .Tones, 28 Cal. 59. party and a third by tliie two thus ■* Ryder v. Jenny, ante. 672 Miscellaneous Covenants. ■where the lease provides that the landlord will, at the end of the term, pay for the improvements or renew the lease upon sucli terms as might be agreed upon between the parties, and the tenant refuses to accept a renewal upon any terms, he forfeits all claim to be paid for the im- provements,^ and the landlord, after tendering a lease, can recover possession of the premises without payment for the improvements.'^ Where the lease provided that the lessor shall not take possession until he has given a certain notice and paid the value of the improvements made by the lessee, to be ascertained by ajjpraisers to be appointed, one by each, and the lessee refused to appoint an appraiser, it was held, that the lessor, having tendered the value of the improvements, was entitled to possession.' A covenant to pay for all improvements that are made upon the land, means all that are left there when the term expires, and does not give the tenant a right of recovery for improvements made, but which are destroyed or removed during the term.'' Nor does such a coTenant extend to ordinary rejiairs ; * nor, if the lease specifies the kind of improvements to be made, can the lessee charge the landlord with liability for improvements of a different kind : as, where the covenant was " to renew or pay the value of such buildings as should be erected in pursuance of the lease," and by the terms of tlie lease the lessee was to make the buildings fire proof within two years, which the lessee failed to do, it was held, that the landlord was not liable upon the covenant." In the absence of any covenant to that effect, the landlord is under no obligation to pay the tenant for im- provements made upon the premises, however extensive or valuable, or however much they may enhance the value of the premises. If the improvements are such that the tenant may remove them, his right extends no farther than that ; and if he fails to remove them during the term, or if he surrenders the term without removing them, his rights are lost.' If the covenant provides that the lessor will pay for the improvements at the end of the term or convey the premises to the tenant for a certain specified consideration, the tenant may resort to 1 Rutgers ii. Hunter, 6 John. Ch. on of n certain, description, or the (N. T. ) 215 ; Pike v. Butler, 4 N. Y. lessees' sub-lessees should do so, they 360. should have the privilege of purchasing 2 Pearce v. Golden, 8 Barb. (N. Y. ) 322. their lots at the end of the term. It was 3 Conner v. Jones, 28 Cal. 59. held, that the erection of a building * Van Rensselaer v. Penniman, 6 partly on two lots, or of an entirely dif- Wend. (N. Y.) 569. ferent character from those named in 5 Lamette ». Anderson, 6 Cow. (N. Y.) the lease, did not give such lessees a 302. right to purchase. Ostranderi). Living- 6 Fisher v. Fisher, 1 Bradf. (N, Y. ston, 3 Barb. Ch. (N. Y.) 416. Surrogate) 335. So where the covenant '' Kutteri). Smith, 2 Wall. (U. S.) 491 ; was, that if the lessee should divide the Gudgell v. Durall, 4 J. J. Marsh. (Ky.) premises into lots of certain dimen- 229 ; Lawrence u. Knight, 11 Cal. 208 ; sions, and should erect buildings there- Smith v. Brown, 5 Rich. (S. C.) Eq. 291.' To Rene-w. 673 equity to compel a conveyance if the lessor declines to pay for the improvements ; and an assignee of the lessee has the same remedy. And if there are several lessees or assignees any one of them may bring a bill for specific performance, either in the name of all or in his own name.* A covenant to renew a lease " upon such terms, and for such a terra as may be agreed upon by the parties," implies a lease upon the same terms and for the same duration as the former lease.'^ The covenant must be certain as to the time and the terms of the lease, either in itself or by some specific mode agreed upon. Thus, it has been held that a covenant, that at the end of the term the lessor will take the buildings at a valuation, " or grant a new lease " for a specified term " upon such terras as the lessor, his heirs or assigns shall think proper, and be approved of by the lessee,^'' is void as a covenant of renewal because of uncertainty.' So a covenant to renew, " the rent to be pro- portioned to the valuation of said premises at said time," without a provision for determining that valuation, is too vague to be enforced in equity.^ A covenant in these words, to renew an underlease : " And the said lessors do proraise to renew said indenture for such further terra as their leasehold estate in the premises raay be renewed or extended," was held not to be void for indefiniteness. The word " renew," ex vi termini, imports the giving a new lease like the old one, on the same terms except the renewal covenant. To renew toties quoties an express stipulation is necessary.^ But a covenant in a lease that the lessee shall be entitled to a renewal, at the expiration of the term, provided he " is willing to give as much as any other responsible party will agree to give," fixes the amount of rent with sufficient certainty." Where 1 Ostrander v. Livingston, .3 Barb. Cli. (IT. T. ) 499 ; Laird i). Boyle, 2 Wis. 431 ; (H. Y.) 416 ; Van Home v. Grain, 1 Pi-ay u. Clarlc, 113 Mass. 28:3. Paige Ch. (N. T.) 45.5. In sucli cases, *Pray d. Clark, 113 Mass. 233. where there are several lessees or as- '" Cunningham d. Pattee, 99 Mass. 248. signees, and an action is brought in the Compare Creighton v. McKee, 2 Brews, name of one to compel performance, the (Pa.) 383. court will protect the rights of all the ^ Arnot v. Alexander, 44 Mo. 25. But parties. in Delashmutt v. Thomas, 45 Md. 140, ^ Rutgers j). Hunter, ante. a provision in a lease, that the lessee ' "Whitlock V. Duffiekl, 1 Hoff. Ch. should " have the preference of renting (N. Y.) 110. But the doctrine of this said property so long tiiereafter as it case was reversed in 26 Wend. (K. Y.) shall be rented for a store," was held 110, and it was held that a court of void for uncertainty. So in Wliitstone !). equity had no power to restrain the Davis, 34 Ind. 510, the tenant was, by lessor's power to prescribe the terms the lease, given an option of an addi- of the second lease, and that if the les- tional term " if the farm is for rent and sor's terms were not acceptable, and he the tenant suited the landlord, and they declined to pay for the buildings, the agreed on the rent," and it was held lessee's remedy was to remove them, that the covenant was void for uncer- Abeel ». Kadcliffe, 13 John. (N. Y.) tainty. 297 ; Western Trans. Co. ». Lansing, 49 43 674 Miscellaneous Covenants. the lease contains acovenant for the renewal of a lease, on a valuation or appraisal by arbitrators, and the lessor will not comply with the terms of the covenant, and agree upon arbitrators or submit the mat- ter to them, a court of equity will not decree a specific performance of that part of the covenant, but will receive evidence of the value, and compel the execution of a lease as agreed.' And if the lessor brings ejectment .against the tenant, the tenant is not obliged to try the question at law, but may resort to chancery for an injunction to restrain the action and to compel the making of a lease. ^ If the arbi- tr.ation fails by reason of the arbitrator chosen being unable to com- plete the reference, and the parties f.ailing to agree on another umpire, the lessee may maintain an action of an equitable nature to compel the execution of a renewal lease, and have a reference to ascertain what the amount of rent should be.' A covenant by the landlord to renew the lease for a second term, being a contract to give a new lease, does not give the tenant a right at law to retain possession of the premises demised after the expiration of the origin.al term. If the landlord refuses to compljr with this covenant, the tenant has a remedj" in equit}', or iii .an action upon the covenants.'' If the lessor refuses to perform, or if by alienation he puts it out of his power to perform. ' Stromaiher b. Zeppenfield, 3 Mo. App. 429 ; Hugg v. Van Berkle, 58 Mo. 202. 2 Tcliieder v. Biddle, 4 Dillon (U.S.C. C. ) , 55. Wh ere a tenant has don e all that is required of him to secure a renewal, he has an election to proceed either at law for damages, or in equity for a specific performance, Arnot v. Alexander, 44 Mo. 25, and a court of equity will com- pel a specific performance where there has heen a substantial, although not a literal performance by the tenant. Reed I). St. John, 2 Daly (N. Y. C. P.), 213. Thus, in the case last cited the covenant to renew required six months' notice from the lessee. The lessor gave liis address to the lessees, telling them to communicate any matters relative to the premises. The lessees, on the day before the six months began to run, mailed a notice of their desire for a re- newal, but the notice was not received by the lessor until a day or two later. It was held sufficient. So, too, the con- dition may be waived. Thus, under a lease in which the lessor covenants to give a renewal if the lessee shall serve a notice binding himself to take and ac- cept it, the rate of rent upon such re- newal to be fixed by arbitration, the giving of such notice becomes immate- rial after the parties h.we both proceed- ed to the appointment of arbitrators. Viany v. Ferran, 5 Abb. Pr. (N. Y. ) N. S. 110. Where the original term of a lease for 99 years, renewable forever, expired, and the tenant failed to obtain a re- newal within the term, according to the literal wording of the covenant, it was held that, he having complied with all the conditions precedent, equity would compel the execution of a new lease. But if the lease provides for a renewal fine, and there are any arrearages of rent, they must be first paid, and the application must be made within a reas- onable time. Tf the tenant has been guilty of lachen in seeking his remedy, it affords an insuperable bar to equity able relief. Banks v. Haskie, 45 Md. 207. 3 Viany d. Ferran, 5 Abb. Pr. (N. Y.) N. S. 110. * Finney v. Cist, 34 Mo. 434. But, if a tenant holds over under such a Cove- nant, which is never perfected, the land- lord may treat the tenant as a tenant or trespasser at his election, and if the terms are to be fixed in a specific man- ner, and they are not fixed, the tenant holds under the term of the old lease until they are fixed. Ryder v. Jennv, 3 Robt. (N. Y.) 36; Holsman v. Abrama, 2Duer (N. Y.), 435. To Renew. 675 he is immediately liable to an action for the breach ; * but in the case of alienation, if the lessor, before the time specified for the renewal, repurchases the property, or reinvests himself with the ])ower to lease it, an action for the breach must fail if he performs or offers to do so.^ His executors are also liable in the same way, wliether the contract is under seal or not." By 32 Hen. 8, chapter 34, the assignee of a lessor is subjected to the same liability as the lessor himself would have been liable to, whether he takes a freehold or merely a chattel interest,^ and in case the assignee refuses to perform the lessee may sue either or both.i^ The right of renewal constitutes a part of the tenant's interest in the land, and, unless restricted, may be sold or assigned by him, and the benefits of the covenant pass to the assignee and may be enforced by him ; ^ and the right also devolves upon his executors whether they are named in the lease or not,' but all conditions precedent must be first performed ; ° or, in case the lessor has by alienation or otherwise put it out of his power to perform, the tenant must offer to perform in order to perfect his right.' It very often happens that the lease gives the lessee an option to remain as tenant for another term ; as, where a lease is for ten years, ■ with a provision that the lessee " may, if he desires to do so, remain for ten years more." the lease is, if the tenant so elects, a good lease for 1 Hill M. Waldron, Winch. 29; Main's who takes the lease, whether by assign- Case, Ci-o. Eliz. 450. The same rule ment or operation of law, also takes the prevails where the lessor by his laches right of renewal, and may enforce it. renders it impossible for him to perform. Vernon v. Smith, 5 B. & Aid. 11 ; Kerne's Simpson v. Clayton, 4 Bing. N. C. 708; Case, Mo. 27 ; Furnival v. Creer, ante; Atty.-Geii'l v. — 3 Mer. 536. Isteed v. Stoneley, ante ; Barnford ». 2 Ford V. Tiley, B. & C. 325 ; Roper Hayley, ante. And this has been held in c. Coombes, 6 id. 534. the case of an assignee of an undi- 2 Furnival v. Crew, 9 Mod. 446. But vided half of the premises. Simpson his heirs are not liable unless the con- v. Clayton, 4 Bing. N. C. 758. A pro- tract is under seal, and the "heirs" are vision in a lease for a term of years specially bound by the "covenant. 1 that the lessees may continue it in force Piatt on Leases, 731. for an additional term of years upon < Vernon o. Smith, 5 B. & Aid. 11; Is- signifying their election to do so by a teed I). Stonley, 1 And. 62; Bamford v. written notice, is in effect a covenant Hayley, 12 East, 409; Rubery v. Jer- running with the land; so that upon an ■ vaise, 1 T. R. 229. assignment of the lease by the lessees, "^ Brett D. Cumberland, Cro. Jac. 321; with the lessor's consent, the assignees Whitway v. Pinsett, Sty. 300; Burnet b. are entitled to the benefit of such cove- Lynch, 5 B. & C. 589; Hancock ». Cof- nant. Wilkinson ». Pettit, 47 Barb. (N. fyn, 8 Bing. 358 ; Brook d. Bulkley, 2 Y. ) 230. Ves. 298 ; Piggott x>. Mason, 1 Paige t Barnford ». Hayley, 12 East, 469 ; Ch. (N. T.) 412 ; Richardson u. Suyden- Hyde u. Skinner, 2 P. Wms. 196; Isteed ham, 2 Vern. 477; Barclay ». Richard- u. Stoneley, 1 And. 82. son, 6 Phila. (Penn. ) 558. « Rubery ». Jervaise, 1 T. R. 229 ; « Randall ». Russell, 3 Mer. 197; Wins- Mackay ». Mackreth, 2 Chitt. 461 ; Fir- low B. Tighe, 2 Ball. & B. 195 ; Row «. man c! Lord Ormonde, 1 Beatty, 347. Duthelly, 2 Dick. 480; Rowe b. Chiches- ' Hntham n. East India Co., 1 T. R. ter, 2 Ambl. 715. The rule is that, 638; Scott ». Mayn, Cro. Eliz. 450. unless expressly restricted, any person G76 Miscellaneous Covenakts. twenty ycars.^ In such cases, if the lease requires that notice of a cer- tain description must be given of the tenant's election, the requirement in this respect must be strictly complied with.^ If, as a condition prece- dent to the exercise of this election, certain things are to lie done by the tenant, as, if the provision is that " in case the tenant shall erect a new dwelling-house upon the premises," describing the kind of dwelling to be erected, or " in case the tenant shall put and keep the premises in good repair," or " in case the tenant shall annually quarry one thousand squares of slate from the premises," or " if the tenant shall carry on and cultivate the premises in a husbandlike manner," &c., &c., he ia to have the privilege of remaining upon the promises for the further term of one, five or ten years, as the case may be. Before a right to such additional term vests in the tenant he must perform the condition, and neither a court of law or equity will enforce such right unless performance or a waiver thereof by the lessor is shown.' At law, strict compliance with these conditions is required, but in equity a substantial compliance is deemed sufficient. Thus, if the covenant contains a provision that if the lessee shall pay the rent and not be in arrear in resjiect thereto at the end of the term, if the tenant is in arrear at the end of the term, at law, his right to a renewal or to exer- cise an option to remain for another term is lost; but if tlie landlord, at the time when the rent falls due, is absent from tlie country or can- not be found, and loft no agent or person authorized to receive the rent for him, and the tenant sliows that he was ready to pay the rent at the time, and avails himself of the earliest opportunity to do so 1 Kanlet v. Cook, 45 N. H. 512. A end of the first year, will bo arljutlged lease of a farm for " one year with the to have elected the full term of three privilege of five years from the Sth of years. Delashman t. Berry, 20 Mich. April, 1868, which term will end at the 202. end of each year, if the same is sold any -Bradford v. Patton, 108 Mass. 153 ; time during said term, without notice," House v. Burr, 24 Barb. (N. Y. ) 525 ; — Held, to create a tenancy the duration Eenaud v. Daskara, 34 Conn. 512. of which was so uncertain that it was ^ Where the lessee covenanted to re- practically a tenancy at will ; and on a pair, but has failed to . Mertins, 1 Wils. 34. It has been held ing a term in right of his wife holds the that anew lease obtained by a mortgagee new term as her trustee. Parker t. of a term, the new lease will be subject Brooke, 9 Ves. 583 ; Stokes v. Clarke, to the trusts and limitations of the Calles' P. C. 182. So a stranger wlio former one, even though the renewal wrongfully interferes in the affairs of a was not obtained uTitil the former term deceased testator, and procures a ronew- had expired. Gibbes v. Jenkins, 3 al in his own name, having procured Sandt. Ch. {N. Y.) 130 ; Rokestraw t). the executor to surrender the subsisting Brewer, 2 P. Wms. 511 ; Nesbitt v. Tre- lease, is held to hold the renewal as diiinick, 1 Ball. i& B. 29 ; Darrelli). Whit- trustee for the estate. Mulvanv k. cott, 2 Rep. in Ch. 59. Dillon, 1 Ball. & B. 409; Griffin ». Griffin, ■' Smith 11. Chichester, Saw. 4S6. ante. ^ JaTues )). Dean, 11 Ves. 383 ; Holt u. ' Ex parte James, 8 Ves. 337; Keech ». Holt, ICh.Ca. 190; Moody 0. Matthews, Sanford, 2 Eq. Ca. Ab. 741, pi. 7. In 7 Ves. 174 ; Bowe v. Chichester, 1 Bro. Re Emetl, 1 Madd. 575 ; Fitzgibbon v C. 0. 198, n.; Abney v. Miller, 2 Atk. Scanton, 1 Dow. P. C. 264. 597 ; Pickering v. Nowles, 1 Bro. C. * Achison v. Fair, 3 Dru. & War. 512. To Renew. 681 Where a sort of custom to renew has been cstablisherl by the lessor, as is more especially the case in the case of leases by cliurches, col- leges, the government, and trustees of charities, tfcc, tlio lessee is con- sidered as having an interest beyond the subsisting term, wliich is called the tenant right of renewal, although this riglit does not confer any certain, or even contingent estate upon tlie tenant, and is not enforceable against the lessor, either at law or in equity ; ^ yet it is rec- 1 Norris v. he Xeve, 3 Atk. 27 ; Lee v. Vernon, 7 Bro. P. C. 4tt. Mr. Platt, in his yrork on Leases, p.703, says: " It lias long been customary for the crown, ec- clesiastical corporations, and collegiate bodies, and it is often usual Avith pri- vate individuals, on the determination of a lease, or the surrender of the existing portion of it, to grant a new term to the lessee in possession ; from which practice an erroneous notion has sprung, Watson V. The Master, &c., of Hems worth Hos- pital, 14 Ves. 339. And see 1 Bro. C. C. 198 ; 12 Ves. 83, that such lessee has a prescriptive riglit to continue in the ten- ancy in preference to any other person. According to Anon., 2 Ch. Ca. 207-8, A. D. 1675. by the French law, no church- man could malce a lease to any but the old tenant, unless it were first refused by him. Serious hardship would, in- deed, be occasioned if a landlord, by re- peated renewals to the same individual, his descendants, or representatives, granted, perhaps, in consideration of family connection, punctuality in pay- ment of reut, or superior agricultural qualifications, were to create an owner- ship agaiust himself, and in favor of others who might be destitute of any of these claims upon his indulgence. Ac- cordingly, we find that independently of local custom, see Watson v. The Master, &c., of Hems worth Hospital, 14 Ves. 324, the demand is not enforceable at law, nor have applications to equity for the purpose been attended with greater success. Lee u. Vernon, 7 Bro. P. C. 432 ; Toml. Ed. Vol. 5, p. 10. And see Darrell v. Whitchot, 2 Rep. in Ch. 59, Ed. 1715, where it is said that there is no tenant right against the king ; and Norris v. Le Neve, 3 Atk. 27, 33. The technical expression, tenant rir/ht of re- newal, is therefore extremely iliaccu- rate. Pickering u. Vowles, 1 Bro. C. C. 198. This right (as it is termed) confers no positive interest, either vested or contingent: it is a naked possibility, de- pending solely on the caprice of the les- sor ; and Lord Eldon said in White v. White, 9 Ves. 557; Smyth v. Nagle, 7 CI. & F. 405, that he had known fam- ily settlements that had gone on for 159 years put an end to by the lessor's refusal to renew ; though in a later case, Tlie Attorney-General y. The Bishop of Ely, 4Russ. 102, a presumption was held to have ariseu, under peculiar circum- stances, on an uninterrupted possession of nearly 150 years. In the case alluded to, successive leases for twenty-one years of the tithes of corn, giain, and hay, in the parish of S, at a. rent and fine certain, had bean granted by the impropriate rectors for the time being, to the vicars for the time being of S, from the year 1683 to the year 1805, wlien the last lease for the same term of twenty-one years was male ; and the court presumed that what Iiad been en- joyed so long by oneiiarty, and conceded by the other, was founded on a rightful title, and could not have depended on the mere caprice or pleasure of the rec- tor for tlie time being ; and that, as the lease had been originally granted by way of augmentation of the vicarage under the letter of Ciiarles the 2d, and as such augmentation was confirmed and made perpetual by tlie act of 29 Car. 2, c. 8, s. 2, the visar was entitled to a renewal of the le.asa. This letter (dated 1 June, 12 Car. 2) to the bishops contained the following clause : ' That no lease be granted of any rectories or parsonages belonging to your see, be- longing to you or your successors, until you shall provide that the respective vicarages or curates' places where are no vicarages endowed have so much reve- nue in glebe, tithes, or other emolu- ments, as commonly will amount to 100(. or 80(. per annum, or more if it will bear it ; and in good form of law settle it upon tliem and their successors. And where the rectories are of small value, and cannot admit of such propor- tions to the vicar and curate, our will is, that one-half of the profit of such a rectory be reserved for the maintenance of the vicar or curate, as is agreeable to the rates and proportions formerly men- tioned.' Gibs. Codex, 756 ; and 2d ed. p. 721. So yaluablBj however, is the prospect of renewal considered, being 682 Miscellaneous Covenants. ognized and protected by a court of equity, and if conveyed or as- signed by the tenant, the grantee or assignee will be protected as against his grantor or assignor, and if the latter obtains a renewal it will be treated as held by him in trust for his grantee or assignee ; and if an assignee of the term, or a sub-tenant, takes advantage of his po- sition, and secures a renewal, it will enure to the benefit of the parties having tlie legal or equitable estate.^ If a tenant has wilfully violated any of the covenants of the lease, whether such covenants are express or implied, the lessor is excused from renewing the lease, and perform- ance in that respect will not be enforced in equity, as if he has com- mitted waste, used tlie premises for an unlawful purpose, or in an un- husbandlike manner;^ or if he has done any acts that, altliougli not in violation of any of the covenants of tlie former, are nevertheless in violation of covenants agreed to be incorporated in tlie new lease.^ The bankruptcy or the insolvency of the lessee,* or his conviction of a felony, will generally be sufficient to defeat a decree for the specific per- formance of a renewal covenant in equity.' The fact that the ten- ant has done an act injurious to the landlord, unless it amounts to waste or a breach of covenant, will not be sufficient to defeat such a decree ; " nor will a surrender and conveyance to the lessor of an under- lease operate as a discharge of the covenant to renew, so as to j)revent its specific enforcement by a court of equity.' Formerly, a renewal could not be obtained by a lessee without a surrender of all the under- leases dei-ived out of the original lease ; the consequence of which was, that every underlessee had it in his power to prevent or delay a re- newal by refusing to surrender his interest. And even a court of available, as it is, for most purposes of ^ Mitchell v. Eeed, 61 Barb. (K. Y.) sale, mortgage, devise, and family set- 310 ; Phyfe v. Wardwell, 2 Edw. Ch. tlement, that it enhances the price of the (N. Y. ) 47; S. C. 5 Paige Ch. (N. Y.) lease on a sale, the purchaser specula- 268. ting on the improbability of his being re- ^ Sitt v. Bonday, IS Ves. 63; Gan- moved so long as he pays the fines anil nett v. Albree, 103 Mass. .372 ; Lavatu. rent demanded, and otherwise performs Ranelagh, 3 V. & B. 29 ; Gourlay v. the duties of a tenant. Lee v. Vernon, Somerset, 1 id. 08. ante. And lately, on the petition of ' Willingham b. Joyce, 3 Ves. 169 ; trustees of a renewable leasehold held Pendred v. Griflath, 1 Bro. P. C. 314. under the Bishop of Winchester, this * O'Herliny v. Hedges, 1 Scho. & L. tenant-right or interest was so far rec- 123 ; Buokland v. Hall, 8 Ves. 92 ; Hyde ognized by the court of chancery, that v. Skinner, 2 P. Wms. 196 ; De Minck- an order was madethat they should be wilzD. Udney, 16 Ves. 466. Butiftheles- at liberty to take steps for obtaining a see has assigned the lease to a solvent clause for compensation for it inserted party the fact that the lessee is insolv- In an act pending in parliament for ent will not prevent the assignee from making a new street, which would re- enforcing the covenant in equity. Mor- quire part of their property. Strictly gan o. Rhodes, 1 Mont. & A. 214 ; Cros- speaking, a right of renewal must be bie u. Tooke, 1 My. 5 3 ColJetto. Hooper. 1C> Yes 2fiJ ; Gibbs 684 MiscELLAifEous Covenants. the rent.' Indeed, it is held in England that each year's tax must be deducted from each year's rent, and that if, after liaving paid the tax, he pays the rent to the landlord without deducting the tax, he cannot deduct it from the rent for any subsequent year, or set it off in an action to recover the rent for any subsequent year.- Nor can he bring an action against the landlord therefor if he, subsequently to the jsay- ment of the tax, pays the rent without deduction, unless he did so under a promise from the landlord to jjay him the amount, or under compul- sion, or protest, or objection.' But, in England, taxes and rates are assessed upon the occupier of the premises taxed, and a certain rem- edy is expressly given to him by Stat. 38 Geo. 3, chap. 5, § 7, which provides, " that the several and respective tenants are required to pay such sum or sums of money as shall be rated upon such houses, &c., and to deduct out of the rent so much of the rate as in res])ect of the said rents of any such houses, &c., the landlord should and ought to bear ; and the landlords are required to allow such deduction out of the rent ;'''' and under this statute it is held, that the payment of the taxes is a payment of so rrnich rent, and must be deducted out of the rent already due, or that immediately accruing. Under this statute it would seem that, while the tenant may deduct the amount paid by him for taxes cut of the rent, yet, that by neglecting to deduct it from the rent then due, or next immediately accruing, there is no good reason why he should be treated as having lost all right to recover the same, and in one case * the court clearly intimated a different doctrine. " The true construction of this clause," said Bayley, J., " is that a payment of the land tax can only be deducted out of the rent which lias already accrued, or is then accruing due, for the law considers the payment of the land tax as the payment of so much of the rent then due, or grow- ing due to the landlord ; and if afterwards he pays the rent in full, he ^ Stubbs V. Parsons, 3 B. & Aid. 516 ; 3 id. 474, and a tender of such receipt Sapsford v. Fletcliev, 4 T. E. 511 ; Gar- witli the balance of rent is equivalent ner v. Hannah, Duer (N. Y. Superior to a tender nf so inuch money. Olen- Ct. ), 262 ; Hunt b. Amidon, 4 Hill (jST. nel v. Reed, 7 Taunt. 50. ^Yater rates, Y.), 349 ; Dawson v. Linton, 5 B. & sewor rates, land taxes, etc., etc., may Aid. 521 ; Taylor v. Zamina, 6 Taunt, all be set off against the rent, Hyde v. 524; Tinclden v. Prentice, 4 id. 549; Hill. .ST. R. 377; Walleru. Andrews, .3M. Connell v. Read, 7 id. 50. The tenant & W. 312 ; Andrew v. Hancock. 1 B. & may set off against the rent due or ac- B. 37; Bramston b. Robins, 4Bing. 11 ; cruing any tax which he is compelled Saunderson b. Hanson, 3 C. & P. 314 ; to, but which the landlord ought to Smith b. Humble, 15 C. B. 321 ; Gref- have paid unless he has covenanted to fenhoofei). Danbuz, 4 E. & B. 236. pay them, Fuller v. Abbott, 4 Taunt. - Stubbs b. Parsons, ante ; Spragg v. 105, and as soon as he has paid such a Hammond, 2 B. & S. 59 ; Denby v. tax it is in effect a payment of so much Moore, 1 B. & Aid. 123 ; Bal;er b. Davis, rent. Denby ». Moore, ante. He should 3 Camp. 474 ; Franklin b. Carter, 1 C. take a receipt therefor, as it is held that B. 750. it is only upon its production that the ' Denby t). Moore, ante ; Gumming v. landlord is bound to pay it, Pocock i;. Bedborough, 15 M. & W. 34S. Eustace, 2 Camp. ISl ; Baker v. Davis, * Stubbs b. Parsons, ante. To PAT Taxes. 685 cannot at a subsequent time deduct that overpayment from the rent. He may indeed recover it hack as money paid to the landlord'' s use." HoLEOTn, J., said, " If he parts with the rent without malting the de- duction he loses his lien, and has only his remedy by action or set off." In some of tljc States of this country it is provided not only that the tenant may deduct the amount of taxes which he has been obliged to pay, but which the landlord ought to have paid, from any rent due or accruing, but that he may either do that or recover it back by action.* And, of course, in those States the English doctrine does not prevail, nor is it believed that it would be upheld in any of the States, but that if the tenant is obliged to pay the taxes he may either deduct them from the rent or maintain an action for money paid therefor, and that the more fact that he elected not to retain his lien upon accrued or ac- cruing rent therefor would not defeat liis recovery or be held to con- vert an involuntary into a voluntary payment. In this country lands and property are generally assessed in the name of the owner, and not of the tenant ; consequently, the only ground upon which the tenant, in the absence of any covenant relating thereto, would be justified in pay- ing the tax and holding the landlord liable to him therefor is, to pre- vent the property from being seized for the payment of the tax, and such payments are held involuntary, and the tenant is permitted to recover the same of the landlord, because he was compelled to pay them in order to retain the beneficial management of the property. A covenant " to pay all taxes assessed upon the demised premises dur- ing the term" does not include assessments for street or other improve- ments, water rates, &c., because, although such assessments are a tax in the generic, it is not in the ordinary sense in which the term is used, and consequently not the sense in reference to which the parties are presumed to have contracted. A tax, in the sense in which the word is ordinarily used, is something exacted for the public service, and not by way of compensation for benefits conferred." Under this rule it is held 1 N. Y. Rev. Stat. 419, § 4 ; also, 483, tionary, defines the term as " a levy of sec. 84 ; Mass. Genl. Stat. chap. 11. sec. any kind made upon property for the 9 ; Garner v. Hannali, Duer (N. Y. support of government," and this def- Superior Ct. ), 262. In McPliersou v. inition, which will be found to be prac- Atlantic, Ac, E. R. Co., (36 Mo. 103, it tically the definition adopted by the was held that where, by the terms of a courts, excludes assessments for benefits lease, the lessee was entitled from time to the property. Second Con?l. Soc. to time to deduct the taxes paid by him, d. Providence, 6 E. I. 474; Matter of or which he was liable to pay, out of the the Mayor of New York, 11 John. (N". rent, and there was at the time no per- Y) 7. In Jeffrey b. Neale, L. E., 6 C. sonal liability upoTi any one to pay the P. 240, it is said that " it has been fre- taxes, but any taxes assessed were a quently held incases of this nature some lien upon the property, that the stipu- amount of qualification must be placed latioii am' lunted to the appropriation of on woi'ds which at first sight might a reserved fund out of the rental to pay be capable of a very extensive significa- the taxes. tion." This remark is borne out by the ^Webster, in his Unabridged Die- English oases and by American author- 686 Miscellaneous Covexants. that a covenent to pay all " tocces of every name and /and asfscBued upon the premises at any time during the term " does not embrace assess- ity. See Tidswell v. Wliitworth, L. K., 2 C. P. 326; Baker v. Green, L. R., 3 Q. B. 148; Southall o. Leadbeater, 3 T. E. 458 ; Barrett v. Duke of Bedford, 8 id. 602 ; Matter of College Street, 8 R. I. 474 ; Boiling v. Stokes, 2 Leigh (Va.), 178 ; Harvard College v. Boston, 1U4 Mass. 482 ; People v. Mayor of Brook- lyn, 4 N. Y. 432. But in some instances constitutional provisions with respect to taxation have been held to include as- sessments for benefits. In Minnesota a provision that all taxes shall be as nearly equal as may be, and according to the value of the property taxed, was held to apply to a legislative act relating to the improvement of a street. Stiuson V. Smith, 8 Minn. 300. And in Ala- bama a like provision was held to forbid an assessment on abutting lots in pro- portion to the number of front feet. Mobile «. Dai'gan, 45 Ala. 310. See, also, Chicago v. Larned, 34 111. 203. Also, Codnian v. Johnson, 104 Mass. 491; Cuitis v. Pierce, 115 id. 188. Me. Platt, in Vol. 2, p. 169, of his work on Leases, says : — " In leases, taxes are distinguished into ordinary and extra- ordinary. The former relate to the poor, i;hureh, &c. ; the latter, to taxes im- posed by parliament, such as the land tax. Hopwood v. Barefoot, 11 Mod. 237-9. A parliamentary tax is one that is imposed directly by act of par- liament. Tlie sewer's rate, tlierefore, is not comprised in a covenant by a tenant to pay all taxes parochial and parlia- mentary. Palmer v. Earith, 14 M. & W. 428; Waller v. Andrews, 3 M. & W. 312; S. C, 1 H. & H. 87. So a county rate, although it is, in one sense, imposed by parliament, is not a parliamentary tax, the rate not being fixed or assessed by act of parliament. Where a party liable, ralione tenures, together with others, owners of adjoining property, to the re- pairs of a bridge, leased his estate fov a term of years, taking a covenant from the lessee to pay the rent free and clear of and from any land tax and all other taxes and deductions whatsoever, either parliamentary or parochial, then already taxed or iiu posed, or thereafter to be taxed, charged or imposed on the prem- ises, or any part thereof, or on the lessor in respect thereof, the landlord's prop- erty tax or duty only excepted ; it was held, that a rate levied for the repairs of the bridge was not a parliamentary tax within the covenant, notwithstanding an act of parliament declared that it should be lawful for the owners, pro- prietors, lessees and occupiers of the lands, at any meeting to be held by vir- tue thereof, to make any rate or assess- ment for the purposes of the act in respect of such lands by a pound rate upon all such owners, proprietors, les- sees or occupiers, according to the rents or values of the respective lands, and according to the several interests of the owners, proprietors, lessees and occu- piers thereof respectively, and to appor- tion such rates according to such several interests, and to moderate or regulate -such rates M-ith respect to any houses, new buildings or improvements in such manner as should be agreed ou by the major part of the persons present at any such meeting. Baker v. Green- "hill, 3 Q. B. 148. But where certain marsh lands were demised at the clear annual rent of £400, and the lessee undertook to pay and discharge all out- goings whatsoever, rates, taxes, scots, &c., whether parochial or parliament- ary, that then were or should thereafter be charged or chai'geable upon or on account of the said marsh lands, the then present land tax only excepted, and the commissioners of sewers de- creed a large expenditure upon a per- manent work upon (among others) the lands in question, and assessed the owner and occupier thereof in certain sums payable at stated periods, and de- creed that four-fifths of such sums should be taxed, assessed and charged upon the owner and the remainhig ouo- fifth upon the occupier ; it was held, that though the authority of Lokd Hoi.t, in Brewster v. Kidgell, 2 Salk. 615, raised a doubt whether this could properly be considered as a parliamentary tax, yet the very extensive words used in the agreement, and particularly the word scot, which was commonly applied to a sewers' rate on marsh land, showed that the sewers' rate was included." Wal- ler V. Andrews, 3 M. & W. 312. In Ger- man Society «. Philadelphia, 9 Phila. (Penn. ) 245, premises were leased to the city, to be used for the benefit of a charitable society. The city, as lessor, covenanted to pay all taxes. Subse- quent to the granting of the lease the legislature exempted the property from taxation so long as it was used for charitable purposes. It was held, that the city was, nevertheless, bound to pay the amount of the taxes to the landlord, as the act was passed for the To PAT Taxes. 687 ments for benefits, as for street improvements, &c.,' nor any charges, except " taxes" within the rule as previously stated. Under this term would be included all sums assessed for the support of the government, national. State, or municipal, as taxes assessed for the construction or support of highways, for the support of schools, or any imposition as- sessed against all the owners of property in the nation, State, county, town or city, for general purposes; but not special rates or assessments made upon the property because of a particular benefit to it.^ If the lessee covenants generally to pay all taxes, or to pay the rent without deduction for taxes, he is only bound to pay all future taxes imposed benefit of the charitable society, and not for the city. The true ground for sucli a doctrine would see'm to be that the taxes to be paid by the lessee was virtually a part of the rent, and, if removed by legislative exemption, the lessor, and not the lessee, is entitled to the benefit. But in neither view is such a doctrine tenable. A covenant to pay all taxes only requires the lessee to pay such taxes as are assessed during the term ; and if none are assessed by the government, the tenant can be required to pay none; and it would not seem that it could make any difference whether the omission arose from the mistake of the assessors or because the property is subsequently exempted from taxation. All the tenant by his covenant can be required to do is to pay such as are assessed. 1 Beals V. Providence Rubber Co., 11 R. I. 3S1. A covenant to pay allpar- llamentary, parochial and other taxes, tithes and assessments includes a charge on the demised premises, payable to a party who has redeemed or purchased the land tax formerly charged thereon ; such rent charge being a parliamentary assessment. The Governors of Christ's Hospital V. Harrild, 2 M. & G. 707 ; Ward V. Const, 10 B. & C. 635 ; Bishop of Oxford V. Wise, cited in Blandford V. Marlborough, 2 Atk. .544 ;. Davenant 1). The Bishop of Salisbury, 1 Vent. 223. A mere covenant by a tenant (independently of his being the owner of the improved rent mentioned in the statute of 14 Geo. 3, c. 78), to pay " the land tax and all other taxes, rates, assessments and impositions what- soever imposed by authority of parlia- ment or otherwise howsoever," will not render him liable to pay for the erection of a party-wall ; for the words taxes, rates, &c., only extend to the land tax, and all other taxes ejusdem generis; among which the duty of erecting a party-wall is not comprehended. South- all V. Leadbetter, 3 T. R. 458; Barrett v. The Duke of Bedford, 8 T. E. 602 ; Sangster v. Birkhead, 1 B. & P. 303. A covenant by a lessor to pay all the taxes on the land demised, Theed v. Starkey, 8 Mod. 314, or to indemnify the lessee against all duties, chai'ges and taxes whatsoever to be impq^ed upon the lands, Case u. Stephens, Fitzgib. 297, will not include any rates or taxes that are charges on the person or occupier and not on the land. Theed r. Starkey, ante; Anon., 4Mod. 148; .Jeffrey's Case, 5 Coke, 66 b ; Paget v. Crumpton, Cro. Eliz. 659 ; Rowls v. Gells, Cowp. 451-2 ; Milward v. Caffin, 2 W. Bl. 1330 ; Rex v. St. Luke's Hospital, 2 Burr. 1063; Rex I). St. Bartholomew's Hospital, 4 Burr. 2439 ; Harrison v. Bulcock, 1 H. Bl. 72. 2 Twycross v. Pitchburgh R. R. Co. , 10 Gray (Mass.), 293. The lessor, in an indenture of lease under seal of au estate in Boston for twelve years and three months, for himself and his legal representatives, agreed to pay all taxes that might be assessed on the premises; and the lessee, for himself and his legal representatives, agreed to pay all costs, expenses and charges except the yearly taxes ; and it was mutually agreed that the lessee might make any additions and repairs at his own costs and charges that he might choose not injurious to the estate. Held, that the lessor could not recover of the lessee under the cov- enants in the lease an assessment laid on him by the city of Boston for paving the foot-way in front of the estate. Torry J). Wallis, 3 Cush. (Mass.) 442 ; Beals u. Prov. R. R. Co., 11 R. I. ,?81 ; Love v. Howard, 6 id. 116 ; Twycross v. Fitch- burgh R. R. Co., 10 Gray (Mass.), 293 ; Municipality]). Currell, 13 La. 318; Ball- ing V. Stokes, 2 Leigh ( Va. ), 178 ; Matter of College St., 8 R. I. 474; Congl. Soc. V. Providence, 6 id. 235. 688 MiSCELLANEOtTS COVENANTS. upon the property during the term, of a nature and for purj^oses simi- lar to those in existence at the time of the demise, and in England this is held to include the land tax/ but nOt taxes which were then unknown or not in essc.^ The language of the covenant must be looked to, as the rights and liabilities of the parties depend entirely upon that, and vary as the language varies. Thus, if the covenant is to pay all taxes assessed during the term, the tenant is liable for taxes for the last year of the term, if assessed before the term expires, although not levied until after the term has ended, and the same is true where the covenant is to pay "all taxes assessed or levied;"^ but if the covenant is merely to " pay all taxes levied during the term," taxes assessed, but not levied — that is, legal measures for the collection of which have not been taken as provided by statute — are not included.* ^ 2 Piatt on Leases, 171 ; Manning v. Lunn, 2 C. & K. 13 ; Arran v. Crisp, 1 Salk. 221 ; Anonymous, Comb. 211. sBlandford v. Marlborough, 2 Atk. .')42 ; Brewster v. Kitclien, 1 Ld. Rayd. .317; Giles v. Hooper, Cartli. 13.5; Brad- bury V. Vi^liite, 2 Doug. 624 ; Amfield v. "White, 1 Ry. & Moo. 246. 2 Waterman v. Harliness, 2 Mo. App. 494. « Valle' ». Fargo, 1 Mo. App. R44. " It was assumed," says Gautt, J., in the case last cited, " at the argument, that the co-icnant was to pay ' all taxes what- soever to be assessed during the term.' We have seen by an examination of tlie record that ' it was to pay ' all taxes *- * * levied during the term.' There is a wide difference between the two tliijigs. To assess a tax is to de- clare a tax to be payable ; to levy it is to raise or collect it. Bouv. L. Die. title Levy. One of the first things done by the parli.amcnt of England, after the revolution of 16S8, was to pass an act declaring that, ' to levy money for oi' to the use of the crown by pretence of pre- rogative, without grant of parliament, is illegal.' 1 Bla. Com. 140. When an execiition is issued for money, and comes into tlie hands of an officer, tlie levy of it — tlio aal Irfaction of it — is made by seizinrj the property of tlie de- fendant. To be sure, the conversion of the thing seized into money is made be- fore the execution is, in common par- lance, said to be satisfied. But a levy is prima facios a satisfaction. We think it is plain that there is a -wide difference between taxes assessed and taxes levied, and no tax can be levied until the as- sessor's returir is made and acted on by the county court, and the books placed in the hands of the collector. This could not have been done in the year 1849, before July at any rate, as may be seen by the citations made in Blossom V. Vancourt, 34 Mo. .'JHO. Hence, the State and county tax for the year 1S49 could not have been levied^ until after the commencement of the tei'm created by the lease in this catise." A tax is said to be assessed whenever it is im- posed, that is, whenever by operation of law it becomes fixed as a burden upon property. Waterman i;. Harkness, ante. It has been said that a tax in legal con- templation is assessed whenever the property is assumed to be valued, work of assessment has not been completed, and the tax is due from that day ; Tay- lor's Landlord and Tenant, .346, § .399 ; but the fallacy of this doctrine is appa- rent, at least when atiy other steps are necessary to be taken for tlie laying of a tax. The valuation of property is made for the purpose of affording a basis for taxation. It simply determines upon what sum the owner of the prop- erty shall be taxed. It is not an assess- ment of a tax, in any sense of the word. When taxes are imposed, the statute generally, indeed in all cases, so far as I have raadeexamination, determines by whom, how and when it shall be made up, and wlien and how it shall be col- lected. If the legislature imposes a tax either by special or general legislation, the citizen is not liable to pay such tax until the formalities required by the statute have been complied with, nor in any event until the time arrives whenby law it attaches to and hecomen a Her. upon theproperty, and duo and payable. Valuation is one thing and taxation is ' quite another. But in all cases the To PAT Taxes. 689 A covenant by the lessee to " pay all taxes and water rates that may be imposed or assessed or become a lien upon the premises at any language of the statute is to be con- sulted. If by statute It is provided that a certain tax shall be assessed upon the assessment-rolls for a certain year upon a certain day, as the 10th day of Jan- uary, the tax is regarded as being as- sessed upon that day, whether it has been made up or not, and a tenant taking a lease after that date, and cov- enanting to pay " the taxes assessed during his term," is not liable for such tax. Crutchfield v. Starabaugh, 8 Heisk. (Tenn.) 832. If the rule that the tax is to be deemed to be assessed from the time vphen the property is valued was to be adopted, a tenant taking a lease after such valuation, but before a tax had been laid, would be exempt from the payment of any tax assessed upon such valuation. It is not the practice, nor does the law require, that real estate shall be valued every year, but such valuation is made once in three or five years in some of the States. Can it be said that upon such valuation of the land tlie taxes for three or five years are assessed ? It is submitted that unless expressly so provided by statute such a construction would be ridiculous. The assessment of property and the making up of assessment-rolls does not operate as tlie assessment of a tax upon the citizen, but simply affords the basis upon which the taxes are to be imposed, and a tax is not imposed until the ar- rival of the period when by law it is required to be assessed. Barlow v. St. Nicholas Bank, 63 N. T. 399; Dowdney V. The Mayor, 54 id. 186. In Skidmore V. Hart, 20 N. Y. S. C. 441, the defend- ant, by lease dated March 30th, 1875, secured certain property under a lease for a term of ten years, commencing on the 1st day of May, 1875, and agreed during the term demised to bear, pay and discharge all such taxes and assess- ments extraordinary as well as ordinary, as should be levied, assessed, imposed or grow due and payable upon, or out of, or for, the demised premises and all parts thereof as the same then existed, or might thereafter be imposed in ac- cordance with the terms of the lease, by virtue of any present or future law of the United States of America, or of the State of New York, or of the cor- poration of the city and county of New York, or either of them, or by other logal proceedings or lawful authority whatever, when and as the same should become due and payable. The plain- 44 tiff, the lessor, having paid a tax that was made up after tlie lease was made, brought an action for its recovery, and had judgment therefor. Bbady, J., in delivering the opinion of the court, said : " The taxes for the year 1875 had not on the first of May been determined. The obligation resting upon the land to discharge them or to incur the burden of a lien for the amount, so to speak, ex- isted at the time the lease was executed, but they had not then been imposed, because the amount was not ascertained. They had not, therefore, been assessed ; they liad not grown due and payable and could not be levied therefore out of the demised premises. The preliminaries to the collection of the taxes were not and could not be completed, until the action of tlie board of supei'visors in the month of July following the commence- ment of the term when the rolls re- ceived from the assessors by the com- missioners of taxes and assessments must be sent to the board of supervisors, a ceremony which takes place on the first Monday of July in each year. Laws of 1859, chap. 302, § 13. The supervisors are then required by law to place opposite to the several sums set down as the valuation of the real and personal property on the rolls, the re- spective sums in dollars and cents to be paid as a tax thereon, rejecting the fractions of a cent. Laws of 1850, chap. 121, § 25. 'It follows as a neces- sary sequence, that the amount of the tax was unknown when the term began, and could not have been known until the month of July following. It would have been impossible, therefore, for the lessor to have paid them or to have de- termined what the amount would be. It seems to be quite apparent, that the taxes having thus been ascertained sub- sequent to the commencement of the term, they grew due and became pay- able after the term commenced, and were within the operation of the cove- nant on the part of the defendant, and by which we have already seen he prom- ised to discharge all taxes and assess- ments which should, during his term, be levied, assessed, imposed or grow due. The question thus discussed seems to be determined in favor of the plaintiff by two cases in the Court of Appeals Dowdney et al. v. The Mayor, 54 N. Y. 186 ; Barlow et al. o. The St. Nicholas Bank, 63 id. 399. It was expressly held in the latter case that the entry of land 690 Miscellaneous Covenants. time during the term, when due and payable," does not impose upon him any duty to pay such taxes or water rates until they become duo, and payable to the proper authorities ; ' but the tenant must pay the taxes or assessments when they do become due, or at least save tho landlord from paying the same ; '^ if he does not pay or otherwise assume them when due, the landlord may pay or assume them and re- cover the same of the tenant, and enforce any penalty attaching to a, breach.' But a covenant to pay taxes or assessments only requires the tenant to pay such as are legal and can be legally enforced against tho lessor.* Where the tenant covenants to pay " all taxes,"' and that the landlord shall have his rent free from all deductions, he is simply bound to pay all such taxes as, except for such covenant, he would primarily have been bound to pay, and which he might have deducted from the rent.^ Under a lease with the covenant that the lessee shall pay " all in an assessment-roll did not constitute an incumbrance thereon, and the as- sessment or the subsequent levying of the taxes thereon was not a breach of covenant against incumbrances con- tained in the deed, executed after the completion of the assessment-roll and before the levying of the taxes, and it is said in that case that the assessment is the basis upon whicli the board of as- sessors act in apportioning the taxes, but it is in no sense imposed as a charge upon the land described in the roll. It is one of the preliminary steps which result in taxation. It is further said in that case, and properly, that the roll, when complete, fixes the valuation of the property to be taxed, but it does not determine the amount of the taxes, and the most which can be claimed is, that it renders more definite and certain the liability to taxation which neverthe- less existed before the assessment was made. The cases are analogous, but the covenant of the defendant is broader than the covenant against incumbrances, because it assumes the payment of all such taxes and assessments as shall be levied, assessed, imposed, grow due and become payable. The plaintiff, for this reason, is entitled to judgment." Under a lease of a building in Boston for one year from September 20, 1857, in which the lessee covenants to pay to the lessor " all the taxes and assessments whatso- ever, whether in the nature of taxes now in being or not, which may be payable for or in respect of the said premises, or any part thereof, during said term," the lessee is liable to pay the taxes assessed on May 1, 1858, although in Boston taxes are not payable until November 1 in each year. Wilkinson ». Libbey, 1 Allen (Mass.), 375. 1 Whitman v. NicoU, 34 N. T. Supe- rior Court, 528. ^Goode V. Euchle, 28 Mich. 30. In this case the tenant did not pay the tax, but his goods were distrained and sold therefor, and the court held that this did not operate as a breach of his cov- enant, as the gist of his undertaking was that the landlord should not have to pay the taxes, and that this was fulfilled by the sale of the tenant's goods. 5 In Haycock v. Richards, 3 E. D. S. (N". Y. C. P.) 13, there was a lease of premises for a year, at a yearly rent and the Croton-water tax for the said term, payable quarterly. In addition to the words above, the lease contained a sep- arate covenant to pay the annual rates, assessed for the Croton water. Held, that this payment was to be made to the city, and not the landlord ; but if the tenant did not pay such rates at the time fixed by law, and the landlord did assume and pay it, he might recover the amount of liie tenant, together with in- terest and the penalty incurred, if any. * Clark V. Coolidge, 8 Kan. 189. ? Armfield v. White, Ey. & Moo. 286. And where he takes a lease at a net rent he cannot complain that^a covenant re- quiring him to pay the land tax and sewer rate is embraced in the lease. " A net rent," said Lord Tkntbedbn, C. J., in the last-named case, "means a sum clear of all deductions." If he covenants to pay the taxes, and that the landlord shall have his rent " free of all outgoings," hij is bound to pay the tithe rent charge. Parish v. Sleeman, 1 De G. P. & J. 326. To PAY Taxes. 691 taxes and assessments of every kind soever which should be laid or imposed on the premises during the term,' the lessee is liable for an assessnient imposed by a municipal corporation for altering a street under a statute in force when the lease was made,^ or an annual water- rate created subsequent to the lease.- A covenant to pay all taxes and assessments includes assessments imposed under a statute enacted after the lease was executed and during the term.' Under a covenant by lessees to pay all taxes and assessments which shall be levied or assessed on the lots during their term, at the times when the same shall properly be due and payable, they are bound to pay a special tax assessed against the land for the amount of a street commissioner's certificate of work done in paving the street and curb- ing and planking the sidewalk in front of the premises, although the work was done before the commencement of their term, the certificate having been issued and the amount thereof inserted in the assessment- roll during the term. And where the lessees permit the premises to be sold for the non-payment of such assessment, and after the expiration of their term become assignees of the certificates of sale, and take a deed of the lots in pursuance of such sale, the lessor is entitled, in an action for that purpose, to a judgment that they quitclaim the premises to him and be restrained from encumbering or disposing of the same or bringing ejectment for them. And it is not necessary in such action for the lessor to prove his title to the premises, the action being based upon the defendants' violation of their covenant, and they being estopped from denying the lessor's title and right of possession.* Under a covenant to pay " all taxes, assessments, rates and charges assessed or made on the demised premises," the tenant is bound to pay an assessment upon the premises, although the act under which it was assessed was passed subsequent to the making of the lease.^ If the assessment is for a permanent improvement to the property, as for the paving of the street, the laying of a sewer, or the building of a sluice," 1 Mayor, &c., of N". Y. v. Cashman, such payment would involve the pay- 10 Johns. (N.T.) 96; Oswald ». Gilfert, ment of taxes for twenty-one years, 11 id. 443. when his term was only for twenty ' Garner v. Hannah, 6 Duer ( N. T.), years. 262. « Shepard v. Elmore, 19 Wis. 424. sBleeckerw. Ballon, 3 Wend. (N. T.) « Walker v. Whitteraore, 112 Mass 263; Post V. Kearney, 2 N. Y. 394. In 187; Post v. Kearney, 2 N. Y. ; Curtis v. Waterman v. Hookness, ante, the taxes Pierce, 115 "Mass. 186 ; Des Moines v. for the last year of the tenant's term Don, 31 Iowa, 89. were assessed the previous year, and "Walker v. Andrews, 3 M. & W. 312. under a covenant to pay all the taxes And the fact that the law imposing the " that may be assessed, levied upon or burden was not passed until after the charged against the property," it was lease was made, does not relieve the held, that the tenant was bound to pay tenant from liability. Post v. Kearney all the taxes for tho last year, assessed 2 N. Y. 374 ; Walker ?i. Whitteraore' prior to the close of his term, although ante ; Des Moines v. Don, ante. ' 692 MiscELLAn^EOUs Covenants. the tenant is nevertheless bound to pay it if it is a valid assessment, as if he desired to limit his liability he should have seen to it that the lan- guage of his covenant was restricted so as to cover only ordinary assessments or taxes. ^ In Massachusetts it is held that where a tenant covenants to pay " all taxes, rates, charges and assessments which shall or may from time to time, and at any time during the term, be levied, assessed or made on the demised premises, or in respect of the same, for any cause whatever," binds the tenant to pay a betterment assessed upon the premises, although the lease was made many years before the passage of any betterment law, and although the statute provides that the land- lord may pay it and charge ten per cent, additional rent.^ And this has been held even when the covenant was merely to pay " taxes and duties," ^ but the current of authority is otherwise ; * and under a mere covenant to pay " taxes, rates or public dnes " it is held that the ten- ant is only bound to pay the ordinary annual taxes, and is not liable to pay assessments of an extraordinary character for a permanent improvement to the estate.'' The tenant is not absolved from the jjayment of taxes, assessments, &e., because the premises are destroyed by fire during the term, unless the lease provides that upon the destruction of the buildings by fire the term shall cease, and the taxes are assessed or the assessments iaid 1 In Payne v. Burridge, 12 M. & W. wliich then were or should be thereafter 721, the tenant covenanted to pay " all charged or chargeable vipou or on ae- taxes, rates, duties, levies, assessments count of such marsh land." An extra- aiid payments whatever which were or ordinary assessment made by the com- during the term might be rated, levied, missioner of sewers for a work of assessed or imposed on the premises." permanent benefit to the land — to wit: It was held that under this covenant he a sluice — came within the burden as- was bound to pay an assessment for sumed by the tenant. Sweet v. Seagar, paving, and could not recover the same 2 C. B. N. S. 119 ; Thompson v. Lap- of the landlord. " If," said Aldeeson, worth, L. E., 3 C. P. 149 ; Crosse v B., "the parties had been desirous of Eaw, L. K., 9 Exchq. 309 ; Astor r. imposing this burden upon the tenant, Miller, 2 Paige Ch. (N. T. ) 68 ; Blncker I do not see what other terms they v. Ballou, 3 Wend. (N. Y. ) 263 ; Cad- could have used than those which. are man v. Johnson, 104 Mass. 491 ; Har- contained in this lease." " It cannot be vard College v. Boston, id. 471 ; Simonds doubted," said Pollock, C. B., "that v. Turner, 120 id. 188; Blake v. Baker, the charge in question is an assess- 115 id. IBS; Curtis v. Pierce, id. 186. ment or payment which, according to ^-Walker?;. Whittemore, ante, the terms of the contract, is to be . -'Simonds d. Turner, 120 Mass. 188. borne by the ten.ant." " The words of * Pray d. Northern Liberties, 31 Penu. the covenant," said Paekk, B., " must St. 69; Lane v. Howard, ante ; Sharp v. be construed according to their natural Spier, 4 Hill (N. T.), 76; Matter of the and ordinary sense; and it seems to me Mayor, John. (N. Y. ) 77. that they are too strongto be got over." ^Lane v. Howard, ante; Twycross v. In this case the assessment amounted Fitchburgh E. E. Co., 10 Gray" (Mass. ), to £50. In Waller v. Andrews, 3 M. & 293 ; Parrish v. Sleeman, 1 De G. F. & J. W., the plaintiff leased certain marsh 326; Garner d. Hannah, 6 Duer (N. Y. lands to the defendant, subject to aeon- Superior Ct.), 262; Second Cong. Society dition that the defendant should pay v. Providence, ante; Balling ». Stokes, "all outgoing rates, taxes, scots, &c., ante, whether parochial or parliamentary. To PAY Taxes. 693 after the premises are destroyed, nor can he recover a proportionate part of taxes, &c., paid by him, although the landlord has covenanted to rebuild, and the lease provides that the rent shall cease until the prem- ises are rebuilt ; ^ nor does a termination of the term under the pro- visions of the lease relieve the tenant from liability for taxes assessed before the term was ended.'' The liability of the tenant, under such covenants, only extends to the payment of taxes assessed upon the leased property, and does not in- clude a tax imposed upon the rent reserved,* nor any mere personal tax ; ' nor where the tax is imposed upon the owner of the estate will the tenant be liable for a permanent improvement, even though his covenant binds him to pay " all taxes, rates, assessments, and impositions." ^ Where premises are leased for building purposes, and the lease is silent as to taxes, the lessee is only entitled to charge the landlord with the taxes upon the unimproved property. If the tenant goes on and erects valuable buildings, and thereby increases the taxable value of the property, he must bear the burden of such increased taxation. In other words, the rule is, that the landlord is only burdened with the taxes in proportion to the amount of his rent. Thus, where land was let for building purposes for the rent of £7 per annum, but were greatly improved by the tenant, .and afterwards underlet by him for £54 per annum, the landlord was held only liable to pay the land-tax in pro- portion to the old rent.' iWood B. Boyle, 115 Mass. 30 ; Sar- gent D. Pray, 117 id. 267; Carnes u. Her- sey, id. 269. 2 Paul v. Chickering, 117 Mass. 265. ^ Van Rensselaer u. Dennison, 8 Barb. (N. T.)23. ■» Jeffry ». Neale, L. R., 6 C. P. 240. 5 Weber v. Reinhard, 73 Penn. St. 370; Tiddswelli). Whitsworth, L. E., 2 C. P. 326 ; Twycross v. Fitchburgh E. R. Co. , ante ; Rawlins v. Briggs, 3 L. E. C. P. Div. 368. « Barnfatber u. Lee, cited 3 T. E. 379 ; Bramston v. Robins, 12 J. B. Moore, 68 ; Yeo u. Leman, 2 Strange, 1191 ; "Whit- field u. Brandwood, 2 Stark. 440. Where a lessee covenanted to pay all rates, as- sessments, &c., both ordinary and ex- traordinary, which during the terra should be rated, taxed, charged, assessed, or imposed, or arise, or become payable out of, for, or in respect of the demised premises (the land-tax excepted), and in consequence of various new buildings erected by the lessee, in pursuance of a covenant for that purpose contained in the lease, an additional land-tax was imposed, it was held, that the landlord was only bound to pay the amount of land-tax charged on the premises at the time of the demise ; for the act 28 Geo. 3, c. 2, s. 17, directed the tenant to pay the land-tax in the first instance, and to deduct out of the rent so much of the rate as in respect of the said rent the landlord should and ought to pay and bear. Hyde v. Hill, 3 T. E. 377. In the case of Hyde b. Hill, the covenant was only on the part of the lessee to pay "all taxes, &c., except the land-tax; " but the same principle of construction was ad- hered to in a later case, Watson v. Home, 7 B. & C. 285, where the lessor express- ly covenanted to pay " as well the land- tax as all other taxes, charges, rates, as- sessments and impositions, parliamen- tary, parochial, or otherwise, already charged, or to be charged, upon or in respect of the said demised premises, or any part thereof," and the value of the lands was greatly increased. The court said, that the covenant must receive a reasonable construction ; that if it were literally coostrued, so as to make the landlord liable for all taxes charged in respect of the improved value, it might possibly happen, in consequence of the improved value of the premises, and the 694 Miscellaneous Covenants. A tenant for life is bound to pay the taxes upon the estate out of the profits thereof, and cannot charge them against the reversion ; ^ and he is also bound to pay an equitable proportion of assessments for the permanent improvement of the estate,'^ and the whole of such rates, as water tax, insurance, &c., that are for the benefit of the tenant, and do not inure to the reversion.' Against incumbrances. Sec. 418. In ordinary leases for a short term it is not common or generally essential that a covenant against incumbrances should be in- increased rate of taxation, that he would have nothing to receive for the use of his land, which could never have been his intention. So, where a lessee cov- enanted to pay his rent, all taxes thereon being to him allowed, and also all such further or additional rates and taxes as might be assessed on the premises, or on any additional buildings or improve- ments which the lessee might erect on tlie premises ; and the lessor covenant- ed to pay all rates, taxes, and assess- ments whatsoever which might be assess- ed on the premises, or on the lessee in respect of the yearly rent, save and except as to such further or additional taxes or assessments as might be as- sessed or charged on the premises ; and after the demise, the amount of the lates and taxes payable in respect of the premises had considerably increased ; the court held, that the landlord had taken a point at which he would be taxed ; and that, however the taxes migiit vary beyond that point, he was only to be taxed according to the then ad valorem rate on the rent reserved ; and, therefore, that the remainder be- yond the then rate on the premises was to be borne by the tenant ; that if it were otherwise, it might happen, if the rates were greatly increased, that the landlord would have nothing to receive from the tenant. Graham ». Wa,de, 16 Kast, 29. To the same effect is the more recent case of Watson v. Atkins. Watson V. Atkins, 3 B. & Aid. 647. The prem- ises demised formed about seven-six- teenths of certain premises belonging to the lessor, and occupied by him ; the whole of which at the time of the lease stood rated to the different taxes, &c., at the value of Sol. per annum. The lessor covenanted to pay all such taxes, charges, i&c, whatsoever, which were then payable or chargeable on the premises, or .iny part thereof, or on the rent thereby reserved : and the lessee covenanted to pay all fresh taxes, charges, &c., which should at anytime thereafter be taxed, rated, &c. The lessee having considerably improved the property, and a separate assessment to the amount of 35(. a year being made on the demised premises, a question arose whether the taxes imposed on the demised premises were fresh taxes or not. Abbott, C. J., considered that from the moment a distinct assessment was made on the demised premises the taxes became /resft taxes, and that the lessee was liable to the payment of the whole; but Justices Bayi.bt and Hol- BOTD dissented from this opinion, and held, tha£the lessee's covenant extended either to new taxes, or to such addition- al or further taxes as might be imposed in consequence of any improvement of the premises ; and, therefore, that the lessor ought to pay such rates and taxes as were elxargeable in respect of seven- sixteenths of the premises, the whole to be computed as of the annual value of 35L Wliere a landlord covenanted for payment of the land-tax, and all other rates, &c., and the premises were after- wards assessed at a less annual sum than the improved annual value, in con- sequence of a composition for his taxes effected by the tenant under the pro- visions of a local act of parliament, the lessor was held to be liable only to that proportion of taxes which the rent re- ceived by him bore to the full improved value. Watson v. Home, 7 B. & C. 285. 1 Prettyman ». Walston, 34 111. 191 ; Bushans v. Van Zandt, 7 N. Y. 523 ; Cairns v. Chabert, 3 Edw. Ch. (N. Y.) 312 ; Varney v. Stevens, 34 Me. 361 ; McMillan c. Kobbins, 5 Ohio, 28; Hughes V. Young, 5 G. & J. (Md.) 67. 2 Fl«et V. Dorland, 11 How. Pr. (N. Y.) 489. 3 Graham v. Dunnigan, 2 Bos. (N. Y. ) 516 ; Hepbern o. Hepbern, 2 Bradf, (Surrogate Eep. N. Y.) 74; Booth u. Ammerman, 4 id. 129 ; Peck v. Sher- wood. 56 K. Y. 615. Against iNctrMBBAij-CES. 695 serted in the lease; but where a lease is given for a long term, or for building or other purposes that involve a large outlay 9n the part of the tenant, he should see to it that the lease contains such a covenant, or, after it is too late, he may find that the expected advantages from his lease are seriously abridged, or perhaps entirely defeated, by reason of cer- tain incumbrances upon the land, and that he has no redress against the landlord for the damages sustained by him therefrom. If he is actually evicted from the premises by title paramount, or under any mortgage, claim, or lien given by the landlord either before or after the lease is executed, or which is created by operation of law, he has his remedy under the covenant for quiet enjoyment; but if there is an incum- brance upon the property which impairs the value of the premises for the purpose for which he leased it, he has no remedy therefor unless the lease contains a covenant against incumbrances. Where a lease or deed contains such a covenant, the fact that the lessee knew of its existence at the time he took the lease does not defeat a recovery for its breach.^ A covenant against incumbrances is broken immediately upon the de- livery of the lease, if an incumbrance existed at that time, and an action for its breach may be brought at once ; ^ but such breaches are merel}- technical. Where no attempt is made to enforce the incumbrance, and it does not interfere with his free use of the premises, merely nominal damages are recoverable ; but if the incumbrance is of such a character as to interfere with his free use of the premises, substantial damages are recoverable.' As to what constitutes an incumbrance, it may be said that any legal right or interest in or upon the premises which is not obvious is, in legal contemplation, an incumbrance. But an easement obviously and notoriously affecting the physical condition of the land, as a mill- pond flowage over a certain part of it, is not an incumbrance within the meaning of such a covenant ; * nor is a legal public highway over the 1 Roberts v. Levy, 3 Abb. Pr. (K. Y.) ford, 12 id. 261 ; Funk v. Venida, 11 S. N. S. 311 ; Bunn v. White, 1 Ala. 645. & R. (Peim.)109 ; Cathcart)). Bowman, The tenant has a right to understand 5 Penn. St. 317 ; Richardson v. Dorr, 5 that the lessor will remove the burden. Vt. 9 ; Bann v. Mayo, 5 Me. 94. Snyler ». Lane, 10 Ind. 424 ; Neller v. ^ Jackson v. Sternbergh, 20 John. (N. Hiatt, 8 id. 171 ; Galium o. Branch Bank, T. ) 49 ; Jenkins v. Hopkins, 8 Pick. 4 Ala. 21. Evidence is not admissible (Mass.) .346. The tenant may recover to prove that the covenantee knew of what it reasonably cost to remove the the existence of the incumbrance, be- incumbrance. Eaton v. Lyman, 30 cause it neither (jperates as a defence or Wis. 41. But it is held, that evidence in mitigation. Hubbard v. Norton, 10 of the purpose for which the plaintiff Conn. 431 ; Harlow v. Thomas, 15 Pick, rented the premises Is not admissible. (Mass.) 48; Barlow ». McKinley, 24 Kellogg «. Malin, 62 Mo. 429. If the Iowa, 69 ; Williamson v. Hall, 62 Mo. incumbrance is an easement, that pre- ^^■„ ^ „ , . ^^"'^ *'^^ 'essee from building, under 2 Wyman v. Ballard, 12 Mass. 304 ; a building lease substantial damages Potter V. Taylor, 6 Vt. 676 ; Stewart v. would be recoverable. ° Drake, 9 N. J, L. 139 ; Garrison v. San- * Kutz v. McCune, 22 Wis. 628. 696 Miscellaneous Covenants. land in actual use when the conveyance was made;* nor any mere equitable claim to the land, or of any right or interest in it.' In order to constitute an incumbrance, a legal right, claim, or interest must ex- ist adverse to the lessor. Thus, a judgment against the lessor in those States where a judgment operates as a lien upon the land ; ' a right of way for any purpose ; ' a right to use a party-wall ; ^ an inchoate right of dower ; ^ a highway located, but not built or in use ; ' a prior out- standing lease of the same land ; ' a restriction imposed upon the land preventing its free and full use.^ A previous sale of a part of the premises, by articles of agreement, is held an incumbrance.'" So is an existing right in a third person to cut and remove standing trees within a certain time; and in an action to recover damages for a breach of a covenant against incumbrances, by reason of the existence of such a right, oral evidence is inadmissible to prove that the parties both in- tended to except this right from the operation of the covenant, and that it was mutually understood between them that the trees were not to pass with the land.*' A mortgage is an incumbrance, but not if the covenantee assures its payment.*^ A tax or assessment that operates as a lien on the land is an incumbrance, although the grantor was not aware of its existence when the lease was made, or not.-"^ A covenant against incumbrances is personal and does not run with the land ; " but if the covenant is with the lessee and his assigns, and there has been a breach before assignment, and the breach continues after, the covenant passes to the assignee, so as to enable him to recover for any damage he sus- tains after assignment.*^ The language of the covenant is important, as there is a broad distinction between an absolute covenant against in- cumbrances and one to protect the lessee against them. In the former 1 Scribner v. Holmes, 16 Ind. 142. city lot, that the five feet next the street " Marble v. Scott, 41 111. 50. should not be built upon except for ' Holman v. Creagmiles, 14 Ind. 177 ; steps, was held to constitute an incmn- Smith V. Campbell, 1 Blaclcf. (Ind. ) 100; brance. In Roberts v. Levy, 3 Abb. Pr. Hull 1). Dan, 13 John. (N. Y. ) 105 ; (N. Y. ) N". S. 311, a covenant entered Jenkins 1). Hopkins, 8 Pick. (Mass.) 346. into between adjoining owners, for * Barlow v. McKinley, 24 Iowa, 69 ; themselves, heirs, and assigns, that all Butler V. Gale, 27 Vt. 739 ; Harlow v. buildings erected on the land should be Thomas, 15 Pick. (Mass. ) 66; Mitchell set back a certain specified distance from V. Warner, 5 Conn. 497 ; Herrick v. the street, was held to be an iucum- Moore, 19 Me. 313. brance. 5 Giles V. Durgo, 1 Duer (N. Y. Supe- ^^ Seitzinger v. Weaver, 1 Kawle rior Ct), .331. But not where acommu- (Penn. ), 382. nity interest therein exists between ad- " Spurr ». Andrew, 6 Allen (Mass.), joining owners. Hendrick v. Stark, 37 429. N. Y. 106. i-i Watts v. Welman, 2 K. H. 458 ; ^ Shearman ». Ranger, 22 Pick. (Mass. ) Freeman v. Foster, 55 Me. 508. 447 ; Porter v. Noyes, 2 Me. 22. is Nichols v. Alexander, 28 Wis. 118 ; ' Herrick v. Moore, ante. Jones v. Johnston, 104 Mass. 491 ; Coch- * Grice v. Scarborough, 2 Spears (S. ran ». Guild, 100 id. 29. C), 649. " Pillsbury o. Mitchell, 5 Wis. 17. « In Re Whitlock, 32 Barb (N. Y. ) 48, i* Sprague v. Baker, 1 7 Mass. 586. in which it was that a restriction on a MiSCJiLLANEOUS COVEXANTS. 697 case, as we have seen, the covenant is broken at once, \i an incumbrance exists, while in the latter case a breach only exists where the tenant has been actually disturbed in his possession in consequence of the in- cumbrance.^ Miscellaneous covenants. Sec. 419. It would be impossible to refer to every species of cove- nants incorporated in leases, as they vary according to the nature of the circumstance and the peculiar notions and views of the parties. In all cases covenants, whatever they may relate to, are to be reasonably construed, and so as, if possible, to effectuate the intention of the parties, 2 ' Anderson ». Knox, 2 Ala. 156. ^ See ante — Sec. on Construction of Leases. 698 Waste. CHAPTER XXXVII. WASTE. Sec. 420. Voluntary -waste. Sec. 421. Permissive waste. Sec. 422. Accidental fires. Sec. 423. Fire spreading from railways to tlie adjoining proportv. Sec. 424. Fires occasioned by the negligence of servants. Sec. 425. Injuries from gunpowder and explosive substances. — Explosions of gas. Sec. 426. Meaning of, without impeachment for waste. Sec. 427. Remedies for waste. — Who liable for, &c. Sec. 428. Remedy by injunction. Sec. 429. Injunction by landlord against tenant for waste. Sec. 430. Where lease is made " without impeachment of waste." Sec. 431. Affidavit for the injunction. Sec. 432. Injunction by tenant against landlord to restrain the cutting of orna- mental trees, &c. Sec. 433. To prevent a nuisance. Sec. 434. To compel observance of restrictive covenants. Sec. 435. To restrain an ejectment brought to defeat a valid agreement for a lease. Sec. 436. By tenant against third persons. Voluntary -waste. Sec. 420. Waste is either commissive, that is, some injury re- sulting from something done by the tenant, or permissive. Commis- sive or voluntary waste is committed by the tenant whenever he changes the nature or character of the thing demised,^ even though the change actually enhances the value of the property, because it is an interference with the right of the landlord to have the property remain in a condition agreeable to his own tastes and notions. Thus, the pulling down of an old house and erecting a new one in its place of 1 D' Arcy v. Askwith, Hob. 234. Waste caused by the destruction of such things is defined by Blackstone, in Vol. 2 of on the land as are not essential to its his Commentaries, eh. 18, sec. 6, to be temporary profit, and may be predicated " a spoil or destruction of houses, gar- even when the act complained of was dens, trees, or other corporeal heredita^ necessary to the profitable enjoyment of meuts, to the disherison of him who has the land, as clearing of land, when it the remainder or reversion. * * What- was only valuable for timber." It is ever," he adds, "does a lasting damage not necessarily the injury to the estate to the inheritance or freehold, is waste. " that constitutes waste, but the disherison " Strictly speaking, ' say the court, in of the reversioner. Livingstone v. Rey- Vrnffitv. Henderson 29 Mo. 325, " waste nolds, 26 Wend. (N. Y.) 122. is a lasting damage to the inheritance VOLUNTABT WaSTB. 699 greater value is waste ; ^ so to convert a corn mill into a fulling mill or a corn mill into a malt mill, although the change is to the lessor's advantage, " or ancient meadow or pasture into arable land,' or arable land into wood or 6 converso,* or any essential change 1 Cole V. Greene, 1 Lev. 309 : McCuI- lough V. Iryine, 13 Penn. St. 438 ; Lan- don V. Greyme, Cro. Jac. 182 ; Cole v. Forth, 1 Mod. 94. But it is not waste to tear down an old building so much decayed as to he in danger of falling. Clemens v. Stier, 1 K. I. 272. The ten- ant has the use, not the dominion, of the property demised to him, and cannot make permanent changes or alterations in the property without the landlord's consent, however much the changes may enhance the value of the property, as this would deprive the landlord of his dominion over the property, and compel him to yield his own tastes and notions, in respect to the property, to the tastes and notions of the tenant. The land- lord has the right to have his houses and lands kept in an unaltered state, surrounded with all their old features, landmarks, and associations. Smytli v. Carter, 18 Beav. 78; Provost v. Hallett, 14 East, 478; 2 RoUe's Abr. 815, pi. 9. The tenant has no right to judge what will be an improvement to the inherit- ance. Jacljson V. Andrews, 18 John. (N. Y.) 483; Winship v. Pitts, 3 Paige Ch. (N. Y. ) 262. In the case last cited, it was said that the doctrine of the old cases, that it might be waste for a tenant to erect a new building on the premises, is not now the law, and that, while a tenant has no right to pull down valu- able buildings, or to "make improvements or alterations that will permanently change the nature of the property, so as to render it impossible to restore the same ijremises substantially at the end of the term, yet, that it is not waste to erect a new building on the premises, if it is done without injury to or the de- struction of the buildings or other im- provements on the premises, because the new buildings may be removed at the end of the term, and the premises re- turned in statu quo. See also Beers v. St. John, 16 Conn. 322 ; Hasty D.Wheeler, 12 Me. 434. In Jackson v. Tibbitts, 3 Wend. (N. Y.) 341, a tenant, without permission of the lessor, placed a door in a partition between two rooms, and put a window into another door. It was held not to be waste, because it did not convert the premises to purposes for which tliey were not intended, and did not injure the inheritance. 2 Landon i). Grevme, ante. ^ Co. Litt. 53 6 ; Simmons v. Norton, 7 Bing. 647. ^ Co. Litt. 53 b ; Provost, &c., v. Hal- let, 14 East, 488. The clearing of woodland by a tenant for years, on a farm let as a dairy farm, and under a covenant against waste, is in itself an act of waste, and evidence of persons that the estate is enhanced in value, or of a parol license, is not admissible. McGregor v. Brown, 10 N. Y. 114. The cutting of willows and leaving the stool or butts so that they will grow up again is not waste, unless they are a shelter to a house or a protection to the banks of a stream against water. Phillips v. Smith, 14 M. & W. 589. In Lord B' Arcy !). Askwith, Hob. 234, the principle upon which waste depends was stated thus : " It is generally true that the lessee hath no power to change the nature of the thing demised ; he cannot turn meadow into arable land, nor stub a wood to make it pasture, nor dry up an annual pool or piscary, nor suffer ground to be surrounded, nor destroy the pole of a park, for then it ceaseth to be a parlc ; nor he may not destroy the stoclc or breed of anything, because it disinherits and takes away the perpetuity of succes- sion, as villains, fish, deer, young spring of woods, or the like." In Co. Litt. 43, it is said to be waste to destroy the germens of young plants destined to be- come trees, because thereby the future timber is destroyed. The cutting of apple trees or other fruit trees in a gar- den or orchard, or a hedge, is waste, Co. Litt. 53 a, because all these things are prejudicial to the inheritance ; Viner's Abr. tit. Waste (E); but the doing of things not prejudicial to the in- heritance is not waste. Thus, in Barrett V. Barrett, Hetley, 35, it was held that the cutting of sallows, maples, beeches, and thorns, which were alleged to be thirty-three years old, but which were not in fact, or by the custom of the country, timber, was held not to be waste. So, too, it was held that the cutting of oaks or ashes, where they are of seasonable wood, that is, where they are usually cut as underwood, and in due course are to grow up again from the stumps, is not waste. With regard to waste by a lessee in felling trees : in Jackson v. Brownson, 7 John. (N. Y.) 227, it was said by one of the judges 700 Waste. in the buildings or estate. Thus, if he takes down a partition in a house and makes two rooms into one, or sets up a partition and that everytliing is waste " which does a permanent Injury to the inheritance," and by another that " the general defi- nition of waste is, tliat it is a destruction [ in houses, gardens, trees, or other cor- I poreal hereditaments, to the dislierison i of liim in remainder or reversion;" and ', while a minority of the judges were of opinion that the doctrine of waste, as understood in England, in relation to timber, was inapplicable to a new, un- settled country, a majority held that the principle, of the prohibition against waste is tlie same in both countries ; but that in the application of it, regard must be had to the different situations and customs of the countries: that the fel- ling of any timber in England is waste, because it is considered as being always an injury to the inheritance, but that in this country a discrimination must be made upon a reference to the state of the property at the time of the demise, and that a lessee of land entirely or chiefly wooded has a right to fell part of the timber, so as to fit the land for cultivation, but not so as to cause an ir- reparable injury to the reversion, by sweeping away what might be indispens- ably necessary for keeping the fences and other erections upon the farm in proper repair ; and that the extent to which wood may be cut before a tenant becomes guilty of waste, must be left to the sound discretion of a jury under the direction of the court: this variation in the application of the general notion of waste.being similar in principle to that which in England makes the definition of timber, as the subject of waste, vary with the custom of the country, and makes the cutting of such trees as serve for ornament or shelter, or are not fit for timber, punishable as waste even in a tenant for life without impeachment of waste. These principles are adopted in Keeler B. Eastman, 11 Vt. 293; Findlay V. Smith, 6 Munf. (Va.) 134, 142, 148; and in Chase v. Hazleton, 1 N. H. 171, where the question was made to turn upon the finding of the jury as to good or bad husbandry. In Hastings v. Cruno- kleton et al., 3 Yea. (Penn. ) 261, a sim- ilar distinction between what is waste in this country and in England, on ac- count of differences in local circum- stances, was recognized, and it was de- cided that if a tenant in dower clears part of the lands assigned to her, and does not exceed the relative proportion of cleared land considered as to the whole tract, she is not punishable for waste. And a similar rule as to propor- tion was laid down, in the case of a de- visee for life, in Johnson b. Johnson, 2 Hill's Eq. (S. C.) 277, 283, where it was held generally that what Is waste in England is waste here, and that any treatment which leaves open lands less fertile, or changes their culture, or mars the woods or structures, is waste; but that in the case of wild lands, the clear- ing of them by a devisee for life could not be waste, as, without clearing, the benefit of the devise could not be real- ized, but that the limits of the right were, that the life-tenant's clearing in wild lands must not exceed that propor- tion to the whole land which the life- estate bears to the fee : and in the same case upon appeal, id. 297, the rule was said to be, that if the tenant for life cuts down more woodland than is necessary for the enjoyment of his estate, and has injured the interest in remainder, it is waste ; and that the ultimate injury done to the inheritance or reversion is the test of liability, for if the clearing of the land has improved its value to a co- tenant or remainder-man, the tenant would not be liable for waste. In ■Wixples et al. i^Waples, 2 Harr. (Del. ) 281, it was held that actionable waste in cut- ting trees, is any material injury to the inheritance, upon which the jury are to decide. In Jackson v. Andrew, 18 John. (N. Y. ) 431, the tenant, by mak- ing a ditch in the exercise of good hus- bandry, had accidentally caused the water of a creek to flow into a swamp containing timber, which was thereby killed, but had been replaced by the growth of new and more valuable tim- ber before the action for a forfeiture was brought; and the court held that the tenant would not have been liable for the unforeseen consequences of an act of good husbandry, and that if the act had been waste, it was so repaired before action brought as to have ceased to be punishable ; but they added that a tenant cannot, under a pretence of ad- vantage to the reversioner, change the nature of buildings, and that such changes, though beneficial, are waste. In Den v. Kinney, 5 N. J. L. .552, it was held, that cutting wood for the common purposes of the estate is not waste, as, where land is annexed to a furnace, cutting wood therefor. The cutting down of a green bank which is the boundary of a river in certain states VoiUNTAET Waste. 701 makes one room into two, or if he converts a ^arn or a warehouse into a dwelling-house, or a grist mill into a saw mill, or a saw mill into a eider mill, or a hand mill or a water mill into a horse mill, or indeed makes any change in the buildings that essentially changes its charac- ter or plan, it is waste.^ So if a lessee of a water mill worked by a head of water penned back under a prescriptive right, for the purpose of working the mill, changes the height of the tumbling bay, or trans- poses or alters the old water-marks, as it tends to destroy the land- lord's evidence of title to the head of water, and goes to the destruction of the thing granted ; '-^ so it is waste to remove wainscots, doors, win- dows, floors, or other thing annexed to the freehold ; " to change the course of husbandry ; ^ to open new mines or pits ; ^ to plough up fruit- bearing plants or bushes set by the landlord,^ destroying a hedge,' cut- ting down fruit, shade, or ornamental trees ; ^ to cut down timber trees, except for the necessary repairs of the buildings,^ or trees generally, of the water, and the destruction of trees upon the bank, by means of which trees, in part, the bank had been made secure against the encroachments of the river, is such a lasting injury to the, in- heritance as to be waste, and will be pre- vented by iniunction out of Chancery. Scudder ij. Trenton Delaware Falls Co., 1 N". J. Eq. 896. ^ Douglas V. Wiggins, 1 John. Ch. (N. T. ) 435 ; Cole v. Forth, 1 Mod. 94 ; Co. Litt. 53 a. 2 1 Addison on Torts (Wood's Edn.), 340. ■ 2 Co. Litt. 53 a. Where a tenant in common took the fixtures and imple- ments belonging to a mill, which was out of use for the want of repairs, and used them temporarily in a mill of his own, and burnt some useless rotten timber pertaining to the mill-dam, which was in his way, it was held that he was not guilty of destructive waste. Dodd V. Watson, 4 Jones Eq. (K. C.) 48. * 7 Bacon's Abr. tit. Waste (C). 1. 5 Hill 1). Taylor, 22 Cal. 191 ; United States V. Parrott, 1 McAllister (U. S. C. C. ), 271. But a tenant may work an open mine or quarry. Co. Litt. 54 h ; Clegg V. Rowland, L. R., 2 Eq. Cas. 165; Viner v. Vaughn, 2 Beav. 466. ^ Watherell v. Howells, 1 Camp., as a strawberry bed, currant and gooseberry bushes, an asparagus bed, &c., &c. ' Co. Litt. 53 a. sid. ^ In this country generally the tenant is not regarded as guilty of waste, who merely commits an act that is dictated by good husbandry, and one which a J judicious, prudent owner of the inherit- I ance would have committed, as the cut- ting of timber for the use of the estate, either in repairing buildings or fences, and the like, Woodward v. Gates, 38 Ga. 205, or cutting timber from one par- cel of land to make repairs in another. PaddlefordB. Paddleford,7 Pick. (Mass.) 152. But he cannot cut wood or timber to sell, even though his purpose in cut- ting it was to redeem a piece of wood- land and convert it into pasture land, to which purpose it had fonn^rly been de- voted, nor even though the rules of good husbandry require that it should be cut and the change be made. Clark V. Holden, 7 Gray (Mass.), 8 ; Syckel b. Emery, 15 N. J. I^. 387; Stratic v. Fehl, 22 Wis. 337. But it has been held not to be waste for a tenant to cut timber from a lot and sell it to buy boards to be used upon the estate. in making neces- sary repairs. Loomis v. Wilbor, 5 Mas. (U. S. ) 15. A tenant is guilty of waste, even though the timber was originally cut for necessary repairs or use upon the premises, if he subsequently sells it ; and this is said to be so, even though he subsequently buys it back and uses it in making repairs upon the estate, as it is the vendition which makes the cutting waste; Co. Litt. 53 b; and it is said that he cannot sell the timber to get money with which to make repairs; Co. Litt. 53 b ; but a contrary doctrine has been held in this country, and in one case, Loomis V. Wilbor, 5 Mas. (U. S. ) 13, it was held that a tenant who cut timber and sold it to buy boards to bo used in making necessary repairs upon the estate, was not guilty of waste. Waste may, however, be predicated of the cut- ting of trees, even for the necessary re- pairs of the estate, if it is bad husbandry ro2 Waste. except it be for use upon the estate either for fuel, repairs, or otlier necessary purpose,^ or in case wild land is leased for farming purposes, for the purpose of fitting a portion of the land for cultivation ; ^ but he cannot, even under such circumstances, cut all the timber, as the rules of good husbandry require that he should leave sufficient to keep the buildings and fences in repair and to supply the farm with fuel ; ° and the extent to "vvhich wood or timber may be cut before the tenant is guilty of waste is essentially a question for the jury.* Waste (that is, commissive waste) can never be predicated against a tenant for that which results from natural causes ; therefore, if trees are Mown down, and the tenant cuts and sells them, he is not chargeable as for waste, but the landlord may maintain trover. Indeed, in all cases of cutting timber, where an action in the nature of waste will lie, trover may be brought if the landlord so elects.* Nor is it waste for a tenant to cut timber, or do any other act, which the parties evidently intended that he might do ; as if a quarry is let, although there is no provision that he may open it, yet it is not waste for him to do so ; or if a brick-yard is let, it is not waste for him to dig the clay ; or if a furnace and a piece of woodland is let, it is not waste for him to cut the timber to run the furnace with, because from the nature of the transaction it is evi- to cut them, or an injury to the inherit- ance. Proiiit v. Henderson, 29 Mo. 325. And in an action for damages for such cutting, the plaintiff is not restricted to the value of the trees, but may recover the actual damage to the inheritance. Achey i;. ilaU, 7 Mich. 423. 1 A tenant may cnt timber upon the estate for his OM'n use or to make repairs, but for no other purpose ; therefore, in an action on the case in the nature of waste, it is not enough to allege that the timber was cut by the tenant; it should also be alleged that it was not cut for the tenant's use or for repairs upon the estate. Wright u. Roberts, 22 Wis. 161 ; Kidd u. Dennison, 6 Barb. (X. Y.) 9. In cutting trees for fuel, the tenant must observe the rules of good hus- bandry, and he will not be justified in cutting sound trees when there are those beginning to decay, or which have been blown down, sufficient for that pur- pose. Paddleford d. Paddleford, 7 Pick. (Mass. ) 152. 2 Kidd !). Dennison, 6 Barb. (N. Y. ) 9. In Lambeth u. Warner, 2 Jones (JT. C. ), 165, it was held not to be waste for a tenant in dower of a large farm, but a few acres of which had been cleared, to cut off timber from a portion of the lot, to render 'it tillable for the support of her family. The doctrine of waste, as it existed in England, is not applicable in this respect in a coi^ntry like ours, in which a large portion of the lands are new, and have not been redeemed from the wilderness. Kidd ». Dennison, 6 Barb. (N. Y.) 12 But if the clearing of land, even for the purposes of convert- ing it into tillable land, is contrary to the rules of good husbandry and injures the estate, it is waste. Chase ». Hazle- ton, 7 N". H. 171 ; Drawn k. Smith, 52 Me. 141 ; Van Deusen v. Young, 29 N". Y. 9. It is not waste to clear land to re- lieve other lands from excessive culti- vation. Owen v. Hyde, 6Yerg. (Tenn. ) People v. Davison, 4 Barb. (N. Y. ) 109- 334 ; McCulIough o. Irvine, 13 Penn. St. 438. ' Paiok, J., in Kidd ■». Dennison, ante, p. 12. * Jackson ». Brownson, 7 John. (N". Y. ) 233; Moores b. Wait, 5 Wend. (jST.Y. 107 ; Jackson ». Auchen, 18 John. (N. Y. ) 431 ; Cooper v. Stower, 9 id. 333 ; Adams 1). Breverton, 3 H. &. J. (Md. ) 124 ; Jackson «. Tibbetts, 3 Arnd. (N. Y.) 341. * Houghton o. Cooper, 6 B. Mon. (Ky, ) 281; Maers ». Wait, 3 Wend. (N. Y.) 104 ; Shultz 1). Barker, 13 S. & R. (Penn. ) 272; Richard u. Torbett, 3 Houst. (Del.) 172; Harris u. Goslin, 3 Harr. (Del.) 19. It is not waste for a tenant to remove timber blown down by a tempest. Houghton I). Cooper, ante. Peemissivb Waste. 703 dent that these things were contemplated and intended by the parties.' But where a tenant leases lands for agricultu-ral purposes, it is waste for him to work gold mines or other mines or quarries upon the prem- ises ; " and the same is true when the lease is for any purpose inconsist- ent with the idea that the parties contemplated or intended that the tenant should open mines, quarries, &c. Digging for gravel, lime, clay, brick-earth, stone, mines of metal or coal, or the like, hidden in the earth, and not open when the tenant went into possession, is waste.' But if the pits or mines were open before the tenant went into posses- sion, it is not waste for him to dig them for his own use,* or for the reparation of the premises,^ and he may open pits of gravel or clay for the purposes of reparation." It is always a question of degree, whether the working of open mines by a tenant for life is waste,' and also the reason for the abandonment of the mine is important. If it was aban- doned because it was unprofitable, it is not waste for the tenant to work it, but if it was abandoned for the advantage of the estate, it is ; ' so it is waste for the tenant to do any act that tends to injure the estate, as to turn hogs into a meadow.' Waste can only be committed oj" the thinff demised, therefore it is not waste for the tenant to out dqwn trees, or open quarries, mines or pits that are excepted from the lease. In such cases the tenant is only liable in trover or trespass.'" It is waste for a tenant to take all the fish out of a fish-pond, or all the doves out of a dove-cote, or to take them at a season when they are re- quired for replenishment ; " so it is waste for the tenant to remove glass from a window, although he put it there himself, or to remove any- thing annexed to and parcel of the freehold, although annexed thereto by himself ; '^ for every chattel annexed to a freehold without a license to remove it, express or implied, becomes a part of it, and passes to the landlord as soon as annexed.'^ Permissive -waste. Sec. 421. Permissive waste consists in suffering or permitting the premises to fall into decay, as the buildings, fences, &c., or neglecting 1 Dow V. Kennedy, 5 N. J. Eq. 552. ' B^ot v. Bagot, ante. 2 United States v. Parrott, 1 McAU. « In Billows v. McGinnis, 17 Ind. 64, (TJ. S. C. C. ) 271 ; Hill «. Taylor, 22 Cal. the tenant turned hogs into a meadow, 191. and they rooted up the grass. It was ^ Vlner v. Vaughn, 2 Beav. 466 ; held waste. Bacon's Abr. tit. Waste (C), 3; Higgon i» Goodrighti). Vivian, 8 East, 190. B. Mortimer, 6 C. &. P. 616; D'Arcy v. " Phillips v. Smith, ante ; D'Arcy v. Askwith, Hob. 234 ; Phillips v. Smith, Askwith, ante. 14 M. & W. 593. '2 Herlakenden's Case, 4 Coke, 63 6. * 1 Wood's Inst., b. 2, c. 5, s. 41; Cla- It has been held to be waste for a hus- vering v. Clavering, 2 P. Wms. 388. band to remove a Jioiise built by himself ' Co. Litt. 53 b. upon his wife's lands. Dozier v. Greg- « Co. Litt. 53 6. ory, IJones (N. C), 100. , ' Bagot V. Bagot, .32 Beav. 509. i8 Lancaster v. Eve, 5 C. B. IST. S, 717. 44 704 Waste. to keep up the land; ' as by suffering a pasture or meadow to be over- grown with bushes.' If a tenant makes any essential change in a dwell- ing he is liable for waste. Thus, if he takes down a partition and makes two rooms into one, or if he sets up a pei-manent partition and makes one room into two, or if he converts a barn or a warehouse into a dwell- ing, or a grist-mill into a saw-mill, or a saw-mill into a cider-mill, or a hand-mill into a horse-mill, or indeed any change that changes the charac- ter of the building in any essential respect, it is waste, for which an action will lie. In this country, generally, that is not regarded as waste which is dictated by good husbandry, and one of suoh a character as a judicious prudent owner of the inheritance would have committed. Thus, it is held, that where a tenant cuts down timber trees, it will not be deemed waste if good husbandry and judicious and prudent management of the estate justifies it.' But this is confined strictly to the cutting of timber for the use of the estate. If it is cut and sold or not used upon or for the estate it is waste, even though the purpose in cutting it was to redeem a piece of woodland to pasture land, to which use it had formerly been devoted, and this even though good husbandry required that the change should be made.* So it is waste for a husband to cut and sell growing timber from the lands of his wife, unless good husbandry requires that a portion of the lands should be reduced to cultivation, and he must act as a prudent owner of the fee would, in view of the nature and situation of the land and the future wants of the reversioner.^ A ten- ant may cut timber for his own use, or to make repairs upon the estate, but for no other purpose ; therefere, in an action for waste, it is not enough to allege that timber was cut by the tenant, but it should also be alleged that it was not cut for the tenant's use or for repairs upon the estate.* Waste can never be predicated against one for that which results from natural causes, except where he is bound to repair the damage.' Thus, where trees are blown down, a tenant who cuts and sells them cannot be pursued for waste ; the remedy is trover.* So in all cases for cutting timber, the landlord may maintain trover if he prefers the remedy to an action for waste. Nor for mere ill husbandry." 1 Kid 0. Dennison, 6 Barb. (N. T.) 387; Clark*. Holden, 7 Gray (Mass I 227; Harden). Harder, 26 Barb. (N. 8. ^ ['^■^"■j, T. ) 409 ; People v. Alberty, 11 Wend. « Strabo v. Fohl, 22 Wis 337 IN.Y.) 162; McGregor v. Brown, 10 " Wrigbt v. Roberts, 22 Wis 161 • N. T. 115 ; Cook v. Transportation Co., Davis u. Gilliam, 5 Ired. (N". C ) 308 " 1 Den. (N. Y.) 104 ; Heme v. Benbaw, 4 Kidd v. Dennison, 6 Barb. (N^ T) 9 ' Taunt. 764. , „ r c>,. ,. ' Houghton ». Cooper. 6 B. Mon. ( Ky. ) ■2 Clemena v. Stier, 1 R. I. 272 ; Mc- 281; Shiiltsn. Barker, 12 S.&R. (Penn Cullought). Irvine, 13 Penn. St. 438. 272 ; Harris v. Goslin, 3 Harr (Del ) 8 Douglas V. Wiggins, 1 Johns. Ch. 19; Maors r-. Wait, 3 Wond (N" y' (K. Y.)435. 104. ■ V . .; * Woodward v. Gates, 3S Gs,. 205. » Richards v. Torbett, 3 Houst (Del ) ' Van .Syckel d. Emery, 1.5 K J. L. 172. Vebmissive Waste. 705 It is not waste for a tenant to cut timber from one parcel of land to make repairs in another.'' _ Nor is it waste to cut trees for that pur- pose, for fuel to be used on the estate, although in this respect the ten- ant must obey the rules of good husbandry, and would not be justified in cutting sound trees when there are those beginning to decay, or which had been blown down, sufficient for that purpose ; nor has he a right to out wood or timber to sell, nor in fact to do anything that operates as an injury to the inheritance.^ jSTeither is it waste for a tenant who has leased wild land, wholly covered by wood and timber, to clear off a part of the premises for the purposes of cultivation ; but he must not cut all the timber unless specially authorized so to do ; and as to whether his acts amount to waste is a question of fact for the jury.8 A trustee of lands appointed under a will to have charge of the lands of an infant during infancy, is not a tenant for life, nor a guar- dian so as to be liable for waste.* Or if, in point of fact, although the pur- pose for which the tirr-ber is cut is to convert the land into tillable land, yet if it actually ojDerates as an injury to the estate, and bad husbandry, it is waste.^ It is not waste to clear land of timber to relieve the estate of excessive cultivation.*^ Where a furnace is le.ased to a person with woodland annexed thereto, it is not waste, in the absence of express provisions in the lease against it, for him to cut wood therefrom for the use of the furnace.' Neither is it v/aste for a tenant to remove timber that has been thrown down by a tempest.* Nor is it waste for a tenant to out timber from a lot and sell it to buy boards to make repairs upon the premises.^ But it is waste for a tenant wliohas hired land for agri- cultural purposes to work gold mines or other mines or quarries thereon.^" So it is waste for a tenant for life or years, or by curtesy, or dower, to neglect to pay the taxes upon an estate so that it is sold to pay them, and an action on the case, or of waste, where the statute permits it, lies , therefor.^^ But it is not regarded as waste for a guardian to cut timber from the lands of his ward, when the timber is of no great value and does not materially diminish the value of the land.'^ It is waste for 1 Paddleford v. Paddleforif, 7 Pick. « Owen ». Hyde, 6 Terg. (Tenn.) 334; (Mass.) 152. McCuUough v. Irvine, 13 Penn. St. 2 Jackson v. Brownson, 7 Jolms. (N. 438; People u. Davison, 4 Barb. (jST. Y. ) Y. ) 227 ; Crockett v. Croclcett, 2 Oliio (N. 109. S.), 180; Smitli v. Sliarpe, Busbee (N. 'Dow v. Kennedy, 5 N. J. L. 5.52. C. ), 91. ' Houghton i. Cooper, 6 B. Men. (Ky. ) 3 Id. ; Jackson v. Tibbitts, 3 Wend. 281. (N. Y.) 341 ; Adams v. Breveton, 3 H. ^ Loomisu. Wilbor, 5 Mason (U. S.), & J. (Md.) 124. 13. 4 Kincaird v. Scott, 12 Johns. (N. Y.) i" United States v. Parrott, 1 Mc- 368. Allister (U. S.), 271; Hill v. Taylor, 22 5 Chase o. Hazleton, 7 N. H. 171 ; Cal. 191. Drown v. Smitli, 52 Me. 141 ; Van " Stetson v. Day, 51 Me. 434. Deusen v. Young, 29 N. Y. 9. ^^ Bond o. Lockwood, 33 111. 212. 45 706 Waste. a tenant negligently to suffer the buildings upon the estate to burn ^ or to turn hogs into a meadow." So it is held to be waste for a hus- band to remove a house built by himself upon his wife's estate.' But otherwise if it is not affixed to the freehold.^ Suffering pastures to be overgrown with brush, cutting and selling wood upon the farm, cutting hoop poles, tearing down old buildings, unless so dilapidated that there is danger that they will fall, are regarded as waste.^ It is not waste for a tenant in dower of a large farm, but a few acres of which has been cleared? to cut off timber from a portion of the lot to render it tillable for the support of her family.^ iNTothing is regarded as waste in this country unless it is or will become prejudicial to the estate. Thus, a tenant may properly open a way over meadow land for the convenience of the estate, and may dig ditches to drain it, or carry on earth to make it firm and passable, or he may erect houses where there were none be- fore, and dig cellars for them, and raise the earth around them, or may carry on earth to the land around such houses for the purpose of mak- ing them dry ; but in all these matters the real test of liability depends upon the fact whether the acts were warranted by good husbandry, and whether the estate has been lessened in value.'' There are, how- ever, many acts which amount to waste ^se?' se, as the tearing down of substantial buildings, the changing of the character of buildings, the clearing of lands let for a dairy farm, and other acts of a similar character.' Strictly speaking, waste is a lasting damage to the inheritance caused by the destruction of such things on the land as are not essential to its temporary profit, and may be predicated even when the act complained of was^ necessary to the profitable enjoyment of tlie land, as by the clearing of land when it was only valuable for timber." A tenant for years, or for life, must not permit a house to remain uncovered so as to let the timbers rot, and must use all reasonable endeavors to keep the building wind and water tight. But he is not bound to repair the principal timbers of the roof, nor to replace old materials with new, except where the expenses are of a triflino- character, and the mischief, if neglected, would operate as a lastino- injury to the inheritance. If the house was uncovered "when the tenant went into j'ossession, it is not waste for him to permit it to 1 Covuish «. StraUon,8 B. Mon. (Ky.) McCullough v. Irvine, l.S Penn. St. 386 ; Eobinson v. Wheeler, 25 N. Y. 438. 252. ^ Lambeth ». Warner, 2 Jones (N. 2 Bellows V. McGiunis, 17 Iiid. 64. C), 165. ' Dozifer 0. Gregory, 1 Jones (N. C), ' Pynchoii v. Steams, 11 Met. (Mass.) 100. 304. * Clemeua v. Stier, 1 R. 1. 272. » McGregor ii. Brown, 10 N. Y. 114. 6 Clemeua d. Stier, 1 R. I. 272 ; « Proffit v. Henderson, 29 Mo. 325, Accidental Pieks. 707 fall down.i It is not waste, either wilful or permissive, to leave land uncultivated.^ A tenant is liable for waste if he permits anything erected for the benefit or protection of the estate to fall into decay, whereby the estate is injured ; as, if he suffers a wall or embank- ment, erected to protect the estate from the influx of the water from the sea or a river, to fall into decay .^ So it is permissive waste, for which the tenant is liable, negligently to permit the buildings to be destroyed by fire ; but he is not responsible as for waste for buildings destroyed by an accidental fire.^ Accidental fires. Sbc. 422. By the common law, every person who lighted a fire was bound to keep it from doing damage to others, at his peril," and he was responsible for the consequences, although it was purely accidental, or resulted from the mischance of himself, his servant, or a lodger ;^ and nothing would excuse him from the conse- quences, except proof that the fire was set by some person out of his house, against his will, and without any license, express or implied, from him,' or was occasioned by the act of God, or some superior cause, which could not be controlled by human agency.' To obviate the hardship of this rule, the statute 6 Anne, chap. 31, ss. 6, 7, was enacted, providing that no action or suit shall bo maintained against any person in whose house or chamber any fire shall accidentally begin. This statute was subsequently repealed by Stat. 12 Geo. 3, c. 73, s. 46, but was afterwards re-enacted by 14 Geo. 3, chap. 78, s. 86, and extended to all accidental fires originating in a house, stable, barn, or other build- ings, and this statute is in force in nearly, if not in all the States of this country. These statutes refer only to fires produced by mere chance, or which are incapable of being traced to any cause, and so stand opposed to the negligence of either servants or masters, and they do not, consequently, protect persons from the ordinary common-law responsibility, in respect of fires occasioned by negligence." Thus, where the occupier of a meadow adjoining some cottages belonging to the plaintiff stacked a hay-rick on the extremity of the meadow in too '- Co. Litt. 53 a ; "Wise v. Metcalf, 10 might recover for negligent waste, as in B. & C. 314; United States D. Bostwick, suffering a building to burn, even 94 U. S. 53. though he was charged in the complaiut '^ Filliter v. Phippard, 11 Q. B. 357 ; with wilfully setting fire to it. Canterbury (Visct.) v. Att.-Gen., 1 ^ Panton ». Isham, 3 Lev. 336 ; Eastr. Pliill. 328. Entr., p. 18. ' Hutton ». Warren, 1 M. & W. 472. ' Bacon's Abr. tit. Actions on the * Huntley v. Russell, 13 Q. B. 572; Case (F); 1 Rolle's Abr. Actions Sur, Callis on Sewers, 146. Case (B); 1 Danver's Abr. 10. * Commis., &c., ■«. Stratton, 8 B. Mon. « Beaulieu v. Finglam, 2 H. 4, fol. 18. (Ky.) 586. In Robinson d. Wheeler, 25 pi. 6. X. Y. 252, it was held that the plaintiff 9 Tubervil v. Stamp, 1 Salk. 1. 708 Waste. green a condition, close to the plaiiitifii's cottages, and the hay smoked, and steamed, and exhibited unequivocal symptoms of ajDproaching com- bustion, and the defendant was frequently warned of the danger of the stack's taking fire, and said that he would " chance it," but he vxlti- mately caused a hole to be cut through the centre of the rick, which, unfortunately, hastened the catastrophe it was intended to avert, and the hay-stack caught fire, and the fire spread to the barn and stables of the defendant, and thence to the j^ilaintiff's cottages, and totally con- sumed them, it was held that the defendant was responsible for tlie destruction of the cottages, and that, in cases of this sort, " it is for the jury to say whether or not, under the circumstances, the party lias con- ducted himself with such a degree of care and caution as might be looked for in a prudent man." ^ It has been held, also, that these statutes respecting accidental firei do not apply where the fire originates in the use of a dangerous CDgii:e or instrument, knowingly used by the owner of tlie land or estate on which the fire breaks out; so that if the ownei-s of manufactories and steam-engines are guilty of any negligence or carelessness in tlie management of their furnaces and chimneys, and by reason tliereof sparks escape and are blown oa- to the adjoining biuldings, tlie owners of the furnace will be responsible for the damage done. It has been held, moreoA-er, that a fire designedly lighted by the defendant or by his orders, on his own estate, and which .afterwards spreads, and causes damage to the plaintiff, is not a fire which " accidentalljr begins " within the meaning of the statute; so tli.at if a person lights, or causes his servants to light, fires on his land, for the purpose of burning weeds and rubbish, and the fire spreads to and dcstroj^s the hedges and woods or cornfields of the adjoining landed proprietor, the lighter of the fire will be responsible for the damage.^ But a fire may be know- ingly and designedly lighted in the first instance, and yet may fairly be said to " accident. Hill, 7 id. 392. But it is never well settled that a tenant for years is liable both for permissive and commissive waste under the statute of Gloucester. Hartnett i!. Maitland, 16 M. & W. 262 ; Yellowly v. Gower, 11 Exchq. 294 ; Smith's L. & T. 267 (2dEng.Ed.). ^ See last note. The statute of Marl- bridge, 52 H. 3, c. 23, s. 2, enacted " that fanners during their terms shall not make vmste or exile of houses, woods or men, nor of anything belor.g- ing to the tenements that they have to farm, without special license had by lori- ting of covenant makinii mention that they may do it, which thing, if they do. and thereof be convict, they shall yield full damage, and shall be punished by amerciament grievously." By a later statute, which is called the Statute of Gloucester, 6 Edw. 1, c. 5, a writ of waste was given against a lessee for life, years, a tenant pur autre vie, or an assignee of a tenant for life or yeai-s, for waste done after the assignment, Bv the statute 3 Caulson v. White, 3 Atk. 21 ; Mayor, &c., V. Hedyer, 18 Ves. 355 ; Farraut ». Lovell, Atk. 732 ; Jackson v. Cator, 5 Ves. 688. 714 Waste. > in respect thereto.^ It will interfere between tenants in common when one tenant threatens the spoliation of the estate.'' Injunction by landlord against tenant for ■waste. Sec. 429. A court of equity will, upon a bill filed for an injunction by the landlord or his assigns, against the tenant or any person claim- ing through or under him, restrain the defendant from committing waste on the demised premises. Thus, a tenant will be restrained from pull- ing down a house, and building another which the landlord objects to,' or from making material alterations in a dwelling-house, as by chang- ing it into a shop or warehouse;* or from throwing down inclosures, or pulling .down houses ; ^ or from jjloughing up meadow or pasture which has not been ploughed for twenty years," uuless indeed a penal rent of so much per acre is reserved.' So an injunction will be granted to restrain a tenant from year to year, under notice to quit, as in the case of a lessee for a longer term, from doing damage and from removing crops, manure, &c., except according to the terms of his lease or the custom of the country." An injunction has been granted to re- strain a tenant from year to year, his servants, agents and workmen " from pulling down, damaging or destroying any of the buildings upon the farm and premises ; and from cutting down, injuring or destroying any of the timber or other trees, timber-like trees, bark, wood or under- wood, hedges or fences now standing upon the said farm and jsrem- ises ; and from ploughing up any of the ancient meadow, or any of the old pasture land belonging to the said farm : and from sowing any part of the said farm and lands with mustai-d-seed or any other per- nicious crop ; and from removing off the said farm and lauds any of the hay or straw, dung or manure produced or made thereon; and from doing any other waste or destruction to the said farm, lands and premises, or any part thereof," until, &c.^ So an injunction has been granted against ploughing up pasture where there was only a covenant to manage the farm in a husbandlike manner.'-" Also to restrain a ten- ant from breaking up meadow for the 2:)urpose of building, contrary to an express covenant; but the lord chancellor doubted if it could be done without an express covenant." An underlessee who neglects to inquire into the provisions of the original lease does so at his own risk, 1 In Ee Skingley, 3 Mac. & G. 221 ; Ves. 355 ; Hindley «. Emerj', L. E., 1 Powys V. Blagrave, 4 De G. M. & G, Eq. 52. 448 ; Wood v. Gaynon, Ambl. 395. « Com. Dig. tit. Chancery (D), 11. 2 Arthur v. Lamb, 2 Dr. & Sm. 428. ' Woodward b. Gyles, 2 "Vern. 119. 3 Smith V. Carter, 18 Beav. 78. 8 Onslow v. , 16 Ves. 173. * Douglass V. Wiggin, Johnson Ch. E. ^ Pratt v. Brett. 2 Madd. 02. (American) 435 ; 2 Story Eq. Jur. s. i" Drury v. Molins, 6 Ves. 328. 91.'?. 1- Ld. Grey de Wilton b. Saxon, 6 6 Com. Dig. tit. Chancery (D), 11 ; Ves. 106 ; Kimpton v. Eve, 2 V. & B, Mayor, &c., of London v. Hedger, 18 349. Without Impeachmbut foe Waste. 715 and maybe restrained by injunction from violating covenants therein contained;-^ even a yearly tenant may be so restrained.^ Where the construction of a contract is clear, and the breach clear, it is not a ques- tion of damage ; but the mere circumstance of the breach of covenant affords sufficient ground for the court to interfere by injunction.' Where a breach of covenant is threatened and has been partly exe- cuted, the court having jurisdiction to restrain the threatened breach, will also award damages in respect of the executed breach.^ An in junction has been granted to restrain a breach of covenant secured by a forfeiture of the lease and a penalty.^ The circumstance that a lessor has a right of re-entry for breach of a covenant does not preclude him from coming into equity to restrain the commission of the breach ; for he may have a desirable tenant and not wish to get rid of him.^ An injunction has been granted to prevent a tenant from injuring fish- ponds,' or a dove-cote, or fixtures annexed to and forming jiart of tlie freehold ; but not articles commonly called fixtures which are not so annexed ; ^ nor fixtures which the tenant is entitled to remove during the term, unless his lessor will purchase them according to the terms of the lease.^ ■Where lease is made " -without impeachment of ■waste." Sec. 430. Where a lease is made " without impeachment of waste," equity will not restrain the lessee from cutting timber, ploughing up meadow or pasture, opening mines, or the like ; but he will, if neces- sary, be restrained from pulling down houses, defacing seats, Sao}" A tenant for life, without impeachment of waste, will be restrained from cutting down trees in lines or avenues, or ridings in a i^ark, whether planted or growing naturally, if they serve for ornament or shelter, and were planted or left standing for that purpose. ^^ Tliis extends to a clump of firs planted on a common two miles from the house for orna- ment.-'^ What a prudent owner would do in the proper course of man- agement is no measure of what a tenant for life without impeachment of waste may do as to cutting timber planted or left standing for orna- ment.^^ An injunction against cutting ornamental timber must be con- 1 Parker v. Whyte, 1 H. & M. 16Y ; " Kimpton v. Eve, 2 V. & B. 349 ; Jay V. Richardson, 30 Beav. 563; Clem- Amos & F. 287 (2(1 ed.). ents V. Welles, L. E., 1 Eq. 200 ; Mitch- " Rolleston v. New, 4 Kay & J. 640. elli). Ste-ward, L. R., lEq. 541; Eobson i" Williams v. Day, 2 (Jas. Cli. 32 ; V. Flight, 11 Jur. IS". S. 147 ; Herbert v. Com. Dig. tit. Chancery (D), 11 ; Bac. Maclean, 11 Ir. Ch. 84. Abr. tit. Waste (N"). « Wilson V. Hart, L. E., 1 Ch. Ap. 463. " Packington's Case, 3 Atk.215 ; Garth 2 Tipping I). Eckersley, 2 K. & J. 264. v. Cotton, id. 756 ; Chamberlayne v. ■i Hindleyi). Emery, L. E., 1 Eq. 52. Dumorier, 1 Bro. C. C. 166; 3 id. * Barrett v. Blagrave, 5 Ves. 555; but 549. see Wood-ward v. Gyles, 2 Vern. 119. i^ Marquis of Do-wnshire ;;. Lady 6 Parker v. Whyte, 1 H. & M. 167. Sandys, 6 Ves. 107. ' Earl Bathurst v. Burden, 2 Bro. C. ^^ Eord v. Tynte, 2 De Gex, J. & S. C. 64. 122. 716 Waste. fined to timber standing for ornament or slielter, and will not be ex- tended to trees which " contribute to ornament." ' Affidavit for the injunction. Sec. 431. It seems that it is not enough for the affidavits for the in- junction to show that the trees are ornamental, but it must be shown that they were planted or left standing for the purpose of ornament.^ The relief by injunction will not be granted on slight or uncertain grounds ; for in the affidavit upon which it is founded, it is not suffi- cient that the i^Iaintiff merely swears that he aj^prehends, or has been informed, that the defendant intends to commit waste ; but there must appear an actual waste, or some act from whicli the intention is fully evinced.' Sending a surveyor to mark out trees to be felled is suffi- cient, without waiting till some of them are cut down.* So a threat by the tenant to open mines entitles the landlord to come into court to restrain him. Even if a tenant for life insist on a right to do waste (having no such right), the reversioner may have an injunction, though no jsroof of waste appear.^ In the case of a breach of covenant, the court may so interfere whether the breach has or has not been actu- ally committed, provided the defendant claims and insists on a right to do the act which would constitute such breach." A tenant having obtained judgment and issued execution against his landlord, afterwards became indebted to him for arrears of rent and dilapidations : held, that the landlord was not entitled, by injunc- tion, to restrain proceedings upon the judgment, on the ground of set- off.' On the other liand, a bill in equity will not lie by a tenant against his landlord to restrain proceedings upon a replevin bond on the ground of a set-off against the rent distrained for.' The court has no jurisdiction' at the suit of the owner of property to restrain a mere stranger from vexatiously distraining on or otherwise molesting the tenants.^ Injunction by tenant against landlord to restrain the cutting of orna- mental trees, &o. Sec. 432. An injunction has been granted to restrain the landlord from cutting ornamental trees in a lawn during the term (although the lease expressly reserved to him all trees, &c.), upon his conduct, amounting to a consent to the tenant's plan of improvement, laying out 1 Williams v. M'Namara, 8 Ves. 70. « Tipping x>. Eckersley, 2 K. . Marshall, 1 L. T. N. S. Colby, 1 Hare, 109, 134 ; Cole Ejec. 210, Wood, V. C. ; Arcedeolme v. Kelk, 421; but see Bamford v. Creasy, 3 Giff. 2 GiH. 683 ; Herz v. The Union Bank of 675. London, 2 Gift. 686 ; Johnson v. Wyatt, * Hill ». Barclay, 18 Ves. 56; Gregory 33 L. J. Ch. 394 ; Swaine v. The Great V. Wilson, 9 Hare. 683; Job v. Banister, Northern E. Co., id. 399 ; Jackson v. 2 & Kay J. 374. ' Duke of Newcastle, id. 698; Weatherley « Doe d. Mayhew i). Ashy, 10 Ad. & v. Ross, 1 H. & M. 349 ; Cotching v. El. 71 ; Cole Ejec. 425. Basset, .32 Beav, 101 ; Isenberg ». The 6 Bargent v. Thompson, 4 Giff. 473 ; 9 East India House Estate Co., 12 W. E. Jur. N. S. 1192 ; Stuart, V. C. ; and see 450; Jaoomb v. Knight, 32 L. J. Ch. Bamford v. Creasy, 3 Giff. 675. 601. 720 By Tekant against Third Peksons. it deprives a window of some portion of light : but it will do so when the obstruction is such as to occasion substantial dam- age and to interfere with the ordinary occupations of life.^ The court will not interfere by way of mandatory injunction, except in cases in which expense or very serious damage will ensue from its non-inter- ference ; and each case in which such an injunction is sought must de- pend on its own circumstances.^ Upon an application for any such in- junction there is no necessity for the party comjjlaining to be in the occupation of the house affected, or to have any intention of occupying it, to entitle him to the interference of the court. ^ A tenant from year to year may file a bill for an injunction to protect the right to the ac- cess and use of light ; but the injunction will be limited to the 23eriod of the continuance of his tenancy.* The court will interfere to restrain an apprehended injury, where it is clear that the act intended to be committed would injure or destroy a clear legal right.^ In an order for an injunction to restrain the defendants from polluting a stream it is proper to insert the words "to the injury of the plaintiff," in order to establish r. ground for the interference of the court, and to prevent its authority being invoked for trivial purposes.^ 1 Clarke?). Clark, L.R.,lCli.Ap. 10; « Wilson v. Townend, 1 Drew. & Curriers' Co. v. Corbett, 11 Jur. N. S. Sm. .324. 719 ; Eobson v. Whittingliam, L. R., 1 * Simper v. Foley, 2 Johns. & H. 555. Ch. Ap. 442 ; Yates v. Jack, L. E., 1 Oh. ^ Herz v. The Union Bank of London, Ap. 205. 2 Giff. 680. -Burell V. Pritchard, L. E., 1 Eq. "^ Lingwood s. Sto-wmarket Co., L. R., 244. 1 Eq. 77 Fences and Paett-waij.r. 721 CHAPTER XXXVIII. FENCES AND TARTY- WALLS. Sec. 437. Ownership of agricultural fences. Sec. 448. Ownership of party-walls. Sec. 449. Obligation to repair fences. Sec. 440. Eights respecting fences, boundaries and party-walls. Sec. 441. Waste and destruction of fences. ©■wnership of agricultural fencos. Sec. 437. Where there are two adjacent fields, separated b}' a hedge and ditch, the ditch prima facie belongs to the owner of the field in which the hedge is ; and if there are two ditches, one on each side of the hedge, then the ownership of the hedge must be ascertained by proving acts of ownership.^ The rule abont ditching is this — "no man making a ditch can cut into his neighbor's soil, but usually he cuts it to the very extremity of his own land ; he is of course bound to throw the soil which he digs out upon his own land, and often, if he likes it, he plants a hedge upon the top of it ; therefore, if he cuts afterwards beyond the edge of the ditch, which is the extremity of his land, he cuts into his neighbor's land, and is a trespasser : " proof, therefore, of the ancient width of the ditch is evidence that the owner's land did not extend beyond the outer edge thereof.^ One tenant in common of a hedge may maintain trespass against his co-tenant if the latter grub it up ; but a mere clipping of the hedge inay be justified under the general issue.' Q-wnership of party-'vralls. Sec. 438. The common use of a wall separating adjoining lands belonging to different owners (the origin of which wall is unknown), is prima facie evidence that the wall and the land on which it stands belong to the owners of those adjoining lands, in equal moieties as tenants in common. Where such an ancient wall was pulled down by one of the two tenants in common, with the intention of rebuilding the 1 Guy ». "West, 2 Selw. N. P. 1297 = Vowles ». Miller, 3 Taunt. 137. (12th Eng. ed.) ; Cole Ejec. 242, 243. « Voyce ». Voyce, Gow, 201. 46 '22 Fences axd Paett-wallS. same, and a new wall was built of greater height than the old one ; it was held not to be such a total destruction of the wall as to entitle one of the two tenants in common to maintain an action of trespass against the other.^ But where a tenant in common of a wall took off the coping stones and heightened it, and built a washhouse against it, the roof of which occupied the whole width of the top of the wall, and also let a stone into the wall, with an inscription on it stating tliat the wall and the land on which it stood belonged to him: held, that on these facts the jury might iind an actual ouster of the co-tenant.^ Where a party- wall Avas built at the joint expense of the two adjoining proprietors, and half its thickness stood on the land of each, the property in the wall follows the land on which it stands, and the two proprietors are not tenants in common of the wall." In contemplation of law such wall constitutes two distinct walls, and must be so described in jjlead- ing.'' If a house or office be separated from other premises by a wall, and that wall belongs to the owner of the house or office, he is of com- mon right bound to repair it ; and an action on the case will lie against him for any damages occasioned by his not doing so. Obligation to repair fences. Sec. 439. An action on the case for not repairing fences, wliereby another i)arty is damaged, can only be maintained against the occu])ier, and not against the owner of tlje fee, who is not in possession.'^ It is so notoriously the duty of the actual occupier of lands to repair the fences, and so little the duty of the landlord, that without any agree- ment to that effect the landlord may maintain an action against his tenant for not so doing, upon the ground of the injury done to his in- hei-itance ; ^ and where,- to a declaration against a tenant for years for not using premises in a husbandlike manner, in repairing fences, &c., on his implied promise so to do, the tenant pleaded that the fence 1 Cubitt V. Porter, 8 B. & C. 2^1 ; Wilt- for the object and design of fencing is sbire v. Sidford, Id. 259, n.,- Murley c. not to keep tlie catfle of others oif McDerraott, 8 A.d. & El. 138. the promises, but to keep at home the '•2 Sledman v. Smith, 8 E. & B. 1 ; and cattle of the occupant. This principle see Wawn v. Horn, 8 M. & W. 333; 5 id. has equal application to the owners of 564. land adjoining public highways ; and ''Matts V. Hawldns. 5 Taunt. 20; Tay- where no statutes exist, and no ob!i£;a- ler V. Stendall, 7 Q. B. 634. tion is imposed by covenant or prescfip- ^Murley «. McDermott, 8 Ad. A El. tion, a railroad company is not bound 138,142. to fence their land. Hurd d. Rutland, 6 Cheotham 1). Hampson, 4 T. R. 318; &c., R. R. Co., 2:^ Vt. 116; Holden v. Russell V. Sheuton, 3 Q. B. 449; Chaunt- Shattuck, 34 Vt. 336; Wilder v. Wilder ler V. Robinson, 4 Excb. 163. At com- 38 Vt. 678 ; Taylor r. Whitehead, 2 mon law, the owner of a close was not Doug. 74.5 ; Tewksbnry ». Bucklin, 7 obliged to fence against the cattle of the N. H. 518. occupant of an adjoining close. The « Cheethara 7i. Hampson, 4T.R. 319, statute imposing the duty on adjoining per Ld. Kknyon, C. J. ; but this doc- proprietors of land to erect and maintain trine does not extend to tenants at will fences recognized the same principle; or from year to year. Fences and Pabtt-walls. 723 became out of repair by natural decay, and that there was not proper wood wliich he had a right to cut for repairing the fences, and that the plaintiff ought to have set out proper wood for the purpose of repairs, which he had neglected to do ; the plea was considered bad, because it did not aver any request to the plaintiff so to do, or a ci;gtom of the country in that respect.' The tenant in this respect takes upon himself the same duties as would rest upon the landlord, if in possession. If the landlord is bound to maintain the fence, the tenant must, and vice versa. Where the tenant or an adjoining owner neglects to maintain his fence, the statutes in the several States provide proper redress, by enabling the party aggrieved to call out the fence viewers, or such officer as by law is charged with authority to that end. If two persons are possessed of adjoining closes, neither being under any obligation to fence, each must take care that his cattle do not enter the land of the other : but it may be doubted, if two persons have the concurrent pos- session of land, for the purpose that each may take profits of a special nature, and distinct from, but not inconsistent with, the right of the other, whether either one is bound to guard against casual damage, which, during and by fair enjoyment of his right, may happen to the other.^ A person entitled to the minerals under the land of another, with license to make a shaft opening into it, is, in the absence of any stip- ulation to the contrary, under a legal obligation to the owner of the surface soil to fence the shaft, so as to iDrevent its being a source of danger to his cattle which may be upon it, and is liable to an action for injury occurring to those cattle foi- want of such fencing.' Where the owner of two adjoining closes (A and B) separated by a fence and gate, which had always been repaired by the occupier of B, sold A to the plaintiff, and two years afterwards sold B to the defendant ; it was held, that the latter was not bound to repair the gate, unless he or his vendor had made some specific bargain with the plaintiff to that effect ; and that the doing of occasional repairs was not evidence of such bar- gain.* The liability of railway companies under the various statutes in the several States, to make and repair fences between their railway and the adjoining land, is not generally more extensive than that im- posed on ordinary tenants by the common law. They are not bound to fence as against mere trespassers and wrongdoers, but only as against the owners and occupiers of the land adjoining the railway.' 1 WliMeld V. Weedon, 2 Chit. K. Lincolnshire R. Co., app-jWallis, resp., 685. 14 C. B. 213 ; Midland E. Co., app., 2 Churcliill V. Evans, 1 Taunt. 529. Daykin, resp., 17 C. B. 126; Roberts v. « In re Williams v. Groucott, 4 B. & S. Great Western R. Co., 4 C. B. N. S. 506; 149; 32 L. J. Q. B. 239. 27 L. J. C. P. 266; Hardcastle v. South * Boyle V. Tamlyn, 6 B. & C. 329. Yorl^shire Railway and River Dun Co., '' Ricketts u. East and West India 4 I-I. & N. 67; Bessant ». Great Western Docks and Birmingham .Junction R. Co., R. Co., 8 C. B. N. S. 368; Marfell I. 12 C. B. 160; Manchester, Sheffield and South Wales R. Co., id. 525. 724 Fences and Paett-walls. If any accident which occurs be attributable partly to their neglect to fence properly, and partly to want of ordinary care and caution on the part of the plaintiff or his servants, the company are entitled to a ver diet.-' The owner of land adjoining a public road is under no obliga- tion to fence excavations in his land, unless they are so near the road as to be dangerous to persons lawfully vising it.^ Rights respecting fences, boundaries, and party --walls. Sec. 440. All owners of lands adjoining and exposed to the inroads of the sea, have a right to erect such works and defences as are neces- sary for the protection and preservation of their own land, even although they may be prejudicial to others, by rendering it necessary for them to do the same. A tenant is obliged to preserve the bounda- ries of the land demised to him, and if he permit them to be destroyed, so that his landlord's land cannot be distinguished from his own, he shall either restore the land specifically, or give other land of equal value in lieu ; ' and the same obligation extends to cases where there are several co-lessees.' A person has no right to undermine, either partially or wholly, a party-wall between his own house, which he has pulled down, and his neighbor's, unless it can be done without injury to his neighbor's house ; even although it is doubtful whether the inter- ests of the parties in the wall are several, or whether they are tenants in common of it.'^ To an action of covenant for non-repair of a mes- suage, the defendant may jjlead performance, except as to the repairs of a party-wall, and that those did not become necessary by the defendant's default, and that the defendant was not the owner of the imjDroved rent.^ Waste and destruction of fences. Sjec. 441. Although a tenant from year to year is not bound to put the premises into repair, he is not, on the other hand, at liberty to do anytliing which amounts to waste, or to a breach of the rules of good husbandry ; he is not, therefore, entitled to cut and sell hedgerows, or, at least, not without making up the hedges and fences according to the course of good husbandry. If there be a quickset fence of white thorn, and the tenant stub it up or suffers it to be destroyed, this is destruc- tion ; but cutting quickset hedges is not waste ; it shall be accounted rather good husbandry, because they will grow the better.' iHaigh V. London and ISTorth-West- ^^.tt. Gen. v. Fullerton, 2 V. & B. ern R. Co., 1 F. & F. 646; Ellis v. Lon- 263. don and South- Western E. Co., 2 H. & * Willis v. Parkinson, 1 Swanst. 49. N. 424. ^Bradbee b. Governors of Chiist's = .Binks V. South Yorkshire Railway Hospital, 4 M. & G. 714. and River Dun Co., 3 B. & S. 244; 32 « Moore v. Clark, 5 Taunt. 90. L. J. Q. B. 26. ' Gage v. Smith, Godb. 209 Trees and Timbee. 726 CHAPTER XXXIX. TEBES AND TIMBEE. Sec. 442. What is timber. Sec. 443. Implied rights as to trees. Sec. 444. Windfalls. Sec. 445. Express contracts as to trees. Sec. 446. For what purpose trees may be cut -without waste. Sec. 447. What acts amount to waste. What is timber. Sec. 442. By the term timber is meant properly such trees only as are fit to be used in building and repairing houses ; thus oak, ash and elm trees are considered timber in all places, and under whatsoever circumstances they are grown.'^ But only trees of not less than six inches diameter or two feet girth (allowing for irregularities of shape) appear to be reckoned or considered as " timber." ^ Many descrip- tions of trees, which are not generally considered as timber, are so in some places by the custom of the country, being there used for the purpose of building; thus it has been laid down that horse-chestnuts, limes, birch, beech, asp, walnut trees, and the like, may, under such circumstances, be deemed timber, and are therefore protected by the law as such.' In this respect, the local custom largely controls, as well as the uses to which the trees are or may be devoted. Thus in Eng- land, in the county of York, birch trees are held timber, because they are used in that county for building sheep-houses, cottages, and such mean buildings ; * and in Hampshire willows have been considered as timber by the custom of the country.^ Where beech is admitted to be timber by the custom of the country, the general rule of law applicable to timber trees in general attaches vq)on it, so as to give it the proper- ties and privileges of timber at twenty years' growth ; and therefore upon an issue whether certain beech trees in the county of Bucks were ^Co. Litt. 53 a ; Craig on Trees and * Countess of Cumberland's Case, Woods, 11. Moor, 813. 2 Whitty V. Ld. Dillon, 2 F. & F. &J. = Layfield b. Ccwper, 1 Wood, Ex. 330; 3 Duke of Chandos v. Talbot, 2 P. Gruffly d. Pindar, Hob. 219. Wms. 606; Palmer's Case, Co. Litt. 53 3, note (10). 726 Teees and Timbee. or were not timber according to the custom of the country, the inquiry is confined to the nature of the wood and the period of its growth, whether of twenty years ; and no evidence can be received to qualify its character of timber, by showing that it was not deemed to be such in the county unless the tree contained ten feet of solid wood.'- Although pollards have been said not to be timber,^ yet Loeb King inclined to think them timber, provided their bodies were sound and good ; and in an action to recover the value- of pollards under the de- scription of timber and timber-like trees, the plaintiff recovered a verdict.' Implied rights as to trees. Sec. 443. Tlie property in trees is vested in the owner of the inheri tance of the land ui^on which they grow ; for the property in trees, or of that which is likely to become timbei', is in the landlord, and the prop- erty in bushes in the tenant, even when they are cut down by a stranger.^ If a tree grow near the confines of the laud of two parties, so that the roots extend into the soil of each, the property in the tree belongs to the owner of that land in which the tree was first sown or planted ; ° but formerly tlie parties in such a case were held to be tenants in com- mon.^ A farmer who raises young fruit trees on the demised land, for filling up the orchards, is not entitled to sell them ; but it is otherwise of a nurseryman by trade.' Therefore, a nurseryman who has planted fruit trees in the way of his trade, may remove them, if not of larger growth than could be dealt with in his trade, even though they are pro- ducing fruit.' A tenant, not being a gardener, cannot i-emove a border of box planted on the demised premises by himself, unless by special agreement with his landlord.^ A tenant of a garden is not permitted to plough up and destroy the strawberry-beds, although he paid the preceding tenant for them." Windfalls. Sec. 444. Windfalls are the property of the lord ; for the timber while standing is part of the inheritance ; but whenever it is severed, cither by the act of God, as by a tempest, or by a trespasser and by wrong, it belongs to him who has the first vested estate of inheritance, whether in fee or in tail, and he may bring trover for it.^^ So where there are intermediate contingent estates of inheritance, and the timber 1 Aubreyt). Fisher, 10 East, 446;Duke ^ Holder ». Coates, Moo. & M. 112. of Cliandos r. Talbol. 2 P. "Wms. 606; "Waterman v. Soper, 1 Ld. Raym. Co. Litt. 53; Craig oji Trees and Woods, 737; Masters v. PoUie, 2 Roll. R. 141, 11. Anon., id. 25-5. -Plowd. 470; Crai£; on Trees and 'Wyndliam v. Way, 4 Taunt. 316; Wood?, 12, 1:3; Phillips v. Smith, 14 M. Penton v. Robart, 2 East, 90. & W. .589. ' Warden v. Usher, 3 Scott, N. E. 508. "Channon v. Patch, 5 B. & C. 893. SEinpsoii v. Soden, 4 B. & Add. 655. * Berriman v. Peacock, 9 Biug. 384. i" Wetherell v. Howells, 1 Camp. £27. Trees and Timber. 727 is cut. down by combination between the tenant for life and the person who has the next vested estate of inheritance ; or if the tenant for life himself has such an estate and fells timber ; in these oases the Court of Chancery win order it to be preserved for him who has the first contin- gent estate of inheritance under the settlement.^ Szpress contracts as to trees. Sec. 445. The effect and construction of exceptions and reservations (in a demise) of trees, &c., have been already considered.^ Woods, which were excepted out of the lease, but subsequently granted by the lessor to the lessee, have been held not to pass by an assignment of the lease.' A covenant not to remove or grub up trees is broken by remov- ing trees from one part of the premises to another ; and so it is by taking away trees, even if the lessee plant a greater quantity than ho takes away, unless those taken away were dead.* A covenant to keej) all the trees standing in an orchard, whole and undefaccd, " reasonable use and wear only excepted," is not broken by cutting down trees pSst bearing, provided the landlord is likely to get back the premises at the «nd of the term in an improved condition ; ' but a covenant to leave all the timber which is growing on the land when the lessee took it, is broken, if at the end of the term he cut it down, but leave it there, for that would be defeating the intent of the covenant, although a literal, performance of it.° A lease was granted of a farm, and quarries of stone thereon, with liberty to work the quarries; out of this demise were reserved timber saplings and underwood growing on the premises : there was a covenant not to commit waste by cutting down saplings or underwood : it was held, that the cutting down saplings and under- wood for the necessary purpose of working a quarry on the premises was no breach of the covenant, there being no excess of the right that it was intended the tenant should exercise.' Where there was a liberty in a lease, for the lessee to cut down and dispose of all timber and cop- pice, and also a proviso to give notice in writing to the lessor of his •ntention, that the latter might have the option of purchasing ; and the lessee gave a bona fide notice, and the lessor disclaimed any intention of purchasing ; it was held, that the lessee might afterwards proceed to cut down the whole, without giving a fresh notice, at such seasons as suited his convenience, even though the lessor had in the mean time parted with his interest to another.' 1 Bewick v. Wiugfield, 3 P. Wms. 268. « Godb. 188. But see Bagot v. Bagot and Legge v. * Wetlierell v. Bird, 6 C. & P. 195. Legge, 32 Beav. 509, wliere it was held ^ Jones v. Croucli, 2 Camp. 449. that tlie proceeds of windfalls must be "l Esp. N. P. 271. invested and dealt with as part of the 'Doe d. Rogers v. Price, 8 C. B. 894. corpus of the settled estate. s Goodtitle d. Luxmore v. Saivle, 16 ^ Smith L. & T. 133, 136 (2d ed.). East, 87. TZH Teees and Timbee. For -TO-hat purpose trees may be cut ■without -ro-aste. Sec. 446. A tenant who is answerable for waste only, may cut down trees for the purposes of reparation without committing waste, either where the damage has accrued during the time of his bfeiug in posses- sion, in the ordinary course of decay, or where the premises were ruinous at the time he entered ; but if the decay happened by his default; to cut down trees to do the repair would be waste. And if a tenant, having cut down trees for reparations, sell them, and afterwards buy them again and employ them about necessary reparations, it is waste by the sale : ^ so, although he cut for repairs, if upon turning out unfit they are exchanged for others which are so applied.'' But the tenant may not cut timber for repaii's, which his lessor has covenanted to do.'' It is not waste for a tenant to cut timber for necessary botes.* It is an inseparable incident to an estate tail, that the tenant shall no be punishable for committing waste by felling timber ; but this power must be exercised during the life of the tenant in tail, for at the instant of his death it ceases : if, therefore, a tenant in tail sell trees growing on the land, the vendee must cut them down during the life of the tenant in tail ; for otherwise they will descend to the heir, as parcel of the inheritance.^ WTiat acts amount to -waste. Sec. 447. Cutting down, destroying or topping all trees which are timber, either by the general law, or by the particular custom of the country, is waste ; so is the doing of any act which has the effect of causing a decay of the wood : and cutting down willows, beech, birch, asp, maple, or any trees of that description, which, though not timber, afford a defence or shelter for the house, has been considered destruc- tion. Upon the same principle, cutting down or destroying fruit-trees growing in the garden or orchard is waste ; but if such trees grow uiion any of the ground which the tenant holds out of the garden or orchard, it is not waste : " and it has been laid down that suffering the germins or young shoots springing from trees which have been felled to be de- stroyed, is waste ; ' and that if it is done after previous waste in cutting trees, it is double waste.' Cutting down willows and leaving the shoots to shoot afresh, has been held not to be waste, unless they are a shade to a house or a support to the bank of a stream.' A tenant may cut down such bushes, shoots, «fcc., as will never be timber, without being amenable for waste.^" 1 Litt. Co. 53 6, 220. ' Cruise Dig. tit. 2 C. I., s. 33. ii Si-mmonst). Norton, 7 Bing. 640. «Co. Litt. 53 a ; Id., note (6). sCom. Dig. Pleader (3 O), 14. ' Gage v. Sraitli, Godb. 210; 2 EoUe's *Com. Dig. Pleader (3 0), 12 ; Co. Abr. 825. Litt. .53; Hob. 234; Fitz. N. B. 59 'Fitzherbert's N. B. 59. (N) ; Archdeacon v. Jenner, Cro. Eliz. * Phillips d. Smith, 14 M. & W. 589. 604. i» Godb., 4 pi. 6. Definition of TiiJi TiiitM. 729 CHAPTER XL. E EN T . Seo. 448. Defluition of the term. Sec. 449. Kinds of rent. Sec. 450. Rents payable in advance. Sec. 4.51. Covenants to pay rent. Sec. 452. When and where rent is payable. — Demand to create forfeiture. Sec. 45.3. Payment of rent as evidence of tenancy. — Effect of. Sec. 454. Assignable qualities of rent. Sec. 455. Keservations of rent, or sums in gross as quasi rent. Sec. 456. Penalty or liquidated damages. Sec. 457. How distinguished. Sec. 458. Payment of rent. Sec. 459. Allowances by mistake of deductions from rent. Sec. 460. Where rent is payable. Sec. 461. How rent may be paid. Sec. 402. Payment by bills or notes. Sec. 463. What payments operate as payments pro tanto of the rent. Sec. 464. Payment of taxes, rates, &c. Sec. 4G5. When other payments may be deducted from the rent. Sec. 466. To whom rent should be paid. Sec. 467. Payment before the rent day. Sec. 468. Tenant holding over. Sec. 409. Alternative provisions. Sec. 470. Rent payable in specific articles. Sec. 471. Incidental benefits. Sec. 472. Implied benefits. Sec. 473. Eviction.— Effect of. Sec. 474. Surety for lessee. Sec. 475. Liability of undertenant. Definition of the term. Sec. 448. Rent is a compensation for the use of lands demised, and is treated as a profit issuing out of the land and tenements cor- poreal. It is of a twofold nature ; that is, it is something issuing out of the land as a compensation for the tenant's possession thereof, and also an acknowledgment of the tenant's fealty to the landlord,^ and ^ Constautine v. Wake, 1 Sweeney every successive year, but may be re- (N. T. ). 239 ; Smith's Landlord and served every second, third, or fourth Tenant, 111 (2d Eng. Edn.). "Rent," year, &c. It must issue out of the thlny says FiNi.AY, in his work upon Landlord granted (it must issue out of lands and and Tenant, 227, " signifies a return or tenements corporeal) ; therefore, a rent compensation, and a certain profit issu- cannot be reserved out of an advowson, ing yearbj out of lands and tenements or the like. But a grant of such a sum corporeal. It must be a profit, though may operate as a personal contract, and it need not be in money. It must be oblige the grantor to pay the money, or certain, or tliat which may be reduced subject him to an action of debt, Co. to a certainty by either party. It must Litt. 47," [or assumpsit, Witton v. Bye, issue yearly, though it need not issue Cro. Jac. 486, H. &. W.] " Tlris," con- 730 Rent. this distinction is regarded as important.^ Rent must always be a proiit, but it is not essential that it should consist of a payment in tinues ho, " is the definition of rent given hy Blackstone ; but tliat part of it inchided within iiarentliesis is not now tlie law. * * Kent is not confined to la:ids, and extends to incorporeal lie- reditanieiits." ]5ut tlie proposition so broadly staled l)y liim does Jiot appear to be sustained l>y tlie authorities ; and rent, os nucli, does not appear to be inci- dentto incorporeal hereditaments alone, except ill tlie case of tlie sovereign. Co. Litt. 47 «.. The term is often nsed in- discriiuinately, and is applied to a sum resiTvedfor the use of |iei'Sonal chattels as -well as real, but the leijal effect of the term is quite difl'erent in the two cases. i>onella.n o. Keed, M 13. & Ad. 905, and tlie parties cannot in any way, or by any use of terms, or any provisions in a lease, make that "rent" which in law is not .so. Miner's Bank r. Heilner, 41 Penu. yt. i't'2. The reason why rent, as such, cannot issue out of an incor- poreal hcraditament is, "because they are such things in their nature as a man can never recur to for a distress." li Bacon's Abr. tit. Kent (A), p. y. In Bacon's Abr. tit. Kent (B), 8, the author, under the head of " Out of wdiat things a rent may issue," says: "As a common ^^'as originally granted for the benefit of the beasts of every one of the tenants, and as the right of common which e-iery man has runs though the whole common, and no particular tenant has a ilglit to one part more than an- other, it follows that no distress can be taken thereon, nor can the recognizors of tlie assize have the view of any par- ticular part to which the grantee of the rent had a right, and therefore cannot put him in seizin of the rent by a twig or a turf. So, of a warren, Noy, GO, 3 Leon. 1. So, of a piscary, Co. Litt. 144. Though a rent cannot, for the reasons herein mentioned, issue out of a com- mon, yet hy the 11 6. 2, c. 19, s. 8, it is enacted, that it shall be lawful for every landlord, his steward, bailiff, receiver, or other person empowered by him, to seize as a distress for rent any cattle or stock of their tenants feeding upon any common appendant or appurtenant, or any ways belonging to any part of the premises demised. So, rent cannot issue out of a rent, for the statute of Westm. 2 (13 ed. 1, stat. 1), gives an assize in certo loco capiendo; but a rent caimot be put in view. Bro. Assize, pi. '2. So it is of tithes, for a reservation of rent upon a lease of them is not good, because there is no place upon which the distress can be taken, nor any land to be put in view to the recognitors, or of which they may give him seizin. Jewel's Case, 5 Co. 3 ; Cro. Jac. 111,173. But it has been decreed in equity, that whore a rent-charge of 20f. was devised out of a rectory, the glebe whereof amounted but to 40.5. per anmnii, that the whole rectory should be liable to the payment of the rent ; and the proprietor of the rectory Avas decreed to pay the arrears of the i-ent and costs. Thorn- cide r. Allinton, Chan. Ca. 79 ; Gilb. on Bents, 22. A rent cannot issue out of a hundred, fair, office, &c., lor lliese were instituted for particular purposes, and arc foj' puhlic utility. So of an ailvowson, in rthich the jiatron has no interest but to appoint an able and fit person to the church, with- out making any profit to himself. But, though a reversion or remainder be incorporeal, and can pass only hy grant, yet a rent reserved upon a grant of them is good ; for though the grantor has no remedy for them during the continuance of the particular estate, yet, since they relate to lands which were originally granted to ■ make profit of, the judges have gone as far as they could to pursue the intention of sucli original donations, and tlierefore have admitted such reservations to be good iinmediately, since the lands in which the grantor had the reversion were orig- inally given for that purpose, viz., to make profit of. And tliis construction is the more reasonable, because In this case there is a remedy by distress for all the arrears, when the reversion executes by the determination of the p.articular estate, wdiereas there is no possibility of such remedy in the case of tithes, commons, fairs, &c. Bro. title Distress, 47; Perk, sect. 627, Co. (i2 ; Capel's Case, Co. Litt. 47 a; Gilb. on Bents, 24. So, and for the same reason it is, if the lord grants his seignory, reserving rent; for here is a prospect, though it be dis- tant, of a remedy by distress upon the escheat of tlie tenancy. 2 Koll. Abr. 44(i. So, if there be lord mesne and tenant, and the mesne make a gift in tail of tlie mesnalty, reserving rent, this is a good reservation, because the ten- ancy may escheat to the donee, and then the donor shall have remedy by distress for all the arrears. Also, if a lease he made for years of an incor- poreal inheritance, which lies only in 1 'V7oodf all's L. & T. 336. What is 731 money, as a reservation of any species of property, as hens, cattle, horses, grain, &c., may constitute a rent, as they are treated by the law as profits;' so may the rendition of services.^ Thus, services, such as cleaning a church,* shearing sheep,* and carrying coals,'' reserved in a lease as compensation for the use of premises, have been held to amount to a sufficient reservation of rent. But a reservation of a irdvt of the profits of the premises is not a reservation of rent within the strict legal meaning of the term." But this profit, in what- grant, reserving rent, such reservation is good to bind the lessee by way of con- tract, for the non-performance of which tlie lessor shall have an action of debt, because, if the lessee undertakes to pay such an annual sura by his deed, .such undertaking gives the lessor a right to it, and the law in all cases gives reme- dies adequate and correspondent to every man's right. Jewel's Case, 5 Coke, 3 ; 2 Saund. 303. As, when in covenant, for non-payment of rent, the plaintiff declared that he was seized of tithes, and by indenture demised them to the defendant, rendering rent, which he covenanted to pay, and for the non- payment thereof the plaintifE brought his aetion ; the defendant having plead- ed eviction, to which the plaintiff de- murred ; it was adjudged for the defend- ant ; the court holding that this was rent, and that the eviction was a sus- pension of it, and therefore that the plea was good. Dalston v. Reeve, Ld. Raym. 77. If a man makes a lease of Blackacre to commence infuturo, and of Whitcacre to begin in jn-wsenti, ren- dering rent, payable at Michaelmas, be- fore the commencement of the term of Blackacre, this is a good reservation im- mediately, for it is but one entire rent, and as such is payable according to the reservation. Falstaff's Case, 2 Roll's R. 467. So it is, if a man grants a future ijiterest in land, as, if it be a lease for years, to commence five years after the making of the lease, the lessor may reserve a rent immediately, because this is a good contract to oblige the lessee, and to ground an action of debt; and the lessor may likewise have his remedy by distress for the arreai'S when the lessee comes into possession. 2 Roll's Abr. 44fi; Plow. 423; 2 Roll's Rep. 407. A lease of the vesture or herbage of land, reserving rent, is good, because the lessor may come upon the land to distrain the lessee's beasts feed- ing thereon. Co. Litt. 47. Also, the king may reserve rent out of an incor- poreal inheritance, because by his pre- rogative he may distrain in all the lands of his lessee for such rent ; and there- fore, since he has a remedy for the rent, there is no reason that such reservation should not be good. Co. Litt. 47; Lord Mountjoy's Case, 5 Coke, 4 a. But, if the king's tenant makes a lease of the lands not liolden of the king, either for years or at will, the king cannot distrain such lands in tlie hands of the under- lessee. So, if they are extended on an elegit, or if they be under sequestra- tion ; but in this last case, upon applica- tion to the court of chancery, liberty will be given to distrain without incur- ring any contempt of that court. Atty.- Genl. V. Mayor of Coventiy, 1 P. Wms. 300." I have given this extract from Ba- con, because it illustrates the questions under consideration moi'c clearly than is done by any other atithor, and because of the high authority of his work, i Co. Litt. 142 a. 2 In Van Rensselaer o. Chadwick, 24 Barb. (N. Y.) 349, it was held that rent payable in fowls, and services with car- riage and horses, was apportionahle. In Cross v. Lome, 14 Md. 247, the rent of a quarry at a certain lumiber of cents a perch, the amount varying with the quality, was held to be a certain money rent within the statute. Where rent is payable in grain raised upon the land, tile title thereto does not vest in the landlord until it is delivered. Burns v. Cooper, 31 Penu. St. 421). 3 Edney u. Benhara, 7 Q. B. 796. * Co. Litt. 93 a. " Doe V. Morse, 1 B. & Ad. 365. ^ A reservation of herbage is not rent, Co. Litt. 142 a; 2 Blackstone's Com. 41, but a royalty payable to the owner of a quarry, or of a brick-Iield, is a rent, although the land is being consumed. Regina o. Westbrook, lO^Q. B. 178; Barns v. Lea, 12 W. R.- 525; Reg. v. Everest, 10 Q. B. 178; Daniel v. Oracle, 6 id. 145. In Boudette v. Pierce, 50 Vt. 212, the plaintiff permitted the defend- ant to erect a hovel on his premises to keep his coltii;, the plaintiff to have the manure for the rent. Subsequently, the defendant enlarged the hovel and moved 732 Rent. ever it consists, miwt be certain, or capable of being reduced to certainty by either party, and must issue yearly, although there is no necessity that it should issue every successive year ; it may be reserved every second, third, or fourth year, yet, as it is to be produced out of the pj'ofits of land and tenements, as a i-ecompense for their enjoy- ment, it ought to be reserved annually, as the profits arise and are renewed annually. But, it seems that, if the sum to be paid is suscepti- ble of being reduced to an annual rent, it is sufficient.-' So, too, the rent must issue out of land or tenements, corporeal merely, or rather " from some inheritance whereunto the on'ner or grantee of the rent may have recourse to distrain," ^ and must issue out of the thing de- mised ^ and not be a part of it. Thus, a part of the herbage of lands cannot be reserved as i-ent,* but a royalty payable upon the stone or into it with liis family, and tlie plaintiff continued to receive the manure. Tlie defendant continued to occupy tlie premises for about a year and a half, the plaintiff taking the manure each spring; and then the plaintiff requested the defendant to remove, without stating when. July lOtb he gave the defend- ant notice to quit at once, and July 14th brought ejectment against him, but the court held that a tenancy from year to year existed, and the notice was insuffi- cient. 1 The Queen v. Westbrook, 10 Q. B. In Rex V. Miriield, 10 East, 219, the saleable underwoods produced no profits until the twenty-first year, yet it was ireld that they might be rated under the statute according to the value they might be worth to rent for a lease of the duration of their intended growth. Woodfall's L. i«- T. 836. Wien a lease was made, and a rent reserved of one bale of cotton for each twenty acres cultivated, it was held that although the value was not fixed it was sufficiently certain, because susceptible of ascertain- ment, and that a distress would lie for the rent. Brooks v. Cunningham, 49 Miss. 108. Say the court in the last named case: " Uisti-ess for rent will ob- tain where produce is agreed to be paid, though the value is not fixed and certain, -(/■ the amimnt is no stipulated as to make it capable of ascertainment by calcula- tion. * * Cotton has a certain commer- cial value from day to day, and its pilce, with other products, stocks and coin, are quoted by telegraph throughout the country daily. The value of the rent, therefore, was capable of exact and posi- tive calculation." 2 Gilbert on Rents, 20. But in Penn- sylvania it is held, that where chattels are leased with land the rent is distrain- able, the same as rent from lands and tenements alone. Mickles o. Miles, 1 Grant's Cas. (Penn.) 320. BiU, gen- erally, it is held that, while personal chattels may be leased, yet, if land and chattels, as a liouse and furniture, are leased together, the rent issues out of the land ; and that, if there is no means for apportioning the compensation to be paid to each kind, there can be no distress, but otherwise when the rent can be apportioned. Coen v. Coutner, IS Penn. St. 439; Fay v. Halloran, 35 Barb. (N. Y.) 295; Morris b. Tillson, 81 111. 607; Sutliff «. Atwood, 15 Ohio St. 186; Spencer's Case, 5 Coke, 16 a; Sal- mon v. Matthews, 8 M. & W. S27 ; New- ton 1). Wilson, 3 H. & M. (Va.) 470. I"; saems that rent may be reserved by the sovereign out of an incorporeal heredita- ment, Co. Litt. 47 a; and, in any event, a sum reserved for the use of things personal, may be recovered by action upon the contract, but cannot be dis- trained for as "rent." Gilbert on Rents, 20 Co. Litt. 47 a. If lauds and personal chattels, as, lands and sheep, or farming implements, or a house and furniture, &c., an; leased, the rent is- sues out of the laud or liouse, and the lessor, in bringing an action upon the lease, may declare, as on a demise of the lands or house merely, and need not notice the personal chattels. Farwell t). Dicldnson, 6 B. . * Gardiner ». Williamson, 2 B. & Ad. 3^6. Althougb the sura jiayable in re- spect of a lease of an advowson, or the like, has acquired tlie name of rent, yet, strictly, a rent cannot issue out of an incorporeal hereditament, Lovelaw v. Eeynolds, N"ov. 59; Nealec. Mackenzie, 2 Cr. M. & il. 34; 1 Piatt on Leases, 27, but it may be recovered on the ex- press covenant for payment, or on the reddendum, whicli amounts to an im- plied covenant, but will not warrant a distress. Gardiner v. Williamson, ante; 1 Piatt on Leases, 27. ' Spencer's Case, 5 Coke, 16 fi. « Salmon v. Matthews, 8 M. & W. 827; Collins V. Harding, Cro. Eliz. 607; Far- well V. Dickinson, 6 B. & C. 251. If lands and goods, or lands and a stock of slieep or cattle, or a iiouse and furni- ture, are leased for a gross rent, the rent issues out of the land alone. Rede B. Lawnse, Dyer, 212 b ; Newman v. Anderton, 2 B. & P. 224: Bird t>. Hig- ginson, 2 Ad. & El. 696; Croom «. Tal- bot, Comb. 2.38; Collins v. Harding, Cro. Eliz. 606; Farwoll v. Dickinson, 6 B. & C. 251 ; Shury ». Brown, Latch. 99; Walsh v. Pembertou, Selw. N. P. 603; Spencer's Case, 5 Coke. 16 a; Emat V. Cole, Cro. Eliz. 255, and if a man leases two distinct parcels of land, in one of ■\\liich he has no interest, the whole rent issues out of the other parcel. Earwell v. Dickinson, ante; Neale b. Mackenzie, 1 M. & W. 747; Anonymous, Mo. 50, pi. 150. But where distinct rents for each parcel is reserved, or where the rent is apportionable, or where, as may be done, the lease charges a certain part of the premises with the rent, in exoneration of the rest, the rule is otherwise. Winter's Case, 3 Dyer, 308 b ; Knight v. Beech, 3 Leon. 124 ; Knight's Case, 5 Coke, 54 6. So a rent may be reserved out of one parcel for one period, and out of another for another period, Knight's Case, ante, or one rent may be reserved for one year, and another for another year, for the same premises. Smith b. Newsam, Yelv. 1S9; Hollands. Hopkins, 4 Leon. 8. So one rent may be reserved subject to a condition precedent, another to a condition subsequent, and another abso- lutely and to be paid at one day and place, or at several days and places, and a surrender of one parcel under such leases, does not operate as an extin- guishment of the rents of the others. Knight's Case, ante. ' Selby V. Greaves, L. R., 3 C P 594. 734 Rent. is no demise of the room or any particular part of it.^ A payment reserved as a compensation for a mere license to use premises for a special purpose, is not rent,^ nor payments reserved on a mere agree- ment for a lease where there has been no payment of rent, or tenancy in fact ci-eated ; ^ and even where a tenant holds over, although he is treated as holding upon the terms of the former demise, yet there can be no distress for rent until a new tenancy has been expressly or impliedly created.* Payments reserved upon the assignment of a lease are not rent ; ° but, while such payments are not rent, so that a distress will lie therefor, yet they may be recovered under the contract by action thereon.^ Payments in addition to the rent reserved in the lease, which the lessee, for any cause, agrees to pay for the balance of the term, arc not recoverable as rent, although the word rent is used ; tlie agreement is a mere personal contract to pay an additional sum,' and the same is true of an agreement to pay a certain sum " over and above the rent." * The most important bearing of the technical dis- tinctions between rent as such and a payment reserved that is not technically rent, consists in the fact that in the one case a distress lies, and in the other it does not. But in all cases, the sum reserved in the 1 Hancock ». Austin, 14 C. B. N. S. 634. * Hancock v. Austin, ante. ^ Regnant v. Porter, 7 Bing. 451 ; He- fjan t. Johnson, 2 Taunt. 148; Dunk b. • Hunter, 5 B. & Aid. 32i. ■* Jv.mer v. Clegg, 1 Moo. & R. 21.3 ; Alford V. Vickery, Car. & M. 280; Sulli- van I). Bishop, 2 C. & P. 359. = Preecc v. Corrie, 5 Bing. 24; Poult- ney r. Holmes, 1 Stra. 405; Parmeter v. V/cbhcr, 8 Taunt. 503. ^ Witton V. Bye, Cro. Jac. 486 ; Preece V. Corrie, ante; Winton v. Pinkney, 2 Lev. 80; v. Cooper, 2 Wils. 375 ; Lloyd i;. Langford, 2 Mod. 174; Co. Litt. 47 a. But neither at the common law, Preece v. Corrie, ante; Parmeter V. Webber, 8 Taunt. 593, nor under the Stat. 4, Geo. 2, chap. 28, is it the sub- ' ject of a distress. AVoUaston v. Hake- well, 3 Scott, 593. ' Lambert v. Norris,2 M. & W. 333; Hobv V. Roebuck, 7 Taunt. 157; Donel- lan V. Reed, 3 B. & Ad. 899; Foquet v. Moor, 7 Excliq. 870. In Hatherton v. Bradburn, T3 Sim. 599, this was ? ? 8 Smith V. Mapleback, 1 T. R. 441 ; Morrice t). Antrobus, Hardr. 325. In Minor's Bank v. Heilner, 47 Penn. St. 452, the lease contained a stipulation for the repayment of an improvement fund by " an additional rent of ten per cent, on all coals taken out." The covirt held that this additional sum was not rent, but a mere agreement for the repayment of a loan. If rent is re- served in a lease by the ordinary words of reservation, "yielding and paying," or " rendering," and the lessee cove- nants to pay yearly over mid above si.Y shillings, or any other sum, a couple of capons, or the like, the latter is not treated as a part of the rent, but as a sum or thing in gross, Morrice v. An- trobus, Plardr. .325; Lambert v. Morris, 2 M. & W. 333; Hoby v. Roebuck, 7 Taunt. 157; Danellan v. Reed, 3 B. & Ad. 899, and the same was held where the lessoj- agreed with the assignee of a, lease to have the house on the terms mentioned in the lease, and to pay £8 10s. over and above the rent, annu- ally, towards the good will. Smith v. Mapleback, ante. So, also, where the tenant, in consideration of certain im- provements made by the landlord, agreed to pay £5 over and above the rent. Danellan v. Reed, ante. In all these cases, that can only be treated as rent which is provided for in the lease aa rent, and the other sums pass to the executor, while the rent passes to tlia heirs or reversioners. Danellan v. Reed, ante ; Hoby v. Roebuck, ante. And in the case of the bankruptcy of the lessee, his assignees are not liable to pay any more than the original sum, or that which is properly rent. Lambert V. Norris, ante. Kinds op. 735 lease, whether it is to be treated as strictly rent or a mere ijersonal agreement, can be recovered in an action upon the contract, and the party is not absolved from its payment, because it is not technically rent. The distinction also becomes important in adjusting the rights of executors and reversioners, and those who come into the rights of the lessee by operation of law.^ Bauds of rent. Sec. 449. At common law there are three kinds of rent, to Avit : rent-service, rent-charge, and rent-seek. Rent-service is so called because it has some corporeal service incident to it, as at the least, fealty,^ or fealty and ten sliillings rent ; and for these, if they are in arrear, the landlord may distrain, whether such power is reserved in the lease or not.^ A rent charge is where land is charged with a rent by deed or will, with power to distrain therefor ; and the owner of the rent has no reversion in the land : as, where land is conveyed in fee, reserving a certain rent payable out of the same, with a clause of distress, that if the rent is in arrear for a certain number of days it shall be lawful to distrain for the same. In such case, the land is liable to the distress by virtue of the clause in the deed, and it is because the land is charged with a distress that it is called a rent-charge.* A fee farm rent is a rent-charge reserved on a grant in fee. The name is founded on the perpetuity of the rent or service, and not on the amount ; " and this species of tenancy still exists in this country." Rent-seek or barren rent is in effect nothing more than a rent reserved by deed or will, without any clause of distress, and this is the only difference be- tween it and a rent-charge.' Rents of assize are the certain established rents of ancient tenants paid in a set quantity of money or provisions. It is called " rent-assize," because it has been assized or made certain, 1 See the last note. so much of the rent. Iiigersoll v. Sar- 2 Gilbert on Rents, 9; Co. Lltt. 87 geant, 1 Whart. (Penn.l'.S;];?. It is a b ,• Langher . v. Humphrey, Cro. Eliz. separate estate from the ownership of 524. the ground, and the owner of the rent a Litt. § 21.5 : Finlay's L. & T. 227. is not charged with notice of the sub- * Gilbert on Rents, 17; Woodfall's L. division of "the land and the rates that & T. 337; Smith's L. & T. 113-116 ; are made among the owners. McQuigly Bradbury v. Wright, 2 Doug. 628 ; Co. v. Morton, 39 Penn. St. 31. Litt. 143 h. Rent reserved upon manor ^ Alexander y. Warrance, 17 Mo. 228. leases in New York is held to be a rent- The difference between rents seek, rents charge. Van Rensselaer ». Chadwick, assize, fee farm rents, &c., was abolished 24 Barb. (N. Y. ) 333. by 4 Geo. 2, c. 28, and by that statute a ^ The Governors of Christ's Hos- right of distress was given for rents pital I). Harrild, 2 M. & G. 713, n. ; seek and assize, ac in the case of rents Co. Litt. 143 b. Rent reserved upon a i-eserved upon lease, conveyance in fee is a rent-charge and not 'Gilbert on Rents, 38; Cornell v. a rent-service. Van Rensselaer u. Chad- Lamb, 4 Cow. (N. Y.) 652. But a right wick, 22 N. Y. 32. But in Pennsylvania to distrain for such rent is given by 4 aground rent is held to be a rent-service, Geo. 2, c. 28, s. 5. Cuthbert v. Kuhn, 3 and not a rent-charge, and a release of Whart. (Penn.) 357; People d. Haskins, a part of the land from the rent releases 7 Wend. (N. Y. ) 463. 736 Rekt. to distinguish it from vedditus mobiUs, or variable rent, that rose and fell according to circumstances.^ Quit rent is a, certain rent reserved, payable yearly, whereby the tenant goes quit of all other service. Old rent is such yearly rent, neither more nor less, as has always been paid. Improved rent is where the old rent has been raised. A fine or premium given by the lessee to the lessor at the time of taking or renewing a lease, is in the nature of a fore-hand rent, and is considered as an improved rent.^ Rack rent is rent supposed to be of the full value of the tenement, or nearly so.^ Rents payable in advance. Sec. 450. Although, ordinarily, rent does not accrue as a debt until the lessee has enjoyed the use of the land,* yet if the lease contains a stipulation that the rent shall be payable in advance, it becomes a debt upon the day when, by the terras of the lease, it becomes payable, even though the tenant has not enjoyed the use of the premises. In other words, where the lease provides that the rent shall be paid in advance the provision is binding, and the rent becomes due before the tenant has enjoyed the use, and an action may be maintained or a distress made therefor.^ When rent is reserved in advance it should be clearly expressed ; as, " yielding and paying therefor the yearly rent of one hundred dollars, payable quarterly (or weekly, semi-annually, &c.), in advance," or other words that clearly indicate that the advance pay- ments arc intended to apply to the rent for the whole term ; and a lease under which premises were let for one year, " at the yearly rent of £80, the rent to commence at Michaelmas and to be paid three months in advance," on taking possession, was held not to apply to rent subse- quently accruing.^ Where a tenant 'pa.js the rent of a building in ad- vance, and it is destroyed by fire or other casualty, but is rebuilt by the lessor before the term exjsires, the tenant is entitled to its oecu- 1 Finlay's L. & T. 230. of the tenancy, without demand, prior 2 Wynne v. Bainpton, 3 Aik. 473 ; to tlie commencement of tlie hist half Irish Society v. Needham, 1 T. R. 486 ; year. Conway b. Starkweallier. 1 Den. Soutliall V. Leadbitter, 3 T. R. 401. (jST. Y.) 113. in Clarice v. Ilalford, 2 0. 2 Co. Litt. 215. & K. 540, the lease contained a condition *Boardmani). Oshorn, 23Pick. (Mass. ) that the rent should be paid in advance 295. if the landlord required it, nothing 5 Russell V. Doty, 4 Cow. (N. Y.) 570; being said as to the day upon which Giles B. Com stock, 4 N. Y. 270; Jenner payment should be made. Aflor a V. Clegg, 1 Moo. &R. 213; Lee u. Smith, quarter had expired, the landlord Je- 9Exchq. 062; Smith's L. & T.' 218. In manded a quarter's rent only, and it Witty V. Williams, 12 W. R. 755, the was held that he could not distrain for lease provided that the tenant should the rent for the whole year, but only pay the last half year's rent in advance, for the quarter demanded. But see It was held, that the landlord was eu- Peraberton v. Van Rensselaer, 1 Wend. titled to distrain for it at any time be- CiH. Y.) 307, and Giles b, Comstock, 4 tween the date of the commencement of N. Y. 270. the last half year and the termination * Holland v. Falser, 2 Starkio, 161. In advance. 737 pancy for the balance of the term ; and if the lessor lets it to another person, the tenant may recover of the landlord all the rent j)aid by him for the period subsequent to the second lease. ^ But as previously stated, unless there is an express j^rovision as to the time whea the rent is to commence, and of jsayraent, rent does not commence until the tenant's right of possession attaches, nor become due until the tenant has enjoyed the use of the premises ; and a weokly, inonthly quarterly, or yearly rent, is not payable until the end of the week, month, quarter or year,^ unless there is a custom of the country, by which the rent may be due in advance, or quarterly, or otherwise,' in which case, unless excluded by the terms of the lease, it will conti-ol it in this respect.'' Where, by the terms of the lease, rent is payable, and has been paid by the tenant, in advance, lie is not liable for the same rent to the grantee of the lessor who had no notice of snch pay** ment, and such is the case where the rent has been in fact paid in ad- vance, although the lease does not ])rovide for such ad^'ancc i)ayment. But such payments are treated rather as advances on account of rent, than as an actual payment of rent, and constitute an equitable defence to an action for the rent on account of which it was advanced ; " as strictly, a. payment of rent before the rent day arrives is treated as a voluntary payment, which does not operate as a disoliarge.' The fact that rent is payable in specific property, as grain and the like, does not, in the absence of a contrary custom, change the rule as to the time of payment.^ Where the rent is expressly made payable in advance,' the practice of the landlord to receive the rent at the end of the quarter instead of at the beginning of it, docs not overcome the effect of the provision, or deprive the landlord of the right at anj^ time to insist upon advance payment." But where rent is made payable generally, no time being fixed for its payment, an agreement to pay it weekly, monthly, quarterly or otherwise, in advance, or at the end of the week, month, or quarter, &c., may be implied from the practice of the parties in that respect ; as, that the landlord has demanded, and the tenant fre- quently paid it weekly, monthly, quarterly, &c., in advance, or at the end of the week, month, or quarter.^" Where a lease is made April 1st, for one year or any other number of years, at a certain yearly rent, 1 Ward 13. Bull, 1 Fla. 271. " Stone o. Patterson, 19 Pick. (Mass. ) " Bentley v. Sill, 35 111. 414 ; Finch v. 476. Miller, .5 C. B. 428; Boardraanv. Osborn, « Nash b. Gray, 2 F. & F. 391 ; Eock- 23 Pick. (Mass. ) 295; Coomber v. How- Ingham v. Pennice, 1 Swanst. 345, n. ard, 1 C. B. 440; Turner v. Allday, Tyr. '' Cline's Case, 10 Coke, 127 a; Crom- & G-r. 819; Garvey v. Dobyns, 8 Mo. 213; well v. Andrews, Cro. Eliz. 13. Menough's Appeal, 5 "W. & S. (Penn.) s Dixon v. NiclioUs, 39 III. 372. 432; Raymond c. Thomas, 24 Ind. 476. ^ Giles v. Comstock, ante. 3 Buddy ». Taylor, 2 T. R. 600; " L. I. R. R. Co. d. Marquand, 6 N. T. Eidgelev «. Stihvell, 27 Mo. 428. Leg. Obs. 160. See also, Clarke v. Hal- * In Doe V. Benson, 4 B. & Aid. 588. ford, ante. 47 738 Rent. "payable qiiai-terly en the first days of April, July, October, and Jan- uary," the rent is payable in advance.' Where rent is paid in advance, according to the terras of the lease, for the entire year or term, and befoi-e the term is ended the land is sold either by the lessor or at sheriff's sale, the purchaser cannot recover the rents for the balance of the term.- But where the rent is payable generally, payment in ad- vance does not shield the tenant from accounting to an execution creditor, or purchaser, for rent accruing subsequent to the levy and sale. Thus, where the tenant under such a lease accepted orders drawn by the landlord, in anticipation of rent which was not due at the time of acceptance, and in advance of the time of payment, it was held that he was nevertheless liable to the purchaser of the estate at sheriff's sale for the rent subsequently accruing, even though such orders covered the rent for a considerable period that had not expired at the time of sale.' Covenant to pay rent. Sec. 451. If rent is to be paid nnder the lease it should be so expressed and a covenant to that end should be inserted therein, as, in the absence of such special covenant, the lessee may relieve himself from all respon. sibility for the rent, except during the period of his actual occupancy, by assigning his term,'' and this too without any reference to the ques- tion whether the assignee is responsible or wholly irresponsible,* or whether he intends to occupy the premises or to remain in the country or not, as an assignment to a person about to leave the country per- manently has been held good, in the absence of such a covenant, to release the lessee from liability for subsequently accruing rent." For this reason, as well as for others hereafter stated, it will be seen that a special covenant to pay rent is of vital importance to the lessor. A lease may be good without any reservation of rent, as in such cases the law reserves the fealty ; ' but generally, when no valuable return is to be made for the use of the premises, a nominal sum is, or should be, reserved to indi- cate the relation of tenant and reversioner ; and it was formerly the practice to reserve a peppercorn.* No formal reddendum is necessary in a lease, as any words that indicate that rent was intended to be 1 Deyo V. Bleakly, 24 Barb. (N. Y.) 9. « Dalston v. Reeve, 1 Ld. Eaycl. 77. 2 Farmer's Bank v. Ege, 9 Watts ' Knight's Case, 5 Coke, 55 a. If, by (Peim. ), 436. the terms of a lease, no rent is payable, ' Martin v. Martin, 7 Md. 368. or due, none can be recovered, even < Staines v. Morris, 1 Ves. & B. 11 ; though the lessee has had some bene- Pitcher v. Toney, 4 Mod. 71 ; Trsackle ficial enjoyment, and did not give up B. Coke, 1 Tern. 165. the premises upon non-performance of ' An assignment to a pauper has this the conditions by the lessor. Epping o effect, Taylor «. Shum, 1 B. & P. 21, or Devanny, 28 Ga. 422. a bankrupt. Onslow o. Currie, 2 Madd. « Collins v. Harding, 13 Coke, 57 ; 2 330. Piatt on Leases, 82. Covenant to pat. 739 reserved is sufficient, but the reservation should be certain as to the amount and time of payment ; * but in this, as in the case of other con- tracts, the maxim id certum est quod cerium reddi parttct applies, and if there is anything in the reservation from or by which certainty as to the amount of rent or time of payment can be arrived at, it is suffi- cient.^ So if rent is made payable half-yearly, quarterly, &c., although the specific day upon which it is to become payable is not named, yet it is sufficient, as it can be certainly ascertained.^ If the time of pay- ment is left optional with the lessor, as, if it is to be paid " yearly, semi-annu.ally, or quarterly, if required," the lessor, by receiving the rent yearly, so far fixes the time of payment that he cannot afterwards "^hange it without a previous demand. Thus, if, under such a letise, the landlord has received tlie rent semi-annnall_v, he cannot, without a pre- vious demand, distrain for a quarter's rent, nor bring an action therefor. And, if he has really elected to receive it semi-annually, it is not believed that he can, even by a demand and notice to the tenant, make it jsayable at any other time.* When the lease provides that the rent shall be payable quarterly, and that the first payment shall be made on a certain day, before the arrival of which two quarters have elapsed, still, but one quarter's rent then becomes due, and the first quarter's rent is treated either as having been forgiven altogether, or postponed until the end of the tei-ra.'^ The words "yielding and paying" are the 1 Parker v. Harris, 4 Mod. 79; Gilbert v. Eastwood, 2 H. & N. 811 ; Daniel on Runts, 9; Rains v. Kneller, 4 C. & Grain, Q. B. 145 ; Pollitt v. For- P. 4. Wliere a person in possession of rest, 11 id. (549; Bowers u. N"ixon, 12 id. lands eitlior expressly or impliedly 546. agrees to pay rent tlierefor unless a cer- ^ 2 Rolle's Abr. 450 (M), pi. 2; Hill v. tain contingency transpires, iinless sucli Grange, Plowd. 164. contingency exists lie is liable upon his * Mallam v. Arden, 10 Bing. 299. In promise ti) pay rent for the whole period this case tlie court declined to decide of his occupancy. Thus, where land wliether the lessor, by receiving the rent was sold at a tax sale, and a short tiine quarterly, must be treated as having previous to tlie expiration of the time of elected so to receive it, or whether, even redemption the person in possession in- if he had elected so to receive it, he duced tlie purchaser to extend tlie time could afterwards change the time of of redemption to the following fall, and payment, but did hold that in either told the purchaser that, unless he re- case lie could not change the time with- deemed the land by the time that the out a previous demand, and that bring- term of redemption expired, he would ing a distress did not amount to a de- be willing to pay rent for the whole mand. year, and he was permitted to remain in ^ In Hutchins ». Scott, 2 M. & W. possession, it was held that he, having 809, by an agreement dated September failed to redeem within tlie time, was 8th, the defendant agreed to let a house liable for the rent for the year. Mat- to the plaintiff for seven years at an an- thews 11. Morris, 31 Ark. 222. nual rent, payable quarterly, tlie first pay- 2 Brooks V. Cunningham, 48 Miss, ment to be made March 25th following. 108 ; Orby ». Mohun, 3 Bro. P. C. 248. After March 25th the defendant dis- As where a certain number of bushels of trained for two quarters' rent. In an grain is reserved, or a certain sum for action against )iim for a wrongful dis- each perch of stone quarried, or for tress, the court lield that only one quar- each cubic yard of brick-earth, &c., it ter's rent was due March 25th, and that is sufBcient, because the reservation can the distress was illegal as to the other be reduced to a certainty. Edmonds quarter. If the landlord, in pursuance 740 Rent. words usually employecl for the reservation of rent, and an implied covenant to pay the rent arises from those words when the lease is executed by both parties,^ but not otherwise.^ A covenant for the payment of rent runs with the land,^ and binds all persons who hold under the lessee by indenture * or as assignee of the lease,^ whether the assignment is the voluntary act of the lessee or is effected by operation of law." But an assignee is not liable for rent that accrued before the assignment was made,' nor can he be made liable therefor upon an ex- press promise to pay it, unless a good consideration for such promise is shown. Thus, in the case last cited, the assignee of a lease, under which there was a considerable sum due from the assignor for back rent, p'romiscd the landlord that if he would allow him to remain he would pay the back rent due from the assignor, it was held that he could not be held liable upon such promise. An undertenant is not ordinarily liable to the landlord, in any form of action, for rent. He can only be made liable to his lessoi', or the assignees of such lessor.^ But the original lessee is liable therefor, even in an action for use and occupation, the same as though he occupied the premises himself." Wlien rent is payable weekly, quarterly, or annually, the tenant lias the whole of the last day of the term in which to pay it, but where, by the terms of tlie lease, the rent is made pa^'able weekly, in advance, the tenant has the whole of the eighth day to pay it in.'" Where the lenso commences on a given day, as, on the 10th day of January, 1878 of a power reserved to liiui in the lease, person acqniriiir; the priucipal estate puis ail end to tlie term 6r,''ore the rent with rem, as apsiguoe of tlic interest becomes due, lie _cannot recover any conveyed by the lease. Provost i^. Cal- rent, either upon tlie lease, or for use 'der, 2 Wend. (X. Y. ) 517. and occni>alion. Nicliolson t). iVIuiiiglc, i" A purchaser at shevifl's sale of tlie C Allen (ilass.), 21.5. And tlie same interest of a lessee In demised premises rule prevails wlietlicr the lease is in is liable as assignee for after-accruing Avritiiic; or by parol. Fuller v. Sweet, (i rent, whetlier he occupies the promises, Allen (Mass'.), 219 n. or nol. Smith n. Brinker, 17 IVIo. 148. - Iggnlden i;. M.ay, 9 Ves. 830: Webb ' Lawlor v. Moller, 4 Bos. (N. Y. Su- V. liusFcll, 3T. 1!. 4'J2; Church u. Brown, perior Ct.) 140. l.-j Ves. 211-1 ; Vyvyan v. Artliur, 1 B. & » Bedford v. Terhuiie. 00 N". Y. 4.5;-! ; C. 410. But contra, see Steward v. Wol- Dartmouth College v. Clougli, 8 N. H. verid;re, 1) Bing. 07; Newton v. Osborn, 22. Sty. :!L=:7. " " Moffatt v. Smith, 4 N. Y. 126. ^ Piatt on Covenants, Hi). '' Sherlock r. Tliayer, 4 Mich 355. In " Sandwitli i>. Do Silver, 1 Browne New York City, under a lease for less (Penn.), 221; Hurst )). Rodney, 1 Wash, tlian a year, payable quarterly, as, from (Va. ) 375 ; Jlain i). Feathers, 21 Barb. Oct. 1st to May 1st, tlie rent is licld to (N. Y.) 041 > ; Van Rensselaer v. Hays, be payable on the yearly quarter-days, 19 N. Y. 68. that is, one month's rent Nov. 1st, and <* lliirst V. Rodney, ante: Carley v. thenceforth quarterlv. Wolf b. Merritt, Lewis. 24 1 11 d. 2:?. ' 21 Wend. (N. Y.) ;!ii6. But in a later " Brett D. Cumberland, Cro. .Jac. 523; case, Curtis u. Miller, 17 Barb. (N. Y.) Porler v. Swetnam, Sty. 406. The 477, where the lease began upon the transfer of an estate to wliicli a privi- 10th day of the month, for a term of ]egc is annexed by lease as appurtenant years ending on the first day of the ; to the estate, is sufficient to charge the month, a contrary doctrine was held. Covenant to pat. 741 and the rent is payable annually, the rent is in arrear after 12 o'clock at uiglif of January 9th, 1879.^ There is a broad distinction between a reservation of an entire rent for several distinct parcels of land, and one where the rent is apportioned to each distinct parcel. Thus, if several tenements are demised for the yearly rent of one thousand dollars, to wit : five hundred dollars for one tenement, two hundred dollars for another, and tliree hundred dollars for the other, the rent is entire, and the non-payiir.'at of the rent for one of the tenements, where the lease provide,.! lor a forfeiture for non-payment of the rent, operatesvas a forfeiture of the rights of the tenant as to all; but where several tenements ai-e leased and the rent is apjjortioned to each, as, for one of them five hundred dollars, for another two hundred dollars, and the other three hundred dollars, the entire sum not being at first reserved, the lease operates as a separate demise of each tene- ment, and, although there is a reservation of a right of re-entry for non-payment of the rent, yet the landlord can only re-enter as to those tenements for which tlie rent is unpaid ; and if the rent of one or more of them has been paid, the tenant can hold that or those for which the rent is paid, and the landlord can only re-enter the others,^ the rule being that, if two or more tenements are demised at distinct rents, each is charged only with the rent reserved for it ;^ but, if an entire rent is re- served, although it is in a subsequent part of the lease distributed to each tenement in several distinct sums, each tenement is charged with the whole rent,* and it is for this reason that a lease of premises at an entire rent, to only a part of which the lessor has title, or a right to demise, is at least voidable ; ' but, if a tenant goes into possession of a part of the premises he is liable for the whole rent, unless it is aj)portionable.° Where there is a special covenant to pay rent, the fact that the tenant never occupied the i^remises, or in any manner took possession thereof or asserted a right thereto, will not relieve him from liability upon his cove- nant, but he will be held to pay the rent for tlie full term ; ' and the same rule also jirevails, although the tenant has lost the use of the promises by the casualties of war,* or by fire, even though the premises were in- sured, and the landlord has received the insurance money and refuses to apply it to a restoration of the buildings.' Nor, under such a cove- ^ Donaldson D. Smith, 1 Ashm. (Penn.) gate the landlord's title, and if he had 107. no power to lease the jireniises rent ^ G-ilbert on Rents, 25, 36; Tanfield B. cannot l)e recovered, notwitlistanding Kogers, Cro. Ehz. 341. the covenant. Fuller u. Sweet, 3.) Mich. ^"Tanfield b. Rogers, ante. 237. * Gilbert on Rents, 24, 33. » Coy v. Downie, 14 Fla. .'544. ^ Gritnth v. Lloyd, 3 Esp. 78. " Bussman u. Ganster, 72 Penn. St. ^ Commissioucrs v. O'Connor, 9 Irish 285. In Loft v. Dennis, 1 E. & E. 474, C. L. 242. in an action for use and occupation ' McGlynn ». Brock, 111 Mass. 219 ; the defendants set up an equitable plea, McMurjjliy o. Minot, 4 N. H. 251. But that being tenants to the plaintiff of the in such a case it is competent to investi- premises and buildings theron, they had 7^2 Rj,^.^. nant, can the lessee relieve himself from liability for rent during the whole term by assigning the lease,^ or in any way short of an actual eviction by the landlord, or some person acting under him, or by a surrender of the premises, which is accepted by the landlord,^ or he quits the possession for a valid legal cause.'' Where there is a speciii] covenant to pay rent, the lessor, in case of an assignment by the lessee, acquires a double security for the rent, as, by reason of the i:)rivity of estate created by the assignment, he may proceed against either the lessee or his assignee therefor; * and being a covenant that runs witli the laud, an assignee of the lessor acquires the same remedies to en- force it, and the same rights that the lessor would have had if he had not assigned the lease.^ When and vrliere rent is payable. — Demand to create forfeiture. Sec. 452. The tenant has the lohole of the day njjon which the rent falls due in which to pay it, and it is not in arrears until after tweh e o'clock at night of such day, although strictly it is due in the morning of the day fixed for payment ; ^ but, except in the case of a personal tender to the landlord, where a forfeiture is provided for in llio lease, or a right of re-entry is given, in order to save the forfeiture the tenant should tender the rent, or be present at the place appointed in the lease for ])ayment, or, in case no place is named in the lease, upon the lancl^ because tlieland is regarded as the debtor, at a convenAent place, before sunset of the precise day upon which the rent becomes due, with the money, or, if the rent is payable in specific articles, with the property agreed to pay a rent larger than they proportioned to the relative value of would liave done had the buildings not the part assigned. Fletcher o. McFai'- been standing on the land; and that tlws lane, 12 Mass. 43. plaintiffs had insufod the buildings - See post, Eviction, Surrender. Mere against fire, by a policy which allowed acceptance of rent from the assignee of the insurers to reinstate or pay for the a lessee does not discharge the lessee buildings, by reason of which the de- from his covenant. Fletcher r. McFar- fendants did not insiu'C. as they other- lane, 1*2 Mass. 4.'! ; Dyer v. AVightman, wise would have done. That the build- 60 Penn. St. .")2.j; Cleves v. Willoughby, ings were destroyed by fire, and that the 7 Hill (N. Y.), 83. insurers paid the loss to the lessors, who " AVolveridgo v. Stewart,! Cr. , it was (N". Y. C. P.) 217; Orlhout v. Ballard, held that the landlord might recover of 41 Barb. (N. Y.) 33 ; Thomas v. Hay- an assignee of a part of the premises a den, 19 Vt. oS7. Bhare of the rent reserved in the lease, When and where payable. 743 ready to pay it.' But, except where otherwise provided by statute, iti order to work a forfeiture for non-payment of rent, so as to authorize a re-entry by the landlord, he must have demanded the precise sum due for the last current quarter,^ half year, or year, as the case may be, and if the demand included any portion of a previous quarter, half year or year, it is bad.'' But the demand may include interest, which is an incident of the rent.* So the rent must be demanded upon the precise day when it becomes due,'^ and a demand made before or after the day when the rent becomes due is not sufficient to defeat the ten- ant's estate.* So, too, the demand must be made such a time before 1 Remsen v. Conklin, 18 John. (N. T. ) 450 ; Lush b. Druse, 4 Wend. (N. Y.) 313 ; Academy of Music b. Hackett, 2 Hilt. (ISr. T. ) 217. Under the rule that tlie demand must be made at the most convenient place upon the land, it fol- lows that if there is a dwelling-house upon the land the demand must be made there, and at the front door ; but it is not necessary that tlae demand should be made in the house, and the landlord need not enter the house for that purpose, even though the door is open. If, however, the tenant meets the landlord either on or off the land, a personal tender of the rent to him or his agent is sufficient, because the law leans against forfeitures. Kidwelly b. Brandt, Plowd. 70 a, b ; Doe b. Wand- lass, 7 T. R. 117; Mound's Case, 7 Coke, 2S. But the landlord must demand the rent upon the land, or at the place of I)ayment designated in the lease, wheth- er there is any one there to pay it or not, and a personal demand made off the land is not sufficient. Mound's Case, 7 Coke, 28 b; ForsterB. Wandlass, 7 T. R. 117. The niceties of the com- mon law in this respect have been great- ly obviated by statute in many of the States. 2 In Fabian's Case, 1 Leon. 305; S. C, Cro. Eliz. 209, it was said that the land- lord must demand the precise sum due, and that " if he demands one penny more or less, it will be ill." See also, Connor v.. Bradley, 1 How. (XJ. S.) 211. A demand is indispensable, except where the statute otherwise provides, or where the lease contains a provision expressly dispensing with a demand. The parties may expressly, by a pro- vision to that effect, dispense with a de- mand, or may waive it. Fifty Associ- ates B. Howland, 5 Cush. (Mass.) 214 ; Sweeney v. Garrett, 2 Dis. (Ohio) 601 ; Doe B. Mastins, 2 B. & C. 490. And, even where a forfeiture has accrued in favor of the landlord, he may waive it. either expressly or by implication. Griffith 0. Pritchard, 5 B. & Ad. 763 ; Green's Case, Cro. Eliz. '.i ; Camp v. Pulver, 5 Barb. (X. Y.) 91 ; Coon b. Brickett, 2 IST. IT. Kia: Garnhorn b. Fin- ney, 40 Mo. 44i): Jackson B. Brownson, 7 Dana (Ky.), 227 ; Ganiber b. Hackett, 6 Wis. 323. See post, FoiurEixUKE. And slight acts on his part will have that effect, as forfeitures are odious to the law. 2 Piatt on Leases, 4ii;S. And for the same reason, a waiver of a demand, or any other act essential to be done by a landlord to perfect his right to re- enter, will never be implied. Gaskill b. Trainer, 3 Cal. 334. ^ Van Rensselaer b. .Tevvott, 2 N. Y. 147; B. Paul, 3 C. & P. 613. 4 People B. Dudley, 58 N. Y. 323. ' Chin's Case, 10 Coke, 128 a ; Kirby B. Green, 2 Lutw. 1139; Gi. Litt. 202 a; Hill V. Grange, Plowd. 172 b ; Cropp b. IIainbledon,"Cro. Eliz. 4S; Kidwelly b. Brand, Plowd. 70 a ; Smith's Case, 1 Leon. 142; Wood's Case, 4 id. 183; Con- nor b. Bradley, ante; Bro. tit. Demand, pi. 19. " In Forster b. Wandlass, ante, the landlord brought ejectment. The lease contained a provision as follows: " Pro- vided that, if it shall happen that the said yearly rents hereby reserved, or any part thereof, shall be behind and unpaid l)y the S|5ace of thirty days next after the said days of payment, &c. , contrary to the true intent and meaning of these pres- ents: or in case the said defendant, his executors, itc, shall, at anytime during the said term, alien, &c. ; then, and in either of such cases, it shall and may be lawful forthe said J, &c., into the said de- mised premises to re-enter," etc. There was also a special covenant by the ten- ant to pay rent. The landlord, upon the trial, proved a demand for a half yeiir's rent after the day upon which it became due, and it was held thai the landlord could not, under such a de- mand, avail himself of the forfeiture. 744 Rent. sunset as to allow sufficient light for counting the money,^ and tiie per- son making the demand must remain upon the land until after sunset, and actively or constructively continue the demand until after that time, because if at the last instant the tenant is upon the land ready to pay the rent, the landlord must be there ready to receive it, or he cannot claim a forfeiture.- Although, as previously stated, the rent strictly becomes duo in the morning of the day fixed for payment, yet a de- mand made then, or even in the afternoon of such da}^, is not sufficient, especially unless the landlord, or the person authorized to make it, re- mains ujion the land and continues the demand actually or construc- tively until after simset,^ and this is the rule, even though the tenant 1 Tinckler p. Prentice, 4 Taunt. .549 ; Mound's Cas«, 7 Coke, 28 6; Thomp- son V. Field, Cm. Jac. 499 ; Fabian's Case, 1 Leon. '-iDo ; Co. Litt. 202 a ; .Jaclcson u. Harrison, 17 John. (N. Y. ) 66 ; Jones o. Reed, 15 K. H. 08. ^ Mound's C'a.5e, ante; Fabian's Case, Cro. Eliz. 209; Wood's Case, 4 Leon. 179; Acocks u. Pliillips. 5 H. & N. ISO. ^ In Acocks V. Pliilups, 5 H. & X. 18:5, a demand was made at half-past ten in the morning. Tlie landlord had pre- viously demanded the rent by mail, and the tenant sent back a verbal message to the jjlaintiff that he must come to him. The defendant did so, and the plaintiff then told him that he could not pay the rent, and that he might " do his best or his worst." At half-past ten of the same day the defendant went upon the land and demanded the rent of the plaintiff's clerk, but did not re- main upon the land, or continue the demand until sunset. On a sniisequent day the defendant entered into ijosses- sion. The defendant hrought eject- ment, which was u])held. M.vurix, B., saying: " The defendant is in this con- dition—lie entered without bringing an ejectment, and therefore he must prove that he had a right of entry at common law. The rule laid down in Co. Litt. 202 a, is, that the uttermost time for the demand is a convenient time l)efore the last instant ; and it is staled in Wlieeldon v. Paul, :i C. & V. Gi:5, * * that the tenantlias till sunset of the last day to pay the rent. The demand was therefore had." In Wheeldon v. Paul, ante, a demand made at one o'clock was held bad. In Jackson r. Harrison, 17 John. (X. Y. ) 66, it appeared that tlie landlord's agent made the demand in (ho afternoon of the day upon which the rent became duo. This was held bad. Van "Ness, J., saying: "The agent says he made the demand in the after- noon. Now, this may have been imme- diately after twelve o'clock, and a demand at so early an liour would not be good. ' The last time of the demand of the rent,' says Lokd Coke, ' is snch a convenient time before sunset of the last day of payment as the money may be numbered and received ; ' and it is laid down in Duppa v. Mayo, 1 Wm. Saund. 287, by Hale, C. B., that the time of sunset is the lime appointed by law to demand rents, and, though this is not probably literally correct, yet, it serves to show that the demand neces- sary to be made to create a forfeiture miiat be immei.liatehj precedin;/ sunser, so that the money may be coinited, and the necessary receij)t or acquittance given, while there is light enough rea- sonably to do so." See, also, Jones v. Reed, 15 N. H. 68, where a similar doc- trine was intimated, although, in tha-t case, the right of re-entry was not up- held, because the rent was tendered to the landlord before the lapse of the period within wdiich the forfeitiue would attach. See, also, holding that the demand must be made as staled in tlie text, Gaskill li. Trainer, ij.CJal. :ii4 ; Conner v. Bradley, 1 How. (U. S.) 217 ; McQuester v. Mengher, o4 N. H. 400 ; Remsen v. Concklin, IS Jolin. (X. Y.) 4.50; Phillips v. Doe, :1 Ind. i;!2; Jack- son V. Kipp, ■) Wend. (N. Y. ) 2'M) ; Chapman v. Wright, 20 111. 120; Tale r. Crawson, 6 Ired. (X". C. ) O."!: ^'an Rens- selaer V. Jewett, 2 X'". Y. 117: Mackuhin B. AVheetcraft, 4 H. & M. (ild.) 1:55; McCormick v. Caswell, 6 S. & K. (Peun.) 153 : Eichart r. Barqus, 12 B. Mon. (Ky.) 404; Cage v. Smith, 14 Me. 466 ; Jewett v. Barry, 20 N. H. 36 ; Stover V. Whitman, 6 Binn. (Penn.) 410; Chapman D. Harnej', 100 Mass. :;53; Bowman v. Foot, 29 Conn. ;3:?1 ; Smith c. Whitbeck, 1:3 Ohio, 471; Chapman v. Kirby, 49 111. 211; Proctor v. Keith, 12 Ky. 252 ; Bacon v. Western Fviruiture Co., 53 Ind. 229; O'Connor v. Kelly, 41 When and where payable. 7<5 has previously declined or refused to pay the rent, and has told the landlord he might do "his best or his\yorst" to get it.^ Therefore, the landlord must show not only that a demand was made, but also the time of day, and the place upon the premises lohere it was made, in order that it may be ascertained whether or not the demand was prop- erly made.^ He must also show the precise time when the sun set uj^on the day when the demand was made, as the court will not take judicial notice of such time.^ Such demand may be expressly waived by a provision in the lease to that effect, as, by inserting the words " without previous demand " in the clause providing for a re-entry upon non-payment of rent ; ^ but such a waiver will never be imjjlied.'^ Cal. 432. And it has been held that, even thovigh the lease fixes a place for payment off the premises, a demand must, nevertheless, bo made upon the land, and also at the place fixed for payment. Borough's Case, 4 Coke, 7o a; "Van Kensselaer v. Jewett, ante. But it is not believed that a demand is essential, except at the place fixed for payment, as, by agreeing upon a place of payment, the parties must be treated as waiving the right to demand pay- ment elsewhere. By statute, in Illinois, both a demand and ten days' notice is necessary to create a forfeiture. Wood- ard !). Cone, 73 111. 241. The tenant may defeat the forfeiture by paying or tendering the rent at any time before or after sunset, and before midnight, of the day upon wliich it becomes due, Cropp B. Humberton, Cro. Eliz. 48 ; Plow. 172 a; Gilbert on Rents, 91, and courts, both of law and equity, are in- clined to interpose to, save the tenant's term if lie pays or tenders tlie rout, and sucli damages as the landlord has sus- tained at any time before the lapse of Ills terra. Atkins v. Chillson, 11 Met. (Mass.) 112; Phillips v. Doolittle, 8 Mod. ;j4'> ; Wilson v. Jones, 1 Bush. (Ky.) 17o ; Goodright v. Koright, 2 W. Bl. 743 ; Lovatt v. Raneleigh, 3 V. & B. 24. 1 See A.cncks v. Phillips, ante. - McQuester v. Manglier, 34 jST. H. 4'JO. To summarize, unless a demand has been expressly waived in the case itself, the demand must be for the sum due for the last quarter, half year, or year, as tlie case may be, and must not embrace any portion of the arrears of a previous quarter, half year, or year, but it may embrace interest upon tlie sum due for the quarter, &c., for whicli the demand is made. People u. Dudley, 53 N. Y. 023 ; Fabian i). Winston, Cro. Eliz. 209 ; Doe v. Paul, 3 C. & P. 613. And it must be made at a convenient time before sunset of the very day upon whicli it becomes due, Co. Litt. 202 a, upon the land, Co. Litt. 201 6, unless the rent is e.Kpressly made payable (dse- where ; in whicli case, the demand sliould be made at such plac'3. Clun'.s Case. 10 Coke, 123 a ; Connor c. Brad- ley, i How. (U. S.) 211. And it has been intimated that a demand should be made upon the land also, Boraghi's Case, 4 Coke, 7j a ; Van Renssalaei' u. Jewett, 2 N. Y. 147, but this can hardly be necessary. The demand must be made upon tlie most notorious part of tlie land, that is, upon that part of it where the tenant would be most likely to enter upon or leave it, or would be most likely to be found ; consequently, if there is a dwelling-bouse upon it, it should be made at the front door thereof, or, if there is no dwelling upon it, at the gate or bar v/ay, if there be one, or upon the highway leading to or by it ; or if tliere be no liighway. In tlie path or road, if there is one, leading to or through the premises; or, if there are none of these, then upon tlie most con- venient place upon the premises, Co. Litt. 202 a. and there must be a demand, in fact, whether any one is there upon ■wliom demand can be made or not, and the landlord, or his agent, must remain upon the premises until the sun has set, ready to receive tlie rent, if tend- ered. 3 Collier v. Nokes, 2 C. & K. 1012. '' Fifty Associa'est). Howland,5Cush. (Mass.) 214. In Dormer's Case, 5 Coke, 39, it was expressly held that, by the consent of the parties re-entry might be had for a default of p.ayment of rent, without any demand. In Doe o. Mas- ters, 2 B. & C. 439, the lease contained a proviso that, if the rent was in arrears for twenty-one days the lessor might re-enter, " although no legal or formal " Gaskill B. Trainer, 3 Cal. 334. 746 Rent. A demand is only necessai-jr for the purposes of fixing the Lindlord'a right of re-entry. An action for the rent may be maintained witliout any demand, and a distress may be made in those States wliere the riglit to make a distress exists. In many of the States, by statute, the landlord may bring ejectment where a half year's rent is due and no sufficient distress can be found upon the premises, and this is the case in all those States where the statute i Geo. 2, chap. 28, is in force. In New York, and in many of the States, by statute, distress for rent is abolished, and a right of re-entry for non-payment of rent, whore a forfeiture is provided for in the lease, is given, after the service of a notice to quit of fifteen days' duration, and this, without any I'efereuce to tlie question whether a sufficient distress can be found upon the Iii-emise's or not."^ But in j^ew York, under the statute relating to sum- mar}- jiroceedings, the tenant may defeat the forfeiture by paying or tendering the rent at any time before a dispossession warrant issues, and, if his unexpired term has more than five years to run, gives him one j'car in which to roaeeni his term by payment of the rent and costs, and the technical rules of the common law relating to forfeitures do not apply where a remedy is sought under the statute ; ' but, where the landlord seeks to re-enter under the provisions of the lease, of his own motion, and independent of legal proceedings, the requirements of the common law as to demand must be strictly complied with, unless expressly waived, as well in New York " as in nearly all the States.^ demand should be made ;" it was held that, after the lapse of such time with- out paymout of the rent, ejectment might be maintained without actual re- entry, and witliout any demand. See also, Sniilli V. Doe, 7 Price, ',)',)2 ; Good- light V. Calor, 2 Doug. 477. In Fifty Associates v. Howland, ante, where the lease contained a stipulation that the lessor n)ight cuter " without further de- mand," it was held that no demand was necessary. Sweeney v. Garrett, 2 Dis. (Ohio) tiOl. In Maryland, where the statute 4 Geo. 2, ch.ap. 28, sec. 2, has been adopted, it has hei-n lield that un- der a lease giving a right of re-entry for non-paymentof rent, '' the same having been first lawfully demanded," the landlord may maintain ejectment with- out any demand. Campbell r. Shipley, 41 Md. Si. And in an English case, where the lease contained a similar clause, the premises being vacatit, the landlord asked for payment of the rent fruni the person liable to pay it, and the rent not being paid he re-entered, aiid under tlie slatute 4 Geo. 2, it was held that the demand was insufficient, and that the lease was forfeited. Manser v. Dix, 8 De G. M. & G. 70?. Wliere, how- ever, the lease provides for re-entry for non-payment of rent, unless it is paid within a certain immber of days after it becomes due, as ten, twenty, thirty, Jic, the demand siiould be made upon the last day, as the tenth, twentieth, &c. Phillips D. Bridge, L. R., t) C. P. 48. 1 Van Rensselaer v. Ball, 19 IST. Y. 100. 2 McAdam's L ct T. 220. In all cases where proceedings are commenced un- der a statute, the landlord ntust com- ply with the requirements of the stattite, and if no demand is made necessary by it. none need be made. Spooner v. French, 22 Minn. :37. ' Van Rensselaer u. Snyder, 13 N". Y. 299. * Bowman v. Foot, 29 Conn. 331 ; Bacon v. Western Furniture Co., 53 Ind. 229 ; Proctor v. Keith, 12 Ky. 252 ; Chapman v. Harney, 100 Mass. 353 ; Smith 0. Whitbeck, 13 Ohio St. 471 : Chapman v. Kirby, 49 111. 211 ; O'Con- nor V. Kelly, 41 Cal. 4.32. But in Louisiana forfeitures are not favored where no loss or inconvenience results to the lessor from the act creating it. Effect of 747 At common law, tho courts, both of law and equity, have, in order to defeat forfeitures which are odious to the law, treated tlic provision for re-entry for non-payment of rent as one of indemnity, inserted rather as a security against tlie loss of the rent, than to enable the landlord to repossess the premises; and, where the tenant pays or ten- ders the rent, and such loss as the landlord has sustained by reason of the omission, they will, even where all tho requirements of the com- mon law as to demand, &c., have been complied with, interfere to pre- serve the term to the tenant ; ^ and especially will a court of equity relieve the tenant from a forfeiture, where the breach resulted either rom fraud on the part of the landlord or accident or mistake on the part of the tenant, or where the damages to the landlord therefrom can be readily estimated.^ Payment of rent as evidence of tenancy. — Effect of. Sec. 453. The receipt of rent is only prima facie evidence of a tenancy, and this presumption may be overcome by showing that the money ])aid is referable to some other consideration,^ as to a former lease,* or that it was made to prevent a distress,*^ or under such circum- stances as repel the presumjjtion of a tenancy, " as, that tho sum paid bcars'only a small proportion to the actual rental value, or indeed any circumstance that shows the real purpose of the i:)aymcnt ; ' and the question is for the jury, wliether the payment was made oi- was not made as rent.^ Where money is paid as rent, and a receipt is given therefor, as for rent to a particular date, such receipt vs, prima facia evidence of the but leaves him to liis remedy for indem- where the money is i)aid an rent, docs it nification. Denman b. Lopez, 12 La. establish any particulivi- kind of liolding. An. 820. And, even wliere a forfeiture and, if the terms of tlie occupancy, oi- the will is upheld, the strict requirements of species of tenancy are essential, they the common law as to demand are not must be showii. Phillips c. Mosely, 1 adopted. Hyde c. Palmer, 12 La. 350. 0. & P. 262. And in the last ca.se. 1 Atkins ». Chillson, 11 Met. (Mass.) where the plaintiff brought an aclion 112 ; Phillips v. Doolittle, 8 Mod. ;!4.i ; of trespass ap;ainst the defendant — the Wilson V. Jones, 1 Busli. (Ky. ) 173 ; landlord — for bi-eakiiig and enteriui; the Goodright v. Noriglit, 2 W. Bl. 746; plaintiff's house, he alleged in his plead- Hill !). Barclay, 10 Ves. 402 ; Downes ings an entry under a lease from April V. Turner, 1 Salk. 597 ; Harris v. Mas- 23d, 1S21, for one year, and afterwards ters, 2 B. & C. 490. from year to year. He merely proved 2 Hagar v. Buck, 44 Vt. 285. See payment of rent, and did not show what Chap, on FoKFEiTURE, post. the agreement was. He was held not 8 Phillips V. Mosely, 1 C. & P. 2(52 ; entitled to recover, Aebott, C. .f..say- Denn v. Kawlins, 10 East, 261 ; I-tight ing : "Payment of i-ent woxild bo as V. Bawdeu, 3 id. 460. much evidence of a demise for 21 years, * Den V. Rawlins, 10 East, 261 ; Eiglit as of thedemise laid in the replication." V. Bawden, 3 id. 260. To establish a ^ Strahan v. .Smith, ante, tenancy f i-um tho mere payment of rent <> Doe v. Francis, 2 ji[. & Rob. 57 ; it nuist appear that the paynient was Doe w. Crago, C. B. fij. made by the occupant intliecapacily of ' Right v. Bawden, ante ; Doe v. Bas- ra tenant ; and where it is made under tard, 11 Ad. & El. 307 ; Den v. Raw- an order of court, or to prevent a dis- lins, ante ; Ct'jiridgc o. Mackenzie, 4 M. tress, it does not have that effect. Stra- & G. 143. ban V. Smith, 4 Bing. 96. Nor, even ' Doe i>. Wilkinson, 3 B. & 0. 413. 748 Rents. beginning of a tenancy either upon that or a previous day ; and where rent is paj-ablo quarterly, semi-annually, or otherwise, at certain stated or uniform periods, tlie presumption is, that the liolding is intended to be in accordance with the regular quarter-days stated in the lease, rather than witli the date of the lease ; ^ but if no such periods are stated in tlie lease, then the date of the lease controls.^ If a tenant enters in tlie middle of a quai-ter, and pays rent to the beginning of the succeeding quarter, but from that time pajs semi-annually, the tenancy is treated as having begnn from the quarter-day up to which lie paid." Where the tenant enters under a voidable lease, the pay- ment or receipt of rent does not create a 7ieiu tenancy, but it does tend to establish a former one ; * nor does an agreement for an increase of rent, before the time lias expired, have that effect.'' But where the term has ended, and the tenant agrees to pay more or less rent, or to ]iay it in another or different manner, or to a different person, a new tenancy is created upon the terms of the former lease, except in so far as tliey ha\e been changed by the agreement ; " and it seems that notice to the tenant, given by the landlord, that if he holds over it must be upon certain terms otlier and different from tliose of the former lease, has the effect to change the contract to the extent embraced in such notice.^ Pajmient of rent also raises a presumption that the J)arty re- ceiving it has a good title to the rent / but, if paid to a person other than tlie one from whom possession was originally had, it may be re- butted. ° Thus, while a tenant cannot deny the title of his landlord, yet, if he went into possession under a former owner, and has paid, or agreed to i)ay, the rent to one who claims to be succeeding owner, in ignorance of a defect in his title, he may show that he is not the land- lord, and may also dispute his title.'' 1 Sandhill v. Franklin, L. li., 10 C. B. tliat tlie plaintiff miglit dispute the de- 342. " fendant's title, upon a plea of non tenuit - Doe V. Matthews, 11 C. B. G1-5. in replevin. (Sec also, Kofjers r. rilcliei', ' Halccmljer. .Johnson, G Esp. 10. G Taunt. 202. In AViiliams b. Barthclo- * Bi-yan r. Baneks, 4 B. & Aid. 401. mew, 1 B. & P. 326, Bui.i.EK, J., said: ^Adams' Ejeclment, 129; Monck «. "If the tenant could have proved lliat Geekii', .5 Q. B. 841. his attornment proceeded on iliemisrep- " Jlonck V. Gcekie, ante ; Bedford v. resentation of liim who claimed as re- Kendi-ick, cited in Adams on Ejectment, mainder-man, he miglit have proved 144 ; Powis v. Smith, 5 B. & Aid. 850 ; that another was still alive and enti Hilton r. Gocdiicli, 2 C. & P. 5<.n. tied." In Turner r. Duplock. 2 Bim?. ' (ii-ifiitli V. Kinseley, 7.") 111. 301. 10, it was held that payment of rent by " Kiidgei-s V. Pitclier, G Taunt. 208 ; a tenant, after the lessors title hadfail- Coniisli V. Sc.arall, 8 B. ct C. 471 ; Cox ed, even though he had had notice of an I). Knight. IS (,'. ]!. G4.5 ; Doe i'. Clarke, adverse clainr, did not amount to an Penkc's Addl. Cas. 'SM). acknowledgment of title in !he lessor, ^ In Gregory r. Daidge, 3 Bing. 474, or to a virtual attornment, unless, at ;/je the plaintiff, who had occnpied lands time of paijmcnt, the lesxee knew the under A, upon A's deatli agreed to pay prrcine milure uf mch aauer.se cUiim, or to the defendant, not knowing that liis tlip niinincr in which the lessor's title title was disputed. It turned out tliat hud expired. ''A tenant may show," the defendant had no title. It was held, said Bust, C. J., " though he cannot Assignable Qualities of 749 Assignable qualities of rent. Sec. 454. Rent is a mere incorporeal hereditament, and may be de- tached from the estate and assigned to one who has no interest in tlie estate from which it issues, or it may be reserved wlien the estate itself has been assigned. In other words, the rent may be assigned and the reversion reserved, or the reversion assigned and the rent bo reserved.^ Indeed, rents may be granted by way of loase.^ An action of debt may be maintained by the assignee of rents for arrears that accrue subsequent to the assignment, but covenant cannot be main- tained therefor.' Where, however, rent already aecrued is assigned at common law the action must be in the name of the lessor.'' Where the rent has not been reserved from the estate it passes to the assignee Or grantee of the reversion or estate, whether the assignment or grant is the voluntary act of the lessor or is effected by-operation of law; but rents tliat have already accruisd do not pass."* But in the case of a purcliaser at sheriff's sale the right to the rents only exists from the time when the deed is delivered, and does not exist from the day of sale,^ and a promise by the lessee to pay either the assignor or the as- signee does not affect the question ;' but payments made by the lessee to the assignor, before he has notice of the assignment, are good against tlie assignee, even though it is in advance.^ Unless severed therefrom, rent follows the reversion to which it is incident, and goes either to the heir-at-law or to the executor, according as the reversion dispute the right of his landlord to de- son, 2 Allen (Mass.), .^41. When tlia iiiisp. may show that his title has ex- rent has been assigned it does not pass pircd, and this rule is foxmded on good hy a conveyance oif the reversion. Chil- seiise and justice : because, if it were ders v. Smith, 10 B. Mon. (ICy. ) 235. otherwise, the tenant might be called - Comyn's Dig. tit. Annuity (A), 1 ; 6 on to pay his rent twice over. Although, Bacon's Abr. tit. Leases; Tliomas v. however, a tenant may show tliat his Frederick, 10 Q. B. 77-5. landlord's title has expired, yet, if he '^ Ryerson u. Quacl^enbush, 2-5 N. J, enters on a new tenancy, he shall be L. 236. bound ; but, before he can be bound, it * Thaskev v. Henderson, 6:! Barl). fX. riniJit appear that he was acquainted Y. )271; Huerstel w. Lovrillard, 6 11 ib;. with all the circumstances of the land- (N. Y. Superior Ct. ) 260. See llni'.iij lord'n title; the landlord must say States u. Hicl^ey, 17 Wall. (U. S.) 0. 0])enly, Mny former title is at an end ; ^ Van Wicklen D.Paulson, 14 B:irb. will you, notwitlLStanding, go on ? ' * * (N. Y. ) 654 ; Bank of I'ennsylvauia u. Payment of rent maybe evidence of an Wise, 3 Watts (Penn.), .';i)4; OhiUlers v. attornment, but before we can decide Smith, 10 B. Mon. (Ky.) 2:)5. whether an attornmetit has taken place ^ Casey v. Woodruff, 45 ^J". Y. 9S. we must look at the circumstances and '' Payne v. Beale. 4 Den. (X. Y. ) 40.5 ; see whether they do not rebut the pre- Stout v. Kean, 3 Harr. (Del.) 82; Sharp sumption of an attornment." See Doe v. Key, 8 M. & W. 370. B.Wilkinson, 3 B. & C. 413. * Stowe v. Patterson, 19 Pick. (Mass.) 1 Leonard v. Burgess, 16 Wis. 41 ; 476 ; Farley v. Thompson, 15 Mass. 18. Patten v. Deshon, IG-ray (Mass.), 325 ; But in some of the English cases the Willard v. Tillman, 2 Hill (N. Y. ), 274; rule is-heldto be otherwise as between Pei-rin v. I^epper, 34 Mich. 292 ; Vvatson the lessee and a mortgagee. Cook v. V. Hunkins, 13 Iowa, 547; Childs v. Guerra, L. P., 7 C. P. 132. See NicoUs Childs, 3 Barb. Ch. (IST. Y.) 52 ; Dixon w. Saunders, 5 id. 589. I). Nicolls, 39 111. 372 ; Hmit v. Thomp- 750 Rent. ii\;iy 1)0 nil estutc of iiilicrit.aiicc or a chattel interest. All rents re- served by lessees or underleases made by them pass -((^ith the rever- sion of the original term to the i^ersonal rei^resentative, although the rent niny be reserved to the lessee and his heirs during the term, with- out mentioning tlie executors ; and if a man, seized of one acre in land in fee, and ))ossessed of another acre for a term of years, makes a lease of both, reserving rent, and dies, the rent shall be apportioned with the reversion, and the heir-at-law and the executor shall each have his projiortioii of tlie reut.^ When, however, a rent payable for a term of years has been severed from the reversion, it will pass to the pei-sonal representative and not to the heir-at-law. If a man, for example, seized of land in fee, makes a lease foi- years reserving rent, and after- wards devises the rent to a strangei-, and dies, and the stranger is seized of this rent, and dies, his personal representative shall have the rent, and not his heirs.'-^ The ,stat. 4 & 5 Wm. IV. c. 22, for the ap- portionment of rents and other periodical payments, applies to cases in which tlie interest of the party entitled to the rents, annuities, or other periodical payments, determines by death or some other means. Rents, therefore, are not apportionablo between the heir and piersonal representative of a tenant in fee simple.' If. rent is granted to a person gener.ally, Avithout words of limitation, the rent is a freehold rent, payable during the life of the grantee, and if the latter assigns this rent, and the assignee thereof dies in the life- time of the cestui que vie, the rent will now pass by force of the stat- • Gilb. Eeuts, 188. If the reversion to the tenant extinguishes the rent, of a term of years is conveyed by the York ». Jones, 2 N.'H. 454, and if a lessor, and no reservation of tlie rent is part of the estate is conveyed either to made, it passes to the grantee as an in- the tenant or a stranger, a propnrtion- cident of the reservation, Hatfield v. ate part of the rent passes. Farley v. Lockwood, IS Iowa, 290 ; Gale v. Ed- Craig, 11 N. J. L. 262. A conveyance wards, 52 Me. .3Go ; .Jolinston ii. Smith, of a reversion carries with it tlie grow- 3 Ponn. St. 49fi, and carries with it the ing crops. Burnside v. Weiglitman, 9 accruing rent, Dixon v. Nichols, 39 111. Watts (Penn.),46. Rent service passes 372, and the grantee becomes the land- with the reversion. Lewis v. Wilkins, lord, Page v. EsLey, ,54 Me. 319, with all Phill. (N". C. ) Eq. 302. But rent that the rights of the original landlord under is in arrear at the time of the convey- tlie lease, Kendall v. Carland, 5 Cush. ance does not pass. But rent is not in (JIass.) 74 ; Abercrombie v. Redpath, 1 arrear until it becomes due ; therefore, Iowa, 111 ; Scott D. Lunt,^ Pet. (U. S.) if A lepses to B for one year certain 596, both as to recovery of rent for premises at a certain rent, payable at the breaches of any of the covenants and end of the year, and after B has been in re-entry for forfeiture. Page v. Estey, possession "six months A conveys the ante ; Crosby v. Loop, 13 111. 625. But premises to G, C at the end of the year a right to re-enter for a forfeiture does can recover, and is entitled to the whole not pass by assignment. Trask v. Wheel- year's rent, unless the conveyance other- er, 7 Allen (Mass.), 109. The rule is wise provides. Gibbs v. Ross, 2 Head the same whether the reversion is con- (Tenn. ), 437. veyed voluntarily or by operation of '' Knolle's Case, Dyer, 5 b ; Jenison law, as under a levy of execution, v. Lord Lexington, 1 P. Wms. 555. Montague v. Gay, 17 Mass. 439 ; Key o. o Browne v. Amyot, 3 Hai'e, 173, Goodwin, 17 id. 439. And a conveyance Quasi Rent. 75] utes to the personal representatives of the assignees. By tlie common law, if rent was granted to A during the life of B, and the grantee died, living B, the rent was determined, and the grant ceased, and be- came void.i But if the rent was granted to A, and his heirs nomina- tim, tlio heir-at-law of the grantee took the rent por autre vie, as a special occupant expressly named and designated in the deed.'' The personal representatives, however, could not by the common law take tlie rent as special occupants, although inchidcd in the words of the grant ; and if a rent por autre vie was granted to a man and his exec- utors by name, and the grantee died in the lifetime of cestui que vie, the rent was determined and the grant ceased.' To put an end to this anomaly, and the legal niceties by which it was supported, and to pre- serve and continue estates for life, and facilitate their transfer from one person to anothei', it has been enacted that estates por autre vie shall be devisable by will, and that if no disposition by will shall be made of any estate por autre vie of a freehold nature, the same shall be chargeable in the hands of the heir, if it shall come to him by spe- cial occupancy, as assets by descent; and in case there shall be no special occupant of any estate por autre vie, whether a corporeal or incori3oreal hereditament, it shall go to the executor or administrator of the party that had the estate thereof by virtue of the grant ; and if the same shall come to the executor or administrator, either by reason of a special occupancy or by virtue of the act, it shall be assets in his hands.^ All estates por autre vie in rents, as well as in lands or tene- ments, will consequently, by force of the statute, pass to the personal representative of the grantee, when the heir is not expressly named in the grant, and they may maintain an action of debt for its recovery.^ By the common law, when a tenant for life made a lease reserving rent, and died between two rent days, the rent growing due was lost both to the executor of the lessor, and also to the remainder-man. This de- fect has been remedied by statute, and the rent is made apportionable between the personal representative of tlie lessor and the party en- titled in remainder." Reservations of rent, or sums in gross as quasi rent. Sec. 455. As has previously been stated, no formal reservation of rent in a lease is essential to its validity, but where a special reservation is made it should be made to tho person entitled to the estate ; as, while a reservation for the benefit of a third person may be good by way of contract, yet it is not a sufficient reservation of rent, and the person to 1 Holden v. Smallbrooke, Vaughan, * 7 Wm. 4, and 1 Vict. c. 20, s. 6; 189. Eearpark v. Hutchinsun, 4 M. & P. 860. 2 Hassell v. Gowthwaite, Wllles, 505. <• Gilb. Rent, tit. Debt. . 3 2 KoU. Abr. 151. « 11 Geo. II. c. 19 ; 4 W. IV. c. 22. 752 Rent. whom the rents are so made payabh> cannot distrain therefor,^ but he may maintain an action of debt therefor. "Because," says Gilbbet,^ " if the lessee undertakes to pay such an annual sum by his deed, such undertaking constitutes a right to it; and the law in all oases gives remedies ;ideqnate to the right." ^ But the right to the rent ceases when the lessor's estate ceases, because the rent follows the reversion,^ and passes to the person entitled to the reversion.^ Thus, if a lessor reserves rent to himself and his wife the reservation is good so long as the husband lives ; but upon his decease the wife, being a stranger to the title, ceases to have any interest in the rent.'' But, while a reserva- tion of rent to the lessor's heirs during his life is bad,' yet a reserva- tion of rent to the lessor's heirs in a lease that does not take effect until his death is good, because the estate passes to them, and they are entitled to the rents by operation of law, independent of tlic lease. ^ But a reservation of rent to the lessor, or his heirs, is void as to the lieir,'' but a reservation to a lessor or his successors is good.^" The most judicious course is to reserve the rent generally during the term, with- out saying to wliom, and the law will distribute it according to the nature of the reversion." If the reservation is only to the lessor, and 1 Gates B. Frith, Hob. 130. According to Ldkd Nottingham, Co. Litt. 213 h, n. 1, Loud Nottingham's MSS., al- though tlie reservation to a stranger is void as to Jiim, yet it is good as to the lessor, not only during his life, but gen- erally during all the term. " For," says he, " when it was said, rendering to .J S, the words J S should be void, in the same manner as if he had said, ren- dering rent generally; because, 1st. If a man le.ased, rendering rent to himself and a stranger, it was good to him clear- ly, and void to the stranger. 31 Ass. 30. 2dly. When a man leased, render- ing rent to him and his heirs general, yet the lavy would direct it to an issue wlio was not his heir general, merely for congniity's sake." lient must be origi- nally ri'served to the lessor or his heirs, and is incident to the reversion ; but it may lie severed from the reversion and assigned so as to give the assignee a riglit to sue for it, and it may be appDr- lioned on different portions of the estate, and among different parties, so as to give to each a right of action therefor ; and the fact that the lease specifies that the rent shall be applied to a specific purpose does not change its character as rent. Ryerson v. Quackenbush, 26 N. J. Li. 236. ■•* Gilbert on Rents, 24. ^ See also Co. Litt. 47 a ; Jewel's Case, 5 Coke, 3. So covenant lies for the rent, as the reservation is good as for a sum in gross. Prontin o. Small, 2 Ld. Eayra. 141S ; During v. Farrington, 1 Mod. 113. * Van Eenssalaer v. H.ays, 19 N. Y. 68 ; Ryerson v. Quackenbush, 2(1 N. J. L. 236 ; Childers v. Smith, 10 B. Mon. (Ky.)235. ^ If the husband has an estate in right of his wife, the reversion passes to the heirs of the wife, and the rent follows, notwithstanding any provision in the lease. Loftus' Case, Cro. Eliz. 279, Co. Lit. 46 b ; Van AVicklin v. Paulson, 14 Barb. (N. T.) 654; Jayues t). Gould, 4 Cush. (Mass.) 384. » 2 Rolle's Abr. 447, 1. 33; 2 Piatt on Leases, 90 ; Wotton v. Edwin, Latch, 274. But when the reservation is to the lessor, his executors, administrators, or assigns during the whole term, it is good. Sacheverel v. Froggatt, 2 Sauiid. 367. ' Co. Litt. 99 '^!;^ 213 h ; VVliitlock'a Case, 8 Coke, 69 b. 8 Co. Litt. 99 b, 213 b ; Gates, o. Frithe, 2 Rolle's Abr. 447. ^ Co. Lilt. 214 a; Sacheverel ». Fro- gate, 1 Vent. 163. 1' Mallory's Case, 5 Coke, 112 a. " WUitlock's Case, 8 Coke, 70. Where the reservation is to the lessor, his exec- utors, administrators, and assigns, dur- iny the term, it is held good to continue the rent for the whole term. Sacheverel V. Frogatt, 2 Saund. 367. If the lessor had an estate :u fee under a general res- ervation the rent will go to the heir, but Quasi Rent. 753 the words " to his heirs, executors, &c.," are not used, the reservation only continues during the lessor's life, and determines with his death agreeably with the maxim, expressum facit cessum taciUun ; •" but if the words during the term are added, they are held to amount to an express authority that the reversioner shall have the rent after the lessoi-'s death.i^ If a lessee covenants to pay a certain sum annually if he liad simply a cliattel interest, to the executor, and tlie law distributes itwitli reference to the nature of the estate. Gilbert on Rents, 64, 71; Bhmd v. In- man, Cro. Car. 288; Wliitlock's Case, 8 Coke, 71 a; Anon., Dyer, 43 a, pi. 1; Saclieverel ». Frogate, i Vent. Kil ; Be- gina V. Austin, 2 Dyer, 11.5 a; Cotlierj). Merrick, Hard. 90 ; 2 Kolle's Abr. 450, n. 1. 1 Shep. Toucli. 114. Mk. Platt, in Vol. 2, p. 89, of his work on Leases, says: Wliere rent is reserved to tlie les- sor particularly, without tire words his heirs, i&c, a difference of opinion has existed wlietlior it will continue payable after his deatli. On the one hand, we find it laid down by Cottismore in the 14th year of Henry the fitli, 14 H. 0, 2(5, pi. 77 ; and afterwards by Littleton in the lOtli year of Edward the 4th, 10 E. 4, IS, pi. 22, that if a man leased land for a term of years, rendering to him a certain rent, the heir, after his father's death, sliould have tlie rent, because tlie rent and the reversion were all one. So it is said, that if tlie lord of a manor grant a copyhold, render- ing rent to tlie said lord, arid the ser- vices 'due and of right accustomed, his his heirs after liis deatli, and his assigns, shall have tlie rent, it being reserved by copy. Crispe v. Frier, 2 Eol. Ab. 450, n., pi. 50 ; Dy. 45 a, n. (1). This case is reported in Cro. Eliz. 505 ; Noy, 58; and Mo. 350 ; Imt this point is not no- ticed. And Willoughliy and Jeniieyare reported to have said, that there was little difference between a reserva- tion generally and a reservation to the lessor without more. Anon., Dy. 45 !). On the other liand, there is a case as early as the lltli year of King Edward tlie Third's reign, where a lease ■was granted of two acres of land, witli a reservation of 10s. a year to the lessor and liis heirs for one acre,' and of 10s. a year to the lessor witliout saying and to Ids heirs, for the other; and it was held, that the rent for the latter acre deter- mined by the lessor's death. Fitz. Ab. tit. Assize, pi. 86. Perhaps the differ- ence in tlie terms of the two reso-vations would not admit of any other construc- tion ; but there aie several cases in which tlie right of the heir to the rent has been 48 expressly denied. Moilb, J., for in- stance, denied the position of Littleton above noticed. "In your case," said he, " tlie heir sliall not have tlie rent; for it is all one to say, rendering to me certain rent, and to say, rendering to me during my life, in which case the heir sliould not have the rent." 10 E. 4, 18, pi. 22. AuDLEY, C, was of tlie same opinion; and lie declared tliat if rent were reserv- ed to tlie lessor, without saying, during the term, or to the successors, or to the heir, neitlier the lieir nor successor should have it, for tlie reservation was the cause of the rent. 27 H. 8, 18 IB] ; 2 Rol. Ab. 450, li., pi. 2. Shelley and Coningesby seemed to incline the same way. Anon., Dy. 45 a, pi. (1). And, afterwards, Gawdy (Sir Francis), J., in the latter part of tlie reign of Queen Elizabeth, Gouldsb. 148, pi. 08, and Whitlock and .Jones, Js., in the 20th year of James tlie First, Suryu. Brown, Latch, 99, 100, and Ricliardson, C. J., and Jones and Croke, J§., in 8 Car. 1, Bland v. Inman, W. Jo. :j08-9; S. C, Cro. Car. 288; S. C, now. Bland's Case, Godb. 448, and Hale, C. J., in 23 Car. 2; Saeheverel v. Frogate, 1 Vent. 102, de- clared, that if a man made a lease re- serving rent to the lessm', without more, the rent sliould go but to the lessor. And there can be no doubt tliat this is the better opinion. Co. Lit. 47 a,' Cro. Jac. 288 ; W. Jo. 308-9. So, it will determine with the life of tlie lessor, though re- served to )iim and liis assigns; for the assignee can talce no more tlian the the assignor lias to grant, and the as- signor was entitled to the rent for his own life only; Wotton ». Edwin, Latch, 274; Co. Lit. 47 a; thougli, according to Hale, C. J., it is said in 27 H. 8, 19, wliere the reservation is to' the lessor and his assigns, it will go the heir. 1 Vent. 162. And a reservation of a heriot to the lessor and his assigns,, at the election of the lessor, liis lieirs, and assigns, was held not to extend to the devisee, notwithstanding the word heirs in the latter part, the reservation being in itself defective. Ingram v. Totliill, 1 Mod. 216; S. C, 2 Moil. 93. '■' Sury D. Brown, Latch, 99 ; Anony- mous, Dyer, 45 a, pi. 1 ; Saeheverel v. Frogatt, 2 Saund. 367. If rent is pay- 754 Rent. without mentioning it as a consideration for the use of the property, it has been held that the sum so stipulated to be paid cannot be regarded as rent strictly, but merely as a sum in gross ;^ and the same has been held as to a building lease, when certain sums were agreed to be paid before the lessee had the occupancy of the premises,^ and as to sums agreed to be paid in addition to the sum reserved as rent, in considera- tion of certain alterations or changes made by the landlord,' or for the good-will'of the premises.* Penalty or liquidated damages. Sec. 456. When, as is sometimes the case, the payment of rent, or the performance of other covenants in a lease, are secured by a pen- alty, either with or without sureties, the penalty passes with the rever- sion as one of its incidents, and may be enforced against an assignee of the term. But a demand for the rent must be made upon the day it becomes due before the penalty can be enforced.* The penalty may be waived either expressly or impliedly, and the acceptance of the rent after the penalty attaches is treated as a waiver.' In an action for damages upon a lease with a penalty, the penalty need not be men- tioned in the declaration,* and if the lessor elects to proceed for gen- eral damages he may recover his actual damages, although they are in excess of the penalty ; ° and in no case, whether expressly declared upon or not, can the penalty, as such, be recovered. The recovery is re- stricted to the actual damage.'"' When, however, the damages are liquidated the amount fixed upon is the measure of recovery, although, unless the landlord sues for the precise amount, while he can never re- able yearly — although the words " dur- ' Marquis Camden ». Batterbnry, 7 ing the term" are not used— yet pay- C. B. N". S. 864 ; Hewlett v. Tarte, 10 ment must be made every year that the id. 813. lease continues. Harrington v. Wise, ' Lambert v. Norris, 2 M. h\ nor expenses of iiriprove- wrongful act of the landlord ; Drake v. ments ; Tuttle .». Tompkins, 2 Wend. Cocki'oft, 4 E. D. Smith (N. Y. C. P.), JN. Y.)407; or for not building accord- 34; Mayor, &c.,v. Parker Vein S. S. ing to the covenants of the lease: Ettur- Co., 21 How. Pr. (N. Y.) 289; but such ed «. Osborn,.r2 id. 399 ; nor indeed matters may be recoujied. Lane b. damages for the breach of any covenant, Brace, 8 Paige's Ch. (N". Y. ) 597. Dam- express or implied. It is held in Con- ages arising from a trespass by the land- neciicut that a. demand for goods sold, lord cannot be set off. Levy d. Beard, &c., cannot be set oft in an action for 1 E. D. S. (N". Y. C. P.) Ifi9. rent, unless so agreed between the par- ^ Doc r. Haie, 2 C. & M. 145. lies ; Gunn v. Scoville, 5 Day (Conn.), '^ Carter v. Carter, 5 Buig, 4C6; Saps- 113; bit generally it may bo said that a ford v. Fletcher, 4 T. E. 511. 766 "Rent. payment in an action by the executor for the rent, but not a payment of ground-rent, arising after the death of the testate r.^ Payment of taxes, rates, &c. Sec. 464. A payment of a tax upon the premises or property oper- ates as a payment j)ro tanto of the rent, notwithstanding any stipula- tion in the lease to the contrary. So a payment of land-tax, sewer's rate, rent-charge in lieu of tithes, and other charges of the like nature, may, in the absence of any express stipulation for their payment by the tenant, operate as a payment pro tanto of the rent, and be deducted accordingly on the next payment of rent.'^ ■When other payments may be deducted from the rent. Sec. 465. Wherever a tenant may be ousted from his occupation on default made of a payment by his landlord, he may pay in his discharge and for the redemption of the premises, and deduct such payment from his rent : " but where a tenant paid as rent a certain sum to prevent a person ejecting him from a portion of the land to which he claimed title from the lessor prior to the lease, it was held not a payment which could be set up against so much of the rent.* In an action for rent the tenant may avail himself of a part payment obtained from him under a distress, or a judgment for the same rent.° Where a landlord is bound to repair, and the tenant is obliged by sudden accident to make repairs, in order to prevent further mischief, it seems that the tenant may set off the money laid out in such repairs against an action brought against him by the landlord for rent : but it would be far more safe and advisable to pay the rent and bring a cross-action against the landlord for his breach of contract.^ Compulsory payments made by an undertenant of arrears of rent due from the original tenant to the original landlord, for which the goods of the undertenant are liable to be distrained, may be set up in reduction of the rent due to the original lessee,' and a payment of such rent by the occupier, in default of the original tenant, is not the less a compulsory payment, because the original landlord on demand- ing it allows the occupier time to pay.* To make the payment com- pulsory, it is not essential that the original landlord should have threatened to distrain upon the occupier ; it is enough that he has de- 1 Wilkinson v. Cawood, 3 Anst. 905. * Boodle v. Cambell, 7 M. & G. 386: 2 2 Sweet V. Seagar, 2 C. B. N. S. 119 ; D. & L. 66. Hurst V. Hurst, 4 Exchq. 571 ; Gumming ^ Harmer v. Bean, 3 C. & K. 307. V. Bedborough, 15 M. & W. 483 ; An- « Waters v. Weigall, 2 Anst. 575. drew V. Hancock, 1 B. & B. 37. ' Sapsford v. Fletcher, 4 T. E. 511 ; 8 Smith ». Pearce, MS., sittings at Carter ». Cartor, 5 Bing. 406 : Sturgess Guildhall, after M. T. 43 Geo. III., Lord v. Farrington, 4 Taunt. 614. EUenborough. C. J. 8 Carter ». Carter, 5 Bing. 406. What mat be deducted from. 767 manded payment, for a demand by one who has the power to distrain is treated as equivalent to a threat of distress.^ A payment under such circumstances is no more voluntary than a donation to a beggar who presents a pistol.^ If premises are liable to a distress, the tenant has a right to pay the charge to which they are liable, and to deduct from his rent the sum so paid.' Payment by a tenant of an annuity or a legacy secured by power of distress ; * or of interest due on a mortgage made before the commencement of the tenancy,^ is considered as equiv- alent to payment of so much rent to the landlord. But in order to operate as a deduction from rent, the money must have been actually paid ; ^ and it would seem that the payment must have been preceded by a demand, accompanied by a threat, in case of non-payment, to dis- train, or to eject, or to " put the law in force." ' The payment, more- over, must be made either to relieve the tenant of an incumbrance on the land, or to discharge a debt due by the landlord.' A deduction permitted, for several years, by mistake by the landlord or his agent, the landlord having the means of knowing all the facts, and there being no fraud or misrepresentation on the pan of the tenant, will operate as a payment of so much rent, and the landlord cannot afterwards distrain for sums so deducted, or recover them by action as arrears of rent.' A tenant cannot obtain an injunction to restrain the landlord from pro- ceeding upon a replevin bond on the ground that he has a valid offset against the rent distrained for ; ■"' but, when the landlord brings an action for the rent such set-off may be made, but uncertain damages that he may be entitled to recover cannot be set off ; but, where re coupment is permitted, they may undoubtedly be recouped, especially where the damages result from a breach of any of the covenants of the lease, under which rent is sought to be recovered." Damages that arise out of a breach of the same contract upon which the action is predi- cated may be set up in abatement or reduction of the claim sought to be recovered ; and this applies to actions upon leases for rent, as well as to ■ Smith L. & T. 171. " Bramston v. Robins, 4 Bing. 11 ; 2 Per Best, C. J., in Carter e. Carter, "Waller ». Andrews, .3 M. & W. 312. 5 Bing. at p. 409. i» Pratt u. Keith, 3.3 L. J. Ch. 528 ; 3 Per BURHOTJGH, J., in Taylor ». Townrow v. Benson, 3 Madd. 203. Zamira, 6 Taunt, at p. 529. " Weigall k. Waters, 6 T. R. 488; Gow- * Taylor ». Zamira, 6 Taunt. 524 ; er ». Hunt, 1 Barnes, 203. In Coleman Whitmore v. Walker, 2 C. & K. 615. v. Bruce, 37 Tex. 171, damages from ' Johnson x>. Jones, 9 Ad. & El. 809, breach of a covenant to repair was held 814; Dyer v. Bowley, 2 Bing. 94. to be a proper subject for recoupment, ^ Ryan v. Thompson, L. R., 3 C. P. and in Guthman w. Castleberry, 49 Ga. 144. 272, it was held that a tenant might re- ' Whitmore v. Walker, 2 C. & K. 615; cover damages resulting from leakage Taylor d. Zamira, 6 Taunt. 524. consequent upon the landlord's failure 5 See judgment of Cbbsswell, J., in to repair as he had covenanted to do, • Boodle I). Cambell, 7 M. & Gr. ; Graham and that, too, even though he had not V. AUsopp, S Ex. 186. notified the landlord to repair. TfiS Rent. any other class of actions.^ This is called recoupment, from racoupa, which signifies to keep back, and as a legal term is construed as keep- ing Lack a certain sum which the plaintiff in equity and good con- science ought not to have, because of some act or omission of his which lias prevented the defendant from deriving the full benefit of the con- tract sued upon, whether such damage resulted before or after suit brought.^ It differs from set-off in that it is confined to damages re- sulting from the contract upon which the action is brought, that the damages may be unliquidated, and that no balance can be recovered of tlie plaintiff, even though they largely exceed the plaintiff's claim, while in set-off any liquidated claim may be set up, and the dcfc-ridaTit may have a judgment against the plaintiff in case tjie set-off exceeds the claim sued upon. Thus, in an action for rent under a lease the de- fendant may recoup damages that he has sustained by reason of the lessor's neglect to build," or to repair,^ as he has contracted to do, or that the lessor has deprived him of the beneficial enjoyment of the premises, as by depriving him of the use of an easement;'^ or, indeed, 1 Dppjiy r. Silver, 1 Clark (Pemi.), 3S5; Mayor, etc., u. Mabie, 18 N. T. 151 ; La Farge I). Halsey, lEosw. (N. Y, Superior Ct. ), 171. Damages for a trespass commit- ted by the landlord cannot be set off in an action for rent, and, not arising out of the contract, tlioy cannot be recouped. Levy K. Bond, 1 E. D. S. (IST. Y. C. P.) 109. - StillwoU «. Chappell, 30 Ind. 72 ; Martin i'. IliU, 42 Ala. 27.'5. ' Coleman v. Bruce, 37 Tex. 171 ; Lvnch. «. Baldwin, 69 111. .'!10; Depuyi). Silver, 1 Clark (Pcnn.), 3-i5 ; Leach v. Leach, 10 Ind. 271 ; Block ». Ebner, .'ji id. 544 ; Fairnian xt. Fluck. 2 Watts (Penn.), 516. In Georgia it is held that the tenant may, in an action for rent, recoup damages that he has sustained by reason of a leaky roof, where the landlord occupies a part of the building over the tenement occupied by the ten- ant, whether the landlord has been noti- fied of the defect or not. Guthraan !). Castlebury, 49 Ga. 272. ■* Myers i). Burns, 33 Barb. (N. Y. ) 401. In an action for rent, the defend- ant may, under a covenant to keep the premises in repair, set np as a counter- claim an amount expended by him in the necessary repair of the premises, and also damages sustained by the loss of the use of parts of the premises, ren- dered uutonanlable for want of repair. And he may recover for his actual ex- penses in repairs, although they exceed- ed what they would have cost tlie land- ' »rd had he employed his own mechanics. The landlord's omission to repair gave the tenant the right to make repairs by his mechanics, and with such suitable materials as he should select. He was bound to be reasonable and judicious in his repairs; but he was not compelled to select precisely the same kind of paper and paint, or to be precise that the ex- pense was not a farthitig greater than had before been expended upon the same spot. He was at liberty to repair ac- cording to the modern style, and adopt modern improvements. Myei's u. Burns, 34 K. Y. 269. In an action by a ten.aut, a municipal corporation, to aniuil an ex- ecutory .agreement for a lease under which the corpor.ation have occupied, on the ground that fraud was practised in procuring them to take it, the land- lord may set up a counter-claim f.ir rent accrued by such occup.ancy. The pr,o- posed lease, .and the resolution of the corporation to accept it, are to be regard- ed as "the tr.ansactiou" constituting the foundation of the plaintiff's claim. Wood ». Mayor, etc., of New York, 3 id. 467. T'le ch.arges of fraud being uusus- tained, the defendant may, upon such counter-claim, recover rout down to the time of the commencement of the action, and the defendant may be allowed, at his option, to enter judgment for a spe- cific performance of the agreement to CTcecute the lease. Mayor, &e., of N. Y. I). Wood, 4 Abb. Pr. ■(^. S.) 3.32. '^ Depuy B. Silver, ante ; Lynch », Baldwin, ante. To WHOM SHOULD BE PAID. 769 damnges resulting to the tenant from the violation of any of the express or implied covenants of the lease by the lessor.' But injuries resulting from a mere trespass ^ have been held not to be the subject of recoup- ment, because not regarded as growing out of the contract of demise ; nor is any matter which may be plead in bar of the action,' unless othervyise provided by statute.* But, where an action for rent is brought by an assignee of the lessor, or where it has been made payable to a third person, the lessee cannot recoup damages for a breach of any of the covenants of the lease by the lessor ; ' nor can a sub-tenant recoup damages resulting from a breach of any of the covenants, because there is no privity of contract between him and the landlord.^ To -whom rent should be paid. Sec. 466. Rent should invariably be paid to the landlord, or some person by him expressly authorized to receive it ; and if payment is made to a person not entitled to receive it, the tenant still remains liable to the person entitled.' But if rent is paid by mistake, in igno- rance of the death of a person for whose life the premises are held, it may be recovered back ; but, where payment is made to a person who has no title in fact, but who claims to be owner, the rent cannot be recovered back, although the tenant is afterwards compelled to jDay rent for the same term to another.' Where the landlord has author- ized a person to receive the rent for him, a tender to such agent is equivalent to a tender to the landlord ^ until such authority is revoked ; " and, even though the landlord expressly appoints a person, in the 1 Holbrook v. Young, lOSMass. 8.3. In tract for making certain improvements, Sballies u. Wilcox, 4 T. &, C. (N. Y. S. was necessarily disturbed in his posses- 0.) 591, the defendant leased certain sion of the premises, and the convict premises under an agreement that lie labor interfered with, might set off the should pay the rent by boarding the les- damages he sustained thereby in an ac- see's family. During the term the lessor tion for the rent. refused to board with the lessee. The ^ Bartlett b. Farrington, 120 Mass. court held, that the contract for board 2S4 ; Edgerton d. Page, 21) N. Y. 281 ; was a collateral agreement running with Witt u. Pierson, 112 Mass. 8. the lease, the breach of which would ^ Dunwoody u. Raynor, 52 Penn. St. take away the right to recover for rent, 292. Eviction xmder this rule is not if the lessee occupied the premises; but pleadable by way of recoupment. Nich- would give the lessee the right to recoup ols v. Dusenbury, 2 N. Y. 283. the damages he sustained by reason of * McKesson d. Mendenhall, 64 K. C. the lessor's breach of the contract, and 286. that this right was not affected by the ^ Andesco Oil Co. v. Korth American fact that the lessee's conduct was such Oil Co., 66 Penn. St. 375. as to justify the breach. The tenant, " Slingerly d. Fox, 75 Penn. St. 112. may recoup damages, even in a proceed-, 'Williams v. Bartholomew,! B. & ing for a distress, or even in replevin, P. .326. and may show that the damages are s Barker v. Brown, 1 C. B. IST. S. 121.. equal to the amount of rent due. Lindley ' Goodland u. Blewett, 1 Camp.. 477 : ■0. Miller, 67 111. 244.. In Commonwealth Hatch d. Hale, 15 Q. B. 10 ; Brovi'ne v. V. Todd, 9 Bush. (Ky.) 708, it was held, Powell, "4 Bing. 230 ; Pilkinglon d. Hast ■ tliat the lessee of a penitentiary and the ings, Cro. Eliz. 813.. convict labor therein, in fulfilling a con- i" Browne n. Powell, 4 Bing. 230. 49 770 Rent. lease, as his agent to receive the rent, yet he may, at any time, revoke such authority by notice to the tenant, either orally or in writing,^ sub- ject to the qualification, of course, that such agencyis not coupled with an interest. If the landlord dies during the term, rent that has be- come due previous thereto goes to the personal representative ; those that become due after the lessor's death, go to the heir,^ and the ten- ant should be governed accordingly in the payment of the rent. He must apportion it, and pay to each party the proportion to which he is entitled." Of course if rent is paid to the wrong party, such payment affords no protection to the tenant, and, if the landlord is not the owner, and had no right to lease the lands, payment of rent to him does not protect the tenant from an action by the true owner.^ Payment before the rent day. Sec. 467. Unless rent is expressly made payable in advance by the terms of the lease, it has been held that payment of rent before it be- comes due is voluntary, and does not discharge the rent,^ and that, if there is a clause for re-entry for non-payment, rent paid before the day when by the terms of the lease it becomes due will not save the con- dition, if proper steps have been taken to enforce the forfeiture.^ But this doctrine can only apply when a specific period is named in the lease for payment. If the lease is silent upon that point, a lessee, although not obliged to do so, may pay the rent in advance, and hav- ing done so, cannot be compelled to pay it over again to a grantee who took the estate without notice of such pre-payment ; ' and, even in the case of an advance payment, when the lease fixes the time of pay- ment, while such payment is not a defence at law, yet, it furnishes proper ground for the interference of a court of equity.^ Tenant holding over. Sec. 468. A tenant for years, holding over after the expiration of his term, without any new agreement or lease, is liable for the same 1 Venniny v. Bray, 2 B. & S. 502. < Davenport x>. Haynie, 30 111. 59. 2 King B. Anderson, 20 Ind. .3S5 ; ^ William Clun's Case, 10 Coke, 127 6 Foltz V. Prouse, 17 111. 487 ; Foteaux c. ^ Cromwell u. Andrews, Cro. Eliz. 15. Lepage, 6 Iowa, 12.3 ; S lath b. Bland, 7 ' Stone v. Patterson, 19 Pick. (Mass ) B. Mon. (Ky.) 21 ; Stiuson v. Stinson, 476. 38 Me. 59.3; Mills v. Merryman, 49 Me. "Rockingham x>. Penrice, 1 Swanst. 65 ; Gibson o. Farley, 16 Mass. 280 ; .346. Where a lessee pays a year's rent Sparhawk ». Allen, 25 N". H. 261 ; Fay in advance, if the premises are de- c. Holloran, 3.1 Barb. (N. Y. ) 295 ; Koh- stroyed by Are or other casualty, and the ler ». Knapp, 1 Bradf. (N. Y.) 241 ; lessor rebuilds and leases the premises Fleming B. Chnun, 4 Jones (N". C), Eq. to another person before the year has 422 ; Haslage r. Krugh. 25 Penn. St. elapsed, the lessee may recover of the 07 ; Eobb's Appeal, 41 id. 45 ; Green v. lessor the rent paid by him for all that Mussie, 13 111. 363. part of the term subsequent to the sec- s Crosby ». Loup, 13 111. 625. ond lease. Ward i-. Bull, 1 Fla. 271. Tenant holding over. 771 rent that he has formerly paid, and is subject to the terms of the old lease in all respects.' But the law does not imply a promise to pay 1 Schilling v. Holmes, 23 Cal. 227 ; Baker v. Root, 4 McLean (XT. S. ), 572 ; Ames V. Scliuesler, 14 Ala. 6U. This rule, however, is subject to exceptions. In order to warrant tlie inference of a continuation of the former tenancy, tlie laiuUord must, in some way, recognize the tenancy, as, by accepting rent, treat- ing the occupant as a tenant, or doing some act from which it may reasonably be inferred that he regarded the occu- pant as his tenant. Cairo, &c., R. R. Co. 0. Wiggins Ferry Co., 82 111. 230. In Bandette v. Pierce, 50 Vt. 512, the plaintiff permitted tlie defendant to erect a hovel on his premises to keep a colt in during the winter, tlie plaintiff to have the manure for rent. The next summer the defendant enlarged the hovel and moved into it withhis'family. The plaintiff continued to receive the manure, and in the following spring re- quested hiin to remove, without stating when. Subsequently, on July 10th, he gave him notice to quit, and July 14th brought ejectment against him. The court held that the defendant had be- come a tenant from year to year, and was entitled to six months' notice to quit. The tenant, by holding over, and being recognized as a tenant, only becomes liable to pay the same rent as before, unless there has been a new agreement, or he has had notice tliat if he remains he must pay an additional rent, to which he has expressly or impliedly assented ; but it seems that, if the landlord has given him notice to quit, and he re- mains in possession in defiance thereof, and proceedings are brought to oust him. and the rental value of the premises has increased, he or the obligors will be liable upon an appeal ijond for the ex- cess, on an undertaking to pay all dam- ages and loss the landlord may sustain. Clapp V. Noble, 84 111. 62. But, where a tenancy from year to year, or month to month, has once begun, it can only be terminated by a sufficient notice to quit, and if no such notice is given, he cannot be ousted nor compelled to pay any dam- ages which the landlord may have sus- tained by his holding over. Thus, where a tenement was rented from month to month, as, from December 18tli to Jan- uary 18th, notice to terminate the ten- ancy was given, and contained a direc- tion to the tenant to quit " on or be- fore January 17th." The court held that the notice was not legal, as it re- quired the tenant to quit before his terra was ended. Waters v. Young, 11 R. I. 1. Wliere a person enters into pos- session under a void lease or under an agreement for a lease void under the statute of frauds, as, under a lease for thirteen moiUhs, he becomes a tenant from month to month, and cannot quit without a monlli's notice to quit. Geiger v. Brown, 6 Daly (N. Y. C. P.), 506. Where a tenant liolds over in- voluntarily, as where he is prevented from quitting at the end of his term by the fraud or neglect of the landlord, lie cannot, against liis will, be held cliarge- able as a tenant from year to year. Smith V. Allt, 4 Abb. N. C. (IST. Y) 20fi. As previously stated, a tenant holding over, holds under the terms of the old lease unless new terms have been agreed upon, and, where the landlord has noti- fied the tenant seasonably that if he re- mains another year it must be at a cer- tain increased rent, by remaining, the tenant is treated as having acquiesced in such new terms. Brinkley u. Walcott, 10 Heislc. (Tenn.) 22. And it has been held that where the landlord has given a notice to quit, and the tenant noti- fies him that he will continue the ten- ancy at a certain increased I'ent, and, witliout the landlord ever having ever expressed his assent or dissent thereto, the tenant is permitted to remain, both, parties are bound by the new terms. Huff 13. Bauni, 21 Cal. 120. Where a party enters into possession of real es- tate, as tenant of the owner, under an agreement which is invalid by reason of the statute of frauds, or for other cause, and continues in such possession, paying yearly rent therefor, wliieh is received and accepted as such, lie becomes a ten- ant from year to year, and may be con- sidered as holding according to such agreement, whicii, in an action to re- cover an unpaid balance of rent, may be resorted to as evidence for the pur- pose of calculating the amount for which he is liable. If sucli tenant fi-om year to year, abandons the occupancy of the demised premises, before the expiration of a year, without the consent of the landlord, he ^\■ill not thereby exonerate himself from the payment of the rent for the residiie of the year ; nor will he be so exonerated by the neglect of the landlord to make repaii-s, when theie was no agreement to keep the premises in repair, and their condition, when left, was not materially dilTerent from what it was at the commenceraeut of 772 Kent. rent to a vendee of the landlord who is not in possession, arid has not taken a deed of the premises,^ because in such a case there is nothing upon which to predicate a promise to pay, as, in order to enable a person to recover rent co nomine, it must be shown that the possession was by virtue of some express or implied agreement.'^ Where a tenant holds over, while the title is in dis- pute, and there is no recognized landlord, the law implies a prom- ise on his part to pay for the use of the premises the person in whom the title is finally held to be, and in such a case, the amount paid nnder the former lease is not conclusive upon either party .' While, generally, a tenant by holding over after his original term has expired, is treated as impliedly agreeing to hold upon the term* of the former lease, yet there are exceptions to this rule, principle of which is, where the holding over is chargeable either to fraud or a neglect of duty on the landlord's part,* or where the terms of holding have been expressly or impliedly changed.^ Alternative provisions. Sec. 469. When rent is reserved in a lease " payable in quarterly or monthly payments," the alternative is for the benefit of the landlord, and not of the tenant. The landlord may, even though he has previously accepted the rent quarterly, require it to be paid monthly, and a dis- the year ; nor by reason of inconsider- ^ Church v. McKillar, .33 Ala. 473. able injiu'ies occasioned by fire, where ^ Ramirez v. Murray, 5 Cal. 222. A no demand is made upon the landlord mere trespasser cannot be made liable to 'repair such injuries. Lockwood d. for rent as upon au implied contract to Lockwood, 22 Conn. 425. In Eeeder v. pay, by proof that the landlord notified Sayre, 70 N. T. ISO, the plaiutilfs en- him that he would be expected to pay tered upon premises under a parol lease rental a certain speciiied rent, if he for two years from April 1st, 1871, with staid ; and this is so, even though the the privilege of sowing a crop of wheat owner rendered monthly bills of the in the fall of 1872, and harvestuig the rent, which, however, the occupant re- same. In June, 1872,. the defendants fused to pay, even though his refusal entered into a contract for the purchase was put upon the groimd that the rent of the premises with notice of the plain- was too high, and said he would make tiffs' rights, and, after receiving a deed, it right. Gallagher v. Himolbergh, .57 gave the plaintilfs notice to quit April Ind. 63. See also, Marquelte li. k. Co. 1st, 1873. In the fall of 1872 the plain- v. Harlow, 37 Mich. 551 ; Garvin v. tiffs sowed a crop of wheat, which the Jennerson, 20 Kan. 371. ^7here land defendants harvested. In an action for is sold or setoff under an execution, the its c(.nvei-sion, the court held that the debtor, if permitted to remain in pos- noiice was not sufficient to terminate session by the purchaser, is liable for the tenancy, and that the plaintiffs, rent if he fails to redeem the land with- itnder the lease, had an interest in the in the statutory jjeriods. Miller jj. lands after April 1st, 1873, which could Buchanan, 58 Tenn. 300. not be terminated except by a notice ^ yan Brunt v. Tope, 6 Abb. Pr. U. from tlio lessor vshen he was oioner, and S. (N. Y. ) 217. that no such notice having been given, * Smith v. AUt, ante, the tenancy was not terminated, and ^ Brinkley u. Walcott, ante ; HufE ». that the defendants wei'e estopped from Baum, ante, denying the plaintiffs' right to the crop, and were liable for its conversion. In specific articles. 773 tress at the end of a month, and before a quarter has expired, is good.^ But in any event, it would seem that before he changes the time of pay- ment he must notify the tenant of such change, and demand the rent in accordance with such change,^ and the bringing of a distress is not equivalent to a demand and notice." If the landlord has really made his election under such a lease how he will receive the rent, it is doubtful whether he could change the time of payment even by notice and demand, but that he cannot do so without such notice and de- mand, is settled, and a contrary rule would be obviously unjust, and would expose the tenant to the mere caji rices of his landlord. It is proper to say, that, in the case last cited, the question as to whether, by accepting the rent in the manner stated, the landlord had determined his election, was not decided. Rent payable in specific articles. Sec. 470. Where rent is payable in specific articles, as in grain, horses, &c., the pirices of which are specified in the lease, a tender of the property upon the day fixed for payment extinguishes the rent, whether the price of the prop)erty is more or less upon the day of pay- nu'ut than at the time when the lease was made.^ But, if the tenant fails to pay in the projjerty named, or to tender the same upon the day named, the landlord may recover the rent in money, but is restricted to the sum at which the value of the property was fixed in the lease, whether the real value of the property upon the dav of payment is more- or less than the price agreed upon.^ But where the rent is payable in property, as, where the tenant is to pay as rent, upon a certain day, fifty bushels of corn, wheat, &c., or so many pounds of cotton, &c., and the value is not specified, the landlord, upon the tenant's failure to perform, is entitled to recover the market value of such property upon the day fixed for payment? Where rent is payable in specific articles, as in board, or in grain, iron, &c., and the quantity and quality are specified, and a forfeiture for non-payment is jsrovided, the tenant is bound to pay the rent in '' Pemberton c. Van Rensselaer, 1 distress would not He for a half quar- Wend. (N. Y.) 307. ter's rent, as, said Tisdal, C. J., "it 2 Mullam M. Arden, 10 Biug. 299. would be unreasonable to expose the ^ In Mullam v. Arden, ante, the de- tenant suddenly to the costs of a dis- fendaiA demised a house to the plaintiff tress, and I think a previous requisition "for one year certain at a rent of £21, was necessary upon altering the period the same to be. paid quarterly, or half of payment." quarterly if required." During the first * Heywood x>. Heywood, 42 Mo. 299. year lie received the rent quarterly, but * Heywood t). Heywood, ante ; Liv- when the first half quarter of the sec- ingstou d. Miller, 11 N. T. 283 ; Brooks ond year had elapsed, he distrained for w. Wilcox, 11 Gratt. (Va. ) 411. half a quarter's rent, without having " Id. ; Brooks n. Cunningham, 49 expressly required the plaintiff to pay Miss. 108. half quarterly. The court held that a 774 Rent. the kind of property named, and cannot, at his option, pay in money. Thus, where by the lease the rent of a hotel was payable monthly, and the lessor agreed to take one-half the same " in board, as the same falls due," it was held, that, under this agreement, it was not optional with the lessee to pay in money or board, but that the assent and ob- ligation of the lessee to pay in board if so required, as well as of the lessor to receive it, were clearly implied. It was also held that the lessee was not bound by tliis agreement to call on the lessor and de- mand that he should send boarders, but the lessor must call for that portion of rent payable in board within the year, and substantially as the same became due.^ It is competent for the parties to agree, subsequent to the lease, to take a certain sum of money in lieu of the property, either for the whole or a part of the term ; but the mere fact that the lessor takes a certain sum of money in lieu of the property does not estop him from afterwards insisting upon having the particular property delivered to him as rent, instead of money, even though a forfeiture is involved ; but in the latter case reasonable notice of his intention to insist upon payment in that way must be given before he can rely upon the for- feiture. Thus, where a lease for a thousand years, made in 1817, re- served a yearly rent, payable in quarterly instalments, of ten tons of " Russia old Sables Iron," and gave a right to the lessor to enter on the tenant's failure to pay the rent for fifteen days after demand. At the time when the lease was made the parties agreed that until 1840 a certain agreed sum in gold bullion should he received in lieu of iron, until 1840. From 1840 until 1862 the same sum in gold was received in lieu of iron. The kind of iron named in the lease had for many years ceased to be an article of import. Dec 12th, 1862, the landlord notified the tenant that the rent becoming due on March 1st, 1863, must be paid in iron. The tenant brought a bill in equity to restrain the forfeiture of the lease for failure to pay in iron. The court held that, although by accepting gold from 1840 to 1862 the landlord had not waived his right to insist upon payment in iron, yet, under the cir- cumstances, he was bound to give the tenant a longer notice of his in- tention before he could insist upon a forfeiture.^ Where, in a lease reserving rent in specific property, no time is 1 Evans i). Norris, Mich. 369. Where paid does not operate as a rescission of the rent of a house and furniture was the contract by the tenant, and if the payable in board, and the landlord landlord takes the furniture away from agreed to pay a certain stipulated sum the house before the term is ended the weekly in addition to the rent payable tenant may maintain trover against him at the end of each week, it was held therefor. Chamberlain v. Keale, 9 Al- that a refusal of the tenant to furnish len (Mass.), 410. board because the landlord refused to ^ Lilley v. Fifty Associates, 101 Mass. pay the weekly sum stipulated to be 480. In specific articles. 77.5 named for payment, the rent does not become due until the end of the year.^ But while this may be the rule as to payments in specific prop- erty generally, yet, when the rent is payable in a share of the crops produced upon the land, it would seem that, independent of any ex- press, there is an implied agreement to pay the rent from time to time within a reasonable time after the crops are gathered ; and if the rule intimated in the case cited in the last note was to prevail, the landlord would often be deprived of the principal beneiits intended to be secured under the lease, as many species of crops, as peaches, plums, grapes, apples, &c., &c., are perishable in their nature, and if the landlord's right to have his share of them did not attach imtil the end of the year he could not have them at all, for when the year ter- minated his share would be gone, under the processes of natural decay. Therefore, in such cases the better and the true rule seems to be, as well expressed in a Georgia case, that where rent is payable in a share of the crops, and the lease is silent as to the time of payment, the land- lord has a right to have his share of the crops delivered to him within a reasonable time after they are gathered, and as to what is a reasona- ble time will depend largely upon the nature of the crop and the cir- cumstances of each case." If the lease provides that the property, as rent, shall be delivered at such place as the landlord shall direct, his directions in that respect must be complied with.^ But, where no place of payment is named the tenant may tender the property upon the land upon the day when it becomes due, and whether the landlord is pres- ent or not, if the tenant keeps the property ready to deliver when called for, such tender will defeat a forfeiture for non-payment of rent. And, if the tenant takes due care of the property, the fact that it de- cays or becomes worthless from the effects of time or other causes not attributable to the tenant's fault, will not change the effect of the ten- der.* If the property, by the terms of the lease, is payable at such place in a market town as the lessor shall appoint, and no place is ap- pointed, it is the lessee's duty to call upon the landlord to appoint a place, and if he cannot be found, a delivery at any place in the market town is sufficient.* The rule, as stated, that a tender may be made upon the land, applies only to cases where a forfeiture is provided, or where the landlord resides in another State or country,^ and in order to 1 Stowman v. Landie, 5 Ind. 430, and held in Texas. Brown v. Adams, 35 this is tlie rule wliere the rent is paya- Tex. 471. able in a sliare of the crops raised upon " Livingston v. Miller, 8 N. Y. 283. the land in the absence of any agree- •'Walter u. Dewey, 16 John. (N. T.) ment or custoip to the contrary. Dixon 222. D. NichoUs, 39 HI. 372. ^ Lush v. Druse, 4 Wend. C^. T.) '^ Taler v. Seabrook, 39 Ga. 14, and a 313. similar 'doctrine, fully su.staining the ^ Bradstreet d. Clark, 21 Pick. (Mass.) proposition stated in the text, has been 389. 776 Rent. defeat an action upon, the covenant for the payment of rent, the tenant must seek out the landlord and make a tender to him ; and it is no an- swer to such an action that the tenant was upon the land for some time before and until sundown ready to pay the rent. Such a plea can only avail to defeat a forfeiture by reason of non-payment.^ 1 111 Haldane u. Johnson, 8 Excliq. 689, Maktin, B., said ; " Several authorities were cited, but none of tliem support the proposition "vvhicli it was necessary to establish in order to maintain the plea, viz., that where a lessee covenants to pay rent, no particular place for pay- ment being mentioned in the deed, the readiness of the lessee to pay on the day on the premises demised is either a performance of the covenant, or an an- swer to an action upon it until demand and refusal of payment be made. Sev- eral passages were cited from Co. Litt., beginning at page 200. They all, how- ever, had reference to conditions. There is no doubt that, at common law, in order to entitle a lessor to re-enter, and avoid the estate for forfeiture by bi-each of a condition for the payment of rent, it is incumbent upon the lessor to de- mand the rent upon the land on the day when it becomes due, a sufficient time before sunset to enable the pay- ment to be made. This is distinctly laid down in Co. Litt. 231 6, and the statute 6 Geo. 4. c. 28, is founded upon the ground tliat such was the common law. We are, however, clearly of opin- ion that a covenant for payment of rent, such as is averred in the present case, is an obligation of a character entirely different from, and not at all governed by, the rules of law applicable to con- ditions and forfeitures. The case of Crouch V. Fastolfe, Sir T. Raym. 418, was also cited. The plea now iu ques- tion is the same as the plea in tiiat case, which was adjudged to be good ; but the action there was drht. whilst in the present case the plaintiff's demand is iipon a covenant to pay at the time and in manner as reserved, no place for pay- ment being mentioned. A case of Bus- kin 1). Edwards, twice mentioned in Crolce Eliz., first in the Queen's Bench, a page 41.5, and ai^ain in error, at page 5 '5, was also cited. It is badly reported; .•mil the distinction between an action for t!ie rent and a right of entry for condi- tion broken does not seem to have been adverted to. It, however, was also an ic tion of debt for the rent, and not upon a, covenant for the payment of it. But iwo other authorities were referred to ill the argument, viz., Howe v. Young, 2 B. & B. lCio.°- in the House of Lords, and the judgments of the judges there, and Poole v. Tumbridge, 2 M. & W. 223, which, in our opinion, clearly shows (he plea to be bad. The cove- nant (as has been already observed) is a covenant to pay a sum of money to the lessor on a particular day ; no place is mentioned for the payment, either ex- pressly or by implication. In such case it is clearly laid down in both the above cases, that it is the duty of the cove- nantor to seek, on the appointed day, the person who is to be paid, and pay or tender him the money. And in Poole ». Tumbridge it is stated by Parke, B., as the conclusion from the author- ities, "that nothing can discharge a covenant to pay on a certain day but actual payment or tender on that day, although, if the party afterwards choose to receive the money, such payment may be pleaded by way of accord and satisfaction." This is in exact con- formity with tho rule of law laid down in Sheppard's Touchstone, p. 378, that when an obligation is to pay a sum of money, or do any like transitory thing to the obligee on a day certain, but no place is set down where it shall be done, it must be done to the person of the ob- ligee wheresoever he be, if he be intra quatuor maria. No precedent was cited for such a plea in an action upon a cov- enant, and we are satisfied that none exists, otherwise it would have been dis- covered in the investigation which was made in reference to the case of Rowe 1). Young, above cited. In Comyiis' Di- gest, title, "Pleader" (2 W. 49), page 402, the plea seems to be approved of in the action of debt ; but nothing of the kind is to be found in regard to the ac- tion on the covenant (2 V. 14, page 36J) ; indeed, on the contrary, there Is a passage which shows that even a sub- sequent levy by distress is not a good answer to an action of covenant for the rent, for (as is said) this ndiiuts the rent not paid on the daij. We are therefore of opinion, that a covenant for the pay- ment of rent, at the time and in manner as reserved, when no pa'rtici.ilar place of payment is mentioned, is analogous to a covenant to pay a sum of money in gross on a day certain, in which case it InCIDEITTAL BEiNEI'ITS. 777 It -will be presumed, in the absence of any provision or agreement to the contrary, that the property is to be delivered in the usual manner. Thus, where land was leased for the cultivation of sugar, payable in a portion of the crop, it was held that it would be pre- sumed, in the absence of any express stipulation, that it was in- tended that the sugar should be delivered in the usual manner, that is, in hogsheads or barrels, arid that the lessee cannot claim any allowance for the cost of the hogsheads or barrels,^ but this would be regulated entirely by the custom, if there is any. If there is none, then the ten- ant would be bound to deliver the property put up in the usual way ; and according to the case last cited, if an orchard is rented for a share of the cider, or a vineyard for a share of the wine, in the absence of any stipulation to the contrary the tenant would be required to deliver the same in barrels or casks, according to the usual method of putting up either, and could make no charge for the barrels or casks. Incidental benefits. Sec. 471. If land is let for one purpose, and their use expressly or impliedly restricted to such use, and in its use for that purpose other beneficial uses are developed, the tenant may avail himself thereof, and appropriate them, without rendering himself liable to the landlord therefor, unless by the develojsment of such unexpected bene- ficial use its availability for the purposes for which it is let are wholly destroyed, whe?i the benefit so arising is of such a character that it tooidd be unavailable to the landlord if it was permitted to lie until the lease is terminated. Thus, where lands were let for the purpose of boring for salt-wells and manufacturing salt, so long as such salt-wells should be carried on by the tenants, their survivor, or their assigns, under certain provisions for forfeiture, and reserving a rent of one barrel of salt for every twelve barrels manufactured; and in the work of boring for salt oil, arose with the salt water, which was at first per- mitted to run to waste, but was afterwards collpcted and sold by the tenants, it was held that the tenants were not liable to the landlord in trover therefor. But, in such a case, the tenants would be liable to is incumbent upon the covenantor to give a right of entry or action. Brad- seels: out the person to be paid, and pay street v. Clark, 21 Pick. (Mass.) 389. A or tender him the money, and for tlie condition for the payment of rent forms simple reason, that he has contracted so an exception to this rule, because rent to do." Whether in the case of a oov- as such, issues out of the land, and enant, or condition, for the payment of must be demanded upon it. 1 Smith's a sum in gross, the person who is to L. C. , vol. 1, 94, 4th Am. ed. ; but a make the payment must seek out tlie covenant for the payment of rent stands person who is to receive it ; Sheppard's on the same footing with all other per- Touchstone, 136 ; Co. Lit. 210, a, & ,• sonal obligations, and must be per- unless the latter reside in another State formed inter partes. or country, when a demand by him will ^ Wilcoxen u. Bowles,' 1 La. Ann. be necessary to constitute a breach, and 230. 778 » Rent. i account to the landlord for a proper proportion of the profits resulting from such new and unanticipated benefit, which would doubtless be such a share thereof as would be derived from the manufacture of salt, of a value equal to the sum realized from the sale of the oil.^ But, in such a case, the tenant would not be justified in abandoning the busi- ness or purpose for which the premises were expressly let to him ; nbr, if such new development destroyed the use to which he had cove- nanted to devote the premises, could he prosecute the new business, but, upon the premises becoming useless for the business for which he leased them, and to which he had contracted to devote them,' the lease terminates, together with all his rights under it. It is only when the new benefits are incidental to the use of the premises for which they were lei that the tenant can avail himself of them.^ But, where premises are leased generally, although the rent is payable in a share of minerals quarried or dug thereon, or by a certain percentage upon the value of certain minerals quarried or dug thereon, yet, in the absence of any restrictive clause, the lessee is not restricted to the use of the premises for the quarrying or digging of minerals alone, but may use them for any purpose that does not conflict with their use for the purpose of quarrying, &c., or involve a breach of any of the covenants in the lease. Thus, where a certain piece of land was leased, " together with the quarry or quarries thereon, and the privilege of getting out stone . in the same, also the privilege of getting out stone in any part of said tract, and to use and occupy said land in any manner that the lessees may choose, and for all purposes necessary and convenient for carrying on the quarrying business," and the lease also provided that the lessees should have the use of a certain wharf for the purpose of hewing stones thereon, and of shipping them, and that the rent should be seven per cent, of the value of the stone quarried and sold, it was held that the lessees were not restricted in the use of the demised premises to the quarrying of stone, and that there was no such ambiguity in the language of the lease as to render admissible evidence aliunde of an intent of the parties that the use should be so restricted, for the purpose of aiding the court in giving a construction to the lease.' But, under such a lease, the tenant can work the quarry or not, at his option, but is bound to improve it in a reasonable manner, according to the evident intent of the parties, during the entire term.* Implied benefits. Sec. 472. "When, in a lease of a farm, the tenant is in express terms required to sow or plant a crop that cannot mature uatil after his term 1 Kier u. Patterson, 41 Penn, St. 357. » Burr ». Spencer, 26 Conn. 159. 2 Kier v. Patterson, ante. * Brainerd ». Arnold, 27 Conn. 617. Implied benefits. 779 has expired, it is nevertheless implied from the lease that he may enter to harvest such crop, and the property therein remains in him; and if the landlord, or any person claiming under him, or otherwise, appro- priates the crop, they are liable to the tenant who sowed the crop for its value. Thus, where a lease contained a provision that the tenant should sow certain of the land with wheat and timothy the last autumn of the term, and at the end of his term, the ensuing spring, the tenant quit the premises, and the landlord let them to another per- son who went on and harvested the wheat and appropriated it, it was held, that the tenant who sowed the wheat was entitled tliereto, and could recover its value of the tenant who harvested it.^ But, in order to avail himself of this rule, the tenant must conform strictly to the provisions of the lease. Thus, if the lease in the case last referred to had provided that the tenant should sow wheat and timothy the last autumn of his term upon such land as had the previous year been planted to corn, and he sowed the wheat and timothy upon land that had been the previous year devoted to any other crop, he would have had no property therein, and consequently no right of action against the person who appropriated it.'^ Eviction. — Effect of. Sec. 473. Where a landlord wrongfully enters into any part of the demised premises which are let for an entire rent, and expels his lessee thertjfrom, there is a total suspension of the rent until the tenant is re- stored to the whole possession ; ° and this is the rule even though the 1 Kelly v. Todd, 1 W. Va. 197. end to, nor is the tenant thereby dis- 2 Bums J). Jackson, 44 111. 345. charged from the performance of his ^ Lewis B. Payne, 4 Wend. (N. T. ) covenants other than the covenant for 423 ; Christopher v. Austin, 11 K. Y. the payment of the rent. Where, there- 216; Peck d. Hilw. 31 Barb. (N. Y.) fore, in assumpsit by a landlord against 117 ; Chatterton ». Fox, 5 Duer (N. Y. liis tenant for breach of a promise to use Superior Ct. ), 64; Comyn's L. & T. the premises in a tenant-like manner 524 ; Co. Litt. 148 h ; Leishman v. during the continuance of the tenancy, White, 1 Allen (Mass.), 485 ; Wolf v. and before any breach, the former Weiner, 2 Brewster (Penn.), 524 ; S. C. entered upon jinrt of tlie premises and 7 Phil. (Penn.) 274; Montanye v. Wal- evicted him therefrom, and that he lahan, 84 111. 355 ; Mortimer !). Brunner, thereupon relinquislied and gave up, 6 Bos. (N. Y. Superior Ct.), 653 ; Mof- and the landlord had and thence hither- fat V. Strong, 9 id. 57 ; Campbell v. to retained, the possession of the resi- Shields, 11 How. (N. Y. S. C. ) 565 ; due of the premises, it was held that the Tunis V. Grandy, 22 Gratt. (Va. ) 109 ; plea was bad, inasmuch as it did not Griffith V. Hodjes, 1 C & P. 419 ; Hege- show dissolution of the tenancy by mu- man v. McArthur, 1 E. D. S. (N. Y. C. tual consent. Morrison v. Chadwick, 7 P. ) 147 ; McClung v. Price, 59 Penn. C. B. 266 ; Fuller v. Ruby, 10 Gray St. 420 ; Holmes v. Guion, 44 Mo. 164 ; (Mass. ), 2S5 ; Christopher v. Austin, 11 Read v. Lauder, 5 Bush. (Ky.) 21. An N. Y. 216 ; Russell v. Fabyan, 28 N. H. eviction by a landlord of his tenant 543 ; Wright o. Lattiii, 38 111. 293 ; Col- from a part of (he demised premises burn v. Morrell, 117 Mass. 262 ; Tunis creates a suspension of the entire rent v. Grandy, 22 Gratt. (Va. ) 109 ; John- during the continuance of the eviction, son v. Oppenheim, 43 How. Pr. (N. Y.) but the tenancy is not thereby put an 433 ; Home, &c. Ins. Co. v. Sherman, 780 Rent. tenant continues to occupy a portion of the premises, and he cannot be made liable for the use of such portion, either upon the lease or in an action for use and occupation ; '■ and the reason for this rule is, that the landlord cannot be permitted to apportion his o-ivn wrong,^ as, in that event, it^vould tend to encourage landlords to evict their tenants when such eviction would inure to their pecuniary advantage.' There can be no recovery upon the lease because of the eviction, and none in an action for use and occupation because of the existence of the lease, which still remains in force.* But this rule as to the suspension of rent does not ap2}ly to rent that has already become due and payable at the time of eviction,^ nor to a lawful entry or eviction before the rent has become due ; ^ as, where the landlord evicts the tenant as sheriff. 46 N. Y. 370 ; Shumway b. Collins, 6 Gray (Mass.), 227 ; Graham u. Auder- soii, 3 Harr. (Del. ) .364 ; Loiinsberry v. Snyder, 31 N. Y. 514 ; Randall v. Al- burtis, 1 Hilt. (N". Y. C. P.) 288 ; Acad- emy of Music t). Hackett. 2 Hilt. (N". Y. C. P. ) 217 ; Barker i;. Fletwell, Godb. 69 ; Ilodgkins v. Robson, 1 Vent. 276 ; Cibel V. Hill, 1 Leon. 110 ; Timbrell o. Bullock, Sty. 446 ; Dorrell «. Andrews, Hob. 190. 1 Christopher v. Austin, ante ; Lewis r. Payne, ante ; Morrison o. Ghadwick, 7 C. B. 266 ; Grundin v. Carter, 99 Mass. 15 ; Salmon v. Smith, 1 Saund. 2U2-204 n ; Sherman v. Wilkins, 113 Mass. 481 ; Graham v. Anderson, 3 Harr. (Del.) 364 ; Skatjss u. Emerson, 50 Cal. 3 ; People v. Gedney, 17 N. Y. S. C. 151 ; Fitchburgh Mfg. Co. v. Mc- Lain, 15 Mass. 268 ; Hayner v. Smith, 63 III. 430 ; Colburn v. Merrill, 117 Mass. 262 ; Lloyd v. Tompkins, 1 T. R. C71 ; Burnett B. Little, 4 Rowle (Penn.), 339 ; VValkiii's Case, 3 Coke, 22 a; Keale u. McKinzie, 1 M. & W. 84 : S. C;. 2 Cr. M. & R. 84 ; Rawlyu's Case, 4 Coke, 52 a; Harrison's Case, Clayt. 34; Ascough's Case, 9 Coke, 135 a ; Bur- hell ». Lechmere, 1 Ld. Rayd. 369; Page ii. Parr, Sty. 432 ; Hlope B. Eddington, Lalor. (N. Y. ) 43 ; Hodgkinsn. RolDson, 1 Vent. 276 ; Dalstou v. Reeve, 1 Ld. Rayd. 77, and eqiiity will not lend any aid to the landlord in such cases, Staines r>. Morris, IV. & B. 14 ; Vin- cent K. Beverley, N'oy, 82 ; Smith u. Steigleman, 58 III. 141 ; Smith v. Ral- eigh, 3 Camp. 513 ; Morrison v. Chad- wick, 7 C. B. 266. But in Stokes b. Cowper, 3 Camp. 514 n, it was held that where the lease is not by deed, and the tenant retains possession of a part of the premises, a recovery may be had upon a quantum valebat. 2 Hodgkins u. Eobson, ante. 3 Gilbert on Rents, 179. * Leishman r. White, Co. Litt. 148 6 ; 1 Allen (Mass.), 489. But it has been held by the English courts that where the demise is not by deed, and after an eviction from part, the tenant retains possession of the residue of the premises, that he will be liable to pay for the use and occupation of such residue quantum vallbat. Stokes b. Cooper, 3 Camp. 514 n. But contra, and sustaining the doctrine of the text, see Lewis b. Payne, ante ; Grandin v. Carter, 99 Mass. 15 ; Etheridge b. Osborn, 12 Wend. (N. Y.) 529. 5 Giles B. Comstock, 4 N". Y. 270 ; Pepper v. Rowley, 73 111. 262 ; Edgerton B. Page, 20 N. Y. 281 ; Kesslar b. Mc- Conachy, 1 Rowle (Penn. ), 435 ; La Farge v. Halsey, 1 Bus. (N. Y. Superior Ct.) 171 ; Neaie b. McKenzie, 1 M. & W. 747 ; McKeon b. Whitney, 3 Den. {N. Y.) 452 ; Selby v. Brown, 7 Q. B. 620. Thus, where rent is due by instal- ments, if a tenant is evicted, while be is absolved from the payment of any rent that may have accrued since the last instalment became due, yet he is liable for that which had previously be- come due. Pepper b. Rawley, 73 111. 262. In May b. Diaz, 42 Ala. 383, it was held that the fact that the landlord entered upon and took possession of rented premises after the accrual of weekly instalments, would not defeat a recovery of such instalments. Academy of Music B. Ilackett. 2 Hilt. (N. Y. C. P.) 217 ; Brooks b. Christopher, 5 Duer (N. Y.) 216; Whitney b. Myers, 1 id. 206 ; Christopher v. Austin, 11 N". Y. 216. ^ Vochell B. Donoastell, Moore, 891 ; Salmon b. Smith, 1 Saund. 204 ; Raw- lyn's Case, 4 Coke, 53 a : Gallup v. Al- bany R. R. Co. 65 N. Y. 1. Thus, where rent is- payable quarterly in ad- EvicTiojsr. 781 ttpon a legfil process/ or in tlie performance of any dutj- as a ])nl»!ic 'officer, or which is expressly conferred upon him by statute. Tims, where, in consequence of a change in the grade of a street in a i-ity, access to the demised premises was rendered inconvenient, and tlie tenant was incommoded and injured, it was lield not to afford any de- fence to an action for the rent, even thougli the change of grade was made by tlie landlord himself under the lawful authority of the muni- cipal corporation, and in pursuance of a j^ower conferred njDon the owner of an estate, under such circumstances, to do the work himself.^ Neither is the rent suspended, where the landlord enters for a forfeit- ure," or in pursuance of a special provision in the lease, authorizing a re-entry into the whole or a part of the jsremises upon a certain con- tingency ; '' or where the landlord enters under a writ of possession, or in summary proceedings,'^ or under a surrender by the tenant," or to make a distress,' or in any lawful way. Eviction only suspends the rent during the period that the tenant is deprived of the beneficial enjoyment of the premises ; whenever be is restored to his full rights in that respect he becomes liable to pay rent again /i-om that time? Nor does eviction from a part of the premises discharge the tenant from the performance of any other covenant in the lease.^ Thus, where a tenant convenanted to repair, to use the premises in a certain way, and not to assign, in an action for a breach of one of these covenants, it was held that a plea setting up an eviction from part of the premises did not constitute a defence.^" " The defendant," said Lokd Denman" in vance, and the tenant is ousted fornon- 340, in an action of covenantfor a quar- payment of the rent, such ouster is no ler's rent, due May 8, 1S58, the defend- bar to a recovery of such rent as had ants set up an alleged eviction, jSTovc.m- aceraed up to the time of eviction, ber 7, 1857, and a continued deforce^ Whitney v. Meyer, 1 TDuer (K. Y. Su- ment thereafter, tlie plaintiffs having at perior Ct. ), 266. But in an action for that time entered on the demised prem- tlie rent due, if the eviction was wrong- ises to distrain for rent in arrear, and ful, the tenant may recoup the damages having procured the arrest of one of he sustained by it. Liley v. Mayers, 43 the defendants for fraudulently remov- Penn. St. 404. ing tlie goods and Interfering with the 1 Voeliell 1). Doncastell, ante. distress.. It was lield that tliese acts on 2 Gallup V. Albany E. K. Co., Co N. the part of the plaintiffs did not amount Y. 1. If , in pursuing, such a power, the to an eviction and deforcement, and landlord negligently, or unslvilfully, per- that the court were right in refusing so forms the work, the tenant has his to charge, especially when it appeared remedy by an action against them for that jndsment for the delivery of pos- the dam.ages. Id. session had been obtained before two 8 Walker's Case, ante, Co. Litt. 148 magistrates, July 7, 1838, against the n ; Smith v. Malines, Cro. Jac. 160 ; tenants then in possession, and refusing Collins «. Harding, 13 Colce, 57 ; Neale to yield up the premises. 1). Mackenzie, ante. * Morrison «. Chadwiok, 7 C. B. 2S6 ; *,BushellD. Lechmere, 1 Ld. Eaymd. Newton ». AUin, 1 Q. B. 518; Mack- 369 ; see cases in last 2 notes ; May u. hern v. Whitcroft, 4 H. & McH. (Va.) Kice, 108 Mass. 150. 135 ; Croger v. McLanny, 41 N. Y. 218 ; ^ Co. Litt. 48 a. Ogden v. Sanderson, 3 D. S. (N. Y. C. " Swinnertou v. Miller, Hob. 239. P.) 166. ' In Noble v. Warren, 38 Penn. St. ^ Id. i" Newton v. AlUn, ante. 782 Rent. the/ last case, " could not at the same time exercise the rights of a ten- ant, and yet contend that he was not tenant." But when the tenant is evicted from the entire premises the rule is otherwise, because, in the latter case he ceases to be tenant so long as the eviction continues.' Eviction must be specially plead in covenant, and cannot be set up as a defence under the general issue ;^ and if the eviction is by a stranger, the defendant must not only show an eviction by him, but also that he had a right to evict him? In an action of debt for rent, or in an action for use and occupation, the defendant may, under the general issue, show an eviction either from the whole or a part of the premises, in defence.* A person who has been wrongfully evicted from premises, may recover of the landlord therefor such damages as he has sus- tained as a proximate consequence of such eviction.^ Surety for lessee. Sec. 474. It is frequently the case that the lessee is required to furnish a surety for the faithful performance of his covenants, more especially for the payment of the rent ; and it may be said that the surety is discharged from liability in .all cases where the tenant himself is discharged. That is, if the tenant is evicted by the landlord, or title paramount, or if he surrenders the possession, and the landlord accepts thereof ; or if the term, for any cause named in the lease, is determined) the surety is discharged from further liability, because the tenant is ; but, if a tenant .abandons the premises without a sufficient legal excuse the surety is not discharged, even though the lessor, at the request of ' Andrews -o. Needham, Cro. Eliz. 656. the diifereiice between the rent of the - BuUen L. PI. 539. demised premises and those to which 3 Simons w. FaiTen, 1 Bing. N. C. 126; the plaintiff removed, can be admitted. Jordan u. Twells, 1 Saund. 304, n 4; Druclcer b. Simon, 4 Daly (N. T. C. P.), Hill V. Saunders, 4 B. & (!. 529 ; Her- 53. Where a tenant was evicted by bert B. Keniian, 7 Ir. Jur. 43. title paramount, if he has erected a * Smitli v. Kalelgli, 3 Camp. 513 ; building upon the premises, whlch,by Prentice u. Elliott, .5 M. & W. 606; reason of the eviction he was compelled Hall 1). Burgess, 1 B. & C. 332 ; Selby to remove, it was held that he could t). Browne, 7 Q. B. 620. only recover the reasonable expenses of ^ A tenant who has been evicted from such removal, and the rent of a lot simi- a part of tlie demised premises, does larly situated whereon to place the not, by the mere fact of his demanding building for the balance of the term, of his landlord a sum byway of rent for Wilson c. Raybould, 56 111. 417. A ten- the premises from which he has been ant who has unlawfully been evicted evicted, waive his right of action for from a barn which he occupied as a damages for the eviction, and on the livery and boarding stable, by his land- trial of an action for damages for an lord, who destroyed the barn, may re- eviction it must appear what was the cover damages for the proper length of situation, convenience, and equality of time, for the loss of profits from board- accommodation of the premises removed ing the horses of others, as -well as for to as compared with the demised prem- the difference in cost of keeping his own ises, and in case the eviction was not horses and of hiring them boarded, forcible nor sudden, that the plaintiff where the evidence tends to show that had made diligent efforts to get suitable such damages were the natural and premises of as good class, at the same proximate consequence of the trespass, rent, and failed, before evidence as to Shaw ». Hoffman, 25 Mich. 162. Surety foe lessee. 783 the surety, lets them to another party .^ Payment by the tenant dis- charges the surety joro tanto, of course, but the fact tliat the tenant gives his individual note for the rent does not discharge the surety, unless the note is paid at maturity, unless it was agreed to be accepted as payment.^ But the surety being entitled to stand in the place of a creditor, as to every remedy in favor of the creditor, a surety for a tenant from year to year may put an end to his liability by giving notice to the landlord that he will be no longer liable, pirovided the notice is of the same duration as that which the tenant would be re- quired to give to put an end to the tenancy.' A surety may set up an eviction of the tenant, or any other matter that goes to discharge the tenant from liability upon the lease, in defence to an action against him, but he cannot set up matters that merely operate by way of set-off, counter-claim, or recoupment, or which merely furnish a ground of action in favor of the tenant against the landlord for damages, unless the tenant is shown to he insolvent^ in which case equity will permit such defence.* In order to recover of a surety, it is not necessary that the landlord should either demand the rent of the tenant, or proceed against him therefor. His right of action against the surety is com- plete whenever sucli right is complete against the tenant.^ But guaran- tors and sureties are bound only by the strict letter and precise terms of the contract. In other words, a claim against either is strictissimi juris ; ° and if, subsequently to their assuming that relation, the terms ^ McKenzie v. Farrell, 4 Bos. (N. T. ) came his surety. In a suit on the gviar- 192. A lease reserved to the landlord anty against the defendant, he claimed the right to relet, if the premises should that the plainlifE, by receiving an order become vacant, and apply the proceeds drawn by A on ]? for the rent, and ac- of the reletting to the rent reserved. A cepted by the latter, discharged the surety, on notice from the tenant that defendant^ from his suretyship. The he could not pay the rent, arranged with court below found that neither the the landlord's agent that he should let plaintiff nor A understood the receiving them. The agent put up a bill and of the order as releasing A from any of agreed to a letting ; the original lessee the obligations of his lease. Held, that removed ; was succeeded by a new ten- A's obligation to pay the rent was not ant, and he entered and paid rent for a affected, nor the liability of the defend- short time. Held, that this substituted ant as his stirety. The express covenant tenancy did not operate as a surrender, of A to pay the rent could be discharged and that the original tenant and the by nothing short of a mutual agree- surety were still liable. Ogden ii. Eowe, ment. 3 E. D. S. (N. Y.) 312. s oe Silver's Estate, 9 Phil. (Penn.) 2 Kendig d. Kendig, 3 Pittsb. (Penn. ) 302. 287 ; In re Bawne, 12 Banks Eeg. ■* Morgan v. Smith, 14 N. Y. S. C. 244. (U. S. ) 520 ; AVoodbridge d. Richardson, The surety cannot set up to defeat his 2 T. & C. (N. Y. ) 418. In Atkins d. liability the fact that the buildings were Brynes, 71 111. 326, the giving of a note destroyed by fire, and tBat the lessor, by the tenant to pay the rent, and se- although he received the insurance curing the same by a chattel mortgage, money, did not rebuild. Kingsbury r. was held not sufficient to defeat a dis- Westfall, 61 N. Y. 359. tress for the rent. In Burnhara d. Hub- ' Durker v. Eapp, 41 Jf. Y. Superior bard, 36 Conn. 539, the plaintiff leased Ct. 235. certain premises to A, who covenanted « Wright v. Johnson, 8 Wend. (N. Y.) to pay the rent, and the defendant be- 512. 784 Rext. of tlie lease are altered by the mutual agreement of the landlord and tenant, either a surety or a guarantor is discharged, unless they con- sented to such change, because the lease upon which they became liable no longer exist-s, it having been terminated by the altered or substituted contract ; ^ but such change or alteration does not defeat their liability for rent, or breaches that had already accrued before such change was made ;^ nor is he discharged from the payment of accrued rent by a surrender of the premises by the lessee and a re- lease of subsequent rent by the lessor.^ In order to assume the posi- tion of a guarantor, such an intention must be expressed in the writing. By indorsing on a lease : " I agree to bo responsible for the ])erform- ance of the covenants of this lease on the part of , to be done and performed," makes the person a surety ; * but where a person en- dorses upon the lease, or executes another instrument, in these words: " I hereby guarantee the performance of the covenants of this lease by ," he is merely a guarantor, and is liable for a breach of any of the covenants by the person named therein.^ If the tenant delivers certain property to the landlord, to be held as security for tlie payment of the rent or the performance of the covenants of the lease, the landlord is entitled to the possession thereof and may maintain an action against any person who disturbs such right.^ A surety is only bound during the term named in the lease. If the tenant holds over, although the lease contains a clause " for one year, with the privilege of the lessee to retain the house as long as he may wish," the surety is not bound for the rent beyond the first year.' But, if the lease is for " one year certain, and for another year if the tenant holds over," the surety remains liable for the rent the second year if the tenant holds over.' It is not the duty 6f the lessor to notify the surety or guarantor that the lessee has abandoned the premises,' nor is the surety dis- charged because the lessor has been negligent about collecting the rent.^" The liability of the lessee and of the guarantor is distinct, .and they cannot be joined in an action to recover the rent." Although tlie lease is joint in form, one surety ma:y set up a distinct defence that is not available to his co-surety,'- as a parol release given to him by the lessor," 1 People V. Vilas, 36 N. Y. 457; Grant s Coe v. Votlges, 71 Penn. St. .083. V. Smith, 46 id. 93 ; AVliite v. Wallver, 31 " Ledoux v. Jones, 20 La. An. 539. I"- 422. 10 Elinone v. Robinson, IS La. in. 2 Kingsbury V. Westfall, 61 N. T. 361. 651. ! l^- " , , „ ^- Vinden v. Ellsworth, 15 Ind. 144. * Korhn v. Hohl, 80 Penn. St. 333. If ^2 Moi-gan v. Smith, 70 N. Y. 537 • a person signs a lease, and does not state Johnson b. Smith, 14 Abb Pr (jST Y) the character in which he signs, he is 421 ; Slocum v. Hooker. 13 Barb. (N treated as a lessee. Magee o. Fisher, 8 Y.) .536 ; Dennyi). Smith, IS N. Y. 567' Ala. 320. 13 Harrison b. Close, 2 John. (]Sr. Y.) !> Clark B. Gordon, 121 Mass. 330. 448 ; De Zeiig v. Bailey. 9 Wond (K 6 Chambleo b. McKenzie, 31 Ark. 155. Y.) 336 ; Rowley v. Stoddard, 7 John ' Brewer D. Thorp, 35 Ala. 9. (N. Y.) 209. Liability of undek tenant eoe. r85 and as judgment may be reversed as to one and affirmed as to the other ; ^ but a relfease of one, under seal, discharges all.^ Where, how- ever, one surety is released by the lessor, he still remains liable to his co-surety for contribution, as the lessor cannot, by any act of his, vary the relation of the sureties to each other.' Liability of undertenant. Sec. 475. An undertenant is not liable to the landlord upon any of the covenants in the original lease,* but he may be evicted by the orig- inal lessor for a forfeiture incurred by such breaches, and, in that case, it would seem that, in the absence of fraudulent misrepresentation or concealment, he will have no rernedy against his immediate lessor.^ The original lessor may obtain an injunction to restrain the under- lessee from committing breaches of the covenants in the original lease." It is the duty of a person contracting for an underlease from year to year,' or for any longer term, to inform himself of the covenants con- tained in the original lease ; and if he enters and takes possession of the property, he will be considered as having full notice of, and will be bound by such covenants.' Where a person takes an underlease from the assignee of a lease, the underlessee, without notice, is bound by the ^ Morgan v. Smith, ante. 2 Pell V. Pell, 20 John. (N. Y.) 126 ; FoLGEE, in Morgan ». Smith, 70 N. T. p. 548. ' Morgan v. Smith, ante ; Boulthee v. Stubbs, 18 Ves. 20. In Morgan v. Smith, ante, an action was brought against two joint co-sureties for certain lessees, judg- ment was ordered against both, which was reversed as to one, and a new trial granted him on the ground of failure of consideration, as to him, and was af- firmed as to the other. Held, that it was no ground of reversal on appeal to this court by the latter that, in case his co-surety succeeded on the new trial, he would lose his right of contribution. As to whether the right would be lost in such case, qucere. The lease was of a store, so constructed as to derive light from a floor-light, in a floor above, which was covered by the lessees of the upper floor, and the light excluded from the room below. Held, that this fur- nished no defence to the action. The lease contained a clause that the lessees would not assign it, or let, or underlet, the premises without the consent of the lessor. The latter, subsequent to the execution of the lease and taking pos- session thereunder by the lessor, agreed, with the lessee to rent the premises for them at their risk, crediting to them any receipts for rent, with a condition that the agreement should not impair or alter 50 the relations of the parties, the cove- nants of the lease, or the security for the rent. Held, that the agreement did not operate to discharge the sureties, al- though they had no knowledge or notice of it ; that the agreement, without the condition, was no more in effect than a consent that the lessees might underlet; and that, under the condition, the rights of the sureties, and consequently their liability, were in no wise affected. A new agreement between a creditor and his principal debtor will not discharge the sureties when, by the new agreement, the remedies of the creditor against the sureties are expressly and clearly re- served. The lessees, upon making the new agreement, delivered the key of the premises to the lessors ; held, that such a delivery was not a surrender or a taking possession of the premises, but . an intrusting of the control thereof to the lessors, for the purpose of letting on behalf of the lessees. * Berney v. Moore, 2 Eidge. P. C. 323. ^ See Spencer v. Marriott, 1 B. & C. 457, 459 ; Hayward v. Parke, 16 C. B. 295. But see Van v. Corpe, 3 My. & K. 269. « See Clements v. Welles, L. K. , 1 Eq. 200. ' Wilson V. Hart, L. E., 1 Ch. 463. 8 Cesser v. Collinge, 3 My. & K. 283 ; Flight V. Barton, id. 282 ; Clements v. Welles, L. E., 1 Eq. 200. 786 Rent. covenants contained in the assignment.^ Covenants to repair in a lease and an underlease granted at different periods, thongh in terms the same, are in effect substantially different, because the underlessee is only bound to put the premises in the same condition as he found them in at the time of the lease to him.^ Where an undei-lease contains a covenant to repair identical in language with a covenant contained in the original lease, and the original lessor has sued the lessee on his covenant to repair, the latter may recover from his underlessee tlie damages obtained by the original lessor, but not the costs incurred by defending the action.^ Pj-emises held under a lease containing a clause of re-entry for want of repairs were underlet, and the undo'lessce undertook to repair within three months after notice ; the original lessor having threatened to insist on the forfeiture if the premises were not repaired, and the underlessee not having repaired at the expiration of three months after notice to do so, the original lessee entered and repaired : it was held, that he might recover from the underlessee the sum expended in such repairs.* An undertenant may deduct from his rent compulsory payments niade by him of arrears of rent due from the original tenant to the original landlord. Where underlessees hold separate portions of premises at distinct rents, the whole of the prem- ises being held under one original lease at an entire rent ; and one of the underlessees under threat of a distress by the owner of the rever- sion on the original lease pays the whole rent, an action is not main- tainable by him to recover from the other underlessee, as money paid to his use, the proportion of the rent due from him.^ 1 Clements ». Welles, L. E., 1 Eq. 3 Walker v. Hatton, 10 M. & W. 249, 200. 257 ; Penley v. Watts, 7 M. & W. 601. - Walker v. Hatton, 10 M. & W. ■* Colley v. Streeton, 2 B. cfe C. 273. 249. 5 Hunter i>. Hunt, 1 C. B. 300. When may be made. CHAPTER XLI. APPORTIONMENT OE EENT. Sec. 476. When may be made. Sicc. 477. 11 Geo. 2, c 19, s. 15. Skc. 47S. 4 & 5 Will. 4, c. 22. Sec. 479. Interest. Skc. 480. How apportionment is made. ■When may be made. Sec. 476. " Apportionment," in the language of Sie E. Coke, " signifieth a division or j)artition of a rent, common, &c., or a making of it into parts ; " but it lia.s been better defined as denoting the distri- bution of one subject in proportion to another previously distributed.^ Ai)portionment of rent, by the common law, takes place either by 0])eration of law or the act of the parties. By act of law, where lands demised at an entire rent are divided among different parties : thus, if freehold and leasehold premises are let together at one rent, an apportionment takes place at the death of the lessor among the real and personal representatives. Apportionment, at common law, may also be by act of the parties : thus, if the lessee disposes of the rever- sion in part of the lands, either by deed or will, the rent is ap])ortion- able,^ but the lessee's concurrence to the apportionment is necessary, unless it be settled by a jury.^ Where a lessee is evicted by title paramount in the middle of a quar- ter, the rent for that quarter is not apportionable, as there can be no apportionment of rent in respect of time.* The loss of land to the lessee by the overflowing of the sea appears to be another case of eviction, in which the tenant may claim apportion- ment : but the loss must be total pro tanto, for if there be merely a partial irruption of water, the exclusive right of fishing, which the lessee would thereupon have, would be such a perception of the profits of the land as to annul his claim.^ 1 Huntley u. Eaper, 1 And. 21 ; Ex * Clun's Case, 10 Coke, 12S a ; Bar- pane Smytlie, 1 Swanst. .338, 7?. wick b. Foster, Cro. Jac. 227 ; Yelve. ^ West' V. Lascelles, Cro. Eliz. 851 ; 867; Price v. Williams, Cio. Eliz. 360 ; Collins and Harding's Case, 13 Coke, Slack v. Sharp, 8 Ad. & El. 330. 57 ft ,• Cro. Eliz. 606. ^ 1 KoU. Abr. 230, 1. 40. 2 Bliss V. Collings, 5 B. & A. 876. 788 APPOETIONMENT OF IiBNT. 11 Geo. 2, c. 19, s. 15. Sec. 477. By 11 Geo. 2, c. 19, s. 15, after reciting " that where any les- sor or landlord, having only an estate for life in the lands, tenements, or hereditaments demised, happens to die before or on the day on which any rent is reserved or made payable, such rent, or any part thereof, is not by law recoverable by the executors or administrators of such lessor or landlord ; nor is the person in reversion entitled thereto, any other than for the use and occupation of such lands, tenements or hereditaments, from the death of the tenant for life, of which advantage hath been often taken by the undertenants, who thereby avoid paying anything for the same," it is enacted, " that where any tenant for life shall hap- pen to die before or on the day on which any rent was reserved or made payable, upon any demise or lease of any lands, tenements, or heredita- ments, v:hich determined on the death of such tenant for life, the exec- utors or administrators of such tenant for life shall and may, in an action on the case, recover of and from such undertenant or under- tenants of such lands, &c., if such tenant for life die on the day on which the same was made payable, the whole, or if before sucli day, then a proportion of such rent, according to the time such tenant for life lived, of the last year, or quarter of a year, or other time in whicli the said rent was growing due as aforesaid, making all just allowances or a proportionable part thereof respectively." A distinction has been taken by the courts in the construction of this statute between cases in which the rent would have been lost before the statute unless paid to the personal representative of the tenant for life, and those in which, being at all events payable by the lessee, the question arose whether it should be jjaid to the heir or remainder-man on the one hand, or to the personal representatives of the tenant for life on the other : thus, if a tenant in fee die intestate on the rent-day his heir is entitled to the rent.^ No apportionment of rent takes place as between the heir and personal representatives of a tenant in fee, but the heir is entitled to tlie whole rent.^ Where an owner in fee orally demised to tenants from year to year, and afterwards devised his estate to A for life, with remainder to B. in tail, and A died on 28tli September, 1858 : held, that A's executors were not entitled to an apportioned part of the rents which became due on the 29th September, because the ten- ancy diiction, sion of some of Ihe brewing utensils from payment nf the rent, see Cromme- that escaped the five, and entered upon lin v. Tliiess, 31 Ala. 412. and made \aii'.) ; 1 llllt. :;•.'() ; 5 Abb. Pr. 1 ; 14 How. Pr. llti : 10 Abb. Pr. ll'J ; Iiogers i;. Oslrom. :;.") Barb. (N. Y.) ")2:!. That continued pos.session for more than a year after a tortious disturbance by the landlord, precludes the tenant from claiming it to have been an eviction lo defeat the rent. Cram v. Dresser, 2 Sandf. (N. Y. Sup. Ct.) 120. If. under a lease granting land and an easement upon other land of the grant- or, with covenant for quiet enjoyment What constitutes 801 sion for moi-e than a year after the constructive eviction arose has been held such an unreasonable delay upon the tenant's part to assei't his right to treat the act as an eviction.^ As to whether the tenant has been guilty of such laches as defeat his right to set up the act as an eviction, or has done any act inconsistent with the assertion of such right, is a question for the jury, and is to be determined in view of all the circumstances. But, while the tenant, by remaining in possession for an unreasonable time after the constructive eviction arose, is pre- cluded from setting it up as a bar to the recovery of rent, yet he is not thereby precluded from recovering of the landlord such damages as ho may have sustained by reason of such acts ; ■' and in those States where the doctrine of recoupment is recognized, he may recoup them against the rent," or may set them up as a counter-claim where such relief is given by statute.'' But where there is an actual physical eviction from a pai't of the premises the tenant may still retain possession of the other part, and is absolved from the jjayment of any rent dui'ing the period of its continuance ; '' and herein is the im];ortant distinction be- tween an actual and a constructive eviction. The tenant must not only abandon the premises, but it must also appear that he abandoned them on account of the acts of the landlord, vihich are claimed to operate as an eviction ; and if his abandonment was due to other causes, m part even, he cannot set up such acts in de- fence to an action for therent." The question as to whether a nuisance of the whole, there is a partial eviction (herein, and U appearing that the kitch- of the tenant from the easomeul, under en was tliereliy tilled with filth, and ren- title paramount, he is, in equity at least, dered useless, and that the tenant . Tlie action was for dafna;;os rcsnllmc; from sucli cviciion. The (U^fendant do- ni('d Ihat there was any cviciion, and set np a couiilcr-elaini for llie rent. Tlie acts relied upon as an eviclioii were iiioslly eoniiuitted in 1874, and were staled in the coniplainl-to be that the landlord "disturbed the boarders by brutal eoiiducl in Ins parlor ; byriiigiiii; the bell on the Sabbath ; by ordering the phiintilf's company off the premises. Got into a passicni ami tlirew the carv- iiig-l!top there, for the plaintiff was not fit to keep boarders. He told a gentleman that if he came or sent any one there to board, lie would be done with liim for- ever. Declared fo the plaintiff that lie would do all he could to injure him. Also forbid the plainliffs laborer to re- pair tlie fence, and ordered hiin off. Cut boughs from the trees near the milk-lumse: interfered wilh the washer- woman ; abused the wife of the plain- tiff, and threatened violence towards her with his cane. liefused to furnish anything for repairs on the farm, or to replace anything worn out in the house, liefused to let tlie plaintiff use his light .spring-wagon, and plaintiff was obliged to use his own wagon, by means of which wrongs and injuries llie phnniitf was obliged io leave and did leave (be premises on the (ilh day of Xoveinl-er, 1IS75, and suffered gi eat loss and damage during the time he was there. The court lield that these ac(s could not be set np as an evieiion. (;iLiiKirr. J., said : "II would be a great st.ie;eh of the doctrine of construdive cvietion lo give that effect to the acts commilled by tlie defendant. "We are inclined lo hold that sucli an effect ought not lo be given to them. Hunt c. Cope, Cowp. 242 ; Allen v. Pell, 4 Wend. oOo ; Ogil- vie i\ Hidl .") Hill, o2. Later cases have extended the rule as laid down in those cifed. Dyett v. rendleton, 8 Cow. 727 ; Cohen r. Dupont, 1 Sand. 2(10 ; Edger- lon r. I'age, iO iN. Y. 281 ; Myers v. Burns, ;).5 id. 272. But a substantial deprivation of the beneficial use of the demised premises, or a part thereof, is, accoiding to all the cases, essential lo- conslilnte an eviction. Injuries to the tenant, which do not effect his enjoy- ment of the premises, it would seem, are not suflieient for that purpose. But it is unnecessary lo pass definitely upon this (luestion. For Ihc lease 'to the plainliff was made in March, 1874, and was tor one or live years, at the opiiou of the plaintiff. Most of llie acts of the defendanl, of which (he plaintiff com- plains, were committed in the year 1874. The plaintiff remained, iu pos- session (lui-jng the whole of that year, and shortly before the expiration there- of elcclcd that the term should be e.x- (endcd four years. Such election Mas e(|Ui\aIei]( to (he taking of a new lease for four years. The plaintiff having re- mained in possession during tlie whole of the term, antecedent to the exorcise of his option, (here was no eviction, ac- tual tr constructive, during that period. It is impossible that an eviction should have occurred withont an actual expul- sion from, or an abandonment of the demised premises. Edgerton o. Page, siqira. The fact, therefore, that tlie plaintiff remained in possession through- out the year 1874, is a conclusive de- fence to any claim for damages which he sustained iu that year It appears that the demised premises liad been, long used by the defendant as a board- ing-house, and that the plaintiff hired them for the same purpose. The plain.^ tiff elaiius that the defendanl dissuaded persons from coming there to board by remarks made in 18V), which were dis- paraging to the plahitilf, and that iu couseiiueiice his profits were dimin- ifhi'd. Assuming (his claim lo be well founded, we think (he defendants con- duel did not amount to an eviction. Tlie evidence fails to convince us (hat 1he plaintiff abandoned live premises in conscipienee thereof. On the contrary, lie remained ni possession until Novem- ber, lS7-"i, when the season for bo.irding had ended, and we are satisfied that he quit the ]ueniises because liis business had turned out to be unprofitable. How much, if any part, of that result is at- What constitutes. 803 cumstance whether it loas created by the landlord himself, or with his assent, express or implied. If the landlord himself creates a nuisance, either upon or near the premises, it will amount to an evic- tion ; ' or, if he lets the premises for a purpose that will necessarily result in a nuisance ; ^ but if he lets them for a purpose that will not necessarily result in a nuisance, but which only becomes so because of the negligence or wrongful acts of the tenant, it is not an eviction,' tributable to the defendant, and how much to the plaintiff, it is impossible to tell. The other improper acts imputed to the defendant, which occurred in 1875, seem not to have been relied upon on the argument, and were too trivial to fnrin the basis of a cause of action. Upon the whole, we think that the plain- tiff failed to establish any right of ac- tion." 1 Cohen v. Dupont, 1 Sandf. (N. Y. Sup. Ct. ) 26B ; Royce », Guggenheim, 105 Mass. 201 ; Pendleton v. Dyett, 4 Cow. (N". Y.) 581. If the landlord him- self creates a nuisance upon or in the vicinity of the premises it amounts to .an eviction, and this is so whether the nuisance arises from an act of omission or commission. Thus, where a landlord permitted the drains in his cellar ad- joining the leased premises to get out of repair, so that the adjoining premises became untenantable, it was held suffi- cient to constitute an eviction. Alger V. Kennedy, 49 Vt. 109. In Hcott v. Simons, 54 N. H. 426, the court held that where the landlord negligently con- structed his premises, or negligently suffered them to remain defective, he is liable either to his tenant or strangers for injuries resulting therefrom. In Dyett !). Pendleton, 8 Cow. (N. Y.) 727, it was held, reversing a contrary deci- sion of the same case, as reported in 4 id. 5S1, that where the landlord brought lewd women near the i>remises, so that the tenant and his family were broken of their rest, and otherwise so much an- noyed that the tenants were obliged to leave the premises, constitutes such a nuisance as amounts to an eviction, and excuses the tenant from the payment of rent. But the fact that the building be- came untenantable because the landlord neglected to make repairs, and that the tenant's property was damaged thereby, the landlord having covenanted to re- pair, does not amount to an eviction, nor is it a defence to an action for the rent, as in sucli a case the tenant should have made the repairs and deducted the cost from the rent. Diggs v. Maury, 28 La. An. .59 ; Truesdell v. Booth, 4 Hun (N. Y. S. C), 100. Or that the building was destroyed by fire, and that the land- lord refused to rebuild, although he had received the insurance money. Buss- man D. Ganster, 72 Penn. St. 285. The non-supply of water for the premises, caused by a leak in a pipe outside of the demised premises which the landlord after notice and request neglected to re- pair, whereby a water-closet and wash- basin on the demised premises became useless, whereupon the tenant aban- doned the premises, has been held not to constitute an eviction, or furnish ground for a counter-claim against the rent, there being no interference by the lessor with the supply, and no covenants in the lease on his part either that he shall keep up a supply of water, or that he shall keep the premises in repair, or that the demised i)remises should remain in the same condition and state of repair as they were in at the time of the execu- tion of the lease. Coddington v. Dun- ham, 35 N. Y. Superior Ct. 412. 2 In Halligan v. Wade, 21 111. 470, it was held that if the landlord lets a re- served part of the premises for a pur- pose that is inconsistent with the use to wliich the other tenant devotes the premises, it is an eviction, and that too whether the new use is lawful or not. ^ In Gilhooly v. Washington, 3 Sandf. 330, aff'd 4 N. Y. 217, a le'ssor let parts of a tenement to different tenants, one of whom (who received the first demise in point of time) occupied his portion of the tenement as a place of debauch- ery and prostitution, but the lessor was ignorant that he designed so to use it, and did not connive with him therein. The other tenant, in consequence of such use, abandoned the premises, after hav- ing first notified the landlord to abate the nuisance. It was held, in an action of covenant for rent, that the facts did not amount to an* eviction of the de- fendant. But the turning point of the case in the court of appeals was that the action was covenant upon a sealed lease, " which does not depend on the fact of occupation or enjoyment." Bronson, C. J., who delivered the opin- ion of the court, said : "In the equit- able action of use and occupation, the 804 Eviction. nor can an eviction be predicated because ol a nuisance ci-eated by a stranger — as an adjoining owner — as if an adjoining owner under- mines the tenant's wall, such act does not excuse the tenant from the payment of rent ; ^ nor if another tenant of a part of the same build- ing uses it as a house of prostitution can the nuisance thus created be construed as an eviction.^ In all such cases the tenant, in order to English courts hold that the tenant is not answerable unless he has had the beneficial enjoyment of the property, and they have gone a great way in pro- tecting the tenant against disturbances of all kinds," citing Edwards v. Hether- ington, 7 Dowl. & Ky. 117 ; Salisbury v. Marshall, 4 C. & P. 65 ; Cowie v. Good- win, 9 id. 378 ; Smith v. Marrable, 1 Car. & M. 479 ; Collins v. Barrow, 1 Moo. & R. 112. In Cowie v. Goodwin, supra, the tenant proved, in an action for use and occupation, that the wall of the privy gave way and the filtli from it flowed into the kitchejis so as to render them uninhabitable. Lord Denman said : "I shall ask the jury whether these premises were unfit for proper and comfortable occupation, and if the de- fendant had bona fide quitted the apart- ments as soon as he could procure others," and the jury having answered both questions in the affii'mative, the plaintifi! was non-suited, and on motion for a new trial for misdirection, the rule was refused. In Smith v. Marrable, 1 Car. & M. 479, where the tenant, upon enteriiig into a furnished liouse, found it so infested with vermin that it was impossible to dwell in it, and left it, it was held that he was liable to pay rent only for the time he occupied it. In Howard v. Doolittle, ?, Duer (N". Y.), 464, the court refused to follow Smith v. Marrable, on the ground that it was not only inconsistent with other decisions of the exchequer, but in general opposi- tion to the law. And in Hart v. Wind- sor, 12 M. & W. 84, the doctrine of Smith 0. Marrable was virtually ovei- ruled. It is undoubtedly the general rule that, in the absence of fraud or ex- press agreement, there is no luidertaking upon the part of a landlord that the leased premises are tenantable for the purpose for which they are leased. Hart V. Windsor. A covenant for quiet and peaceable enjoyment only secures the tenant from lawful interruptions in such enjoyment, or an interruption by the lessor or those claiming under him, and not by a stranger-. Arch. Landl. and Ten. 278 ; Moore?). Weber, 71 Penn. St. 429 ; 10 Am. Rep. 708. A coveijant for quiet enjoyment is implied in every mutual contract for the leasing and de- mise of land by whatever form of words the agreement is made. Mack v. Patchin, 42 jST. Y. 167; 1 Ara. Rep. 506. An eviction by a landlord of his tenant from a part of the demised premises creates a suspension of the entire rent, during a continuance of the eviction ; but the tenancy is not thereby ended, nor is the tenant thereby discharged from the performance of his covenants other than the covenant to pay I'cnt, Morrison c. Chadwick, 7 C. B. 2(10 ; 6 D. & L. 567 ; Royce v. Gugeenheim, 106 Mass. 201; 8 Am. Rep. 322 ;" Christopher V. Austin, 11 N. Y. 216 ; Smith v. Sligle- man, 58 111. 141. See, however, Tunis V. Grandy, 22 Graft. 109. In Mortimer V. Brunner, 6 Bos. (N. Y. ) 653, it was held that where the owner of a store leases all of it above the first story, with- out any covenant, excepting the usual onefor quiet enjoyment, and afterwards leases the lower portion of the building to another tenant for a business for which such a tenement is commonly used, his right to recover rent of the first lessee is not prejudiced by the fact that his business is indirectly interfered with by that of the second lessee. The lessor wdl not, in such case, be liable, nor will he lose his right to rent, in con- sequence of any intei-ference by the second, with the first lessee's enjoyment of the demised premises, to wiiicli the lessor is not a party. In De Witt v. Pierson, 112 Mass. 8, it was held that the fact that rooms beneatli a tenant are occupied by another tenaatof the sanio landlord for purposes of prostiiniion, the frequenters of which, by bawdy songs, attracted crowds of boys in the street, did not constitute an evictioii. 1 Kramer v. Coak, 7 Gr.iy (Mass.), 550. 2 Gilhoolev V. Washington, 4 N". Y. 217 ; De Witt v. Pierson, 112 Mass. 8. In Townsend u. Gilsev, 7 Abb. Pr. N. S. (N. Y.) 59, a lessee of a part of a building quit possession because the basement was occupied for the purposes of prostitution. It was held tbn.t, in the absence of proof that the landlord let the basement for that pu'.prse, or knew that it was to be so used when he What constitutes. 805 establish an eviction, must show that the act proceeded from the land- lord himself, or exists by his connivance or consent, or that he let the premises for a purpose from which the nuisance necessarily and inev- itably results.' If the landlord lets only a jiart of a building, and permits the part retained by him to fall into such a state of disrepair as to render the part occupied by the tenant untenantable, either by > dilapidation, or because the premises are thereby rendered unhealthy — as, if he permits a drain to remain stopped up so as to emit unwhole- some gases, or unpleasant stenches — this act of omission amounts to an eviction, and the tenant may give up possession." So, too, if the land- lord fraiululentlij concenh tho fact that a building is unfit for habita- tion, because of a deleterious stench proceeding from an unknown cause, it has been held equivalent to an eviction.' But a distinction is made in this respect, between the letting of a building that is unfit for occupation by reason of a cause affecting the health of the occupants, and one that merely produces annoyance and discomfort ; and where a landlord fraudulently concealed the fact that the premises had formerly been used as a house of prostitution, which the tenant quit because of the annoyance to which his family was subjected by reason of the frequent calls of lewd men, it was held that the tenant could not defeat a recovery of the rent upon that ground.* Any inter- ference with an easement belonging to the premises, or any use by the landlord of privileges not reserved in the lease, amounts to an evic- tion ; ° as the shutting up of windows essential to the demised prem- Ict it, the tenant was not absolved from pense with it, and the rear of the store the payment of rent for the wliole terra, received light necessary for the ti-ansae- and that words of the landlord that " if tion of business tlierein from windovps 1 could let the basement for a respect- opening into the yard, and a door opened able business I would have done so ; from the store into the yard, and one but I had to take what I could get, they into the hall, the lessor consented were so far up," were not, of them- that plaintiffs might close up these two selves, sufficient to prove that the land- doors at his own expense to make shelf lord let the premises knowinrj that they room. The defendants, having leased were to be used for such purposes. the whole premises, subject to plaintiffs' ' De Witt ». Pierson, ante. lease, began to excavate in tlie yard for 2 Alger V. Kennedy, 49 Vt. 109 ; 24 the pui-pose of building thereon. In an Am. llep. 117. action to restrain such building, it was ^ Wallace v. Lent, 1 Daly (N. Y. C. held that plaintiffs by tlieir lease ac- P, ), 481. quired an easement in the yard, of * Meeks v. Bowerraan, 1 Daly (N. Y. which tliey were not deprived by the C, P.), 99. agreement as to closing the doors; that " Vauglian d. Blanchard, 1 Yeates even if it should be held, from the fact (Penn. ), 175. In a New York case of closing tlie doors, that it was not where a part of premises were leased the intention by the lease to give them for the purposes of a store, and there access to the yard, yet they were enti- was a yard in the rear, attached to, tied to enjoy an easement therein for and exclusively appropriated by the the purpose of light and air, and that tenants, and to which they had ac- the defendants could not change it to cess tlifough a hall running from tlie their disadvantage. Doyle v. Lord, 64 front to the rear of the building, and as N. Y. 4.32. The question, however, as the building was occupied when the to whether the erection of a building plaiutiffs leased, no tenant could dis- upon adjoining lands so as to shut out 806 Eviction. ises, by the erection of a building by the landlord upon an adjoining lot, or otherwise ; ^ but the erection of a building having that effect, or any interference with an easement by a stranger, does not amount to an eviction.^ But, in the case of an easement, it has been held that where the tenant has abandoned its use, and by his own acts rendered it inca])able of use, an interference therewith by the landlord cannot be set up as an eviction, because it does not in such a case interfere with the tenant's beneficial enjoyment of the premises, and at most only amounts to a trespass.^ the light from that direction, by tlie land- lord, constitutts an eviction, depends upon the circumstance, whether the windows so oljstructed were necessary for the beneficial enjoyment of the prem- ises for the purpose for which they were let. By necessary is not meant conven- ient, but were the windows indispensable, and were the circumstances such that an implied grant of such an casement would be inferred. If not. the ob- struction of the windows would not lie an i-viction, and it was so held in Palmer v. Welmore, 2 Sandf. (N. Y. Sup. CI.) JJlli, where the landlord erected a building upon land adjoining the demised premises and darkened the windows upon that side. The erection of a building upon an adjoining lot by an adjoining owner will not cause an eviction. .Tohnson u. Oppenheini, 55 N. Y. 280 ; White v. Mealis, 87 N. Y. (Sup. Ct. ) 72 ; S. P. Kramer r. Cook, 7 Gray (Mass. ), 550. In Maville v. (jay, 1 Wis. 25U, it was held that tlu; re- moval of party stairs between the de- mised and adjoining premises, by a law- ful removal of the building, does not constitute an I'viction. ]n Itogers v. Ostram, /J5 Barb. (N. Y.)5-.'!, tearing down a partition in the passage-way, so as to eonjpel a tenant lo jjiiss llu'ough a grog shop to reach his tenement, was held an eviction. But in one case it was lield that if the tenant did tiot make any tise of the easement, an interfer- ence therewith by the landlord did not amount lo an eviction ; as vhere by the terms of tb(! lease tlie tenant was to have the use of a railroad, and the ten- ant using only a part of it, and the landlord tore up the rails of the part not used, it was held not an eviction. Peck V. riiler. yi Barb. (X. Y.) 117. But upon princiiile, it is diliieuk to see how this jiroposition is tenable, as, al- though at tlie time that the easement was destroyed the tenant did not use the same, .yet he liad the right to do so, and it would be impossible to say that he might not at some future time desire to use it. Btit in the particular case, the facts were such as to warrant an inference that the tenant had aban- doned the easement, and upon that ground the decision is possibly sustain- able. In Royce v. Guggenheim, 106 Mass. 201, the laiullord erected a build- ing hi the back yard, the effect of which was to render two rooms in tho building demised unfit for use, and tho court held that such act of the landlord amounted to an eviction. As has al- ready been stated, there may be a con- structive, where there is, in fact, no physical eviction ; as, where the land- lord, or any person acting by his au- thority, does an act which interferes essentially with the tenant's beneficial enjoyment of the premises, or, in other words, and perhaps more accurately, any interference by the landlord with the tenant's right to the enjoyment of the premises to the full extent secured by the leaae constitutes a constructive eviction, which authorizes the tenant to abandon the premises, and absolves hini from the rent if he avails himself of such right within a reasonable time ; but, if he remains in possession, or does any act inconsistent with his right to abandon, he thereby waives the right, and must pay the rent. Crommelin d. Theiss, 31 Ala. 412, and this rule covers the doctrine as stated in the text. Townsend v. Nickei-sou Wh. Co., 117 Mass. 501 ; Hegeman v. McArthur, 1 E. D. S. (N". T. C. P.) 147 ; Sherman ». Wilkins, 113 Mass. 481. And if the ten- ant sustains special damage from such eviction, he may recover it of the land- lord. Dalton !). Baker, 6 Nev. 190 ; Dobbins t>. Duguid, 65 111. 464. 1 Doyle V. Lord, ante. - Spears v. Allison, 20 Penn. St. 200. " Thus in Peck v. Hiler, 31 Bal-b. (N. Y. ) 117, by the terms of a lease, the tenure was to commence on the 1st day What constitutes. bO.T A tenant may show an eviction by title paramount, although the oiister M'as not by virtue of a judgment, decree, or any legal process, the .tenant taking the burden of proof that he acted in good faith, and that such title was, in fact, paramount. If the eviction or ouster is from a part of the demised premises, it entitles the. tenant to an apportionment of the rent, and an abatement according to the, relative value of the part frorn which he is evicted. Thus, the defendant was, tenant of a lot of land and buildings thereon,! under a lease from the plaintiff, for the tei'm of three years. The owner of the adjoining lot was, in fact, the owner of a strip of land, within and along the side of the demised premises, and on which, in part, the wall of the buildings rested ; and he notified the defendant of the encroachment, and that he was about to excavate under the wall, and reqviired him to remove the wall. The defendant gave writ- ten notice of this claim to the plaintiff, and required him to defend, his rights as he might be advised, and notified him that he should hold him responsible for any damage sustained ; but, the plaintiff, taking nO rneasures to protect the wall, or prevent its removal, and the excava- tion, being commenced, the defendant, in view of the danger caused by the undermining of the wall, took it down, and rebuilt it on the line of the plaintiff's lot. In the plaintiff's action to recover the rent, it >vas held, that these facts constituted such an' eviction, by paramount title, from a piart of the demised premises, as to suspend a portion of the rent, and were available as a defence thereto.^ of May, 1852. The tenant was to have held that it was fairly inferable from the use of a certain railroad, in common these fac4s that the lessee did not wish, ^yith others, and was "to put the same, to use the railroad above the ciiemical' in order above the chemical works, if works, and had determined to abandon, he wished to use it," and the lessor re- and had abandoned, the use of the served the use of it to himself also, whole of it previous to the removal l)y The road was entirely oUt of repair, the lessor, and had by his own acts ren- The tenant used a part of it, below the dered it incapable of use. That there- chemical works, for the purposes of his fore the lessor had not interfered with business, for a short time, but he never any beneficial enjoyment of it, and so, repaired it, or in any way used the road though his acts might amount to a tres- above those works. I^otliing was trans- pass, they were not such as amounted ported over any portion of it after July, to an eviction. 1852. The lessee removed a portion of i Moffat v. Strong. 9 Bos. (N. Y. Sup. the railway, so as to prevent its use, Ct.) 57 ; Carter v. Burr, 39 Barb. (N. before any part thereof was talcen up Y.) 59; Wells u. Mason. 5 111. 84; by the lessor. The lessor removed a Smith v. Malings, Cro. .J,4c. 160 ; Mc- part (if tlie rails in April, 185;3, and the Laughlin v. Craig, 7 Ir. C. L. 117 ; lessee, in May thereafter, with Icnowl- Stevenson v. Lombard, 2 East, 575 ; edgi! of such removal, paid to the lessor Fitchburgh v. Melvin, 15 Mass. 268 ; the rent which accrued during that Boodle u. Cambell, 7 M. & G-. .386; Ban- month. When the rent for the months ders v. Fletcher, US. & R. (Penn.) of .June, July, and August was de- 419 ; Gilbert on Rents, 147 ; Cuthbert- manded of the lessee, he promised to son v. Irving, 4 H. & Jf. 472. A mere pay it in a few days, and subsequently claim of right made upon the tenant by gave his TioUi for the amount, without, one having a paramount title and a making any complaint about the re- right to the possession, and an attorn- moval of the rails by the lessor. It was ment under such claim, is treated as 808 EVICTIOK. But such an ouster, by title paramount, from a part of the prem- ises only, is not a bar to the entire rent if the tenant remains in possession of a part, but only to a proportionate part thereof, because, in such cases, the rent is apportionable.^ But where a tenant is evicted from a part of demised premises by a paramount title, he may in his discretion abandon the possession of the other part, and in that event he is absolved from the payment of rent. It is only when he elects to remain in possession of the other part of the premises that he is liable for the rent thereof.^ Where a equivalent to an expulsion. Mavor v. White, 15 M. & W. 571 ; Emery v. Bar- nett, 4 C. B. N. S. 423. In Mayor v. White, ante, Pollock, C. B., says : " Now if a party having a good right to eject the occupier of demised premises goes there and demands to exercise tliis right, and the tenant says, ' I will change the title under which I now hold, and will consent to hold under you,' that, according to good sense, is capable of being well pleaded as an ex- pulsion;" but in the same case it was held, that a demand made by one having no immediate right, and an attornment to him, does not amount to an eviction. A tenant who voluntarily yields up pos- session of a part of demised premises to anotlier cannot claim tliat lie has been evicted, and a tenant liaving given a note for tlie payment of rent in advance was held not entitled to set up such facts in defence. Lettick u. Hounold, 63 111. 335. Nor does the mere fact that a landlord, wiio has reserved tlie riglit to use a part of the premises for a certain time, holds over, no demand liaving been made upon him for possession by the tenant, eoiisiilute an eviction. Vanderpoel v. hmith, 4 Abb. (N. Y. ) App. Dec. 401. And in the case last cited it was held, no demand for pos- session having been made, that the ten- ants, by giving the landlord notice that thpy intended to rescind the lease, could not relieve themselves from liability for the rent for the balance of the time. An entry by a mortgagee un- der a mortg.ige prior lo the lease. Smith V. Shepard, 15 Pick. (Mass.) 147, or by a judgment creditor under a levy upon tlie landlord's estate in the lancl, who threaten to put the tenant out unless he attorns to them, although not tech- nically an eviction, is nevertlieless equivalent tliereto, and operates as a bar to a recovery of rent by the land- lord. George v. Putney, 4 Cush. (Mass.) 351. 1 Lansing v. Van Alstyne, 2 Wend. (N. y. ) 561, n. Nor is an act of the State in appropriating a part of demised premises for public purposes, under Its right of eminent domain, a bar to rent accruing for the use of tlie remaining portion. Foltsi). Huntley, 7 Wend. (N. y. ) 210. In Buffum v. Deane, 4 Gray (Mass.), 385, whereniills and machinery were leased for a term, and the real es- tate was sold upon an execution against the lessor, but tlie machinery was not sold, it was held that the lessee still re- mained liable to the lessor for llie rent of the machinery. The reason for this exception to the rule, in the case of an eviction by title paramount, is, tiiat the eviction does not result from the land- lord's own wrong to such an extent that he should be deprived of all the benefits that have accrued to the ten- ant under the lease. Tomlinson v. Day, 2 Br. & B. 680 ; Lawrence v. Frencli, 25 Wend. (N. y.) 443. The mere fact that, in an action in which the tenant is not, but the landlord is, a party, a decree is rendered, directing the sheriff to let out the premises, does not operate as an eviction unless the decree also directs tlie sheriff to evict tlie tenant, particularly where there is no para- mount title under which the tenant might be evicted. Murray v. Penning- ton, 3 Graft. (Va.) 91. And under such circumstances, even tliough the tenant surrenders the possession, he is not discharged from his liability for rent. Id. Upon the general proposition that an eviction by a stranuer by title para- mount extinguishes the rent, see Day v. Austin, Cro. Eliz. 398 ; Boodle v. Cam- bell, 7 M. & G. -SSa ; Boynlon v. Bab- bett, 2 Vent. 67 ; Simons v. Farren, 1 Bing. N. C. 272 ; Staines v. Morris, 1 V. & B. 8 ; Soprani v. Skurro, Yelv. IS; Pope V. Biggs, 9 B. & C. 245 ; Sliel- bury V. Scotsford, Yelv. 221 ; Burn v. Plielps, 1 Stark. 94 ; Dalstoii ». Reeve, 1 Ld. Rayd. 77 ; Cooper v. Young, For- tescue, .360 ; Jordan v. Twells, Cas. Temp. Hardw. 171 ; llayne v. Matby, 3 T. R. 438. 2 Home Life Ins. Co. v. Sherman, 46 What constitutes. 800 tenant is evicted by title paramount, but remains in possession under anew agreement with the person wlio evicted him, his original land- lord cannot distrain on him for rent.^ If the eviction is from the entire premises, the tenant is only absolved from the payment of rent accruing after the eviction. He still remains liable for that which ac- crued before, as in such cases the rent is apportionable.^ While a tenant is not bound to wait to be evicted by action, yet, at his peril, he must be certain that the party claiming title has in fact a para- mount title, and if he yields possession to one who has no such title, he cannot claim exemption from after-accruing rent ; ^ so that, if the ten- ant prefers not to await the event of litigation, he must exercise great prudence in investigating the claims of the person seeking to obtain possession. Where the landlord in fact had no title or right to lease the premises, and the true owner refuses to permit them to be used for the purposes for which tliey were hired, the tenant may give up pos- session and is discharged from the payment of rent ; and if he has paid the rent in advance he may recover it back ; or, if he gave his note N. T. 370 ; Wells ». Mason, 5 111. 84. But if he remains iu possession wlien evicted from a part of the premises by title paramount, or by acts amounting only to a constructive eviction, he is liable for the rent of that part. In order to avail himself of the eviction as a bar to the entire rent, he must abandon the possession. Edgerton b. Page, 26 N. Y. 281. In a late Pennsylvania case not yet reported, Seabrook b. Mayer, No. 49, vol. 20, Alb. Law .Journal, the court said: '■ It is a well-settled rule, that if a land- lord wrongfully dispossesses his tenant of any portion of the demised premises, the rent for the whole is thereby sus- pended. In the present case the plain- tiff committed no act after possession taken under^the lease by which his ten- ant was deprived of any part of the demised premises. On the contrary, the evidence shows that he tried to pre- vent the eviction. His offense consisted in demising premises to the defendant, to a portion of which he had no title at the time. The eviction of the defend- ant was by virtue of a title paramount to the title of his landlord. It matters not that the plaintiff had previously held it. At the time the lease was executed and the relation of landlord and tenant between the parties was created, the outstanding title of the adjoiner was as superior to the title of the plaintiff as if he had never held it. If the defendant had been evicted by paramount title from the whole premises, he would have been discharged from the payment of the whole rent after that time. But an eviction, by such title, from a part only of the demised premises, when the ten- ant continues in possession of the re- maining part, using and enjoying it, does not work a suspension of all subsequent rent. He-remains liable to the payment of such proportion of the rent as the value of the part retained bears to the whole. On having been evicted from a part he might have removed from the residue, and thereby wholly relieved himself from the payment of future rent ; failing to do so, he became liable to a just apportionment. Our own cases recognize the rule when the land- lord conveys a part of the demised premises during the term and possession of the tenant, and the vendee has enter- ed arid evicted the tenant from the part thus conveyed. By retaining possession of the remaining parthe becomes liable to pay for the use of the portion thus retained. It is held not to be such a wrongful eviction by the landlord as to release the tenant from paying a just compensation for that which he continues to enjoy." Reed v. Ward, 22 Penn. St. 144 ; Linton n. Hart, 25 id. 193. When a mortgagee notifies the tenant that rent must'be paid to him, and enters and threatens to evict the tenant, it is an eviction. Smith v. Shep- ard, 15 Pick. (Mass. ) 147. > Hopecraft ». Keys, 9 Bing. 613. 2 Blair b. Claxton, 18 N. Y. 529 ; Car- ter B. Burr, 39 Barb. (N. Y.) 59. ^ Moffat B. Strong, ante. 810 ' Eviction. tlierefoi-, and the note is still held by the lessor, a coui-t of equity will rescind the lease and enjoin the collection of the note by him, and coniiiel the lessor to surrender the note to be cancelled.^ When a vendor or lessor cannot make a complete title, the lessee or vendee may elect lo proceed pro tanto, or to abandon the contract or lease altogether ; and if he elects to do the forniei-, he is entitled to nn abate- ment from purchase money, or a deduction from the rent by way of conijiensation for the deficiency in the title.- In such a case, "where the lease is by parol, the inability of the lessor to give jwssession by reason of his having given a previous lease of a ])art of the premises is treated as equloulciit to an eviction by the tortious act of the lessor, and no rent is recoverable for the portion occupied by the tenant." But ■where the lease is by deed, it ojierates as a grant of tlie re\ei'sion as to sucli lands as are in the possession of a previous tenant, and a demise of the residue of the lands, and in that case the tenant must pay the rent for such portion of the premises as. he occupies.* Where tliere is an actual physical eviction of the tenant from a part of the^ premises by the landlord or his agents, or by any person acting under or through him, in that case, the rent is entirely suspended, w'hether the tenant remains in possession or not,'^ unless the eviction was law- fsl, in which case the tenant is responsible for the i-ent of the premises np to the time when he was expelled therefrom.'' Where a tenant who has paid his rent in advance is evicted before his term has expired, he is entitled to recover back such a proportion 1 In Anderson v. Tighe, 10 Ileisk. after. In oitler to induce the lessee to (Teim.) 299, the court rescinded a lease lake a lease of the preunses, the lessor, of a brick yard to which the lessor Jiad represented that the premises embraced no title or light to lease, the true owners a piece of land whioh, as it afterwards having refused to permit the lessee to turned out, belonged to the city. The make brick upon the premises, and, ho lessee discovered the fact before the 1st having given his note for advance rent, of May, and procured a lease of such the lessor was enjoined from collecting piece of land from it, and took posses- il- sion of and occupied the whoie. The ^Ai.LEN, J., in People B. Stephens, 71 defendant was permitted to recoup N. Y. -555 ; Walters v. Travel, 9 John, what he was in good faith compelled to (N. Y.) 465 ; King v. Wilson, 6 Beav. pay for the corporation lease. 124 ; Paton v. Itogers, 1 Ves. & B. 351 ; s Neale n. MacKenzie, 1 M. & W. T47: Voorhees v. De iMeyer, 2 Barb. (jST. Y.) Watson v. Waud, 8 Exchq. ;;.•!.->. 37 : Morse li. Elendorf, 11 Paige Ch. * Comm'rs of Ireland r. O'Connor, 9 (N. Y.) 277 ; Graham" u. Oliver, 3 Beav. Jr. C. L. 242. 124. In Wbitney ti. Allaire, 1 N. y. 5 rampbell r. Shields, 11 How. Pr. 30.5 ; S. C. 1 Hill (N. Y.), 484 ; 4 Den. (N. Y.) .565. See ante, p. (N". "i.) .5.d4. which was several times . Doolittle, 3 Duer |N. Y.), 464 ; Hallett v. Wylie, 3 John. (N. Y.) 44 ; Doupe v. Gerrin, 45 N. Y. 119. And so far as repairs are concerned, the landlord is vuidei' no sort of obli- gation to make any, unless he has ex- pressly covenanted to do so. White v. Mealio, 5 ,T. & S. (N. Y. Superior Ct. 72 ; Corey v. Maun, 6 Duer («". Y.), Destruction of Pkemisks. 815 the tenant in such a case is to notify the landlord, and upon his fail- ure to repair, to repair the premises himself and deduct the expense from the rent,' or to sue the landlord for a breach of the covenant. He cannot, on account of such breach, abandon the possession, and thus relieve himself from liability for the rent subsequently accruing.^ But, although the covenant to pay rent and to repair are independent covenants, and at the common law the breach of one is not a defence to an action upon the other,'' yet, latterly, particularly in this country. 670 , Moffat V. Smith, 4 N. Y. 1-26 , Mumford v>. Brown, (i Cow. (X. Y. ) 47o ; McCiivty v. Ely, 4 E. O. S. (N. Y.) •'i7"). Aiul (his 13 so, even llioiigli the huilding is let for a special purpose, and, It is wholly unfit for such purpose unless fixed. iluwanl . u. Dooliltle, ante. Thus a landloi-d is ]iot bound to repair the water pipes, so as to keep up a supply of water. Caddington d. Uunhani, ;', ,1. & S. (X. Y. Superior Ut. ) 412. Nor is lie l)ound to protect the premises from the coiiseiimmce of acts done by an adjoining ou'uei', as in mak- ing an excavation. Slu'i-wood u. Sea- man, 2 Bos. (N". Y. Siiperioi- Ct.) 127 ; White i). Mealio, ante. And an agree- ment on Ins part to repair, made after the lease has been entered inio, does not bind him to repair. Speckles u. Sax, 1 S. D S. (N". Y.) 2.-)() ; Flynn ?). Hat- ton, 4 Daly (N. Y. C. P.), 552; Oivis v. Banks, 2 Sweeney (N. Y. Superior Ct.), 184 , Gotlsberger b. Kadway, 2 Hilt. (ISr. Y. (;. p.), 342, unless a new and sufficient consideraiion for such agree- ment is shown. 3ttin';er v. Levy, 4 E. U. S. (X. Y.) 2H.-5 ; Post v. Vitter, 2 id. 248. A covenant loi'ebuild or repair shouhl be broad enough lo cover all exigencies, as it will never be extended or enlarged by construction. Witty u. Matthews, 52 N. Y. 512. But while, < after a tenant's term under a lease has commenced, adestniclion of the prem ises will not relieve him from liability for rent, yet, if a lease is made to com- mence in futiiro, and before the time arrives the buildings are burned or de- stroyed, he is not liable for rent, for delivery of possession is necessary lo establish the landlord's right to colleot rent. Wood v. Hubbell, 10 N. Y. 479. And where the landlord covenants to rebuild, there may exist a state of fact that will relieve the tenant from rent unless liis covenant is performed ^ as, where the tenant procured the premises to be insured and gives the landlord the insttraiice money to rebuild with. Beyer v. Dickinson, 7 Phila. (Penn ) 190. In Allen v. Pell, 4 Wend. (N. Y ) 51 505, the landlord let an unfinished house to the tenant and agreed to finish it by a certain day, but failed to do so. The court held that the tenant was not bound to occupy, and not having done so, was not liable for the rent. H, under such circumstances, the tenant goes into possession, he waives the con- dition iJiecedent and is bound for the rent, and must seek redress in an action for a breach of the covenant. Wright ii. Lattin, 3S 111 292. 1 Hexter b. Knox, 63 N Y. 561 ; Makin B.AVilkinsou, L. R., 6Exchq. 25; Walker V. Gilbert, 2 Eob. (N. Y. Sup. Ct.) 214 ; Cooke I'. England, 27 Md. 14. '^ Loader B. Kemp, 2 C. ifeP. .'375; Bucks V. Eogers, 39 lud., 222 ; Black b. P^biier, ,54 id. 544 ; Myers v. Burns, 35 N. Y. 209; Hurger v. Edmonds, 4 Barb. (IST. Y. ) 256. In New York, under the statute permitting the tenant to aban- don piemises rendered untenantable, till' statute has no operation, unless the pi-einises are rendered wholly untenant- able. Thus, when the roof and upper story of a building was desti'oyed, but the lower story, which was occupied by a tenant, was left intact, it was lield that, in the absence of a covenant l)y the landlord to repair, he could not be com- pelled to do so for the benefit of the ten- ant of the lower rooms. Doupe b. Oer- rin, 45 N. Y 119.- And where the in- jury to the premises is only .such as can be repaireil without re.l)uilding, a par- tial injury by fire, or other ca.sualty, is within a covenant to rebuild, and if the landlord has not covenanted to repair, he is not bound to repair such an injury. Vanderpoel b. Smith, 2 Daly (N. Y. C. P.), 135. And the statute does not re- lieve the tenant from making ordinary repairs, but only applies to injuries re- sulting from some sudden and unex- pected action of the elements or other cause. Suydam b. Jackson, 54 N. Y. 450. "> Hare b. Graves, 3 Anst. 607 ; Bal- four B. Wiston, 1 T. R. 310 ; Hurger v. Edmonds,-4 Barb. (N. Y.) 456. If the lease contains a. covenant on the land- 816 Eviction. the tenant is not driven to his cross-action, except when he claims damsiges in excess of the rent, and may recoup them in an action for the rent.' . If a landlord covenants to put premises in repair, and the lease is to commence in the future the performance of the covenant by the landlord is treated as a condition precedent to the payment of rent ; and if the premises are not repaired at the time when tlie term begins, the tenant need not enter under the lease, but is discharged therefrom.^ But if, under such circumstances, the tenant goes into possession, he is treated as waiving the condition precedent, and must pay the rent whether the repairs are made or not ;^ but, when the landlord agrees to repair before a certain daj', whicli does not arrive until after the term begins, an entry by the tenant does npt operate as a waiver ; and if the repairs are not made at the time agreed upon the tenant may abandon the premises, and is not cliai-geable with I'ent for the time be acluaJly occupied,'' but he must avail himself of the right to abandon at once, and if he remains in possession under the lease for lord's part to rebuild or repair, and also provides tliat the rent shall oease fioiii the time of the destnictioii of the buildings, or their disrepair, the tenant is absolved from rent for the balance of the term, though he remains in po'^^ses- sion, if the landlord t'a:-s to rebu. d or repair. Pattei'sou i). Ackersou, 1 idvv. Ch. (X. Y.J 9(3. 1 Westlake v. De Graw, 2.") Wend. (iSr. Y.) 069 ; Hnrgcr v. Edmonos, 4 Barb. (N". Y.) 25(i;'lilack v. Elmer, .54 1ml. 544 ; Wright tj. Lattin, 38 111. 29.J. It is now genei-ally held that the tenant may, by way of recoupment or counler- claim, where the latter remedy is given by statute, set up any damages that he sustains from a breach of any of the landlord's covenants, e.xpress or im- plied, in reduction of the rent, as where the landlord deprives the tenant of the use of an easement ; Lynch o. Bald- win, 69 111. 210; Depuy v. Silver, 1 Clark (Penn.), .38-") ; or damages arising from any interference with the tenant's quiet or beneficial enjoyment of the premises short of an eviction Pun- woody u. Raynor, 52 Penn. St. iVli ; Nichols u. Du'senhury, 2 N. Y. 28.3. Of course, where there has been an actual eviction of the tenant the damages, can- not be recouped; but the eviction oper- ates as a contplete bar to rent not due. In Ilolbrook v. Young, 108 Mass 8.3, the court say . " He (the tenant) may set up by way of recoupment damages suffered by reason of a breach of any covenant in the same instrument on the part of the lessor,'' and this covers im- p'ied, as well as express, covenants. The tenant may recoup damages that he sustains from any of the acts or de- faults of the landlord that diminish the beneficial enjoyment of the premises, whei-e such acts or defaults are .a breach eitherof an implied or e.xpress covenant. Lynch v. Baldwin, ante ; Depuy v. Sil- ver, ante. Damages arising i'rom a breach of a covenant to repair, or, in- deed, any e.\press covenant In the lease, may be recouped. Gi-een u. Bell, ,3 Mo. App. 291; Black v. Ebner, ante ; Leach V. Leach, 10 Ind. 271 ; Fairman v. Flnck, 5 Walts (Penn.), 510. Biit mere acts of trespass, not operating as a breach of any of the covenants "of the lease, are. not the suljject of recoupment, no mat- ter what may be the form of action. Witt V. Pierson, 112 Mass. 8 ; Bartlett V. Farrington, 120 id. 284 ; Edgertou v. Page, 281, Nor can damages arising from any cause he recouped when the rent has been assigned and the damages arose utibsequt'iif. lo the assignment, nor when, in fact, the rent beloiigs lo a third person who is a stranger to the lease. Siingerly v. Fox, 75 Penn. St. 112 ; An- do.sco Oil Co. V. N. N. Oil Co., 60 id. 37.5. As to the right to recoup, see Dor- win V. Potter, 5 Den, (N. Y-):-?06 ; Kel- sey 0. Ward, 10 Abb. Pr. (N. Y.) 98. ,.< 2 Al'ien V. Pell, 4 Wend. (N. Y.) 465.^" s Wright V. Lattin, .38 111. ;;92. ^ Gibson Vi Perry, 29 Mo. 245 ; Gates 11. Green, 4 Paice Ch. (N. Y. ) 355; Womack v. Mi!(.^uarrie, 28 Ind. 103; Barnes b. Sfrohecker, 21 Ga. 430, Wright V. Lattin, ante. Destruction or Disrepair. 817 any length of time he cannot abandon the possession because of such breach.^ So, it lias been heki that, if the landlord, before the term commences, interferes with the premises in such a way as to deprive the tenant of the full beneficial enjoyment of the jiremises as they were when the lease was made, the tenant is absolved from tlie covenant to pay rent;^ as, if the landlord removes any fixturos tliei-cfrom essential to the convenient enjoyment of the premises." Tiie fact that jjremises are not fit for the jnirposes for which they were I'ented is no defence to an action for the ■rent,'' unless tlie lease was in(liice. IJaker, 1 E. & E. 12; Sharp v. lliliijan. 'i'i Oeav. G12; Jones y. IS'ixon, 1 II. & 0. 4S. ■iS'ioer V. Lea, 11 East, ;!12. If a IcasH to iwo or more provides that itniay ho ii'nniiiated hy a notice in writing under " /j.s or their respective hands," a noliee si'^iied l)y one of two lessors, or one of Iwo lessees, will not end the ten- ancy. Fisher V. Cuthell, 5 East, 401. And ihis does not niililate against the rule lliat where there is no mode pointed out in t'le lease one of two or more joint tenants may give a notifce to quit that will be operative as to all. Aslin v. Fnmmersetl, 1 B. & Ad. loO ; Turner)). Ilardy, 9 M. & W. 770. "LoiiD Dknjian, C. J., in Cadhy d. Martinez, ante. ' 'iGiddeii u. nodd, n Drew. 485. ^ licxld 1). Arclier, 14 East, 245. 'Wilsm V. Ahel, 2 M. & S. .541. « Jer\isr. Tomlt law is, therefore, that a sui-render has been made. Livingston 1). Potts, 16 .John. (N. Y.) 28; Schieffeiin V. Carpenter, 1.5 Wend. (IST. Y.) 400. It is said in that case by Nei^so.v, J., that unless such new lease be executed so as to pass an interest according to the con- tract and intention of the j>ariies, it will not operate as a surrender of the 2^rior lease by operation of latb. And it was so held where there was a parol letting for a term of years to third persons, who had entered into possession and paid rent to the landlord for a portion of the term agreed upon. Tlie conclusion was that a valid parol lease, since the statute of frauds, might produce a surrender in law, and that the true rule was as laid down in 2 Starkie's Ev., 342, that tlie taking a new lease by parol is by oper- ation of law a surrender of the old one, although it he by deed, provided it be a good one, and pass aninterest according to the contract and intention of the parties ; for otherwise the acceptance of it is no implied surrender of the old one. See, also, Bedford v. Terhune, 00 N. Y. 4.")3, aoproving this case. See. also, Uow- an V. Lytle, 11 Wend. (N. Y.) G17, and Lawrence v. Brown, .5 N. Y. 394. In England the rule is. that if there be a tenancy under a lease, and the parlies make a verbal agreement for a sufficient consideration, that instead of the exist- ing term there shall be a tenancy from year to year, at a different rent, that would not be a surrender of the lease by operation of law. Eoquet v. Moor, 7 Exch. 870. The farthest that our courts have gone, is to hold that to effect a snr- j'ender of an existing lease by operation of law, there must be a new lease, valid in lav], to pass an interest accordin;/ to the contract and intention of thepiarties. Within this rule there was no surrender of the lease upon which this action is brought. There was no new lease which could fake effect according to the verbal contract of the parties as stated by the defendant. The claim is that in 1872, by the verbal agreement, of the parties, there was in effect a new lease for the unexpired terra of seven years, at a re- duced rent, with liberty to the lessee to terminate the lease at any time on giving three months' notice. This could only operate as a lease from year to year, as long as the parties elected to continue What is a sufficient new Lease. 835 wards estopped from disputing, and which would not bo v:ilid if the first lease continued to exist, for he would be estopped from saying that the lessor had not power to make tlie now lease ; and as the lessor could not "-rant the new lease until the first lease was surrendered, the acceptance of the new lease is of itself a surrender of the first.' What is a isufiicieiit new lease. Sec. 493. If a lessee for twenty years takes a lease for ten years, to begin at a certain fixed period, t!ie term of twenty years is surrendered or determined immediately; for, by the lessee's acceptance of the new lease, lie adini: s that the lessor is in a situation to lease to him, notwith- standing the existence of the other lease ; and by such acceptance, the lessor has power to make a new lease during the former.^ But where a lessee for twenty-one years took a lease of the same lands for forty years, to begin immediately after the death of J S, it was held that tills was not any present surrender of the first term, because J S might wholly outlive that term, and then there would be no union to work a surrender; and it was considered that being in equilibrio in the mean time, whether he would survive it or not, the first term ' should not be hurt till that contingency happened ; but that if J S died within the first term, then what remained of it was surrendered and gone by the taking place of the second.^ Where the lessee for years of a house accepts a grant of the custody of the same house, it is a sur- render; for the custody of a thing which was let before is another interest in the same thing leased, and cannot stand with the first lease ; * contract, under seal, cannot be modified Aid. 119, In a case where a parol lease by a parol executory contract. Dela- is allowed ; or for a shorter term than croix B. Bulkley, 13 Wend. (N". Y.) "71; the first; Ivo's Case, 5 Coke, 11, a, b; Allen B. .Jaquish, 21 id. 628; Ilasbrouck Bernard u. Bonner, Al. 58-9 ; Shep. D. Tappen, supra." Touch. 301 ; Co. Lit. 218, h ; or even 1 Lyon V. Reed, 13 M. & W. 285; Bes- if it be at will ; Mellows v. May, Cro. sell V. Landsberg, 7 Q. B. 038 ; Cole Eliz. 874 ; or made to commence at a Ejec. 225. ' future specified day, provided that day ^ Ives V. Sams, Cro. Eliz. 522 ; Hutch- fall within the term granted by the first ins V. Martin, id. 004 ; Bac. Abr. Leases lease ; Ive's Case, ante ; Thompson ». (S. 2); 2 SmithL. C. 655 (4thed.). Traftord, 2 Leon. 188; Hutchins v. * Bac. Abr. tit. Leases (S. 3). Martin, Cro. Eliz. 005 ; as if lessee for * Gybson v. Searl, Cro. Jac. 177. If twenty years take a lease for three, to a lessee for years of premises accepts a begin ton years after, this is a present grant of the custody of the same it is a surrender of the whole term ; for it can- surrender, for the custody of the subject not be a surrender of the last ten years, of a demise is another interest, with and remain for the first ten, so to make which the lea^e is inconsistent. G-yl)- a fraction of the term. Nor can he who son 1). Searl, Cro. Jac. 84, 170-7 ; Earl has a lease for twenty years surrender of Arundel v. Lord Gray, 2 Dy. 200, 6. the last tea by an express surrender, And see Woodward v. Aston, 1 Vent, saving the first ten. Ive's Case, ante ; 290-7; S. C. 2 Mod. 95. And the sur- Weddall v. Capes, 1 M. & W. 50, in ef- render will be complete, though the feet overruling Aldenburgh v. People, 6 second lease is by parol merely, Whit- C. & P. 212 ; Murrell v. Milward, 3 M. ley V. Gough, 2 Dy. 140, b, pi. (43) ; & W. 328. But the law is different Timbrell v. Bullock, Sty. 446 ; Thomas where the second lease is made to com- H. Cooke, 2 Stark. 408 ; S. C. 2 B. & mence after the expiration of the first ; 836 By Sueeendee. and if the first lease is of the land itself, and the second lease of the Testure of the same land, it is a surrender of the first lease : so it is if a the second being then reversionary, and consistent with the existing demise ; Anon., Dal. T4, pi. 58; Rawlings v. Walk- er, 5 B. & C. Ill; or where it is made to commence on a contigent event wliich may not happen until the determination of the first ; as if a lessee for twenty-one years take a lease of the same lands for forty, to begin immediately after the death of J S ; here, the acceptance of the second term will not work a present surrender of the first, for J S may survive it ; but if J S die within the term, then a surrender will take place. Anon., 4 Leon. 30, pi. 83. So, the sur- render w'ill be absolute, tliougli the second le^ise be afterwards defeated by the non-performance of a condition sub- sequent. Plowd. 107, 6. A surrender by operation of law will also be effected if a lessee for life accept for life, or a lessee for years accept for years, an immediate grant of a rent^charge, or of common, or herbage, issuing out of the lands demised. Mellows ». May, Cro. Eliz. 874 ; Gybson v. Sear), C'ro. Jac. 176-7 ; Lyon v. Reed, 13 M. & W. 285, 306. Tlie early books are not agreed as to the principle on which these cases of implied surrendei-s de- pend. Coke states it to be, (hat, by taking the new interest, the lessee af- firms tbe lessor's ability to confirm it ; an ability he cannot possess if the first; lease is to stand : such new interest, therefore, beingregarded as inconsistent with, and destructive of, the lessee's former estate. Ive's Case, 5 Coke, 11, b. The principle propounded in the late case of Lyon v. Kced, has already been noticed. But there will be no surrender if lessee for years take a grant of a rent- charge out of the same lands i"or life, or without limiting the period of its com- mencement ; or if a lessee for life take a grant for years ; for in each case he may have the benefit of the rent after the determination of the estate in the land. Gybson?). Searl, Cro. Jac. 176-7; 2 Eol. Ab. 496, pi. 15. So, according to Tanfield, J., if a man posscs.sed of Black Acre and other lands in D, let Black Acre for twenty-one years, and the next day let (to the same person) all his lands in D for ten years, it is not a surrender of Black Acre ; but amounts to a lease of all the other lands, which may well stand with the former lease. Id. ; and Cro. Jac. 84. So, acceptance of the equitable interest in a lease made to a friend as a trustee will not work a surrender of a former lease Jseld by cestui que trust. Gie v. Eider, ^1 Sid. 75 ; .Jay v. Eider, 1 Keb. 285. Anil, in like manner, the lessee's acceptance of an office collateral to the lands demised — as by a lessee of a park, of tlie office of park-keeper ; or by lessee for years of a manor, of tlie office of surveyor, bailiff, or steward thereof — will not effect a surrender by operation of law. And, on the same principle, if a lessor make a feoffment, and appoint the lessee his at- torney to deliver seisin, it is not any surrender, as the livery is made liy the lessee in his official capacity. 1 Dy. '■'•'■), b. inarg. In cases of surrender by op- eration of law, it must be understood that the lessee takes the actual interest contracted for under the second lease ; for it is settled, in opposition to some early cases ; Whitley v. Gough, 2 Dy. 140, b; Mellows «. May, Cro. Eliz. 87;1 ; Corbet's Case, 3 Dy. itO, a. And see Brewster v. Parrot, Cro. Eliz. 264, that the acceptance of a new lease which is void will not effect an extinguishment of the one previously subsisting. Baker V. Wilioughby, cited. Hutt. 105 ; Lloyde V. Gregory, Cro. Car. 602; Watt v. May- dewell, Hutt. 104-5 ; Wilson v. Sewell, 4 Burr. 1975 ; Bromley v. Stanley, 4 Burr. 2210 ; Earl of Berkeley v. The Archbishop of York, 6 East, 86 ; H amer- lou V. Stead, ;! B. & C. 481 , Eisliop of Eochester v. Bridges, 1 E. & Ad. 847 ; Lowther v. Troy, 1 Ir. T. E. HI2. And, r.'-eordingly, where a lessee for years un- iier the crown took a new lease for years of the same estate, which was void for want of a recital of the former lease, it was held that the former was not surrendered. Harris r. "Wing, 3 Leon. 242 ; Wing v. Harris, Cro. Eliz. 231; cited, Cro. Car. ]!;8. So, vihere. one seized in fee granted a lease for ninet,y-nine years, and having in the in- terim made a settlement, aiuUaken back an estate for life only, granted, previ- ously to the determination of the for- mer, a new lease for ninety-nine years, to the same lessee, who was not in- formed of the settlement, and then died, the court held, that the latter did not annul the former ; as it would be incon- sistent with the intention of the parties to the contract, that an invalid lease should be substituted for a valid one. Bromley v. Stanley, 2 Burr. 2210. So a contract by a tenant from year to year with hislandlord to purchase the fee will not amount to a surrender by opera- What is a sufficient new Lease. 837 lessee accepts a grant of anything covered by his lease out of the same land, to commence at a certain day within the term.' If the sovereign makes a lease for years, the acceptance of a new lease is no surrender of the first : ' so if a lessee accepts a grant of a thing consistent with the lease of the land, it is no surrender, for the subsequent grant is merely collateral, and not of the thing itself.' If the lease itself provides that the tenant may surrender by doing certain things, or complying with certain conditions, a surrender can only be made in the mode provided, however unreasonable or caj)ricious the requirements may be. If the lease provides that the term may be surrendered by the tenant giving toritten notice, the tenant cannot support a claim to have surrendered by proof of an oral notice or surrender, and if he relies upon a waiver of a written notice by the landlord the proof must be explicit, clear and direct.* A recital in a second lease, that it was granti'd in consideration of the surrender of a prior lease of the same premises, is not a surrender by deed or note in writing of such prior lease, it not purporting to be of itself a surrender or yielding up of the interest.^ A mere agree- ment for a new lease is not sufficient to create an imj)lied surrender of the previous one ; " nor is an agreement between the lessor and a stranger that the lessee shall have a new lease, a surrender ; ' nor if a lessee accepts a new lease in trust for another.' But it seems that if a lessee redemises to the lessor for his whole terra, reserving a rent, that amounts to a surrrender.' A notice to quit at a future day tion of law of the existing tenancy, un- 285 ; Gie v. Eider, 1 Sid. "75 ; Perryn d. less the tenant's continuance in posses- Allen, Cro. Eliz. 173. It is, however, sion be clearly referable to an agreement to be observed, that, with regard to an for holding as tenant at will under the actual sui-render by deed, a different contract. If the contract be conditional rule prevails. The Bishop of Rochester to [jurchase only provided a good title v. Bridges, 1 B. & Ad. 847. lit! made out, and to pay the purchase- i Com. Dig. tit. Surrender (I. 1); Mel- money when that shall have been done, lows v. May, Cro. Eliz. 874. and the estate conveyed, there is no ^ Brook v. Goring, Cro. Car. 197. v()om for implying any agreement as ^ Gie ». Rider, 1 Sid. 75 ; Gybson u. lenaut at will in the mean time, the ef- Searl, Cro. .Tac. 176, 184; Earl of Arun- foct of which would be absolutely to del v. Lord Gray, 2 Dyer, 200 6 ; Wood- surrender the existing term, whilst it ward u. Aston, 1 Ventr. 290. would be uncertain whether the pur- ^ Kittle d. St. John, 7 Neb. 7.3. If the chase would be complete or not. Gray tenancy is at will and the tenant quits r. Stanion, 1 M. & W. 695. So, an with tiie landlord's consent, this con- agreement for a new lease will not put sent and acceptance of possession oper- an end to a former tenancy, unless a ates as a waiver of notice, and is a valid new tenancy is actually created. But surrender. Farson ». Goodale, 8 Allen if a tenant from year to year agrees (Mass.), 202. during a current year to take a lease of ° Earl of Berkeley r. Archhp. of York, the premises jointly with another, and 6 East, 86 ; Earl of Egremont d. Court- arid he and his co-tenant actually enter nay, 11 Q. B. 702. and enjoy the property, this joint oe- " John d. Jenkins, anf". cupation, coupled with the agreement, ' Porris d. Allen, Cro. iCliz, 173. will operate as a surrender in law of the ^ Com. Dig. tit. Surrender (11.) (L. 1). separate tenancy ; Hamerton b. Stead, ^ Lloyd ». Langford, 2 Mod. 175 ; 3 B. ; Bromley b. Stan- Langford, 2 Mod. 174; WintonM. Pijike- ley, 4 Burr. 2210 ; Earl of Egremont v. ney. 2 Lev. 80 ; Wilson d. Pig, 3 Keb. Courtenay, 11 Q. B. ■ 702 ; Smith L. & 9.5; Cartwright ». Pinkeney, 1 Vent. T._ 307 (2d ed.) ; .-J Prest. Con v. 164, 272 ; Smith b. Mapleback, 1 T. P.. 441 ; 105. though not if he retains a reversion. 2 ■i Cora. Dig, tit. Estates (G. 13) ; Eol. Ab. 497, pi. 13. So, if the lessee, Whitney b. Mvers, 1 Duer, 266 ; Schiet- whether for years or for life, Mellows flin B. Carpenter, 15 AVend. (K. Y.) 400; b. May, Cro. Eliz. 873; Lit. s. 144; Eton B. Suyster, 60 N. Y. 252. Courtail b. Thomas, 9 B. & C. 293; Ber- i" Biddulph V. Poole, 11 Q. B. 713 ; nard b. Bonner, Al. 58-9; Shep. Touch. New Lease of part of Pbemises. 839 Effect of a nevr lease of part only, Sec. 495. If a lessee for years accepts a new lease by indenture of part of the lands, it is a surrender for that part only, and not for the whole ; ^ and though a contract for years cannot be so divided or severed — as to be avoided for part of the years and to subsist for the residue — either by act of the party or act in law, jet the land itself may be divided or severed, and he inay surrender one or two acres either expressly or by act of law, and the lease for the residue will stand good and untouched.'-' If there are two lessees for life, or years, and one of them takes a new lease for years, it is a surrender of his share only.^ An assignment of a lease to the lessor for collateral purposes merely — as, to secure a loan,&c. — does not operate as a surrender, altiiough sucli would be the effect of an iinconditioiial assignment.'' If tlie tenant sur- renders the possession to the landlord, xoho acce2yts the same, a sur- render is effected without any written agreement,^ and such is also the result when the tenant withdraws from the possession and the landlord resumes possession ; ^ but in tjie latter case, the possession must have been resumed by the landlord in such a manner as to warrant an infer- ence that his possession is inconsistent with any outstanding estate of the tenant.' By estoppel. — By act and operation of la-w. Sec. 496. The term " surrender by operation of law " is properly a|)]>lied to cases where the owner of a pai-ticular estate has been party to some act having some other object than that of a snri'ender, but whicli object cannot be effected while the particular estate continues, 301, accepts an estate or interest in the second. Tubervil i-. Stokton,.3 Lev. 117. demised premises incompatible with liis If tlie new lease comprises only part of tenure under the lease ; as if he accepts the lands originally demised, it will a second lease of the same lauds, to com- operate as a surrender pro tanto. Fish mence diu'ing the continuance of the v. Campion, 2 Eol. Ab. 498 (Jl.) ; Wil- first. Close c. MacCuUogh, Gilb. Eq. liams v. Sawyer, 3 B. & B. 70. 23j ; Wrottesley v. Adams, 2 Dy. 177, i Earl of Carnarvon o. Villebois, 13 M. b ; Corbet's Case, 3 Dy. 280, a ; Col- & W. 342 : Morrison u. Chadwick, 7 C. bourne v. Mixstone, 1 Leon. 129 ; S. C. B. 266 ; Cole Ejrc. -'2(1. cited from the record, 5 B. & C. 123 ; 2 Bac. Abr. tit. Leases (S. 3). Swaine y. Holman, Hob. 203-4; Mellows ^ g]iep_ Touch. 302; Herreyong u. V. May, ante ; Watt v. Maydewell, Lit. Goddaiid, 1 D\. 4'>. h. 279 ; .Johnstone b. Huddleston, 4 B. & ■• Breese r. Bangs, i E. D. S. (N. Y.) C. 922, 934 ; Co. Lit. 21S, b ; Plowd. 4-74. 107, b ; Lyon v. Reed, 13 M. & W. 28.5. ^ Lamar v. :McXaraec, 10 G. & J. So, if three persons lease certain prem- (Md.) 117 ; Dodd b. Acklow, 6 M. & G. Ises, and afterwards two of the same les- 672 ; Grimman v. Legg, SB. & E. 324; sors lets the same .again to the same les- Hanham v. Sherman, 114 Mass. 19. see, the second lease amounts to a sur- " McKinney b. Eeader, 7 Watts (Pa.), render of the first, as to their two parts, 123. and a new demise pro tanto ; the old " McKenzie v. Farrell, 4 Bosw. {N. T.) lease continuing, as to the third part, 192. the lease of him who did not join in the 840 By Sureendee. and the validity of which act lie is by law estopped from disputing.^ Such surrender is the act of the law, and takes place index>endently , and even in spite of, the intention of the parties."^ It is presumed to have preceded the act to which the tenant is party." The acts in pais, which bind parties by way of estoppel, are acts of notoriety, not less formal and solemn than the execution of a deed ; as, for instance, livery, entry, acceptance of an estate, and the like.* By consent and acceptance of possession. Sec. 497. A tenancy from year to year cannot be determined un- less there is either a legal notice to quit or a surrender,^ and there- fore a tenancy from year to year, created by parol, is not determined by a parol license from the landlord to the tenant, to quit in the middle of a quarter, and the tenant's quitting the premises accordingly;" but where upon a tenancy from year to year, determinable at a quar- ter's notice, the lessor licensed the tenaat to quit in the middle of a quarter, and the tenant quit, and the lessor accep)ted possession ; it was held to be a suriender by operation of law, destroying tlie right to rent for the whole or any part of the current quarter.'' If a lease is sur- rendered conditionally, the surrender does not take effect unless the condition is ijerformed ; ' but an unconditional agreement to surrender, acted upon by both parties, by the tenant by giving up possession, and by the landlord by reassimiing possession or re-letting the premises, is operative as a surrender. lu other words, an executed agreement to surrender is operative as a surrender.^ In pursuance of this rule, where the lessee informs the landlord that if he (the landlord) continues to ' Lyon V. Eeed. 13 ^t. &. W. 285; Bes- oning and observations on the previous sell «. Landsbers, 7 Q. B. 638 ; Com. cases in that jiidgnient, and said tlicre Dig. tit. Snrrender (I.) : 20 Vin. Abr. was no estoppel in the case, althongh tit. Surrendei' (F.) (G.) ; Cole Ejec. 22-5. the judgment was correct. InBiddulpli 2 Lyon !i. Reed, i:! M. & W. 285. v. Poole, 12 .Jui-. 450, is an elaborate ^ 9 C. B. 034, note. judgment upon the effect of a surrender * Nickells r. Atherstone, 10 Q. B. 944. by acceptance of a new lease, which is * Bead b. Ridont, 5 Taunt. 519. ' voidable and afterwards avoided; and it •^ Mollett V. Brayne, 2 Camp. 103; was there held, that, to operate as a sur- Thompson w. Wilson. 2 Stark. 379; Gore render, tlie estate passing by the new 11. Wright, Ad. & El. 118; Whitehead lease must be such as was contemplated D. Clifford, 5 Taunt. 51S: Dodd j;. Aclv- by the parties at the time. See Lyon v. lom, 6 M. & c;. 072: Stone ». Whitncv, Reed, discussed, 2 Smith's Leading 2 Stark. 2:J5; Reeve c. Bird, 4 C. M. '& Cases, 459 f(, 459 ;. K. 31: Thomas e. Cooke, 2 B. & Aid. ' Allen v. Devlin, Bis. (K T.) 1, 119 ; Jlatthews c. Sawell, 8 Taunt. 270 ; Lamar d. McNaniee, 10 G. & ,J. (Md.) Phipps ti. Sculthorpe. 1 B. & Aid. 50 ; 110 ; Grimman c. Legge, 8 B. &. C. 324, Grimson v. Legge, 2 B. & C. 324; Walls Brown n. Burtinshaw. 7 D. & R. 603; V. Atcheson, 3 Bing. 462 ; Havland n. Furnivall b. Grove, 8 C. B. N". S. 496; Bromley. 1 Stark. 455 ; Redpath v. Rob- Bac. Abr. tit. Leases (S. 2) ; 2 Smith erts, 3 Esp. 325. But the doctrine of L. C. 65.5. these cases Itas been much shaken by ^ Hamerton b. Stead, 3 B. & C. 478 ; Lyon B. Reed, ante ; but in Nicholls c. Cou])land b. Maynard, 12 East, 134. Atherstone. 11 Jur. 778, the Court of , 9 M. t<«'e of the orn/iiial lesaee. The case of Thomas o. C'ooK-, 2 B. & Aid. 119, sanctions the laile that a sur- render in law will be implied or raised up from the facts Unit a tenant has put a third person in possession of the de- person has been accepted as tenant ■ivith the assent of the original tenant ; but this case was criticised strongly in Lyon V. Reed, 10 JI. & W. 285. The court, in the principal case, says : " To ascribe the effect of a surrender to tlie mere act of the landlord accepting the assignee , as his tenant, and receiving rent from lum, would be going beyond the prece- dents. To warrant tlie inference that the original lease has been annulled the facts ouijht to be of an entirely conclu- sive character." See, also. Mills v. Au- riol, 1 Smith's L. C. (Phil. ed. Hare & Wallace's notes) 1239, where it is said by Lord Keiiyou that, " It is extremely clear that a person who enters into an express covenant in a lease continues liable on his covenant, notwithstanding the lease be assigned over. If the Ic^ssee assign ever his lease and tlie lessor ac- cept tlie .ssignee as his lessee, either tacitly or expressly, it appears from tlie authorities that tlie action nit debt will not he against flie original lessee.; but all those cases with one voice declare that it tliere be an express covenant, tlie ob- ligation on such eovenaut still con- tinues." See, also, Griiiith i;. Hodges, 1 {;. & P. 419 ; Tailjot v. Whipple, 14 Allen (Mass.), is;) ; Htobie v. DiSSs, 02 III. 402 ; Baker r. Pratt, 15 id. .508 ; liegeman v. McArthur, 1 E. D. S. (N. Y.) 147'; Dodd v. Ackloin, M. & G. 070 ; Grinunan v. Legge, 8 B. & C. .024. The. mere receipt of rent by the landlord from an undertenant does not evidence the landlord's assent to the tenant's abandonment of the premises. Slocum V. Branch, 5 Cr. (U. S. 0. C. ) 015; Cope- land !). Watts, 1 Stark. 05 ; Buiiiham v. Iltdibard, 00 Conn. 542 ; Bacon d. Brown, id, 034; Hill u. Kobinson, 23 Mich. 24. 848 By Sueeexlek. year to year of two closes under different lessors, r.greed verbally to ex- change them, which they did, and then the arrangement was mentioned to a person who was steward of both the lessors, and wlio expressed his assent to it, it was held that this was evidence of new demises, and of a surrender by operation of law of tlie previous interests of the ten- ants.* A tenant from year to year died, his widow remained in pos- session, and continued paying the rent to the landlord, with the knowl- edge of a person who, above a year after, took out administi'ation ; the widow still continued in possession for a year, paying the rent as be- fore ; it was held that this did not amount to a surrender b}' operation of law of the tenancy from year to year.^ A tenant quitted possession of firemises, and, on being applied to for rent, stated in a letter to his landlord, that he hoped his landlord would be able to let them to some other person on better terms ; this tlic landlord did a few days aftei-, and the new tenant entered and jiaid rent : it was held, that these facts amounted to a surrender, but the court declined to consider the effect of the letter as evidence of a snrrender by a note in writing within the statute of frauds.^ "Where W and IT, who were jsartners, by agreement, in Marcli, 1827, became tenants to the i^laintitf, and in 1828 W retired from tlie partnership, and in January, 1829, IT enter- ed into partnership with S ; and tlie plaintiff ga^'c receipts for rent as received from H after W retired, and as received from IT and S after S became a partner ; and also gave IT a letter to his attorney, signify- ing that a lease might be made to IT and S, but wliich was kept by H and not acted npon, and no lease was prepared ; it was held, tliat W remained liable for the rent accruing at the time of H and S.* Where premises had been let to B for a term determinable by a notice to quit, and pending the term A, the landlord, agreed to let C stand in B's place, and C offered to pay rent ; it was held, in an action for nse and occupation against C, that he could not set up as a defence that B's term had not been determined either by a notice to quit, or a snrrender in writing.'' Where a sole tenant from year to year, before the termin- ^ Bees V. Williams, 2 C. M. & R. 581; original term, two of the partners re- Lyou r.Reed, Vi M. & W. 285 ; Smith tired, and the third formed a new parl- L. & T. 310 (2d ed. ). nership with another, and the latter Arm 2 Doe d. Hull u. Wood, 14 M. & W. continued in possession, after the ex- 682. piratioii of the term, paying rent accord- 3 Nickells v. Atherstone, 10 Q. B. 944; ing to the conditions of the lease : held, Smith L. & T. 314 (2d ed.). that this was not a renewal of the ten- * Graham D. Wichelo. 1 Cr. & M. 188; ancy ; and that the retiring partners Woodcock 0. Nuth, 8 Bing. 170. See, were not liable, after the expiration of also, to the .s.^me effect, Beall b. White, the original term. And in Kiiisey v. 94 U. S. 382. But a contrary doctrine MInnick, 48 Md. 112, it was hekllhat af- has heen held in New Yorlv in James o. ter such a change of partners a surrender Pope, 19 N. Y. 324. In that case a lease will he presumed. was made to a firm for three years, with ° Phipps v. Sculthorpe, 1 B. & A. 50. the privilege of renewal ; during tlie But see Hyde v. Moakes, 5 C. & P. 42. Effect of on Undertenant. 849 ation of his tenancy, entered into an agreement with his landlord for a lease to be granted to him and another jointly, and both entered upon and occupied the premises jointly ; it was held, that the first tenancy was determined though the lease was never executed pursuant to the agreement.^ "Will not prejudice previous underleases. Sec. 499. The surrender of a lease will not affect or prejudice an underlease previously granted,'' unless indeed the subtenant expressly assents to the surrender and in effect attorns to the surrenderee, to hold of him on new terms, or as his agent or servant.^ Where a les- see mortgaged tenant's fixtures, and afterwards surrendered his lease to the lessor, who granted a fresli lease to a third party, it was held, that the mortgagee had a right to enter and sever the fixtures, it not 1 Hamerton v. Stead, 2 B. & C. 47S. 2 Beaden ». Pyke, 5 M. & S. 146 ; Pleasant d. Hayton d. Benson, 14 East, 232 ; Torriano v. Young, 6 C. & P. 8 ; Piggott V. Stratton, 1 De G. P. & J. 3? ; Cole Ejec. 226; Smith L. & T. 315. At Michaelmas, 1851, W, the owner of two adjoining houses, N"os. 4 and 5, let No. 5 to A, as tenant from year to year. Defendant having become tenant to W of Nd. 4, A let liim the cellars under No. 5, from year to year from Michael- mas, 1831. There was in the front cel- lar a gas meter communicating with the house No. 5, and it was a terra of the letting that A should be allowed to go to the meter, if necessary, whenever defendant's premises were open. In July, 1871, it was agreed between A, W and D, that A should give up pos- session of No. .5 to W, and D became tenant from year to year to W from Michaelmas, 1871. Defendant was aware that No. 5 was given up by A and re-let to D, but no notice to quit the cellars was given to defendant. In March, 1872, D put up in the cellars a water meter communicating with his house, without either objection or ex- press permission of the defendant. Afterwards D surrendered his interest in favor of the plaintiff, and W let No. 5, expressly including the cellars, to the plaintiff for fourteen years, from the 24th of June, 1872. The plaintiff enter- ed into occupation, the cellars remain- ing occupied by the defendant, and plaintiff, without objection or permission of the defendant, put up more pipes and some bell-wires in tlae cellars. In July, 1872, plaintiff demanded possession of the cellars, but defendant refused to give them up without a proper notice to quit, and he retained possession till April, 1873. On the 10th of January, 1873, the defendant cut off the plaintiff's water supply by hammering up the ser- vice pipe passing through the cellars, and cut the gas-pipes and bell-wires. Plaintiff having brought an action for being kept out of possession of the cel- lars and for the damages caused by de- fendant's cutting the pipes, etc., — Held, that defendant was entitled to keep pos- session until a proper notice to quit had been given ; for that the voluntary sur- render by A could not affect the inter- est of the defendant, his sublessee. Secondly, that plaintiff was entitled to damages for the cutting of his pipes and wires ; for that a licensee, under a re- vokable license, was entitled to notice of revocation and a reasonable time afterward to remove his goods. Cornish V. Stubbs, L. R., 5 C. P. 334, followed on the latter point. Mellor u. Watkins, L. K., 9Q. B. 400; McKenzie v. Lexing- ton, 4 Dana (Ky. ), 129. A party seized of a leasehold estate for lives, subject to a covenant against waste, cannot defeat the rights of a mortgagee under a mort- gage with which he Iiimself incumbered the estate by a mere confession of waste to the landlord, and a surrender of pos- session to liini for a consequent forfeit- ure of the lease. As against such mort- gagee, and even as between the landlord and tenant, a re-entry for the foi'feiture by suit at law is necessary to terminate the lease. Allen v. Brown, 60 Barb. (N. Y.) 39. ^ Lambert v. McDonnell, 15 Ir. C. L. K. 136. 8r0 By Sueeendek. being competent to the tenant to defeat his grant by the subsequent voluntary act of surrender.^ Operation on underleases. Sec. 500. Where a lessor, in consideration of the payment of an an- nual sum during a term of years, grants certain jjrivileges to an under- tenant wliich the mesne landlord -was incapable of conferring, a sur- render to the latter will not affect the tenant's liability on his contract with the paramount lessee.'' Formerly, if a lessee for years, who had underlet for a less term, surrendered his term to the lessor, whereby his term for years was ex- tinguished, it followed that the reversion on the underlease being gone, the incidents thereto — as the rent reserved by the underlease and the covenants therein-^wore gone also.^ But the 4 Geo. 2, c. 28, s. G, en- abled a lessee to surrender his lease for the purpose of taking a new one without a surrender of an underlease, and saved to the lessee all the same remedies against the underlesseo for rents, covenants and duties, and to the original lessor the same remedies for rents and duties re- served by the new lease, so far as tliey exceed not the rents and duties reserved in the former one, out of which the underlease was derived. as if the original lease M'ere still kept on foot.* Where a lease containing a personal covenant for the payment of rent is surrendered, the personal covenant is independent of the estate in the property, and as to rent previously due is not affected by tlie surrender, but the lessor remains a specialty creditor for the rent which accrued due before the surrender.^ Rent reserved by the lease, quarterly or otherwise, at fixed periods, which is accruing when a sur- render is made, sinks and is entirely lost." How a surrender must be alleged in pleading. . Sec. 501. If a surrender is by acceptance of a new lease, it is no'^ good pleading to say, that the lessee being possessed of a former lease, the lessor demised to him ; but it should be stated that the lessee sur- rendered, and then the lessor demised ; or that> the lessor entered and demised ; ' or, that before the rent claimed became due, or, before the alleged breaches, tlie said demised premises and all the residue of the term then to come and unexpired therein were duly surrendered to the plaintiff by act and operation of law, that is to s;)y, by the defendant ' The London and Westminster Loan ^ Attorney-General t). Cox, 3 H. L. and Discount Co. r. DraK-e. (j C. B. N. Cas. 240. S. 798. '^ Grimmaii ». Lea;ge, 8 B. & C. 324 ; 2 Doscher ». Shaw, 52 N". Y. 602. Slack v. Sharp, 8 Ad. & El, 366 ; Dodd ^ Thre'r t. Barton, Moor. 94 ; Webb v. i). Acklom, 6 M. & G. 673 ; Philip v. Russell, 3 T. R. 393 ; Sliep. Touch. 301; Benjamin, 9 Ad. & El. 644 ; Furnivall Burton «. Barclay, 7 Bing. 756. v. Grove, 8 C. B. N. S. 496. * Palk ». Marohetti, 1 B. & Ad. 715. ' Com. Dig. tit. Surrender (N.). Effect O'H Underlease. 861 then giving up to the plaintiff, and the plaintiff then acceptii}g from the defendant, the possession of the demised premises witli the inten- tion of then putting an end to the said term.^ A lessee ouglit to plead that he surrendered the estate and land ; but if he pleads a surrender of a lease, it is sufficient to say " the demise aforesaid." Regularly he ought to show that the lessor assented to the surrender,- but the omis- sion will be aided after verdict. When it is alleged that the lessor agreed to the surrender, it will be intended that he entered ; but it is not unusual to allege a re-entry ujDon a surrender.' In debt for rent, a plea of an agreement to deliver up the premises, stating that they were delivered up and accepted accordingly, was held good after verd;ct, not as setting up a surrender of the tenancy, but as a valid excuse for non-payment of the rent.* When presumed. Sec. 502. A surrender may sometimes be presumed where direct evidence of the fact is not to be had.^ But such presumption must arise from facts or circumstances independent of length of time, which are sufficient to warrant a jury in making such presumption.'' The court will never presume a surrender, that being a ma-tter of fact to be inferred and found by a jury.' A having granted a lease to B for twenty-one years, before the expiration of that term granted another lease of the same premises to C ; no surrender in writing of B's in- terest was shown, but the lease granted to B was produced from A's custody with the seals torn off, and k was proved to be the custom to send in the old leases to A's office before a renewal was made ; it was held, that this was evidence for the jury to presume an assent of B to the lease to C, and consequently a surrender of B's interest by act and operation of law.' An acceptance of a surrender of a lease is not to be presumed from the circumstance of the rent having been paid by a third person, and not by the original tenant.^ Surrender may be presumed Tvlien. Sec. 503. The jury may presume the surrender of a term, where it clearly appears that all the purposes for which it was created have been fully satisfied, and that the term ought in justice and equity to have been re-assigned or surrendered to the owner of the inheritance, espe- 1 Smith 0. Lovell, 10 C. B. 6. ^ Bridges v. Duke of Chandos, 2 Burr. 2 Colles V. Evanson, 19 C. B. N. S. 1072. 282, Byles, J. « Harrop ». Cooke, 6 Bing. 174. ' Caiman v. Hartley, 9 C. B. 6-34; Mor- ' Cottrell v. Hughes, 15 C. B. 532. rison ». ChaUwick, 7 C. B. 266. » -^yalker rt. Richardson, 2 M. & W. * Gore V. Wright. 8 Ad. & El. 118 ; 882 ; Davidson v. Gent, 1 H. & N. 744. Smith V. Lovell, 10 C. B. 6 ; 1 Wms. But see Courtail v. Thomas, 9 B. & C. Sauud. 236. 288 ; Lyon v. Reed, 13 M. & W. 285. » Copeland b. Watts, 1 Stark. R. 96. 852 By Sueeendee. cially if there has been any subsequent dealing with the property of such a nature as would not have happened with reasonable men, supposing the term had not beer, put an end to, or there was other express evi- dence beyortd the mere lapse of time from which such a presumption might have been made.^ But mere lapse of time is not sufficient,'' es- pecially if there has been any dealing with tlie term, or the owner of the inheritance is interested in upholding it.^ The presumption of a surrender can arise only where a title is shown by the party who calls for the presumption, or ihe possession is shown to be consistent with the execution of the surrender required to be presumed.* Such pre- sumptions are made in favor of the possession, not against ii.'^ The jury may presume an old satisfied term surrendered to the cestui que use, in order to substantiate a lease executed by him.^ But no sur- render or reconveyance from trustees will be presumed where it will amount to a breach of trust.' And in no case whatever can the court presume the surrender of an outstanding term : that must be done, if at all, by the jury, as an inference of fact.* A judgment for an instalment of rent due under a lease, which is rendered upon default, without release pleaded, is not, in an action for subsequently accruing rent, evidence that the term had not in the mean time been surrendered, and the tenant released from liability prior to the commencement of the action." 1 Hodson V. Staple, 2 T. R. 684 ; Sy- = Earl of Egremont b. Langdon, 12 Q. burn V. Slade, 4 T. K. 682 ; Bowerman B. 711 ; Fenwick v. Kead, 5 B. & Aid. J). Sybourn, 7 T. R. 2: .Jones v. Jones, 7 232. T. R. 45 ; Burdett v. Wrights, 2 B. & s Graham v. Scott, 11 East, 478. Aid. 710, 720 ; Putland ». Hilder, id. * Harrop v. Cooke, 6 Bing. 174. 782, 791 ; Barllett b. Downes, 3 B. & C. ' Rees b. WiDiams, 2 M. & W. 749, 616 ; Lloyd v. Passingham, 6 B. & C. 758 ; Brandon v. Calvert, 5 Taunt. 170. 305 ; Blackiiell v. Plowman, 2 B. & Ad. " Bowerman v. Sybourn, 7 T. R. 2. 573 ; Rees b. Williams, 2 M. & W. 749 ; ' Ld. Byron v. Deardon, 8 East, 248. Garrard v. Tuck, 8 C. B. 231 ; Cole » Cottrell v. Hughes, 15 C. B. 532. Ejec. 227. * Hanham v. Sherman, 114 Mass. 19. Mkegbk — When it occues. 853 CHAPTER XLV. MEKGEK. Sec. 504. When it occurs. • Sec. 505. Merger. — What amounts to a merger of a term. ■When it occurs. Sec. 504. A merger occurs tchen a greater and a less estate coincide in the same person, loithout any intermediate estate} In such a case, at law, the less estate is annihilated. But in equity, when mergers are not favored, the question as to whether the estates merge depends upon the intention of the parties ' and the circumstance whether justice requires that they shall be kept separate.' Where there is an inter- mediate estate there can be no merger either at law or in equity.* When two concurrent estates meet and vest in the same person only one can exist, and consequently they are merged, because inconsistent and incompatible ; ° but, while two concurriJnt estates cannot exist in the same person, two successive estates may. Thus, if a tenant for years obtains the fee ' or a life estate pur autre vie, the two estates being concurrent cannot exist together, and are merged.' But if a tenant pur autre vie takes a lease for years, to commence when his life estate ceases, he remains tenant of the freehold so long as the cestui que vie lives, amenable to the reversioner for every duty to 1 Roberts v. Jackson, 1 Wend. CS. united has a beneficial interest in keep- Y.) 478; Burton v. Barclay, 7 Bing. Ing tliem separate, they will not merge. 745 ; Welsh u. Phillips, 54 Ala. 309. In Lockwood v. Sturdevant, 6 Conn. St? ; Gary v. Warner, 63 Me. 571, W convey- People v. Dudley, 58 N. Y. 323 ; James ed to his two sons, J and H, who ». Mowrey, 2 Cow. (N. Y.)246; Fowler simultaneously gave back to W a life v. Toy, 62 111. 375. lease. Afterwards H arranged his un- ■* Cook v. Brightly, 46 Penn. St. 439. divided interest to J, and W quit- Even though the intervening estate ex- claimed to J all his interest in the life tends only to a moiety. Clark v. Clark, lease. Held, that the life estate was 56 N. H. 105 ; Bell v. Tenney, 29 Ohio merged in the reversion. St. 240 ; Sahler v. Signer, 44 Barb. (N. 2 Reed !). Ijatson, 15 Barb. (N. Y. )9. Y. )606. And it seems that where aright The courts will presume against it, is acquired under a statute, as a right of whenever its operation would be dis- way, for the use of one or more persons, advantageous. Andrus v. Vreeland, 29 it is not discontinued by tlie unity of N. J. Eq. 394 ; Smith v. Holbrook, 1 title in one person of all the land Buff. Sup. Ct. (N^. Y. ) 474. through which it passes. Flagg v. Flagg, 3 Earle v. Washburn, 7 Allen (Mass.), 16 Gray (Mass.), 178. 95 ; Lewis v. Starke, 18 Miss. 120;Shel- ^ Rawlings v. Walker, 5 B. & C. 111. don ». Edwards, 35 N. Y. 279 ; Clift o. « 2 Blackstone's Com. 177. Wliite, 15 Barb. (K. Y.) 70 ; Wilcox v. ' Rawlings 0. Walker, ante ; Allen v. Davis, 4 Minn. 197. If the person in Anderson, 44 Ind. 395. wliom a legal and equitable estate are 854 Mergee. which that tenancy is subject ; and upon the death of the cestui que vie he becomes tenant for years, and amenable to the reversioner for all the duties of that tenancy. He does not, and never can stand in the posi- tion which the law of merger is intended to prevent, of reversioner to himself.^ Whatever doubts may formerly have existed, it seems now to be well settled, that merger will not take place where a term for years and a freeliold subsist in the same person, if held in different rights, and the tenant did not acquire the freehold by his own actp- Merger. — "What amounts to a merger of a term. Sec. 505. A lease for years may be determined by merger; that is, when there is a union of the term with the immediate reversion, both being vested at the same time in one person in the same right. In such a case the reversion merges or drowns the term, because they are in- consistent and incompatible.' A person cannot be, at the same time, both landlord and tenant of the same premises. It may be laid down as a geuo'al rule, that whenever the particular estate and that im- mediately in reversion are both legal or both equitable, and by any act or event subsequent to the creation of the particular estate become for the first time vested in one person in the same right, their separate exist- ence will cease and a merger -will take place. A particular estate will merge in a reversion of a shorter duration that itself ; * as if one is les- see for twenty years, and the reversion expectant thereon is granted to another for one year, who grants it to the lessee, it will operate as a merger of the twenty years' term, and the term for one year will begin to run.* So a term for one thousand years may, as to a part of the land, merge in a mere estate for life in such part.* Where a lessee made an underlease for all his term, except a few days, and then granted the underlease and the rent thereby reserved to his lessor for the term mentioned in the imderlease, but not for the few days so ex- cepted, it was held, that the chattel interest was not merged in the fee.' Where a lessee of premises for a term of twenty-one years, which would expire at a certain thne in 1809, in December, 1799, took a further lease of the same premises for sixty years, to commence from the time when the former lease expired ; and the lessor died in December, 1800, and devised the premises in question to A, the lessee, for his life, who by lease and release in 1806 conveyed his life estate to Ji : — it was 1 Fawcett's L. & T. 278. 619 ; Burton v. Barclay, 7 Bing. 745 ; 2 Plat V. Sleap, Cro. .Jac. 275 ; Lich- Ciift v. White, 12 N. Y. 526. den V. Winsraore, 2 Roll. 472 ; Young v. * Hughes v. Eobotham, Cro. Eliz. Bradford, Hob. 3 ; Gage v. Acton, 1 302. Salk. 326 ; Jones v. Davies, 5 H. & N. ° Cruise Dig. 96 ; Burton Conv. 287 ; 766 ; Clift v. White, 12 N. Y. 519 ; Au- Stephens b. Bridges, 6 Madd, 66. gel B. Boner, .38 Barb. (N. Y.) 425. « White v. Greenish, 11 C. B. N. S. Sfiac. Abr. tit. Leases (R.) ; 2 Blac. 209. Com. 177 ; Salmon b. Swan, Cro. Jac. ' Burton ». Barclay, 7 Bing. 745. What amounts to. 8.j-j held, that A's interest iu the lease of 1799, which was to commence in 1809, was not merged in his estate for life.' Where a fee-farm rent is bought in by the person who is seized in fee of the lands out of which it issues, it is merged in the inheritance.^ Where an owner of an estate in fee simple becomes entitled to a charge on that estate, prim d facie the charge, in equity at least, becomes merged in the inheritance, un- less the owner of the estate does some act to keep it alive, or it is for his interest that the charge should continue to be a subsisting charge upon the estate.^ In the case of a merger of an equitable interest a court of equity so regulates the rights tl>at it will not allow of a mer- ger if is sees equitable reasons why there should not be one : and on such a question it will not permit the acts of trustees to affect tliose beneficially interested.* Sie Edwaed Coke lays it down as a general rule that a person cannot have a term for years in his own right, and a freehold in autre droit, but that his own term shall drown in the free- hold ; but a man may have a term of years in autre droit, and a free- hold in his own right ; * and if a man, being possessed of a term of years in right of his wife, purchases the inheritance, the term for years, though in right of his wife, is merged and extinct, because the pur- chase was the express act of the husband, and therefore amounts in law to a disposition of the term, by reason of the merger consequent thereupon : but a bare intermarriage of a woman who is a termor with the reversioner will not mei'ge the term, because by the intermarriage the term is cast upon the husband by act of law, without any concur- rence or immediate act done by him to obtain the same ; and there- fore in such case the law will preserve the term in the same plight as it gave it to the husband, till he by some exjiress act destroys it or gives it away.^ Where, however, the husband is himself a lessee for life, and he intermarries with the lessor, this merges his own term, because he thereby draws to himself the immediate reversion^ in the nature of a purchase bij his own voluntary act, and so undermines his own term, ; whereas in the other case, the term existing in the woman until the marriage, is not thereby so drawn out of her or annexed to the free- hold as to merge therein ; because that attraction, which is only by act of law consequent upon the marriage, would, by merging the term, do wrong to a married woman, and so take the term out of her, though the husband did no exjsress act for that purpose which the law will not 1 Eawlings v. Walker, 5 B. & C. ^ "Webb v. Russell, 3 T. R. 401 ; Piatt 111 ; Paul 13. Varinie, 1 Clark (Penn. ), v. Sleep, Cro. Jac. 275 ; Gray v. Actim, 332. 1 Salk. 326 ; Young u. Radford, Hob. 3; 2 Atcherley «. Vernon, 10 Mod. 525. Jones ». Davies, 5 H. & N". 766. ' Swinfeu b. Swinfen, 29 Beav. 199. « Co. Lit. 338, h ; Lady Piatt v. Sleap, * Brandon v. Brandon, 3 De Gex & J. Cro. Jac. 275 ; Sug. V. & P. 617 (14th 524, ed.). 856 Meegee. allow. If a husband is possessed of a term of years, and the owner of the reversion in fee devises it to the wife, who has issue, the hus- band, who in the lifetime of the wife is tenant by the curtesy initiate, holds the two estates in different rights, without having acquired the freehold by his own act, and consequently there is no merger.' If a tenant for a term of years leases for a less term, and assigns his reversion, and the assignee takes a conveyance of the fee, by which his former i-eversionary interest is merged, the covenants of the under- lease incident to that reversionary interest are thereby extinguished.'^ 1 Jones ». Davies. 5 N. & H. f66 ; 7 "Webb ii. Russell, .3 T. K. 39.3; Thome id. 507 ; Pool v. Morris, 29 Ga. 374. v. Woolcombe, 3 B. & Ad. 586. Forfeiture — How inoueked. 857 CHAPTEK XLVI. FORFEITURE. Sec. 506. How incurred. Sec. 507. By record. Sec. 508. By acknowledgment of title in a stranger. Sec. 509. By statute. Sec. 510. Time and place of performance of condition. -Sec. 511. Effect of tlie statute of limitations. Sec. 512. Estate of party entering. Sec. 513. Construction of provisoes for re-entry in leases. Sec. 514. Who may avail tliemselves of a forfeiture. Sec. 515. 32 Hen. 8, c. 34. Sec. 516. Entry for a forfeiture generally. Sec. 517. Demand of rent. — In what actions unnecessary. Sec. 518. Waiver of forfeiture, what amounts to. Sec. 519. Lessor must liave notice of forfeiture. Hovir incurred. Sec. 506. The lessor, having the jus disponendi, may annex any con- ditions he pleases to his grant, so as the same are not illegal, unreason- able, or repugnant to the grant itself, and, upon a breach of any of thpse conditions, by entry or ejectment, he may determine the lease ; ' but for a breach of covenant he cannot, imle^s the lease contains an ex- press provision for re-entry in case of a breach:^ Generally, a forfeiture is incurred by a breach of some express stipulation in the lease ; but a forfeiture may be incurred by the breach of implied conditions, either by matter of record or in pais. By record. Sec. 507. A forfeiture by matter of record is incurred where a tenant sues out a writ, or resorts to a remedy which claims or supposes a right to the freehold, or where, in action in favor of his lessor predicated upon the lease, he resists the demand under the grant of a higher interest in the land, or where he acknowl- 1 AsHUBST, J., in Hunter i;. Galliers, Thomas v. Parker, 1 H. & Jf. 669; 2 T. K. 138 ; Mulcarry v. Eyres, Cro. Car. Hayne v. Cummings, 16 C. B. N. S. 511. And the same rule prevails in ref- 421. erence to the breach of the terms of an ^ Wilson b. Phillips, 2 Bing. 13 ; Kudd agreement for a lease under which a v. Gokling, 6 Moo. 231 ; Darke v. Bow- person holds as tenant from year to ditch, 8 Q. B. 973 ; Rains u. Keller, 4 C. year. Thomson v. Amey, 12 Ad. & El. & P. 3 ; Van Rensselaer v. Jewett, 2 476 ; Hyatt v. Griffiths, 17 Q. B. 505 ; N. Y. 147 858 FOKFEITUBE. edges the title to be in a stranger. "For," says Bacon,' "the law tacitly annexeth a condition that if the lessee do anything that may affect the interest of his lessor the lease shall be void, and the lessor may re-enter. Besides," he adds, " every such act neces- sarily determines the relation of landlord and tenant, since to hold imder him and at the same time to controvert his title ; to affect to hold under a lease, and at the same time to destroy that interest out of which the lease ariseth, would be the most palpable inconsist- ency." So at the common law a forfeiture by acts in pais arises where the tenant conveys tlie estate in fee^ by some mode of conveyance that displaces, or divests the estate of the reversioner, and if it does not have this effect it does not work a forfeiture.' Forfeitures by acts in pais never a]i])lied to conveyances under the statute of uses,* and is j'c- pealed by statute in most of the States of this country; and a convey- ance of a greater estate than that possessed by the tenant is made opera- tive to the extent of his title only.* This rule, as to forfeitures by records, applies to all species of tenancy : as for life, by curtesy, dower, elegit, guardian, for years, &c., as they all hold their estates subject to an implied condition that if they claim a greater estate in a court of record than they own, they forfeit the estate, and the person entitled to the immediate reversion may enter.° By ackuoTvledgment of title in a stranger. Sec. 508. A forfeiture is incurred if the tenant acknowledge the fee to be in a stranger, and under this rule, if the tenant delivers up possession of tlie premises to a person claiming them by a hostile title, with the intention that he may set up such title against the landlord, and not with the intention that he should hold under the lease, he thereby forfeits his term." So, too, where he denies ' 4 Bacon's Abr. tit. Leases (T) 2. claiming under sucli tenant (unless a 2 Rees V. Ervlngton, Cro. Eliz. ,322 ; descent is cast by the death of the dis- Dixey v. Spencer, 3 Leon. 220 ; Co. Litt. seizor), will be a forfeiture of the term, 251, a. and the landlord may enter or bring 8 4 Bacon's Abr. tit. Leases (T) 2 ; ejectment or forcible detainer. Wall v. Co. Litt. 251, 6 ; Goodriglit v. Davids, Goodenough, 16 111. 415; Fortier ». Bal- Cowp. 803 ; Read v. Ervlngton, 12 East, lance, 10 111. 41. But a parol denial of 444 ; Com. v. Welcome, 5 Davis' Abr. 13. the landlord's title does not work a for- * Grant li. Townsend, 2 Hill (N". Y. ), fiture. De Lancey ». Ganong, 9 N.Y. 9; 554; Jackson ». Mancius, 2 Wend. Montgomery v. Craig, 5 Dana (Ky. ), (N". Y.)3.57. 101. '" Gen'l Stat. Va. 447 ; Mass. Gen'l » Shep. Touch. 125. Stat., Chap. 89, Sec. 9. As to the effect ' Ellerbrook v. Flynn, 1 C. M. & R. of disclaimer, or a conveyance of a 1.37. In Graves -o. Wells, 10 Ad. & EI. greater estate by a tenant from year to 435, Lokd Denman, in commenting year, see Disclaimer. The possession upon the doctrine of this case, limits its of the tenant is that of the landlord, in application to those instances where the fact as well as in law; and the effect of a tenant has betrayed his landlord's in- disclaimer, disseizin, or attornment to tei'ests and placed him in a worse posl- an adverse claimant, or collusion with tion than he was before, and he .says : him to deliver possession, as between " If the case went further than that, I the landlord and tenant, and those thus shouW not think it maintainable." By Statute. 859 the landlord's title, refuses to pay rent, and accepts a deed under a hostile title.^ But mere payment of rent by a tenant for years to a third person,- or a verbal denial of the landlord's title, does not work a forfeiture.'' By statute. Sec. 509. A lease may be forfeited by statute, as where the statute provides that any tenant using premises for the sale of intoxicating liquors the lease shall be forfeited ; * but in such cases it has' been held that it only forfeits the lease under which the offendiiifg tenant holds, consequently that a breach of the statute by an underlessee does not affect the validity of the le.ase under which the tenant holds.^ In New York the statute provides that a diversion of salt works, ^^-l]ich are farmed out by the State, to other purposes shall work a forfeiture of the ^ leasehold estate ; but vmder this statute it is held that the diversion must extend to the whole i>remises demised, and that building a house on juari of the premises is not such a diversion."^ Even where the statute provides a forfeiture for certain acts, it is optional with the lessor whether he will avail himself of it or not, and the lessee cannot set it up ; ' nor is a surety upon the lease discharged because the tenant has been guilty of an act which under the statute enables the lessor to avoid the lease.^ Where a lessee, who has sometimes paid rent to a trustee, and sometimes to a cestui que trust, gave up possession on the last day of the term, but before the term was ended, to the person who had been trustee, and not to the party then having the legal title ; it was held, that as tlie act was equivocal it did not. amount either to a surrender or a forfeiture of the term.*" Where a forfeiture may be incurred by a grant or deed, it is necessary that the deed should be a valid instrument and should attempt to pass the fee, for if by reason of any defect it is void, it will not work a forfeiture of the estate : ^° and granting a lease of the land for more years than he himself has is no forfeiture, because it is only a contract between him and his underlessee, or assignee, which cannot possibly prejudice the interest of the original lessor, and does 1 Jackson v. Vincent, 4 Wend. (N. Y.) < Gen'l Stat. Mass., Chap. 87, Sec. 8. 333. '•' Healey v. Grant, lo Gray (Mass.), 2 Doe V. Parker, Gow. 180. 312 ; O'Connell w. McGrath, 14 Alien sin Graves v. Wells, 10 Ad. & El. (Mass.), 289. 427, the tenant, upon a demand made ^ Hasbrouck b. Paddock, 1 Barb, (N. upon him for the rent, refused to pay it, Y.) t)33. and claimed that he was the owner of " Trask u. Wheeler, 7 Allen (Mass.), the premises in fee. The court held 109. that he did not thereby forfeit his lease. * Way v. Reed, Allen (Mass. ), 364. " No case," says Patteuson, J.. " has " Ackland r. Lutley, 9 Ad. & E!. 879. been cited where a lease for a. definite '' Dolman v. Dolman, 5 T. R. 641 ; terra has been forfeited by mere words." Lloyd v. Powell, 5 B. & C. 308. 860 FOEFEITUEE. not even pretend to usurp or touch the freehold or inheritance. A proviso in a lease for re-entry on a condition broken can only operate during the term.' But it will extend to any new implied tenancy from year to year uj)on the like terms and conditions.^ Time and place of performance of condition. Sec, 510. Where a time certain is appointed in a proviso or condi- tion for the performance of anything, neither party is bound to attend at any other time ; and if it is provided that any act shall be done on a day certain, but no hour of the day is specified in which the same shall be done, the party must attend such a length of time before and until sunset as may be convenient to do the act. If a place is agreed upon by the parties where the condition is to be performed, the party who is to perform is not obliged to seek the party to Avhom it is due elsewhere, nor is he to whom it is to be performed obliged to accept of the performance elsewhere ; but he may accept it at another place, and It will be good.' JBffect of the statute of limitations. Sec. 511. The statute of limitations as to real property* bars the party who has a right to enter for a forfeiture, but who neglects to do so for more than the- statutory period after his right accrued.^ Where an ejectment is founded on a particular forfeiture, it must be com- menced within the statutory period after such forfeiture accrued." But a lessor is not bound to take advantage of the first or any other forfeiture committed during the term.' Therefore it is no defence to an ejectment commenced after the expiration of the lease that a for- feiture and right of re-entry thereon accrued under the lease which was barred by the statute before the commencement of the action.' Estate of party entering. Sec. 512. It may be laid down for a general rule that he who enters or recovers by ejectment for a condition broken must be seized or pos- sessed of that estate which the lessor had at the time of the estate made upon condition ; and he may avoid all mesne charges and in- cumbrances." ' Johns V. Whitley, 3 Wils. 127; Grant Sheppard v. Allen, 3 Taunt. 78 ; Bryan V. Townsend, 2 Hill (N. Y.), 5.54. «. BancUs, 4 B. & Aid. 401 ; Baker v. 2 Thomas u. Packer, 1 H. & N. 669. Jones, 5 Exch. 498. " Bac. Abr. tit. Conditions (O. 4J. 8 ^uen «. Blakeway, 5 C. & P. 503 ; * 3 & 4 Will. 4, c. 27, ss. 3, 4. Cook v. Danvers, 7 East, 299. ' Tarrant v. Hellier, 3 T. E. 162. " Co. Lit. 202 ; Bac. Abr. tit. Condi- « Cole Ejec. 11. tions (O. 4) ; Cole Ejec. 68. ' Boscawen v. Bliss, 4 Taunt. 735 ; Construction or provisoes for re-entry. 861 Construction of provisoes for re-entry iu leases. Sec. 513. Provisoes for re-entry in leases are to be construed like other contracts, according to the intent of the parties to be collected from the words used, and not with the strictness of conditions at com- mon law:^ therefore where there is a proviso in a lease, that on non- payment of rent or non-performance of any of the lessee's covenants the terra shall cease, the lessor, and not the lessee, has the option of determining a lease for a breach.'^ So where a proviso in a lease, after stating that in certain events the term should cease, determine and be utterly void, continued, " and it shall be lawful to and for the landlord to re-enter ; " it was held to give the landlord a right to enter or not, at his election.' A proviso that upon breach of any of the covenants on the pjxrt of the lessee, the lessor may re-enter on the premises, " and the same have again, as if the said lease had never been made," means that the lease is to be void from and after re-entry by the lessor, and does not deprive him of the right of bringing an action of covenant for "rent which accrued previously ; and this principle equally applies to a covenant for repairs or other services to be rendered by the lessee.^ Where an agreement for a lease contained a clause that if the rent should be unpaid for ten days, or if the lessee should not observe all the conditions, &c., then it should be lawful for the lessor to enter upon and take possession of the premises, and to expel the lessee, with- out any legal process, and as effectually as a sheriff might do on a recovery in ejectment ; and that, m case of such entry and an action being brought, the defendant might plead leave and license in bar; it was held, that the lessee's right to possession as tenant continued until the lessor had availed himself of the license givenj' Such a clause does not dispense with a formal demand of the rent.^ An agreement to let a house and for the lessee to make certain altera- tions, and if they were not done that the lessor might retake pos- session, and that the agreement should be null and void, is voidable only at the election of the lessor if the lessee does not make the 1 Davis r>. Elsam, Moo. & M. 189 ; lis u. Le Gros, 4 C. B. N. S. 537 ; 6 id. Muston B. Gladwin, 6 Q. B. 953 ; Croft 552. V. Luraley, 5 E. & B. 667 ; Perry v. ^ Arnsby v. Woodward, 6 B. & C. 519 ; Davis, 3 G. B. N". S. 769 ; Baylis v. Le Rede v. Farr, 6 M. & S. 121 ; Jones v. Gros, 4 C. B. N. S. 537, 539 ; Cole Ejec. Carter, 15 M. & W. 718. 407. * Hartshorne u. Watson, 4 Bing. IS". 2 Reid V. Parsons, 2 Chit. 247 ; Green C. 178 ; Load v. Green, 15 M. & AV. 216 , ». Baker, 8 Taunt. 241 ; Rede v. Farr, 6 Selby v. Browne, 7 Q. B. 620 ; Woolcock M. & S. 121 ; Bryan v. Banclvs, 4 B. & v. Dew, 1 F. & F. 337 ; Davies v. Under- Ald. 401 ; Arnsby v. Woodward, 6 B. & wood, 2 H. & N. 573 ; Att.-Gen. v. Cox, C. 519 ; Xash v. Birch, 1 M. & W. 402 ; 3 H. L. Cas. 240 ; Cole Ejec. 408. Roberts v. Davey, 4 B. & Ad. 667 ; ^ Kavanagh v. Guds;e, 7 M. & G. 316. Jones 13. Carter, 15 M. & W. 718 ; Rem- ^ garry v. Glover, "lO Ir. C. L. 113 ; ington u. Cardale, 3 H. & X. 356 ; Bay- Acocks v. Phillips, 5 H. & N. 183. 862 FOEFEITURE. alterations.^ Where in an agreement amounting to an actual lease there was a clause as follows, " it is stipulated and conditioned that the lessee shall not underlet : " it was held, that these words created a condition, upon a breach of which the lessor might main- tain ejectment, xoithout an express clause of re-entry.^ And a pro- viso that the lessee shall pay a certain sum per annum creates both a covenant and a condition, for breach of which an ejectment may also be maintained without any express power of re-entry.' A con- dition is indivisible, consequently a severance of occupation, al- though each occupant pays rent on his separate portion, does not sever the conditions of the lease. Therefore if a tenant underlets a portion of the premises to different tenants, and either of them do an act which creates a forfeiture under the lease, the forfeiture extends to the whole estate.* Thus, if a lessee covenants not to cut wood or timber from the premises, except for use upon the j^lace for fire, or in making or re- pairing the buildings, and there is a clause of re-entry in the lease in case of the breach of any- of the covenants, a forfeiture arises if wood or timber is cut for any j^urpose otlier than those named, and the les- see cannot avoid it by showing that he procured his firewood from other premises, and that he had not in fact cut any more wood than he would have cut if he had cut his firewood from the placc.^ A forfeit- ure for the non-performance of a condition is not saved because the lessee is under a legal disability as an infant, mari'ied woman, ^fcc." If by a written agreement premises. are' let for a, term, " at and under the rent of eighty dollars," it is an agreement by the lessee to pay that rent; and therefore if there is a power of re-entry in case of breach of " any of the agreements therein contained," the lessor has a right of re-entry on non-payment of rent, although there is no express agreement to pay rent. But in no case can there be a re-entry for the non-payment of rent, unless there is an express stipulation to that effect." A proviso that if buildings should not be completed on a certain day " it shall be lawful for the lessors into the demised premises or any part thereof in the name of the whole and repossess," the words "to re-enter" being omitted, gives a right of re-entry.' Where a proviso for re-entry was insensible, the court refused to decide its meaning, and non-suited the plaintiff in an ejectment for a forfeiture.^ Where the lessee covenanted 1 Nash v. Birch, 1 M. &. W. 402 ; < Eyton b. Jones, 21 L. T. N. S. 789. Hayne B. Cummings, 16 C. B. N. S. ' Clarke ». Cummings, 5 Barb. (N. T.) 421. 339. 2 Heniiiker v. "Watt, 8 B. & C. 308 ; « Garrett d. Scanter, 3 Den. (N. Y.) Simpson v. Titterell, Cro. Eliz. 242 , 334 ; Co. Litt. 246, 6. Marsh x>. Curteys, Cro. EIu. 528 , Cole ' Rains v. Kneller, 4 C. & P. 3. Ejec. 402. « Hxmt o. Bishop, 8 Exch. 675. 3 Harrington u. Wise, Cro. Eliz. 486 ; » Wynham ». Carew, 2 Q. B. 317. But cited 8 B. & C. 316 ; Cole Ejec. 402. see Darke ». Bowditch, 8 Q. B. 973. CONSTEUCTION 01? PROVISOES FOR RE-ENTKY. 863 to pay the rent, and not to assign without the leave of the lessor, and there was a proviso for re-entry if the rent was in arrear, or if all or any of the covenants thereinafter contained on the part of tlie lessee should be broken ; and there were no covenants on the part of the les- see after the proviso, but only a covenant by the lessor that upon tlie lessee paying the rent, and perforrahig all and every the covenants thereinbefore eontainud on his part to be performed, he should quietly enjoy ; it was hold, that the lessor could not re-enter for breach of the covenant not to assign, for the proviso was restrained by the word thereinafter to subsequent covenants, and though there were none, yet the court could not reject the word.^ A proviso giving a power of re- entry if the lessee " shall do or cause to be done any act, matter or thing contrary to and in breach of any of the covenants," does not ap- ' ply to a breach of the covenant to repair, the omission to repair not being an act done within the proviso.^ A proviso giving a power of re-entry if the defendant made default in performance of any of the clauses by the space of thirty days after notice, does not apply to the breach of a negative covenant not to allow alterations in or permit new buildings on the premises without permission.^ Where a lease con- tained two clauses for re-entry, the one, in case the yearly rent was in arrear thirty days after it became payable, and the other, in case the yearly rent was in arrear, which was stated to be payable half-jearly, it was held, that the landlord had a right to re-enter on non-payment of each half-yearns rent, as the former clause contained the description of the amount to be annually paid, and the latter the times for pay- ment.'' Where a lease contained a proviso for re-entry, if the lessee committed waste to the value of 10s., and the lessor re-entered, and brought ejectment in consequence of the tenant's having pulled down some old buildings of more than 10s. value, and substituted others of a different description ; it was held, that the waste contemplated in the proviso was icaste producing an injury to the reversion, and that it was a question for the jury whether, under all the jircumstances, such waste to the value of 10s. had been committed.'^ Where there was, among others, a covenant not to carry off hay under a penalty, and a clause followed which enumerated all the covenants except that, and provided for re-entry upon breach of any of tlie covenants ; it was held, that the penalty did not prevent the clause of re-entry from applying to the hay covenant, the words being large enough." Where a lease 1 Spencer v. Godwin, 4 M. & S. 265.- * Rudd v. Golding, 6 Moo. 2.31. 2 Abdy I). Stevens, 3 B. & Ad. 299 ; ^ jjarl of Darlington u. Bond, 5 B. & Cole Ejec. 407. C. 85.5. 3 Palk V. Marclietti, 1 B. & Ad. 715 ; « Autrobus b. Jepson, 3 B. & Ad. Dalton V. Jones, 4 B. & Ad. 126 ; Croft 402, ». Lumley, 6 H. L. Cas. 672. 864 FOISFEITXJEE. contained a clause of re-entry, in case the term of years thereby granted should be extended or taken in execution ; and before the end of the • term the sheriff entered the premises under a writ of extent against the lessee at the suit of the crown, held an inquisition, and seized the lessee's interests into the king's hands , it was held, that this proceed- ing was a taking in execution within the latter class of the condition,- and that the term was determined and forfeited to the lessor : ' and •where the condition was, among other things, to be void " if the lessee should incur any debt on which any judgment should be signed, en- tered up or given against him, and on which any writ of fieri facias, or other writ of execution, should be issued," and the tenant gave a war- rant of attorney, on which judgment was entered up and execution is- sued and the tenant's goods were taken, and the lessor entered ; it was held, that he was entitled to the emblements.'-' A proviso was, that in case the lessee should commit an act of bankruptcy, whereon a com- mission or fiat in bankruptcy should or might be issued, and under which ho should be duly found and declared a bankrupt, tlie term should determine. The tenant became bankrupt, and was found and declared a bankrupt, but there was not a proper petitioning creditor's debt on which the fiat was founded; it was held by two judges, against the pijinion of Parke, B., that the lessee was not duly found and declared a bankrupt within the meaning of the proviso.' A proviso was, that if the lessee, his executors, ad- ministrators or assigns, should become bankrupt or insolvent, or suffer any judgment to be entered against him by confession or otherwise, or suffer any extent, process or proceedings to be had or taken against him, whereby any reasonable probability might arise of the estate being extended, &c., the estate should determine, and the lessor have a power to re-enter. The tenant died during the term, and by his will devised the premises to his executors on trust, and the surviving executor be- came a bankrupt ; it was held, that the lessor's right of re-entry there- upon accrued.'' Tire non-paj'ment of a debt mentioned in an insolvent's schedule is not a continuing insolvenc}^, so as to constitute a new for- feiture of a similar lease, the former forfeiture by the insolvency having been waived.^ Where a lease of coal mines reserved a royalty rent for every ton of coal raised, and contained a proviso that the lease should be void altogether if the tenant should cease working at any time within two years ; but after the working had ceased more than two years the lessor received rent ; it was held that the lease was not ab- 1 Eex B. Topping, 1 M'Clel. & T. 544. 405 ; Williams v. Davies, 6 C. & P. 2 Davis D. Eyton, 7 Bing. 154. 614. 3 Lloyd D. Ingleby, 15 M. & Y!. 465. '' Gatehouse b. Rees, 4 Bing. N. C. * Bridgeman v. David, 1 C. M. & E. 384. Who may avail themselves ot a Forfbituee. 865 solutely void by the lessee's Ceasing to work, but voidable only at the option of the lessor ; and that he might avoid the lease upon any ces- sation to work, commencing two years before the day of the demise in the ejectment.^ A lease contained a proviso, that if the lessee, his heirs, &c., should, during the continuance of the term, happen to be- come insolvent, and unable in circumstances to go on with the manage- ment of the farm, the demise should from thenceforth caase and be absolutely void ; the court. doubted whether the attainder of the ten- ant for felony was a forfeiture of the lease ; but held, that if it was a breach of the condition it was not a continuing breach, but was contem- poraneous with the conviction.-' In a lease for years if a person should so long live, there was a covenant to produce that person, or, if he should be in a foreign country, to make it appear by a good and suf- ficient cerificate that he was living, with a proviso for re entry on de- fault. The person having gone to Brazil, an affidavit that the deponent had three years before seen him, and had often heard from him since, and was convinced that he was alive nine months before when the de- ponent left Brazil, was held not to be a sufficient certificate Avithin the covenant, and that therefore a forfeiture was incurred.^ Under a clause of forfeiture in case that no sufficient distress can be found upon the premises, every part of thej^remises must be searched.* Where a lessee has broken his covenant to pay rates and taxes, the lessor may avail himself of the proviso for re-entry without proof of any dejnand made. ' Who may avail themselves of a forfeiture. Sec. 514. A lessee cannot av^ail himself of his own act to vacate a lease, on the principle that no man shall be permitted to take advan- - taofe of his own wrong-.^ 'No one can re-enter for a forfeiture but the person legally entitled to the rent or to the reversion ; ' but a lessor who has demised his wliole interest, subject to a i-iglit o" .■v-ciitry on breach of a condition, may enter on the condition beiii'i Iji-dvcn, though he have no reversion.^ A right of entry cannot be effrctuaily reserved to a stranger to the legal estate, although he joins in tlie demise and has some equitable or beneficial estate or interest in the property.^ Thus where by lease a mortgagee demised and the executrix of the mortgagor demised and confirmed, and a power of re-entry for breach ' Bryan v. Baiicks, 4 B. & Ad. 401 ; ney w. Adams, 2 C. & .1. 232 ; Barker ». Boscaweu v. Bliss, 4 Taunt. 73.5 ; Rob- Goldsmith, 2 C. & ,J. 674. erts V. Davey, 4 B. & Ad. 664. * Freeman v. Bateman, 2 E. & Aid. 2 Griffith B. Pritchard,5 B. & Ad. 765. 168 ; Baker v. 'Gostlitig, 3 Bing. N. C. 3 Randle v. Lory, 6 Ad. & El. 218. 85 ;. Colville ». Hall, 14 Ir. C. L. 265, * Powell B. King, 2 B. & B. 514. C. P. ^ Davis V. Burrell, 10 C. B. 821. s Barber b. Lawrence, 4 Taunt. 23 ; " Reid B. Parsons, ante. Lit. s. 347 ; Co. Lit. 214 b ,; Cole Ejec. ' Hotley V. Scott, Lofft, 319 a ; Bar- 404. 65 866 FOEFEITUBE. of covenants was reserved to them or either of them : held, that the deed operated as a demise by the mortgagee, and a confirmation by the executrix, and that the proviso for re-entry enured only to the mort- gagee, and not to both.' So where trustees and cestui que trust join in a lease, reserving rent to the cestui que trust, with a proviso for re- entry on non-payment, such power will enure only to the trustees:^ so where tenant for life and the reversioner join in a demise.' Where a power to determine a lease is reserved to the lessor, his heirs, execu- tors or administratora, it will extend to his devisee.* Where a )iower of re-entry for breach of covenants is reserved, and the reversion de- scends to coparceners, it seems that one or more of them cannot, with out the other or others, maintain ejectment for a forfeiture, the condi- tion or proviso for re-entry not being divisible.'' A lease granted under a power contained in a settlement reserv'ed a right of entry to the lessor and his assigns ; it was held, that "assigns " meant assigns of the settlor ; and that although the right of re-entry could not be well reserved to the lessor, yet that the owners of the reversion under the settlement for the time being were entitled to the advantage of it as " assigns." ° A reversioner who has parted with his reversion, either absolutely or byway of mortgage, cannot re-enter or maintain eject- ment for a forfeiture : ' nor after his reversion has been merged and extinguished.' Where a lease was granted of a piece of land witli two partly erected messuages thereon, and the lessee covenanted to com- plete them within two months, and also to keep the said messuages in repair during the term, with a proviso for forfeiture for breach of any of the covenants : the messuages were never completed, but after the expiration of the two months the reversion was assigned to the plaintiff, and afterwards the messuages were much dilapidated in the roofs ?ind other parts: held, that whether the plaintiff could or not maintain ejectment for not completing the messuages within the two months, yet he could do so for the subsequent non-repair.' 32 Hen. 6, c. 34. Sec. 515. At common law, no one but the grantor could re-enter for a forfeiture ; and no grantee or assignee of the reversion could take the benefit or advantage of a condition for re-entry ; '" but by 32 Hen. ^ Barney ». Adams, 2 C. & J. 232 ; ' Feiin d. Matthews v. Smart, 12 East, Moore v. Earl of Plymouth, 3 ]3. & Aid. 443 ; Doe d. Marriott v. Edwards, 5 B. 66. & Ad. 1065 ; Doe t?. Prior b. Onglev, 10 2 Barker v. Goldsmith, 2 C. & J. 674. C. B. 25. 3 Trep:)rt's Case, 6 Ooke, 15 ; Cole « -WTebb v. Russell, 3 T. R. 393, 402 ; Ejec. 404. Trc'r c. Barton, Moore, 04. * Bamford ». Hayley, 12 East. 464. » Bennet v. Herring, 3 O. B. K. S. 6 Rutzen d. Lewis, 5 Ad. & El. 277. 370. « Greenaway ». Hart, 14 C. B. 348 ; 23 " Lit. s. 374 ; Co. Lit. 214 ; Cole Eiec. L. J. C. P. 115. 405. Entry for a Forfeiture generally. 867 8, c. 34, all grantees of the reversion, their heirs, executors, successors and assigns, shall have like advantage against the lessees, their execu- tors, administrators and assigns, by entry for non-payment of rent, or for doinff waste or other forfeiture ; and the same remedy by action only for not performing other conditions, covenants and agreements contained in the said leases as the lessors or grantors themselves had.^ This act applies to leases by deed only, because agreements by parol cannot run with the land: therefore wliere a lease is not und' r seal an assignee of the reversion cannot sue upon the contract.'' But the les- sor may sue in like manner as if he had not assigned the reversion.^ The words " or other forfeiture," although general, do not extend to every breach of conditio^, but only of such conditions as either are in- cident to the reversion, as rent, or for the benefit of the estate, as for n6t doing of waste, for keeping the houses in reparations, for making offences, scouring of ditches, for preserving of woods or such like; and not for the payment of any sum in gross, delivery of corn, wood, or the like.'' In other Words, any " other forfeiture " must be ejusdem generis with those particularly mentioned in the statute.' The breach of a condition not to assign without license is collateral, and not within the statute.* Where a tenant forfeits his estate by becoming insolvent, or by being attainted of felony, it seems that such forfeiture is not one whereof an assignee of the reversion may take advantage by the statute.' An assignee oipart of the reversion, as for years or life, in all the lands demised, is an assignee within this statute, and may take advan- tage of a condition broken in his time.' But an assignee of the rever- sion m part of the lands is not, for the condition being entire cannot be apportioned by the act of the parties, but shall rather be destroyed.' An action of covenant will lie by the assignee of the reversion .of part of the demised premises against the lessee for not repairing that part.^" So the assignee of the term in part of the land may maintain an action for breach of covenant as to that part." The distinction is between a condition and a covenant.^^ Entry for a forfeiture generally. Sec. 516. Generally speaking, where a forfeiture has been incurred 1 Ante, 205. » Co. Lit. 215 a ; Attoe v. Hemmings, 2 Standeii ». Chrismas, 10 Q. B. 135 ; 2 Bulst. 281 ; Kidwelly b. Brand, Plow. Bickford b. Parson, 5 C. B. 920 ; Bryd- 72 ; Isherwood v. Oldknow, 3 M. & S. ges ». Lewis, 3 Q. B'. 603. 382 ; Wright v. Bun-oughes, 3 C. B. 685. 2 Bickford u. Parson, supra. *> Cole Ejec. 406. * Co. Lit. 215 b • Shep. Touch. 176. i" Twynam -». Pickard, 2 B. & Aid. 6 Cole Ejec. 406. 105 ; Simpson v. Clayton, 4 Bing. N. C. 8 Lucas V. How, Sir. T. Raym. 250 ; 758, 786 ; Badeley «. Vigurs, 4 E. & B. Collins B. Sillye, Styles, 265 ; Pennaiit's 71. Case, 3 Coke, 64. " Palmer sj. Edwards, Doug. 121 ; 2 ' Griffith V. Pritchard, 5 B. & Ad. 765. Wms. Saund. 181 d. But see Hammond B. CoUis, 1 C. B. 9l6. ^'^ 1 Smith L. C. 28. 868 FOEFEITUKE. for breach of any covenant or condition, the lessor must do some act evidencing his intention to enter for the forfeiture and determine the lease : ^ and the lease will be avoided from that time only:'' A dis- tinction is made in this respect between a lease for lives and a lease for years.^ Perhajis an actual entry should be made before action to avoid a freehold lease : but the action itself is sufficient to avoid a lease foi- years." A corporation aggregate cannot, without deed, authorize their ser- vant or agent to enter into land on their behalf for a condition broken ; though tliis does not seem to have been always free from doubt. In one place it is said, that a man cannot justify as a servant to a corpora- tion witliout showing a deed of retainer, and it is contrasted with the case of a man avowing as bailiff to a corporation, which may be done witliout deed. In another place, where it is reported to have been said by Littleton, that it was the opinion of all the judges in the Common Pleas and King's Bench, that an assignment of auditors by a common- alty is good without deed, it is added, " and so of a justification by their commandment." In a third place, it is said to be the better ojiinion, that he who ])leads the freehold of a dean and chapter, and that he entered by their commandment, ought to show a command in writing ; and the same of a servant of a mayor and commonalty. A distinction has been made between a corporation whicli has a head, as a mayor and commonalty, and a corporation without a head. In the first case it is said, that a man may justify entering into land by the commandment of the mayor witliout writing; in the latter, that a com-' inand to enter must be by writing. Rolle lays it down as clear law, " that a corporation aggregate cannot command their bailiff to enter into land of their own leasing for j'cars, for a condition broken, with- out deed; for such commandment Avithout deed is void :" and this is consonant to the principle, that where the interest or title of the cor- poration is concerned, their officer must be appointed by dced.'^ Demand of rent. — In TBrhat actions unnecessary. Sec. 517. No demand of rent is necessary before the commencement of an action on contract to recover rent, it being the duty of tlie ten- ant to pay or tender his rent to tlie landlord, and the action itself amounting to a sufficient demand. No ejectment can be maintained for non-])ayraent of rent unless there is some exj^ress co7ulition or pro- viso in the lease or agreement giving the landlord a right to re-enter 1 Matthews v. Smart, 12 East, 444, 2 Cole Ejec. 408. 451 ; Arnsby v. Woodward, fi B. &, C. » 1 Inst. 214. 519 ; Roberts v. Davey, 4 B. & Ad. 664; * Cole Ejec. 403. Baylis v. Le Gros, 4 C. B. N. S. 507 ; 6 ^\ Roll. 514. id. 552 ; Walker v. Engler, 30 Mo. 130. Demand of Rent. 869 and determine the lease or tenancy for such non-payment.^ The land- lord must have a " right by law to re-enter for non-payment thereof." Such condition or proviso may by express words dispense with the necessity of a formal demand of the rent ; as where it says, " altliough no formal demand shall liave been made thereof," or to that effect.'' Unless there are express words in the lease or agreement dispensing with a formal demand of the rent, or the case falls within the above enactment, no entry or ejectment can be maintained for non-payment of rent unless there has been a formal demand thereof made according to the strict rules of the common law.' 1. The demand must be made by the landlord or by his agent duly authorized in that behalf.'' 2. It must be made on the very last day to save the forfeiture. Therefore if the proviso for re-entry be on non-payment of rent for thirty days after it becomes due, the demand must be made on the thirtieth day after the rent became due (exclusive of the day on which it became due), and not on any other day before or afterwards.* 3. It must be made a convenient time before and at sunset} It must be continued actively or constructively until sunset.' 4. It must be made at th& proper place. Therefore, if the lease or agreement specify the place at which the rent is to be paid, the demand must be made there and not elsewhere.* But if no place be so appointed, the demand must be made upon the land, and at the most notorious place of it.' Therefore if there is a dwelling-house upon the land the demand must be made at the front door of it ; but it is not necessary to enter the house, although the door be open." If the premises consist of a wood only, the demand must be made at the gate of the wood, or at some highway leading through the wood, or other niost notorious place. If one place be as notorious as another, the lessor hath election to demand it at which he will." Such demand must be actually made, although there be no per- son present on behalf of the tenant to answer it.^'^ Or it may be made on an undertenant." 5. The demand must be made of theprecise sum ^ Dixon D. Koe, 7 C. B. 134 ; Hill xi. expired, no notice to quit having been Kempshall, id. 97.") ; Cole Ejec. 411. given, does not evidence a waiver by 2 Harris u. Masteis, 2 B. & C. 490 ; the lessor. Calderwood v. Brooks, 28 Goodright d. Hare v. Cater, 2 Doug. Cal. 151. 477, 486 ; Cole Ejec. 411, 412. » Co. Lit. 202 a ; 1 Wms. Saund. 287 ; 3 Moliueux B. Molineux, Cro. .lac. 144; Cole Ejec. 413. Doe d. Forster n. Wandlass, 7 T. R. 117; ' Wood and Chiver's Case, 4 Leon. Acocks V. PhilUps, 5 H. & N. 183 ; Carr 179 ; Acocks v. Phillips, 5 H. & N. V. Glover, 10 Ir. Com. Law R. 113 ; Cole 183. Ejec. 412. 8 Borrotigh'sCase,4 Coke, 73; Buskin * West e. Davis, 7 East, 363 ; Toms v. v. Edmunds, Cro. Eliz. 41') ; Moore, 408; Wilson, 32 L. J. Q. B. 33. Co. Lit. 202 a ; 1 Wms. Saund. 287. ^ Dixon 0. Roe, 7 C. B. 134 ; Forster v. » Cole Ejec. 413. Wandlass, 7 T. K. 117 ; Smith and Bus- " Co. Lit. 201 6 ,• 1 Wms. Saund. 287. tard's Case, 1 Leon. 141 ; Plow. 70 ; Co. " Co. Lit. 202 a. Lit. 202 a ; 1 Wms. Saund. 287 ; Cole '^ Kidwelly v. Brand.Plow. 70 a, 70 6 ; Ejec, 412. But the mere fact that a Co. Lit. 201 b ; 1 Wms. Saund. 287. tenant holds over after his terra has ^^ Brook v. Brydges, 2 D. & R. 29. 870 FOEFEITUKE. then payable, and not one penny more or less.^ If the rent is payable quarterly, and more than one quarter is due, only the last quarter's rent should be demanded, and not the previous arrears, otherwise the demand will be altogether bad,^ because it is only in respect of the last quarter's rent that the forfeiture, if any, will accrue, the previous arrears not having been duly demanded on the proper day for that purpose.* ■Waiver of forfeiture, VT-hat amounts to. Sec. 518. Courts of law always lean against forfeitures, as courts of equity relieve against them ; therefore, w^henever a landlord nieans to take advantage of any breach of covenant or condition so that it should operate as a forfeiture of the lease, he must take care not to do any- thing which may be deemed an acknowledgment of the tenancy, and so operate as a waiver of the forfeiture.^ If a lessor, or other person legally entitled to the reversion, knowing that a forfeiture has been incurred by the breach of any covenant or condition, does any act whereby he acknowledges the continuance of the tenancy at a later period, he thereby waives such forfeiture.^ Thus if he distrains for or accepts payment of rent whicli accrued due after the forfeiture,' the receipt of such rent operates as matter of law to waive all forfeitures then known to the lessor, notwithstanding any protest on his part against such waiver.' So an action for subsequent rent, with knowl- edge of the forfeiture, operates as a waiver.* An unqualified demand of such rent appears sufficient.^ But there is a distinction in this respect between waiver of a forfeiture and waiver of a notice to quit, because the former may be waived by the lessor only, whereas the lat- ter cannot be waived without the consent of botli parties.^" The subse- quent receipt of rent due prior to the forfeiture is no waiver.^^ A for- feiture of a lease by a lessee's insolvency is waived by acceptance of rent from him after his discharge.^^ Where a lease was made to one for life, rendering rent at a certain time, with a clause of re-entry for 1 Fabian and Windsor's Case, 1 Leon. i^ Marsh v. Curteys, Cro. Eliz. 528; 05 ; Fabian v. Winston, Cro. Eliz. 209 ; Harvie v. Oswel, Cro. Eliz. .572 ; Gale- 1 Wms. Saund. 287. house ». Eees, 4 Bing. N. C. ;iS4 ; Grif- 2 Scot !). Scot, Cro. Eliz. 73 ; Tomkins fith v. Pritchard, 5 B. Dendy v. Nicholl, 4 C. B. N. S. 376. 5 Cole Ejec. 408; Willison o. Watkins, '■> Nash v. Birch, 1 M. & W. 402. 3 Pet. (U.S.) 49. In order tliat tlie i" BIyth ». Dennett, 13 C. B. 178. landlord may avail himself of a forfeit- " Marsh' d^ Curteys, Cro. Eliz; 528 ; ure he must show, that he has done Price ». Worwood, 4 H. & N. 512. everything necessary to perfect his ^^ Gatehouse v. Rees, 4 BlUg. N. C. right. Meni D. Rathboiie, 21 Ind. 454. 384. Notice or Fobeeitube. 871 non-payment, and the rent being in ai'reai:, the ;lessor brought an action for it ; it was held, that, notwithstanding the action, he might still enter for a breach of the condition, for the action for the rent did not affirm the leaise, because it should be intended to be brought as for a duty due upon a contract;^ So if he had taken an insufficient distress , for rent which accrued before the forfeiture, he might afterwards have entered for a breach of the condition, because 1;he distress would under those circumstancea have been no waiver.^ A right of a-e-entry is waived by acceptance of the reserved rent, though from a stranger.^ If ejectment is brought on a forfeiture of a lease, and after the bringing of such ejectment the landlord accept rent, it is no waiver of the forfeiture/ Lesaor must have notice of forfeiture. Sec. 519. In order to render acceptance of rent or any other act a waiver of a forfeiture, the lessor must have notice or knowledge of tl e forfeiture at the time of the supposed waiver,^ unless the condition be of such a nature as to be equally within the knowledge of both the lessor and lessee.' The act which is insisted on as amounting to a waiver is matter of evidence only, as to quo animo it was done, to be left to the jury under the circumstances of the case.' Where a lessor was too ill to attend to business, and it did not appear that he knew of a forfeituj-e, his son, who collected the rents, was held not to have authoi'ity to waive a forfeiture.' Where the breach is of a continning nature, the waiver of any forfeiture up to a certain day will afford no defence to an ejectment for a subsequent breach.' Thus, wh€r« the covenant is to keep the demised premises in repair during the term ; ^^ or to keep them insured in a certain manner from loss or damage by fire during the term ; ^^ or not to use certain rooms in a particular man- ner. '^ Acceptance of rent which becomes due pending a notice to repair, is no waiver of a subsequent forfeitui-e occasioned by non- compliance with such notice.^' Indeed it would seem that acceptance of rent due after the expiration of the notice will not bar an ejectment if the premises continue subsequently unrepaired." A distress and 1 Cro. Eliz. 3 ; Anon., 3 Salk. 3. ' Cheney ». Batten, Cowp. 243. 2 Brewer d. Onslow v. Eaton, 3 Doug. « Nash v. Birch, 1 M. & W. 402. 233 ; 6 T. R. 220. » Cole Ejec. 409. 8 Griffith V. Pritchatd, 5 B. & A 1 " '. i" Baker v. Jones, 5 Exch. 498. * Moorecraft v. Meux, 4 B. & ' : ; " Mustin v. Gladwin, 6 Q. B. 953 ; 1 C. cfe P. 346 ; Jones «. Carter, 1.") 'A & Penniall v. Harborne, 11 Q. B. 368 ; W. 718. Hyde v. Watts, 12 M. & W. 254 ; Flower <• Pennant's Case, 3 Coke, 6 ! 6 ; ». Peck, 1 B. & Ad. 428. Duppa «. Mayo, 1 Wms. Saund. 288 a, 6, ^ Ambler ii.Woodbrids;e, 9B. & C. 376. (note) 16 ; Harvie v. Oswel, Cro. Eliz. i' Rankin v. Brindley,"4 B. & Ad. 84 ; 553, 572 ; Goodrightv. Walker v. Davids, Baker v. Jones, 5 Exch. 498. 2 Cowp. 803. " Fryett d. Harris v. JefEerys, 1 Esp. * Gregson v. Harrison, 2 T. R. 425. 393. 872 FOEFEITTJKB. continuance in possession might be a waiter of a forfeitnra existing at the time;^ but a distress is only an acknowledgment of a tenancy to the day of the distress, and a waiver of any forfeiture to that time.^ Where the plaintiff, after the service of a writ in ejectment for non- payment of rent, distrained for rent which subsequently became due, and by the notice of distress stated that such distress was made with- out prejudice to the year's rent due on the 25th of March, and for which ejectment proceedings were then pending; it was held, that such distress did not operate as a waiver of the ejectment.^ A for- feiture incurred by breach of a covenant to repair generally is waived by a notice given by the landlord, under a special covenant that he should enter and do the repairs and distrain for the expenses.* If a lessee exercises a trade on the demised premises by which his lease is forfeited, the landlord does not, by merely lying by and witnessing the act for six years, waive the forfeiture,^ as some positive act of waiver is necessary; but if he permit the tenant to expend money in improve- ments, it would seem that it is evidence to be left to a jury of his con- sent to the alteration of the premises : and if a lessor after a forfeiture advises a person to purchase the term of his lessee, he cannot maintain an ejectment tor a forfeiture against such purchaser; but he may do so if the party has an interest, as an annuity secured on the premises, and the advice is merely "to take to them." ^ If A, tenant for life, subject to forfeiture, with a remainder over to B, leases to C for a term, and afterwards apprehending that he has forfeited, acquiesces in B's claim to and receipt of the rent from C, his executor may, on showing that he acquiesced under a false apprehension, recover from C the amount of the rent erroneously paid to B; for in order to consti- tute a confirmation of the payment, some act must apj^ear to have been done by A with the knowledge of his own situation.' Where land was demised with a covenant by the lessee to build and complete thereon houses within a year, and a proviso that if he did not the lease should be void.; the houses not being completed, it was held, that the forfeit- ure was not waived by the steward of the lessor having permitted the lessee to employ workmen in completing the houses for a short period after the forfeiture.' So a forfeiture by omission to repair after notice is suspended but not waived by an agreement to allow further time to repair.' When the landlord does any act amounting to a constructive 1 Taylor d. .Johnson, 1 Stark. 411 ; ^ Sheppard v. Allen, 3 Taunt. 78. Ward V. Wiliingale, 1 H. Blac. 311. « Sore b. Eykins, 1 C. & P. 154 ; Ev. 2 Flower v. Peck, 1 B. & Ad. 428 ; & Moo. 29. Ward V Day, 4 B. & S. 337 ; S. C. in ' Williams i>. Bartholomew, 1 B. manent fastenings, so that if the tenant removes them after he has put them up he is guilty of waste.^ But if the tena.nt raises and con- structs foundations of a permanent character for the reception of a superstructure of wood, such £is a wind-mill, a pumjD, a granary, a pigeon or fowl-house, or a conservatory, q.nd the super Btrii,ety,r& pierely rests on this foundation, or is attached thereto by screws or movable pins or bolts, so as to be removable at pleasure without material or permanent injury to the freehold, the foundation belongs to the landlord, as part 1 Hallen v. Runder, supra ; Elliott b. ^ Leach b. Thomas, 7 G. & P. .327. Bishop, 10 Exch. 508 ; Ex parte Bar- '•> Elwes v. Maw, 3 East, .38; 2 Smith's clay, 5 De Gex, M. & G. 403. L. C. 153, 6th edit. ; Wood i). Hewett, 2 Buckland v. Butterfield, 4 Moore, 8 Q. B. 913. 447; Beck b. Ribow, 1 P. Wms. 94; "Buckland v. Bntterfteld, 4 Moore, Avery b. Chesslvn, 3 Ad. & El. 75. 440 ; Jenkijjs v. Gethiiig, 2 .Johns. & H. « Elliott B. Bishop, 10 Exch. 496 ; 11 520 ; Syme b. Harvey, 24 Sc. Sess. Cas.. id. 113 ; SuTjiraer b. Broijiijow, 34 L. J. 502 ; Steddon p. Cj-uikshauk, 16 M. & Q. B. 130. W. 71. 876 FixTUEEs. and parcel of the land, and the movable structure placed on such foundation by the tenant continues the property of the latter, and may be carried away by him at the expiration of his lease. ^ A door which may be lifted from its hinges, and a sliding fender used to prevent the escape of water from a mill-stream, does not necessarily become part of the freehold ; ^ nor a mooring-pile, driven into land foi' the accom- modation of the navigation of a canal or river.'' But locks, keys, and bars belong to the landlord ; and so does a shutter and sliding bolt, put for the security of tlie premises. When a tenant makes erections of a permanent character without the assent of his landlord, express or implied, they become fixtures which he has no right to remove.' But when the annexation is made under authoritj', express or implied, the rule is otherwise, and authority may be implied when the erection is necessary to the enjoyment of the premises for the purpose for whi^li they were let.^ Therefore it becomes important to understand what in law is regarded as a fixture, as between vendor and vendee, in order that, in cases where a tenant without authority, express or implied, an- nexes things to a freehold, it may be known what his rights are as to their removal. As a general rule, whatever is annexed to the freehold becomes a part of it, and passes by deed as lands.^ As to whether or not a thing is a fixture, is a mixed question of law and fact,' and de- pends upon the character of the thing, the manner in which it is an- nexed to the frehold, the intention of the party annexing it, and often whether it can be removed without injury thereto.^' But actual an- nexation to the lands is not necessary to make the thing a fixture in all cases.^ But in all cases when a thing is so annexed to the freehold as to be incapable of removal without injury thereto, it is a fixture.^" But as a general rule, in the absence of a special agreement or custom, any- thing that can be removed without injury to the freehold, or to itself, is treated as personal property and does not pass by deed.^^ A fence 1 Grymes r. Boweren, 4 M. & P. 143 ; * Eichardson v. Borden, 42 Miss. 73 ; 6 Bing. 437 ; Kex b. Otley, 1 B. & Ad. Piatt v. New Jersey, &c., Arms Co., 14 161 ; Wansbrough v. Maton, 4 Ad. & El. N. J. 395 ; Hill c. Weutworlh, 28 Vt. 884 ; Davis v. Jones, 2 B. & Aid. 165 ; 428 ; Ford v. Cobb, 20 N. Y. 344; Per- Kex V. Londonthorpe, 6 T. R. 377 ; kins v. Swank, 43 Miss. 349 ; Brown v. Wiltshear v. Cottrell, 22 Law J. Q. B. Lillie, 6 Nev. 244. 181. 9 Prescott v. Wells, 3 Nev. 82 ; Siiedi- 2 Wood ». Hewitt, 15 Law J. Q. B. 247. ker v. Warring, 12 N. Y. 170; Wadleigh ' Lancaster v. Eve, 5 C. B. N. S. 726. «. Janurin, 41 N. H. 51)3 ; Woodman v. < Reid V. Kirk, 12 Rich. (S. C.) 54; Pease, 17 N. H. 282: Leaff r. Hewett, Fisher ». Saffer, 1 E. D. S. (N. Y.) 611 ; 1 Ohio St. 211 ; State d. Bonham, 18 Washburn i'. Sproat, 16 Mass. 449. Ind. 211. ' Fuller D. Taylor, 39 Me. 519. i» McClintock v. Graham, 3 McCord 6 English V. Foote, 16 Miss. 444. (S. C), 553; Gas Co. t. Thurber,2 R. I. •• ' Campbell ». O'Neil, 64 Penn. St. 270 ; 15. Grand Lodge of Masons r. Knox, 27 ^^ Wade i). Johnson, 25 Ga. 331. Mo. 315. "Tenant's Fixtitees." 877 is a fixture, however built.' Rails not in a fence, are not.'^ And a boundary fence is a fixture and the adjoining owners have an undivided interest therein, so that neither can maintain trespass against the other for its removal.^ A house or other building erected upon a founda- tion and annexed to the land in any way,* though only resting on stone posts ; ^ a stone used as door-step ; " a gin-house, the running gear and a packing screw;' a cistern standing on blocks in a cellar;" iron stoves fastened to the brick work of a chimney,' or set in bricks and mortar ; '" but not stones that are not affixed to the building.^' A fur- nace so annexed to the building that it cannot be removed without in- jury thereto,'^ as a furnace set in a pit in the cellar to warm the house • so also is the smoke-pipe leading from the furnace to the chimney.'* Steam-engines, boilers, mills, machinery, pumps, &c., annexed to the freehold as a permanent part thereof ; " chandeliers, gas-fixtures, gasom- eters, &c.^^ Platform-scales set up in the ground in front of a build- ing, and connected with it by weighing apparatus, is regarded as a fixt- ure between landlord and tenant ; '" an organ in a niche in a church, made expressly therefor and fastened to it so that it cannot be re- moved without defacing the building ; " a boiler, engine, and stock to be used as motive power ; ■" a cotton-gin connected with the running works in a gin-house ; " trees, growing fruit, shrubberj^, and all species of vegetation not severed from the freehold, including nursery trees ; * a factory bell and blower-pipe used to convey air to a forge ; ^' gin- stands ; ^^ pans or vats attached to a mill ; ^ a steam saw-mill ; ^ a pipe ' Hines v. Anient. 43 Mo. 298 ; Glid- 363 ; Johnson v. Wiseman, 4 Met. (Ky.) den V. Bennett, 43 N. H. 306 ; Smith v. 357. See Guthrie v. Jones, 108 Mass. Carroll, 4 Greene (Iowa), 146 ; Wentz 191, for full discussion of this question, V. Fincher, 12 Ired. (N". C. ) 247. and the test of determining when gas 2 Robertson v. Phillips, 3 Iowa, 220. fi.xtures are fixtures; but while they pass ' Gibson v. Vaughn, 2 Bailey (S. C. ), as fixtures as between vendor and ven- 389. dee. they are so far regarded as personal * Gibbs V. Estey, 15 Gray (Mass.), 587. property that they do not pass on a sale '' London v. Piatt, .34 Conn. 517. of the bouse on execution. Montague « Woodman v. Pease, 17 N. H. 282. v. Dent, K) Ricli. (S. C.) 135 ; Vaughn " McUaniel o. Moody, 3 Stew. (Ala.) ». Haldeman, 33 Penn. St. 522. See 314. Rogers v. Crow, 40 Mo. 91. « Blethen v. Lamb, 40 Me. 310. " Bliss v. Wliitney, 9 Allen (Mass.), 3 Goddard v. Chase, 7 Mass. 432. 114. w Smith u. Heiskill, 1 Cranch C. C. '' Rogers v. Crow, 40 Mo. 91. (U. S.) 9y. 18 Hill V. Hill, 43 Penn. St. .531 ; Voor- 11 Blethen v. Lamb, ante. his v. McGinniss, 48 N. Y. 278. 12 Main V. Schwarzwalder, 4 E. D. S. i^ Bratton r. Clawson, 2 Strob. (S. C.) (N". Y.) 273. 478; Degraffenried ?). Scruggs, 4 Humph. i^Stockwell V. Campbell, 39 Conn. (Tenn.)431. 362. 20 Maples v. Milton, 31 Conn. 598 ; i* Sweetzern. Jones, 35 Vt. 317; Corlis Byasse v. Reese, 4 Met. (Ky.) 372 ; Mit- V. McLogin, 2i) Me. 115; Baker b, Davis, chell v. Billingsby, 17 Ala. 391. 19 N. H. 325 ; Christian v. Dripps, 28 ^i Manufacturing Co. v. Gleason, 36 Penn. St. 271 ; Sparks v. State Bank, 7 Conn. 86. Black. (Ind. ) 479; Rice v. Adams, 4 22 uidiardson «. Borden, 42 Miss 71. How. (Del. ) 332.. =3 Prescott v. Wells, 3 Nev. 82. ^ Lawrence v. Kemp, 1 Duer (N. Y.), ^ Perkins v. Swank, 43 Miss. 349. 878 Fixtures. used to conduct water to a building ; ^ the counters and drawers of a store ; '^ a portable grist-mill ; ^ machinery built into a wall,* or set in bricks;' a windlass in a slaughter-house firmly affixed to the build- ing ; ^ a heavy stone sink ; ' the materials of which a building is com- posed do not cease to be realty when the building is blown down, but pass by deed ; " an iron safe set in a bi-ick wall, with its foundation laid in brick ; ' an oyster and lunch counter constructed partly of joists and a baseb6ard both nailed to the floor, as well as a bar fastened to the floor with nails with iron knees ; ^° the main wheel and gearing of a factory." In determining whether or not a chattel is so annexed to the freehold as to become a fixture, reference must be had to the nature of the chat- tel itself, the position of the party placing it where found, the prob- able intention in putting it there, the ihjury that would result from its removal, and the object of the party placing it on the premises with reference to trade, agriculture, or ornament. In a New York case ■'^ the following tests were given : First, — Whether actual annexation of a permanent character has been made, except as to those articles which, though not actually per- manently annexed to the freehold, are yet regarded as a part of it, as mill-stones, fences, statuary, fountains, &c. Second,— Its actual adaptability to the use of the freehold; and Third, — The actual intention of the parties at the time of making the annexation." In a Pennsylvania case " a similar rule was adopted, and in that case, where the United States government during the war erected buildings upon a public common for barracks, and afterwards converted them into hospitals, and erected additions thereto, it was held that the build- ings did not become fixtures in the sense that made them realty, for the reason that it was not the intention of either party that they should be annexed to the freeholds, and because the structures were not of a class that coidd be deiiomiiiated improvement made for objects connected with the soil}^ 1 Phillbrick B. Ewing, 97 Mass. 133. See also Richardson;). Borden, 42 Miss. " Pope V. Garrard, 39 Ga. 471. 71 ; Unahan v. Ban-, 41 Conn. 471 ; 8 Potter v: Cromwell, 40 >f. Y. 287. Pennybecker b. McDougal, 48 Cal. 160. < C'ocy's Estate, 1 Tucker (N.Y.), 175. i^ xhis doctrine lias been re-affirmed 5 Theuner v. Nautre, 23 La. An. 749. by the court of appeals in McRae c. 6 Capen b. Peckham, 35 Conn. 88. Nat'l, &c., Bank, 66 N. Y. 489, and in a ' Brinway v. Cobb, 99 Mass. 457. late case iu Texas; Hutchins w. Master- 8 Rogers ». Gillinger, 30 Penn. St. ton, 46 Tex. 551 ; and indeed it may be 185. said to be the general doctrine. Van 3 Folger ». Kuraer, 24 La. An. 436. Keiiren v. R. R. Co., 38 N. J. L. 165 : 1" Guthrie t). Jones, 108 Mass. 191. Thielman v. Carr, 75 111. 385. " Powell v. Mfg. Co., 3 Mas. (U. S.) " Meigs' Appeal, 62 Penn. St. 28. 459. 16 But see Childress ». Wright, 2 Cold. 12 Voorhis ». McGinniss, 48 N. Y. 278. (Tenn. ) 350. In Foy r>. Reddick, 31 Ind. "Tenant's Fixtures." 879 Thus it will be seen that while all things so annexea to the freehold that they cannot be removed without material injury thereto are fixt- ures, yet as to all erections upon or annexations made to the realty that may be removed without serious injury thereto, the intetition of the party making them, and the purpose for which they were made, is the real test. But the intent alone is not decisive, but coupled with the purpose for which they were made, and the circumstances of the party and tl)e property is regarded as the test.' It is the permanent and habitual annexation^ and not the manner of fastening, that furnishes the test.'^ So, too, the effect of intention in determining the question as to whether an annexation to the realty is a fixture, is well illustrated in a Maine case.' In that case a husband purchased a piece of land which was conveyed to his wife. He joined with her in building a house on the land, and subsequently becoming insol- vent, his creditors attached the house and sold it at auction. It was held in an action of trover by the purchaser against the tenant in possession, who claimed as grantee of the husband and wife, that when an erection, though made with the consent of the owner, is made with the agreement, express or implied, that it shall become and remain a part of the freehold, it must be regarded as real estate. Thus, materials collected for the purpose of building, but which have not actually been used for' that purpose, are not fixtures ; ' nor is ma- chinery, — as planing-machines, saw-benches, saws, and other vitensils that can be removed without injury to the building ; ' or a house erect- ed on wooden posts set into the ground ; ^ bridge-piers erected by a railroad company ; ' a glass case, a stand of drawers, and a large mir- ror screwed or nailed to the ceiling, and gas fixtures screwed upon gas- 414, the same doctrine was adopted, and ed all the tapestry, marbles, statues, it was held that a house built partly in a pictures with their frames and glasses, public street and permanently annexed which should be in or about the house to an adjoining house which was a part at his deatli, and of which he had the of the realty, was, nevertheless, to the power to dispose to the remainder-man extent that it covered the street, per- for life, and then to B. It was held sonal property, for th^ reason tliat it that tapestry and pictures in panels, could not have been the intention of the frames filled with satin and attached to party to make it a permanent structure, the walls, and also statues, vases, and or to improve the soil. Potts i). N. J. stone garden-seats, essentially a part of Arms Co., 2 Green (N. J.), 395. the architectural design, however fas- 1 Voorhis v. McGinaiss, 48 N. Y. tened, were fixtures, l)ut that glasses and 278 ; Poor v. Oakman, 104 Mass. 309. fixtures not in panels passed under the 2 Hill V. Schwald, 43 Penn. St. 271 ; will, as well as all articles bought by Walker B. Sherman, 20 Wend. (N. Y.) the testator, but fastened to the building 636; Lafflin u. Griflilhs, 3.5 Barb. (N'. Y.) after his death by the remainder-man. 58 ; Cook v. Champlain Transportation ' Humphreys v. Newman, 51 Me. 40. Co., UK. Y. 91. This principle is well * Beard o. Ourald, 22 La. An. 284. illustrated in the case of D'Eyncourt v. ' Voorhis v. McGinniss, 48 N. Y. 278. Gregory, L. R., 3 Eq. 382. In that case ^ Krause ». Ross, 1 Cranch C. C. (U. ,the tenant for life of an estate, on which S. ) 368. he had built and furnished a house (the ' Wagner v. Cleveland, &c., E. R. Co., old one having gone to decay), bequeath- 22 Ohio St. 563. 880 Fixtures. pipes fasteiiud to tlio cc'iluig- ; ' stcain-Loilers used in a saw-mill on a plantation;- bowling alleys in a room k'iised for liall purposes;" mar- ble slabs laid ui)on but not screwed to brackets ; ■" a saw-mill built upon timbers laid on the surface of tiie ground, anil only intended for teni- jjorary use ; ^ a wooden ice-house built on blocks;" a wbiskey-still set in masonry ; ' unattached ])ieces of scantling used on a tobacco fai-m to hang tobacco on ; ' blinds and double windows not attached to the house ; ' a kettle or boiler put up in a tannery in brick and mortar ; '° machinery in a woollen factory ; " heavy machinery, — as rolls cast ex- pressly for a rolling-mill, in which they have lain two years, but have never been put up ; ^^ machinery in a cotton-mill.^^ Amongst the various domestic and trade fixtures held to be remov- able by the tenant, are gas-pipes and gas-fittings, and water-pipes at- tached to the buildings by metal bands and nails, grates, ranges, ovens, coppers, bells, blinds, fixed tables, water-butts, cupboards, &c.," soaj) boilers' furnaces, fat-vats, coppers, dying and brewing vessels, cider- mills, baking-ovens, steam-engines, and salt-pans ; " also machinery, en- gines, vats, plant and utensils used in trade, however bulky or complex they may be in their constriwition. The tenant may take them to pieces, and remove them, and put them together again in the same form in some other place. And where a .shed or building is a mere accessory to a trade fixture, such as a shed, or any temporary building, erected merely for the jjurj^ose of covering and protecting a steam-en- gine, or machinery or trade utensils, from, the effect of the weather, it may be removable together with the trade fixture to which it belonged, on the ground that " omne accessorium sequitur suum principale." But a building is not removable merely because it has been erected for manufacturing or trading purposes, or for the purpose of covering and protecting machinery. If the building is of a substantial character, standing on brick or stone foundations let into the soil, and is con- structed so as not to be removable without the entire destruction of the fabric, it cannot bo disannexed from the freehold and taken away, although it may be built over a steam-engine, and may contain nothing 1 Guthrie D. Jones, 108 Mass. 191. Taffe b. Warwick, ;] Blackf. ilnd.) Ill; ■^ Slack V. Gay, 22 La. An. 387. Bartlett v. Wood.. '32 Vt. 372 ; Murdock 3 Hanrahan u. O'Rielly, 102 Mass. 201. v. Gifford. 18 N..Y. 28; Swift v. Thomp- * Weston V. Weston, 102 Mass. 514. son, Conn. 63. 5 Brown u. Lillie, (i Nev. 244. 12 Jolmson >;. Mehaffy, 43 P.enn. St. " Antoni v. Belknap, 102 Mass. 193. 308. '' Feinester u. Johnson, 64 N. C. 2.59 ; " Wade u. .Jolmston, 2.5 Ga. 331. Burk V. Baxter, 3 Mo. 207 ; Moore ». " Wall i'. Hinds, 4 Gray's Amer. Rep. Smith, 24111. 512. 272 ; Elliott v. Bishop, ante. « Noyes v. Terry, 1 Lans. (N. Y.) 219. '-^ 42 Ed. 3, fol. 0, pi. 19 ; 20 Hen. 7, 8 Peck u. Batchelder, 40 Vt. 2.33. fol. 13, ]|)1. 24 ; Poole's Case, 1 Salk. 10 Hunt D. Mullanphy, 1 Mo. 50S. 368; Lawtpn !). Lawton, 3 Atk. 13; Pen- " Stearns u. Warren, 11 Vt. 433 ; ton v. RoVart, 2 East, 90. 'What aei; not fixtures. 881 but steam-macliinery, spinning-jennies, drnnis and wlieels, all of which may be removable, and to all of which it may in a certain sense be ac- cessory.^ " Landlord's fixtures." Sec. 522. " Landlord's fixtures " are those put up by the landlord before or during the term, or by any previous owner or tenant, or by any other person. Also such fixtures put up by the tenant during the term as the tenant has no right to remove. All these constitute part of the freehold, and also part of the premises demised. In a more con- fined sense "landlord's fixtures" mean those fixtures which are on the prrmises at the time of the lease, and are demised therewith, and are usually specified in a schedule to the lease or agreement, to which may be added sucli erections and fixtures subsequently added by the tenant which he is not entitled to remove during the term. Of course the tenant has no right to remove any such fixtures, and must restore them at the end of the term; such as bolts, locks, keys, sash, bars, door- knobs, latches, doors, grates, mantels, chimney-pieces, any species of machinery annexed to or used with the estate, as hay-cutters, boilers, steam-engines, grinding-stones, malt-mills, corn-crushers, &c., &o.'^ What are not fixtures. Sec. 523. Sometimes machinery and other articles, and even build- ings, may be so erected as not to be let into the soil, or annexed to it or to any building in such a manner as to become part of the freehold, or to lose their chattel character. Barns, granaries, sheds or mills erected upon blocks, rollers, patterns, pillars or plates, resting on brickwork, but not affixed to the freehold by being let into it, or united to it by mortar, nails or otherwise, are not considered as fixtures, but only as chattels, and may be removed bj- a tenant during his term, notwith- standing they have sunk into the ground by their own weight.^ A wooden windmill resting by its weight on a brick foundation does not consti- tute part of the freehold-; ■* nor a wooden barn erected by a tenant on a foundation of brick and stone let into the ground, but the barn rest, ing upon it by weight alone, is a mere chattel removable by the tenant on the expiration of his term, and for which he may afterwards main- tain trover.^ A wooden building standing upon blocks or rollers so 1 Whitehead r. Bennett, 27 Law J. Jlass. 411 ; Wasliburu v. Sproat, 16 Ch. 474. See Van Xess v. Packard, 2 Mass. 449 ; Stillman r. Ilaraer, 8 Miss. Peters (U. S.), 137. If erected witli the 421 ; Held v. Kirlc, 12 Rich. (S. C.)/>4. landlord's consent, express or implied, ^ -yy^iiyisiiiy ^_ Milne, 7 C. B. Is. S. they may he removed, however built. 11"). The foundation is treated as realty, but ^ Huntley v. Russell, l.T Q. B. 572. the building is personalty. Wells v. ■< Rex v. Otley, 1 B. & Ad. 101. Bannister, 4 Mass. .'514 ; Fuller v. Tay- '' Wansbrough ». Maton, 4 Ad. & El. lor, SQ'fte. 519 ; Taylor v. Townsend. 8 884. 66 882 Fixtures. that it can be removed without disturbing tlie freehold, and lohich teas built for the purpose of removal if necessary, is a movable fixture, and may be removed by the tenant ; ^ so is a stationary mill built under a temporary shed, the posts of which are let into the soil, if the owner of the land treated it as personalty.^ So sheds or buildings called Dutch hams, having a foundation of brickwork in the ground, and up- rights fixed in and vising from the brickwork, and supporting the roof, which was composed of tiles, and the sides open, have been held remov- able.' So a varnish house liaving a brick foundation let into the ground, and a chimney belonging to it, ujion which a superstructure of wood used as a varnish manufactory, but merely placed upon a wooden plate laid upon the brick foundation, may be removed.^ So vA\.\\ re- spect to a wooden stable standing upon blocks and rollers, or a shed standing upon brickwork let into the ground.^ A tenant erected in the garden aj)art from the house, hot-houses about seventy feet long, and between ton' and twenty feet high. They consisted of a frame and glasswork, resting in brick walls about two feet high, and embed- ded in mortar on these walls: — held, that he or his executors, in a reasonable time after his death, were entitled to remove them, without incurring any liability for waste. ^ Stills set in brickwork have been con- sidered as fixed to the freehold, though vats supported by and resting on brickwork and timber, but not fixed in the ground, were not.' Stills set up in furnaces in the usual manner, for making whiskey, &c., have been held not to be fixtures." Iron salt-pans fixed with mortar to a brick floor, with furnaces under them, may be removed by the lessees of salt springs ; ° but where a lessee of salt springs was to pay rent according to the number of pans, and he covenanted to deliver up all icorks erected or to be erected, at the end of the term, it was held that ho could not remove iron salt-pans though merely resting on brickwork, and having iron rings in their sides, by which they were occasionally lifted up to be repaired,'" Stoves annexed to the brickwork in a chim- 1 Robinson v. Wrisht, 2 McArth. Robbins, 1.3 Miss. 291. Co)i(>-o, see Bryan (IT. S. C. (.'. ) 54. V. Lawrence, 5 Jones (IST. C.) L. ,S37. - Young V. Baxter, 5^> Ind. 188. Copper stills. &c., affixed to a building ^ Dean v. AUalley, .3 Esp. 11 ; cited in by a tenant for the purposes of his trade, Elwes V. Maw, 3 East, 47 ; 2 Smith L. for distilling, are removable by him at C. 128 (4th ed. ). anv time during his term. Reynolds r. * Ponton V. Robart, 4 Esp. .33; 2 East, Shiiler, 5 Cow. (N Y.) 323 ; Ravmond 88. V. White, 7 id. 319 ; Heerniance u. 5 Fitzherbert v. Shaw, 1 H. Blac. 258. Vernoy, 6 Johns. (N. Y ) 5. Martin v. Roe, 7 E. & B. 2,37; 26 L. ^ Lawton «. Salmon, 1 H. Blac. 259, n. J. Q. B. 129. A kettle or boiler set up in a tannery, ' Horn I). Baker, 9 East, 215 ; 2 Smith with brick and mortar, is not a fixture, li. C. 161 (4th ed.). But see Trappes v. unless there is something to show that Harter, 2 C. & M. 153 ; cited 6 Exch. it was so intended. Hunt b. Mullanphy, 313. 1 Mo. 508 ; Earl of Mansfield <,. Black- « Monro I!. Smith, 24 111. 512 ; Cron- burn. 6 Bing. K. C. 42fl. shaw V. Crenshaw, 2 H. & M. (V.a.) 22 ; " Davis b^ Jones, 2 B. & A. 165 ; Sun- Burko 0. Baxter, 3 Mo. 207 ; Teiry i\ ilerland c. Jfcwton, 3 Sim. 450. What are not Fixtures. 883 ney,^ a cistern on blocks in a cellar,'^ a furnace that cannot be re- moved without injury to the building," chandeliers attached to a house,^ are fixtures ; but a gasometer and other apparatus used for generating gas, as between landlord and tenant, is not.^ Where certain jibs, being parts of a machine, had been put up by tlie tenant during his term, and were capable of being removed without cither "'injuring the other parts of the machine or the building, and had been usually valued between the outgoing and incoming tenant, it was held that these were the goods and chattels of the outgoing tenant, for which he might maintain trover." In all cases of this description, whatever may be the magnitude, or however substantial the nature of the erection, still if it is so constructed as not to be actually fastened to or let into the freehold, the tenant may always remove it, because the law considers it as a mere loose and movable chatteU Machinery in a factorj', mill, or other manufactory, is not treated as a part of the freehold unless it is so annexed thereto as to be incapable of removal without injury to the building. Thus, where it is merely attached to the floor, or to posts or beams, by cleats and screws to keep it firm, if it can be removed without injury to the building it is jiersonal prop- erty.* It is the permanent and habitual annexatioti, rather than the 1 Goddard ». Chase, 7 Mass. 432. ^ Blitheii V. Towle, 40 Me. 310. 5 Main v. Schwarzwaedler, 4 E. D. S. (?r. Y.) C. P. 27:1 ^ Johnsou B. Wiseman, 4, Met. (Ky. ) 357 ; but not wlien tliey are merely screwed to the gas-pipe, nor are side- brackets. Vaughen v. Haldeman, .33 Penn. St. 522 ; Montague v. Dent, 10 Kich. (S. C.) 135. 5 Hayes v. Doane, 11 N. .T. Eq. 84 ; Iiawrence v. Kemp, 1 Duer (K. Y. Sup. Ot.), 363. " Amos f. H. 282. It is " Wiltshear v. Cottrell, 1 E. & B. C74 ; said that the mere matter of physical WansbroughB. Muxton, 4 Ad. &E1. 884 ; annexation to the soil is not tli« test as Eex d. Oltey, 1 B. & Ad. 161 ; Dean d. to whether a chattel has become a flxt- Allaley, 3 Esp. 11. ure, but that tlie intention of the party * Fullam v. Stearns, 30 Yt. 443 ; Bart- in placing it upon the premises, the lett v. Wood, 32 id. 372 ; Voorhies c. character of tliecliattel and the purposes McGinnis, 46 Barb. (N. T.) 242. for which it was brought there, are to be * Swift c. Tliompson, 9 Conn. 6^ ; considered, and must control. This is Childress ». Wright, 2 Cold. (Tenn. ) doubtless the rule, but the intention 350 ; Murdock v. Gifford, 18 N". Y. 28 ; must be gatliered from the acts of the Trapper. Harter, 2 Cr. & M. 177; Hella- party, i-ather than from his declarations, well b. Eastwood, 6 Exch. 295. and the circuinstance that he does not ^ Penry v. Brown, 2 Stark. 403. annex the chattel to the freehold is ' Jenkins v. Gething, 2 Johns. & H. pretty decisive of liis intention. Potts 520. s N. J. Arms Co., 14 N. J. L. 395 ; Hill * Elwes t. Maw, 3 East, 38. V. Wentworth, 28 Yt. 428 ; Ford v. Cobb, 9 Leach v. Thomas, 7 C. & P. 327. 20 N. Y. 344. In the casj of tlic stone And see Jenkins b. Gething, 2 Johns. egrafenreid r. Scruugs, 4 1 Bailey (S. C), .510, the phiiutiff sold Hiunpb. (Tenn. ) 4.51." and convej'ed his plantation to the de- ^ Trappes (-. Harter, 2 Cr. & M. 177 ; fendant. Cotton was grown on this cited (> Exch. 31;!. l)Iiintation and a cotton gin Was in the '■' Dalton v. Whittem, 3 Q. B. 961 ; gin-house on the premises, attached to Darby v. Harris, 1 Q. B. 805. gears. Plaintiff brought an action of '^ Hellawell v. Eastwood, 6 Exch. 29.5. General rule as to Fixtures. 889 lord and tenant} Henee it may be received as a rule, tliat the decisions in favor of the executors of tenants for life, in tail, or in fee, as against the remainder-man, reversioner, or heir, may in general be apjjlied to cases between landlord and tenant, and are to be considered as govern- ing authorities in suppoi-t of a tenanfs rights. '■^ General rule as to fixtures. Sec. 525. The general rule of law respecting fixtures is, that what- ever is fixed to the freehold becomes part of it, and is s-ibjec1 ed to the same rights of property as the land itself ; the maxim being quicqn.id solo plantatw\ solo cedit? But the presumption that that which is an- nexed to the soil becomes part of the soil, may bo rebutted by circum- stances showing the intention of the parties to the contrary.* Thus, where a chattel has been annexed by its owner to another's freehold, and may without injury be severed, it is not necessarily to be inferred from the annexation that such chattel becomes the property of the free- holder. Wiiether in a particular case it has become so or not, may be a question on the evidence ; and the jury may infer, from user or other circumstances, an agreement, when the chattel was annexed, that the original owner should have liberty to take it away again at any time, and to use it in the mean time for the purposes of an easement.^ Wlicn the owner of the inheritance annexes thereto fixtures, which would in the ordinary case of landlord and tenant be removable by the latter during his term, for a permanent purpose, and for tht better enj,:)yment of his estate, they become part of the freehold .'^ The principle ujjon which the rule of law, that fixtures pass with the soil, is relaxed in favor of trade, has no application where the parties who affix the ma- chinery are themselves owners in fee of the soil.' General rule as to annexations by a tenant. ■> Sec. 520. The genera rule of law, with respect to annexations made 1 Elwes «. Maw, .'J East, 51. declaring that tlie United States intend- ^ Amos & F. as. 29, 7^1 ed to annex tlieii- chattels to the free- 3 Broom, Max. ::S7 (4th ed.); Miushall hold. See, also. Wood b. Hewett, 8 Q. D. Lloyd, 2 M. &, W. 4J9 ; Elliott b. B. 913 ; Lanca-ster u. Eve, ante. In all Bishop, 10 Exch. 507; Lancaster u. Eve, cases, whether the buikling or erection 5 C B. N. y. 717. is a fi.xture under such circumstances de- ^ Lancaster v. Eve, ante. Also p. 883, n. 8 pends upon the fact whether it was plac- 5 In Meigs' Appeal, 62 Penn St. 28, ed thei'e ly/ the assent, express or im- the United States erected in the borough plied, of the owner of the land. If so, it of York, upon ground dedicated as a is not; Wells o. Bannister, 4 Jtass. 514; puhlic common, buildings for use during Fuller u. Taylor, .'JU Me. 51 : Washburn the war. It was held tliat the circum- v. Sproat, 10 Jlass. 449 ; otherwise, it is. stances showed that these buildings were StiUman k. Hamer, 8 Jliss. 421 ; Reid u. intended for temporary use and not as Kirk, 12 Rich. (S. 0.) 54; Fisher d. permanent structures, and that the Staeft'er, 1 E. D. S. (X. Y. C. P.) (ill. borough, by lying by and suffering them '' Walmsley n. Milne, 7 C. B. jST. S. to be^erected upoii a public common 115 ; Fisher x>. Dickson, 12 CI. & F. where, as permanent structures, they 312. would be nuisances, is estopped from ' Mather i>. Frasei', 2 K. & J. 536. 890 Fixtures. by a tenant burmg the continuance of his term, has been established from a very remote period, and may still be regarded as the rule in ordinary cases. It is, that whenever the tenant has affixed anything to the demised premises during his term, he can never again sever it without the consent of his landlord. The propertj-, by being annexed to the land, immediately belongs to the freeholder ; the tenant, by mak- ing it part of the freehold, is considered to abandon all future right to it, so that it would be waste in him to remove it afterwards. It there, fore falls in with his term, and comes to the reversioner as part of the land.i Exceptions to general rule. Sec. 527. But to this rule there are important exceptions with re- spect to fixtures erected by the tenant for mere ornament and conve- nience during his term, and fixtures erected by him for the purposes of his trade and not merely for farm purposes. Whether the tenancy be for life, or for years, or from year to year, or only at will, makes no difference with respect to his right to remove fixtures ; nor whether he holds under a lease by parol, or by writing, or under seal, except as to any stipulations on the subject therein contained. It is, however, to be observed, that every case, in which there is a right of severing a thing from the freehold by virtue of the law of fixtures, is considered as an exception to the general rule.- Fixtures which may be removed by the tenant dunng his term constitute part of the freehold until severed therefrotn.^ Until so severed they are not goods or chattels for which trover may be maintained.* But sometimes a special action may be maintained for preventing a tenant or any person claiming under him from exercising his right to sever and remove the fixtures.* Trade fixtures. Sec. 528. It is difficult to state the precise extent of the exception in favor of the removal of fixtures put up for the ])urposes of trade, so as to afford a safe guide as between landlord and tenant.^ The old cases upon this subject leant to consider as realty whatever was annexed to 1 Amos & F. 19, 91 ; Co. Lit. 53 a ; thougli some of them pass through Herlakenden's Case, 4 Co. K. 64; Elwes wooden ornaments of the ceiUng, which V. Maw, 3 East, 51. are cut away for the purpose. Wall b. ^Bucldand v. Butterfield, 2 Brod. & Hinds, 4 Gray (Mass.), 250. B. 54. A pump placed in a well by a * Lee v. Kisdon, 7 Taunt. 188 ; Ex tenant may be removed. McCracken parte Lloyd, 1 Mont. & Ayr. 508. ?i. Hall, 7 Ind. .30. So may a cistern and * Green v. Cole, 2 Wms. Saund. 259 c, sinks, fastened by nails, or set into the note (/■) ; Macintosh v. Trotter, 3 M. & floor and passing through holes cut W. 184 ; Rolfey v. Henderson, 17 Q. B. through the floor for that purpose, or 574 ; Wilde u. Waters, 16 C. B. 637. gas-pipes passing from the cellar through '' London, &c., v. Drake, 6 C. E. N. S. the floors and partitions, and kept in 798, 811. place in the rooms by metal bands, " Amos & F. 48. Trade Fixtures. 891 the freehold by the occupier ; but in modern times the leaning has al- ways been the other way — in favor of the tenant — in support of the interests of trade, which is become the pillar of the state. What ten- ant will lay out his money in costly improvements of the land, if he must leave everything behind him which can be said to be annexed to it ? Shall it be said that the great gardeners and nui-scrj'-mon in the neighborhood of cities and towns, who expend thousands of pounds in the erection of greenhouses, hothouses, &c., are obliged to leave all these things upon the premises, when it is notorious that they are even permitted to remove trees, or such as are likely to become such, by the thousands, in the necessary 'course of their trade? If it were other- wise, the very object of their holding would be defeated.^ This rule at a very early period had several exceptions engrafted upon it in favor of trade, and of those vessels and utensils which are immediately sub- servient to the purposes of trade. And it was laid down that if a lessee for years erect a furnace for his advantage, or a dyer make his vats or vessels to occupy his occupation during his term, he may remove them ; but if he suffer them to be fixed to the earth after the term, then they belong to the lessor. And so of a baker. And it is not waste to re- move such things within the term. And as between the executor and the heir-at-law, it has since been held that where a fixed instrument, engine, or utensil, or a building covering machinery, is accessory to matter of a personal nature, then it shall itself be considered personalty, and belong to the executor, such as a fire-engine accessory to the carry- ing on the trade of getting and vending coals; or a brew-house furnace and coppers, or a cider-mill, or varnish-house ; but salt-pans connected with salt-springs, and erected for the benefit of the inheritance, and barns and agricultural buildings, erected for farming purposes, are not by the common law removable by executors, but belong to the heir.^ 1 Penton v. Eobart, 2 East, 88 ; Law- term, adopting fully the doctrine of ton 11. Lawton, 3 Atk. 14 ; Dean v. Al- Ehves v. Maw, cited by tlie author. In lalley, 3 Esp. 11. commenting upon tliis question, the ^ Elwes V. Maw, 2 Smith's L. C. 153, learned judge said : " It lias been sug- 6tli edit. In Van Ness v. Packard, 2 jested at the bar, tliat tlie exception in Pet. (U. S. ) 137, the defendant was tlie favor of trade lias never been applied to lessee of premises which he had rented cases like that before the court, where a for the purpose of carrying on the busi- large house has been built, and used in ness of a dairy-man for a term of years, part as a family residence. But the He erected thereon for his use in the question, whether removable or not, does prosecution of the business, a frame not depend upon the form or size of the dwelMng-house, with a cellar and a stone building, whether it has a brick founda- or brick foundation. Prior to the ex- tion or not, or is of one or two stories piration of his term he tore down the high, or has a brick or other chimney, buildings erected by him, and converted The sole question is whetliej- it was de- the materials. The landlord sued him signed for ilie .purpose of trade or not. as for waste. Story, .1., delivered the A tenant may erect a large, as well as a opinion of the court, affirming the ten- small messuage, or a soap boilery of one ant's right to remove the buildings at or two stories high, and on whatever any time before the expiration of his foundation he may chose." The strict 892 Fixtures. The reason which induced the courts to relax the strictness of the old rules of law, and to admit an innovation in this particular instance, was, that the conrmercial interests of the country might be advanced, by the encouragement gi^en to tenants to employ their capital in mak- ing imjsro-vements for carrying on trade, with the certainty of having the benefit of their expenditure secured to them at the end of their terms: tlie benefit of the inihlic may be regarded as the principal object of the law in bestowing this indulgence.^ Wlieriever the following circumstances concur (and sometimes when they do not all concur ^) the tenant may rejnove the article : "\'iz., things which a tenant has fixed rule as to fixture as between heir and executor docs r.ot exist as between land- lord and tenant, but the rule is relaxed in favor of fixtures annexed ty the estate for the purposes of trade, and may be removed by him at any time l)efore his term expires, litit not afler. Weatlierby ». Sleeper, -12 JUiss. I'-Vl ; Thoinas x. Crout, 5 13ufih. (Ky. ) 37; Dingley c. Buffum, 57 Jle. ^iSl ; Wilgus n. Gettiiigs, 21 Iowa, 177 ; Troadway r. Shawn, 7 Nev. 37. A steam-boiler placed in a, tlouring-niill may be removed by the tenant duiing his term, and if he is en- joined from removing it by tlie landlord, he may remove it within a reasonable time after the injunction is dissolved. Mason v. Fenu, 13 III. 52o. Gas fixt- ures, including gasometer and appa- ratus for generating gas, as between landlord and tenant, are not fixtures, and may be removed by him, but other- wise between vendor and vendee of the estate. La« ronco o. Kemp. 1 Duer (X. Y.), .363 ; Hayes r. Doane,. 11 N. *J. 84. Neither arc chandeliers or side brackets regarded as fixtures. Montagu ». Dent, 10 Rich. (S. C.) 135 ; Vaughan r. Ilolde- nman, 33 Pcnti. St. ,522. But in all cases " 'where the thing is so affixed to the free- hold that it cannot be removed without injury, it cannot be levied upon as the property of the tenant until it is severed. It is treated as realty until he sees fit to detach it from the estate. Pemberton t). King, 2 Dev. (N. C.) 376. The fact that he may lawfully remove it does not destroy its cliaracter as a fixtiu'e so as to make it personal property liable to be attached upon his debts. But in Hem- ming u. Cutler, 51 Me. 407, it was held that where a person went into the pos- session of land under a parol agreement to purchase, and erected a house, not underpinned, and left it unfinished, the house was liable to attachment as the personal property of the debtor. But while if is true that a person 'who erects buildings upon the land of another, with his consent, holds the houses as personal property, yet they are so far quasi realty that if he sells them to the owner of the land they instaiiter become realty. Cur- tis c. Kiddle, 7 Allen (Mass.), 185; Pow- ers V. Dennison, 30 Vt. 752 ; Burnside V. Twitchell, 43 N. H. 390. Buildings so erected are treated as personal prop- erty so far that the tenant may enter to remove them, even after the expiration of his lease, on payment of nominal damages ; but, so long as they are an- nexed to the realty, and are a part of it except to the extent that the tenant may sever them therefrom, it would hardly seem reasonable that a third person, acting under legal process, could avail himself of the license to the tenant to sever them. And there would seem to be no good reason, according to the ease of Curtis V. Kiddle, ante, why the tenant might not, even after levy, by a sale to the landowner, so change the character of the property as to make the levy in- operative. See Wells v. Bannister. 4 Mass. 514 ; Fuller v. Taylor, 39 Me. 519 ; "Washburn v. Sprout, 16 Mass. 449 ; Tay- lor V. Townsend, 8 Mass. 411 ; Curtis v. Hoyt, 19 Conn. 154 ; White's Appeal, 10 Penu. St. 252 ; Dame v. Dame, 38 N. H. 429. There is a wide distinction between buildings or other erections erected upon the land of another'with his consent, and erections made without it. In the former case they are treated as persoiuilty, and may be removed, and in the latter they are treated as realty, and belong to {lie owner of the land, Fisher r. Saffer, 1 E. D. Smith (N. Y.), 611 ; Reid v. Kirk, 12 Rich. (S. C.) 54 ; AVashburn v. Sprout, ante, even though made under a mistake as to boundaries or title, Himes v. Anient. 43 Mo. 298. And even though the gn.'ater part of it is upon the builder's land. Boiling v. Whittle, 1 Ala. Sel. Cas. 268. 1 Amos & F. 32 ; Lawton n. Lawton, 3 Atk. 14, 16. - Amos & F. 49. Decisions as to Teade Fixtures. 893 to the freehold for the purposes of trade or manufacture may be taken away by him during liis term, whenever the removal is not coiitr Buckland v. ' Butterficld, supra ; feiture, and before judgment in eject- Leach b. Thomas, 7 C. cfe P. 327. ment has been obtained against him, re- ^ Bock v. Rebo\v, 1 P. Wms. 94; Squier moves his fixtures, he will be entitled to u. Mayer, 2 Frecm. 249. retain those removed within a reason- •■ Amos & F. on Fixtures, 83. able time, as they are not forfeited to the " Buckland v. Butterficld, supra ; landlord by the forfeiture of the lease. Wi'st r. Blakeway, 2 M. & G. 729. Stansfeld ». Mayor of Portsmouth, 4 C. * Penry ». Brown, 2 St.trk. 403. B. If. S. 131 ; Sumner ». Bromilow, 34 » Wynne v. Ingleby, 5 B. & A. 025. 57 898 FixTUKES. to the freehold ; ^ so a pump erected by a tenant during his term, and very slightly affixed to the frecliold, is removable as a tenant's fixture.^ A bequeatlied his leaaeliold messuage, with the grates, stoves, cop- pers, locks, bolts, keys, bells and other fixtures and fixed furniture, to V for life ; and the household goods, furniture, plate, linen, china, books, wines and liquors, and other properties in the messuage, not being comprehended under the preceding terms fixtures and fixed furniture, to V absolutely ; there were in the messuage looking- glasses standing on chimney-pieces and nailed to the wall, and a book-case standing on (but not fastened to) brackets and screwed to the wall ; it was held, that V took only a life interest in these.' Erectiohs of the description above mentioned also cannot be removed if the removal would be of such a nature as to constitute waste, or if the premises could not be left in the same state as before the I'emovalj at least the contrary of this was assigned by Lord Mansfield as a ground for removal, although the princijiie has not been adverted to in more modern decisions.'' Tlie articles for ornament and convenience which have been held to be removable are : — hangings, tapestry and pier-glas.ses, whether nailed to the walls or panels, or put up in lieu of panels ; ^ cornices ; ° marble or other o)-namental ahimn'^y-pieces ;' marble slabs ; » window blinds;" wainscot fixed to the walls by screws;^" grates, ranges and stoves, although fixed in brickwork ; " iron backs to chimneys ; '- beds fastened to the walls or ceiling ; ^^ fixed tables ; " furnaces and cn[)pers ; '° pumps;'" mash-tubs and fixed water-tubs ; " coffee and malt-mills;" cupboards fixed with holdfasts ; '' book-cases standing on brackets and 1 Rex u. Hedges, 2 East, P. C. .590, n. « Avery v. Cheslyn, 3 Ad. & El. 75 - Grymes v. Boweren, 6 Bing. 437. ' Lawion v. Lawton, 3 Atk. 15; Law- ? Birch !). Dawson, 6 C. & P. 6-58. ton v. Salmon, 1 H. B!ac. 260, n. ■ Allen . Elliott V. Eipli->i), 10 Exeh. 496, but the 506 ; Boydell r. M'Miehael, 1 C. M. .i jiulseswere divided In opinion. R. 177 ; Longslaff o. Meagoe, 2 Ad. & " i)uck V. Braddyll, 13 Price, 4.55. El. 167. s Leach v. Thomas. 7 C. & P. 327. ' Hare v. Horton, 5 B. & Ad. 715. * Fitzherbert r. Shaw, 1 H. Bl. 258 ; 8 Hutchinson v. Kay, 23 Beav. 413. Thresher v. East London Waterworks Co., 2B. &C. 608. CONTBACTS RESPECTING FlXT0RES. 903 they may be removed at pleasure, will not pass by the general term of .machinery, though they are worked by steam-power wliich is attached to the mill and mortgaged with it.^ A mortgage of a silk-mill was ex- pressed to include " all those the steam-engines, boilers, steam-pipes, mainshafting, mill-geai'ing, millwrouglit work and other machinery and fixtures whatsoever, then erected or set up or standing, &c., in or upon the mill or any part thereof : " — Held, that all the machinery and fixt- ures used in the manufacturing of silk within tlie mill were included.^ Where a freehold mansion-house was sold at public auction, without any stipulation on the part of the owner that the fixtures were to be taken and paid for separately, and the vendee, who had paid the purchase money, entered into possession under a conveyance, it was held, that the fixtures still remaining in the house i:)assed to the vendee by the conveyance of the freehold, and were not the subject of trover ; and that a demand of and refusal to deliver the fixtures would not entitle the vendor to such articles, left in possession of the vendee, ao appeared to be removable; ' and the principle was laid down, per Best, J., that, without a stipulation for a valuation in the conditions of sale, fixt- ures would pass to the vendee in a conveyance, like timber upon land.^ Wherever, therefore, it is intended in contracts which concern the realty as well as the fixtures, that the latter should be paid for sepa- rately, a stipulation to that effect ought to be introduced. Contracts for the sale of fixtures are not within the statute of frauds, as they arc not goods and chattels within the meaning of the statute; nor do they, although annexed to the freehold, constitute an interest in land.^ But a memorandum of the actual sale of fixtures requires a conveyance Stamp, and it makes no difference that it is in the past tense." A reveraionary interest in trade fixtures will pass by an agreemeiit in writing, though not under seal.'^ Wlrere a lessee, who had power to remove a greenhouse fixed to the freehold, agreed to sell the lease, to- gether with the greenhouse and furniture, plants and crops, for a cer- tain sum, but was afterwards unable to obtain the lessor's consent to the assignment of the lease, which was necessary ; it was held, that the contract was an entire one, and that the lessee could not sue for the price of the greenhouse.' A steam-engine, erected for the purpose of working a colliery, to be used by the lessee of such colliery during his term, but to be held as the property of the landlord, subject to such 1 Hutcliiiison V. Kaj', 23 Beav. 41:1. ^ Hailen v. J~uiiiler, 1 C. M. & R. 275; ^ Halev V. llaniinersley, 30 L. J. CIi. Lee v. llisdi.ii. T Taunt. 191 ; Piuiier v. 771. " Arnold, 1 Tyi-. & Gr. 4. 3 Colegrave v. Bias Santos, 2 13. . Shaw, 1 H. Bl. 258 ; .Jungerman b. Bovee. 19 Cal. 3.54 ; Abell !). Williams, 3 Daly (N. Y. C. P.), 17 ; Tliresher v. East London Wa- ter Works, 2 B. & C. 608 ; Heap.K. Bar- ton, 12 C. B. 274. " The acceptance of a new lease," says Allen, J., in Loughran v. Ross, ante, " including the buildings, witliout any reservation of the rights, or mention of any claim to the fixtures or building, and occupation under the new letting, are equivalent to a surrender of the possession to the landlord at the expiration of the first term. The tenant is in under a new tenancy, and not under the old ; and the rights which existed under the former tenancy, and which were not claimed or exercised, are abandoned as effectually as if the tenant had actually removed from the premises, and after an interval of time, shorter or longer, had taken another lease and returned to the premises. A lease of lands and premises carries with it the buildings and fixtures on the premises, and the tenant, accepting a lease of the prem- ises witliout excepting the buildings, takes a lease of the lands with the buildings and fixtures, and acknowl- edges the title of the landlord to both, and is estopped from controverting it. In respect to the lot of which there was a written lease for the new term, the tenant expressly covenanted to surren- der the premises at the end of the term, ' in as good ytate and condition as a reasonable use and wear thereof will permit, damages by the elements ex- cepted : ' and this covenant relates to and includes the buildings then on the premises, and, if they are excluded from its operation, it can have no effect. It follows that tlie tenant becoming a party to that lease, and occupying under it, is estopped from claiming the build- ings as his own, for he has covenanted to surrender thera, as a part of the premises and included within the gen- eral description, to the landlord at the end of the term, in good repair. Such is also the implied undertaking of the tenant taking a new lease by parol. Elementary vvfriters arc very well agreed, that when a tenant continues in pos- session under a new lease or agi'eement, his riglit to remove fixtures is deter- mined, and he is in the same situation as if the landlord, being seized of the land witli the fixtures, liad demised both to liim. Gib. Law of Fixt. 42 ; and Grady's Law of Fixt. 98. And it would seem that the position is warranted by authority. When the tenant continues in possession after ejectment brought by the landlord, under an arrangement with him, and with his assent to a stay of execution, the tenant's right to re- move buildings from the premises, erected by himself during his lease, is gone. Fitzherbert v. Shaw, 1 H. Black. 258. The court held, that there was an implied, agreement that the tenant should deliver up the premises in the same condition as they were in wlien the agreement was made. The same was held in Ileap v. Barton, 12 C. B. 274, Jervis, C. J., saying : ' If the ten- ants meant to avail themselves of their continuance in possession to remove the fixtures, they should have said so.' 906 Fixtures. in a recent Massachusetts case.^ In that case the defendants went into possession under a lease dated January 1st, 1861, for the term of five years. Tlic lease was executed by the pkiiutiff and another, who were then owners of the premises, to the Harvard Bank, which was subse- quently, and before the expiration of the lease, changed to the First Naiioiial Bank of Cauibridge. Before the expiration of tlio original term, and before the execution of the new lease, which will bo referred to hereafter, tlie plaintiff became sole owner of the premises. TJie old lease covenanted for the surrender of the premises at the end of tlie _ term in as goml order and condition as the same tlien were, .'igainst waste and alteration, and for a riglit of entry by the lessor in case of a failure to pay rent, or in case of waste. Tlie lessee constructed a fire- proof vault or safe, and a portable furnace with ]n'j)es and registers, and counters to iit the premises for use as a banking house. The lease was extended until October 7th, 1870, when a new lease was made to take effect January 1st, 1871, at an increased rent, containing a like covenant as to surrender, &c., as was contained in the old one, and also a provision for a cessor of the lease at tlie election of the defend- ant in case of an injury to, or destruction of, the 2>remises by lire ; but did not contain any provision as to the fixtures. About November 5th, 1875, tlie lessee being about to remove from the premises, began The general form of expressing the right of llie tenant to remove iixtures is, that they must he removed within the term ; tliat is, tlie term during which tliey were erected, and unless the lessee uses, during the lease, the privilege to sever them, lie caniKjt af- terward do it. Lee v. Risdon, 7 Taunt. 2H8 ; Lynde v- Russell, 1 B. & Aid. 394. But it may bo done so long as the pos- session continues, although the term may have ended, if there has been no new agreement. Penton v. Robart, 2 East, y8. A case somewhat analogous in principle to this was that of Thresher ». Proprietors of tht; East London Wa- terworks, 2 B. & C. COS, in which it was decided that a lessee, who had erected fixtures, for the purposes of ti'ade, upon the demised premises, and afterward took a new lease, to commence at the expiration of the former one, which new lease contained a covenant to re- pair, was bound to repair those fixt- in-es, unless strong circumstances ex- isted to sliow that they were not in- tended to pass under the general words of the second demise, and a doubt was oxjiressed whether any circumstances, dehors the deed, could be alleged to show that they were not intended to pass. Aldekson, B., in Weeton v. Woodcock, 7 M. & W. 14, says : ' The rule to be collected from tlio several cases decided seems to be this, that the tenant's right to remove fixtures con- tinues during his original term, and during such further period of possession by him, as he holds the premises under a right still to consider himself a ten- ant,' and the right to reiuove the fixt- ures was denied to the assignees of the tenant, although they retained the pos- session, the plaintiff having made an entry to enforce a forfeiture. See, also, Minshall v. Lloyd, 2 M. it W. 450 ; Shephard v. Spaulding, 4 Met. 416. The tenants, holding under a new de- mise, had not the' legal right to re- move the fixtures put by them on the premises during a former term, there being no mention of the riglit in the second lease. The offer to prove, that, by custom in the city of New York, tenants had a right to remove buildings, did not go beyond the right conceded by the defendant. The evidence, there- fore, if otherwise competent, could not have aided the plaintiff. The difficulty is, that the conceded right was aban- doned and lost by its uon-excreise dur- ing the tenancy under which the build- ings were erected.'' 1 Watriss c. First National Bank of Cambridge, ante. WnKK THE Tenant may remote Fixtuees. 907 .removing the fixtures. In action for that injury, it was held, that thr . lessee had no right to remove the fixtures, upon tlie ground that the term under which the fixtures were erected liad been surrendered, and, when the new lease came into effect, the right to remove the fixt- ures was lost, notwithstanding the holding was continuous. In other words, the rule deducible from this as well as otlior cases ^ is, that a continuous holding of the premises does not of itself continue the right of disannexing and removing fixtures, but a continuous holding under the same lease ; and although the tenant remains in possession after the old lease lias expired, yet, if his holding is under a new lease which does not reserve a right of removal the right is lost.^ Where the term is uncertain, or depends vipon a contingency — as, where a person is in as a tenant for life, from year to year, by sufferance, or at will — trade fixtures may be removed by him within a reasonable time after his tenancy is determined ; ^ or, where he has been let into possession by an agent who did not have suflScient authority.* Where a tenant holds ovei beyond his term he may still remove the fixtures, because lie is still in fact in possession of the premises when the fixtures are taken away, and there can be no pretence that he has abandoned his right to them.' When a term is forfeited for any cause named in the lease, the tenant is entitled to a reasonable time after the re-entry of the landlord in which to remove his fixtures.*^ Where premises are let for no definite term, but until a certain crop is fit to harvest, the tenant has a right, as against the lessor and all jjorsons claiming under him with notice of the lease, to remove such crop when ready to harvest, although it requires several years for it to mature. Thus, where land was let for a nurseiy, in raising trees and plants until they are ready to be transplanted, the interest of the tenant in the land was held to con- tinue until that purpose was accomplished, as .against a mortgagee of the premises, with notice ;' but if the premises are leased for a definite term, although for a special purjjose, as raising trees, &c., the tenant must ro- ' Elwees d. Maw, 3 East, 38 : Abell v. which contains no provision as to the ■Williams, 3 Daly (N. Y. C. P.), 17; erection already made, and continuing Jungerman d. Bovee, 19 Cal. 354 ; Mer- in possession under such new lease, ritt B. Judd, 14 id. 59 ; Loiighran v. ^ I^oughran v. Ross, ante ; Watriss v. Ross 45 N. Y. 792 ; U Am. Rep. 173. National Bank, ante. A contrary doctrine was held in Devin ^ Whitney?). Brastow, 4 Pick. (Mass.) I.. Dougherty, 27 How. Pr. (N". Y.) 455; 310 ; Ellis c. Paige, 1 Pick. (Mass.) 43 ; and in that case it was held that a ten- Martin v. Roe, 7 C. & B. 237. ant who erects a structure which he * Antoni o. Belknap, 102 Mass. 19-3. migh* remove during his term or at the ° Lord Kenyon, in Peuton j). Ro- e.\piralion thereof.— c. r/.. a wooden hart, 2 East, 88 ; Minshall o. Lloyd. 2 a ning in front of the building which M & W. 450 ; Mackintosh u. Trotter, 3 stood upon the demised promises, — and id. 1S4. which might Dc removed without ma- " Weeton «. Woodcock, 7 M. & W. terially affecting such building, does not 14. lose such right of ici.ioval by i,. Moagoe. a Ail. & El. 167. ' Greg? v. WcDs, 10 Ad. & El. 90 ; ^ Thfi Loiifloii, Ac, Co. (Limited) n. Pickard b. Sears, fi Ad. & El. 409 ; Free- Drake, 6 C. B. N. S. 798. man ». Cooke, 2 Excli. 654 ; Duiislon ». * Robinson b. Andertoii, Pcako, 94. Palersoii, 2 C. B. N". S. 502 ; Clarke ». 'Morley v. Attonborough, :? Exch. Hart, 6 R. L Cas. fi.?.1 : Waller e. Di'alce- BOO ; Ormrod b. Hufb, 14 M. & W. 651 ; ford, 1 E. & B. 749 ; Richards r. .Jolin- Bui-nby i). Bollfitt, 16 M. & W. 644 ; son, 4 H. .t N. 6G0 • Fletcher i>. Fletcher, iSims I). Marryat, 17 Q. B. 281. 1 E. & E. 422. Buildings erected by Tenant upon leased Lands. 913 him, or whether it becomes a part of the realty, is to be largely ascer- tained from the intention of the parties, which may be gathered from the manner of its construction, the materials of which it is composed, or any facts and circumstances that tend to indicate whether or not it was intended to become a part of the realty.^ Thus, wliere the build- ing leased by the defendant was burned, and his lease had two years to run, and he went on and erected a new building upon the site of the old one, it was held competent to show, as bearing upon the question of the right of the tenant or his assignee to remove the building, that the tenant, before he erected the building, told the landlord that he in- tended to erect a new building ; that he knew that it would belong to the landlord, and that he did not intend to remove it. The building was built of brick, one story high, with a glass front, and was built on the old foundation, except the rear, which was an unbroken brick wall from the cellar bottom. It was held that this fa;ct, in connection with what the tenant said as to his intention, was sufficient to show that the building was a part of the realty." ^ Capeu V. Peckham, 35 Conn. 88 ; same, it instantly becomes a part of the Ombony v. Jones, 19 N. Y. 234 ; Curtis realty, and the tenant cannot recover its V. Hoyt, 19 Conn. 154 ; Shepherd v. value of the lessor or renaove it ; and, Spaulding, 4 Met. (Mass.) 416 ; Linahan even though the lease provides that the V. Barr, 41 Conn. 473. lessee shall erect a building worth acer- 2 Linahan v. Barr, 41 Conn. 471. If tain sum, as $1000, yet if he goes on the tenant erects a permanent building and puts up a building of much greater upon the premises, and there is no cove- value, as $50,000, the rule is not changed nant on the lessor's part to pay for the Woodward v. Payne, 16 Cal. 444. 58 914 Rights, Remedies, and Liabilities op the rABTiES. CHAPTER XLVin. EIGHTS, REMEDIES AND LIABILITIES OF THE PAETIES. Sec. 538. Of the landlord. Sec. 539. Landlord's liability to third persons. Sec. 540. Right of entry. Sec. 541. Rights of tenant. Sec. 542. Remedies for recovery of rent by distress. Sec. 543. What may be distrained. Sec. 544. Where and when must be made. Sec. 545. How may be made. Sec. 546. Sale of distress. Sec. 547. When distress is illegal, and remedy for. Sec. 548. Irregular distress. Sec. 549. Use and occupation. Sec. 550. Defences to action. Sec. 551. Premises let for unlawful purposes, fraud, &c. Sec. 552. Damages recoverable. Sec. 553. Debt for rent, when maintainable. Sec. 554. Remedies in courts of equity. Sec. 5ao. Tenant must deliver up. possession. — Penalty for failure. Sec. 556. Encroachments by tenants. Sec. 557. Double value. Sec. 558. Double rent. Sec. 559. Out^going and in-coming tenants. Sec. 560. Right to cross, &c., underlease or custom. Sec. 561. Emblements. Sec. 562. Forcible entry and detainer. — Nature and punishment of the oSence by indictirtent. Sec. 563. Punishment by action. Sec. 564. Punishment by justices. Sec. 565. liestitution by the Queen's Bench. Sec. 566. 5 Ric. 2, c. 3. Sec. 567. Risk. Sec. 568. What is a forcible entry. Sec. 569. By whom may be made. Sec. 570. Wliat is a forcible detainer. Sec. 571. Remedies to obtain possession. — Ejectment. Sec. 572. Mesne profits. Sec. 573. Summary proceedings. Sec. 574. When a tenant may be removed summarily In New York. Sec. 575. Who is entitled to summary relief. Sec. 576. How application must be made. Sec. 577. Petition by a neighbor of bawdy-house. Sec. 578. To whom application should be made. Sec. 579. What should be stated in the petition. Sec. 580. How served. Sec. .581. Amendments to petition, precept, &c. Sec. 582. Answer, issues, &c. Sec. 583. Trial, jury, &c. Sec. 584. Change of venue. Sec. 585. Adjournment. Sec. 586. Final order. Sec. 587. How possession is obtained. — Stay of warrant, &c. Sec. 588. When lessee may redeem. Sec. 589. Appeal, effect of. — Power of Appellate Court. Of the Landlord. 915 Of the landlord. Sec. 538. As has been previously stated, when the tenant enters into possession of premises under a lease, the landlord, during the term, parts with all his right of control over the same, except as to injuries af- fecting his reversionary interest.' He has no more right to enter upon the premises, except in so far as he has reserved that right in the lease, than a stranger to the title, even though he has covenanted to repair ; and if he enters without license from the tenant, he is liable in trespass therefor.^ But where he has covenanted to repair, and has neglected to reserve a I'ight of entry for that purpose, the refusal of the tenant to permit him to enter would be a complete, defence to an action upon his covenant to repair.' The tenant, during the term, is invested with all the right of, control over the premises that the landlord himself would possess, and may maintain an action against any person who interferes with his right of possession, whether by a trespass thereon or a nuisance affecting the same.* The tenant alone is affected by a mere transitory injury to, or one thJit merely affects the present right of enjoyment of, the premises ; but a continuous injury, or one that affects the estate itself, is not only an injury to the tenant, but also to the landlord, and both may have their actions against the wrongdoer for the injury to their respective estates.^ Not only may the landlord maintain an action against a stranger for an injury to the reversion, * Livingston v. Reynplds, 2 Hill (N. Peterson v. Edmonson, -5 Harr. (Del.) Y.), 157 ; Jackson v. Bronson, 7 Jolin. 378 ; Barker v. Barker, 3 C. & P. 557 ; (N. "T. ) 227 ; Bradford u. Pratt, 17 Walker v. Huttou,' 10 ,M. & W. 249 ; Wend. (N. Y. ) 44. An injury that per- Penley o. Watts, 7 Id. 601 ; Dockham raanently affects the estate, — as cutting o. Parker, 9 Mo. 137 ; Woodruff v. down trees, Schermerhorn v. Buell, 4 Adams. 5 Blackf! (Ind. ) .317- Den. (N. Y.)422 ; Bewick w. Whitfield, « White v. MeaUs, 5 J. & S. (N. Y. 3P. Wms. 267; Berry jj. Heard, Cro. Supr. Ct. ) 72 ; Turner u., McCarthy, 4 E. Car. 242, breaking windows or doors D. S. Cif. Y. C. P.) 247. in a house, or making permanent erec- * Day v. Swackhamer, 2 Hilt. (N. Y.) tious upon the land, or doing any act 4; Willard v. Tillman, 2 Hill (N. Y. ), that injures the land or timber growing 274 ;, Moffat v. Smith, 4 N. Y. 126. The thereon, Anderson v. Dickie, 26 How. landlord cannot maintaiii an action for Pr. (N. Y. ) 105 ; Ray u. Ayers, 5 Duer an injury merely affepting the posses- (N". Y. S. C.),494 ; Dodd v. Holme, 1 sion, but may maintain an action for an Ad. & El. 493 ; Taylor v. Cole, 3 T. R. injury to the reversion. Austin v. Hud- 292, or that diminishes the rental value son R. R. R. Co., 25 N. Y. 834 ; Van of the premises, Aldridge v. Sturtevant, Dusen v. Young, 29 Barb. (N. Y. ) 9 ; 1 Hall (N". ,Y. Supr. Ct.), 21,4, is an Starr tj. Jackson, 11 Mass. 519; Robinson injiiry to the reversion that the land- e. Wheeler, 25 N- Y. 252 ; French v. lord may recover for by action ; but for Fuller, 23 Pick. (Mass.) 104; Little ». a mere trespass upon the land, or other Pallister, 3 M.e. 6 ; Jesser v. Gifford, 4 act simply affecting the possession, the Burr. 2141 ; Ray v. Ayers, 5 Duer CS. tenant alone has a right of action. Y.), 441 ; Baxter u. Taylor, 4 B. & Ad. Catlin V. HaydeA, 1 Vt. 375 ; Campbell 72 ; Bower v. Hill, 1 Bing. N. C. 5.55 ; V. Arnold, 1 John. (N. Y.) 511. Geer v. Fleming, 110 Mass. 29 ; Bed- 2 Dixon V. Clow, 24 Wend. (N. T.) ingford d. Onslow, Lev. 31, 209. 188,- Hermance b. Vernoy, 6 John. (N. . .'Smith v. Martin, 2 Saund. 397; Y.)5; Parker b. Griswold, 17 Conn. Barrow v. Richards, 8 Paige (K. Y.), 288 ; Neale «. Wylie, 1 B. & C. 8 ; 351 ; Dodd b. Hohne, 1 Ad. & El. 493 ; Shaw «. Cummiskey, 7 Pick. (Mass. ) 76 ; Taylor v. Cole, 3 T. R. 292. 916 Rights, Remedies and Liabilities oe the Parties. but he also has a right of action against the tenant or his assignee therefor, because neither has a right to do any act permanently injuri- ous to the reversion.^ But in order to entitle the landlord to main- tain an action tliere must be an injury to the reversion, and a mere trespass to, or disturbance of, the possession, although under a claim of right, does not confer upon him a right of action.^ 1 Geer c. Fleming, 110 Mass. 39 ; Jackson o. Pesked, 1 M. & S. 234 ; French v. Fuller, 23 Pick. (Mass.) 104 ; Starr v. Jackson, 11 Mass. 519. 2 Otto B. Grier, 4 Dev. (N. C.) 477 ; College 0. Hallett, 14 East, 489 ; An- derson V. Nesmith. 7 N. H. 167 ; Tobey V. Webster, 3 John. (N. Y.) 468 ; Cat- lin V. Hayden, 1 Vt. 375. A reversioner " cannot sue for anything as an injury to his reversion, unless it permanently in- jures his estate, or operates in denial of his right : Hopwood v. Schofield, 2 Moo. & R. 34 ; Baxter v. Taylor, 4 B. & Ad. 72 ; Mumford ». Oxford, Wor- cester and Wolverhampton E. Co. , 1 H. & N. 34 ; Simpson v. Savage, 1 C. B. N. S. 347 ; Metropolitan Association v. Fetch, 5 C. B. N. S. 504 : therefore a temporary fixing of barges and planks in a part of a river near certain prem- ises, thereby obstructing the navigation of that part and hindering persons from passing to the premises and the unload- ing of boats thereon, is not an injury to the reversion. Dobson ». Blackmore, 9 Q. B. 991. But a permanent obstruction of a way in denial of the right is an in- jury to the reversioner. KidgiU v. Moor, 9 C. B. 364 ; Palk v. Shinner, 18 Q. B. 568. The reversioner may sue for an injury done to his house by the defend- ant's neglect to scour a watercourse in ,an adjoining close, whereby the water- course was obstructed, the water thrown back, and the water from the course ran into the house and damaged it ; Bell v. Twentyraan, 1 Q. B. 766 ; Taylor v. Stendall, 7 Q. B. 634 ; or for an injury done to it by mining under it ; Eaine b. Alderson, 4 Bing. N. C. 702 ; Back- house V. Bonomi, 9 H. L. Cas. .503 ; or for an injury done to it by raising the pavement so much in front of it as to block up the entrance and the lower windows of it. Leader v. Moxon, 3 Wils. 461. The reversioner may maintain an action for the erection of a wall, where- by his lights are obstructed. Jesser v. Gifford, 4 Burr. 2141 ; Shadwell v. Hutchinson, 2 B. & Ad. 97 ; 4 C. cfe P. 333 ; Turner v. Sheffield and Rotheram R. Co., 10 M. & W. 425 ; Metropolitan Association, &c., v. Fetch, 5 C. B. N". S. 504. The erection on the defendant's house of eaves and a pipe overhanging, and conducting water on land in the oc- cupation of a tenant, is a permanent in- jury, which gives a right of action to the reversioner. Tuclcer v. Newman, 11 Ad. & El. 40 ; Fay v. Prentice, 1 C. B. 828 ; Battishill v. Reed, 18 C. B. 696. Where two houses were connected by a party-wall, and the owner of one of them pulled down his house, without shoring up that of his neighbor, in con- sequence of which the latter house was injured and partly fell down : it was held, that the landlord of the latter could not maintain an action on the case against the owner of the former, to recover damages for this injury, with- out proving that he had a right to have his house supported by the defendant's house, or that he was entitled to pre- vious notice of the pulling down of the house, in order that he might have an opportunity himself of shoring up the house in the occupation of his tenant. Peyton v. Mayor of London, 9 B. & C. 725. An action is maintainable by a re- versioner against the surveyor of a high- way for cutting away part of a bank ad- joining a public road, though the prem- ises are thereby in fact improved. Al- ston V. Scales, 9 Bing. 3. Where a lease reserved a limited power to the lessors to make a way across the land for cer- tain purposes, in an action on the case by the lessee as a reversioner for mak- ing a way across the land for other pur- poses, it is not a ground of complaint that the intention of the defendants was to use the way for other purposes than they had a right to use it ; but tlie question is, whether at the time it was made it had become necessary or expe- dient for the defendants to make a way for the purposes for which they were entitled, and whether the road made was a proper road for that purpose. Durham and Sunderland R. ' Co. v. Walker, 2 Q. B. 940. The declaration must allege the injury to have been done to the damage of the reversion, or •must state an injury of such a perma- nent nature as to be necessarily injuri- ous to the reversion ; otherwise the want of such allegation will be cause for arresting the jud;:;inent. Jackson v. Landlokd'!? liability to third Persons. 917 The landlord has no right to make any changes or alterations in the buildings or estate without the consent of the tenant,^ and it makes no difiEerence whether such change is productive of damage to the tenant or not, as sucli change is an injury to his right for which the law imports damages.^ The landlord's rights as to possession are sus- pended from the time when the tenant takes possession under his lease, and no right of entry on his part is implied for any purpose,f unless specially reserved,' except it may be to prevent waste, or to save himself from liability for leaving an exposed opening in a high- way,^ nor can he license any other person to enter upon the premises.^ Landlord's liability to third persons. Sec. 539. The landlord's right to possession being suspended dur- ing the term, it follows that his liabilities in respect to the possession are also suspended, except as to such matters or defects in the prem- ises as existed when the premises were let, arising from the manner of use, or defective construction. If a nuisance existed upon the prem- ises at the time of the demise, the landlord as well as the tenant is liable for the damages resulting to third persons therefrom, although it only becomes a nuisance by the act of the tenant in using it for ordinary purposes." And if the tenant creates a nuisance upon the Pesked, IM. & S. 234; Dobson v. Black- more, 9 Q. li. 991. The cause of action does not accrue, nor the statute of lim- itations begin lo run, until actual dam- age is sustained. Backhouse v. Bonomi, 9 H. L. Cas. .503. A declaration which alleges a permanent obstruction to a right of way for the plaintiff (a rever- sioner) and his tenants, by locking and fastening a gate across it, whereby the plaintiff V} as injured in his reversionary estate, is sufScient after verdict, for it must then be assumed that the allega- tions were proved at the trial. Kidgill j). Moor, 9 C. B. .364. So, upon demurrer, a declaration for an injury to the re- versionary Interest of the plaintiff by obstructing ancient lights, is sufficient if it show an obstruction which may operate injuriouslyt to the reversion, either by its being of a permanent char- acter, or by its operating in denial of tlie right. The objection should be raised at the trial to the sufficiency of the evidence to prove the alleged injury to the reversion. Metropolitan Associa- tion, &c., !). Fetch, 5 a B. N. S. 504. A smoky or noisy nuisance may be an actionable injury to the tenant in pos- session, but not to the reversioner. Simpson ». Savage, 1 C. B. N. S. 347 ; Mumford i). O-xford, Worcester and Wolverhampton R. Co., 1 H. & X. 34. But where a nuisance is in its nature of a permanent character, such as will continue after the tenancy is ended, or if it affects any easement, or the right and title to the estate, the landlord may sue. Battishill v. Keed, ante. 1 Kaiser v. New Orleans, 14 La. An. 178. 2 Parker v. Griswojd, ante. ' Dockham v. Parker, 9 Me. 137 ; Woodruff V. Adams, 5 Blackf. (Ind.) 317. * Anderson v. Dickie, 26 How. Pr. (N. T.) 105. 5 Brown D. Powell, 25 Penn. St. 229. I « In House v. Metcalf, '27 Conn. 631, the premises, consisting of a mill, were in the possession of a tenant. The mill Stood near a. highway, and had an over- shot wheel on the outside of the mill, in full view of the highway, and was un. covered, and was an object at which, when in motion, horses would naturally be frightened. The plaintiff's horse be- came frightened by the wheel when in motion, and running away, threw the plaintiff out of the sulky and injured him. The court held that the landlord was not saved from liability for the in- jury because the premises at the time of the accident were in the possession of a tenant, because the tenant was using the premi.ses in the manner conte:n- 918 Rights, Remedies and Liabilities of the Parties. premises during the term, by an unusual or extraordinary use thereof, although the landlord cannot be made chargeable for the conse- quences in the first instance,' yet, if he subsequently renews the lease with the nuisance thereon, he becomes chargeable therefor the same as though the nuisance had existed at the time of the original demise ; ^ and where a person is in possession as a tenant from year to yeai', each year is treated as a re-letting, so that the landlord be- comes chargeable for a nuisance created by the tenant during a pre- vious year which is in existence at the commencement of the new year.' In any case, both the landloi'd and tenant may be joined in an action for a nuisance for which the landlord would be liable in a separate ac- tion, where the tenant continues the nuisance.* The assignee of the landlord is liable equally as the landlord himself.^ The liability of the landlord, however, depends upon the circumstance whether the nuisance necessarily arises from the use of the thing demised, or for the use for which it was demised, or from the improper use of the premises by the tenant. In the former instance the landlord is liable,' while in the latter the tenant alone is chargeable.' The rule may be stated, as the result of the authorities, to be, that in order to charge the landlord the nuisance must necessaHly result from the ordinary use of the premises by the tenant, or for the purpose for which they were let ; and where the ill results flow from the improper or negligent or improper use of the premises by the tenant, or, in other words, where the use of the premises may or may not become a nuisance, according as the tenant exercises reasonable care, or uses the premises negligently, the tenant alone is chargeable for the damages arising therefrom.* In the case of plated when the lease was made. Fisli ^ Rex ». Pedley, ante. V. Dodge, 4 Den. (N. Y.) 311 ; Rex «. » Gandy v. Jubber, ante ; Fish B. Pedley, 1 Ad. & El. 827. Dodge, ante. ^ 1 Fish V. Dodge, 4 Den. (N. Y.) 411 ; ' Malioney «. Atlantic & St. Lawrence CobbD. Smith, .38 Wis. 21 ; Rex ». Fed- R. R. Co.. 63 Me. 68; Sattonstall v. ley, 6 C. & P. 292. In Smith ». Hum- Banker, 6 Gray (Mass.), 195 ; Felton v. belt, 2 Kerr. (X. B.) 602; uandy «. Jub- Deall, 22 Vt. 170 ; Ditchettr. R. R, Co., ber, .5 B. & S. 485. 67 N. Y. 425 ; Taylor v. Mayor, &c., 4 2 Stale t). Williams, -30 N. J. L. 112 ; E. D. S. (N. Y. C. P.) 559. Rosewell «. Prior, 2 Salk. 460 ; Vedder * Gandy v. Jubber, ante ; Leonard i). 1). Vedder, 1 Den. (X. Y.) 257 ; Wag- Storer, 115 Mass. 86; Fisher v. Thir- goner v. Jermalne, 3 id. 306 ; Whalen kell, 21 Mich. 1 ; White v. Montgomery, t). Gloster, 4 Hun (jST. Y. S. C. ), 24. 58 Ga. 204. There seems to be no doubt " Gandy ». Jubber, 5 B. & S. 73. that when a landowner creates a nul- * Irvine «. Wood, 51 K. Y. 224 ; Plu- sance upon his estate, orpurcliases an es- mer D. Harper, 3 N. H. 88 ; Rogers v. tate with a nuisance thereon, lie cannot. Smith, 5 Vt. 215 ; Staples v. Spring, 10 by demising or conveying the estate, di- Mass. 72. And, where tlie statute ati- vesthimself of liabilityfor theillresults thorizes such a judgment, not only may to others arising from the nuisance. He ilamages be recovered of eltiier or both, cannot Say that he has parted with Imt in an action against either a judg- all control over the premises, and con- men t for thC' removal of. the nuisance sequently is not responsible for the may be had. Hutcliins j), Smith, 0'! ntiisance. The court In RoSewell r, Rarb. (X. Y.) 251. Prior, 12 Mod, H39, state the rule and LanHLOED's LIAMLITY TO THir.:j PeESONS. 919 injuries resulting from defective coal holes, gratings, and other exca^ vations in a public street belonging to demised premises, which ex- isted at the time of the demise, the doctrine is conflicting. In some of the States it is held that, inasmuch as the opening existed at the time of the demise, and the duty of protecting the public against the possi- bility of its becoming defective so as to render the street or highway imsafe, devolves upon the owner of the premises, he cannot divest him- self of this liability by demising the premises to a tenant.^ While in the reason for it tliiis : "Before his as- signment over he was liable for all con- sequential damages ; and it is not In his power to discharge himself by granting it over, more especially where he grants it over reserving rent, whereby lie agrees with the grantee that the nuisance should continue, and has a recompense, viz., the rent for the same, for surely where one erects a nuisance, and grants it over in that manner, he is acontinuor with a witness. Suppose the lessor or assignor liad been seized in fee, and had erected this nuisance and then enfeoffed another over, he had conveyed this as a nuisance and causa cansce est causa causal.i. And if a wrongdoer conveys his wrong over to another, whereby he puts it out of his power to redress it, he ought to answer for it. And it is a fun- damental principle of law and of reason, that he that does the first wrong shall answer for all conseqiiential damages ; and the original erection does influence the cotitinuance, and it remains a con- tinuance from the very erection, and until it be abated." If a landlord erects privies in such a sitxiation that the very use of them must necessarily create a nuisance, he is responsible. Rex o. Ped- ley, 1 Ad. & El. 822 ; Marshall b. Cohen, "/44 Ga. 488 ; Cook b. Montagu, 20 L. T. X. S. 471- But where a privy becomes a nuisance because of the negligence of a tenant in its use, the tenant alone is liable. White B. Montgomery, 58 Ga. 204. And generally, where the very ex- istence of the thinrj constitutes a nui- sance, the landlord is responsible, — as where a wall or other permanent imped- iment is erected so as to impede access to a public market or to adjoining premises. Thompson B. Gibson, 7 M. & W. 456, Or obstructing a water course hy a dam or other impediment. Rosewell v. Prior, ante. Or leaving a dangerous excavation near a highway, lioiie's Abr. Nuisance (K. ), 2 ; Irvine r. Wood, 51 N.Y. 221 ; Dornian B. Ames, 1-; Minn. 431. But if by the ordinary use of the premises, or by their use for the purpose for which they are let, a nuisance does not necessarily arise, the landlord is not responsible for a nui- sance that lesults fi-om the act of the tenant. The mere fact that he has en- abled the tenant to create a nuisance does not render him chargeable. The question is, whether the purpose for which the premises are used was con- templated by the landlord, and, whether such use necessarily created a nui- sance ; or, whether the nuisance re- sults from the negligence of the ten- ant.' Rich B. Basteriield, 4 C. B. 405 ; Brown B. Russell, L. K., 3 Q. B. 251. Strictly speaking, there is no such thing as a nuisance per se, except where the act is one which is contrary to law, or is inmioral. Wood on Nuisances, 543 et seq. Therefore the fact that premises are let to be used for the purpose of slaughtering cattle, Catlin v. Valen- tine, 9 Paige Ch. (N. Y.) .575 ; Swinton B, Pedie, McL. & Robt. 1018, or for any purpose that does not necessarily create a nuisance,does not p7-ima facioi render the landlord liable because a nui- sance actually results from such use. Wood on Nuisances, 543 et seq. ' Irvine B. Wood, 51 N. Y. 224 ; Port- land B. Richardson, 54 Me. 46 ; Stephani V. Brown, 50 111. 428. In Flpm v. Can- ton Co., 40Md. 312, the court considered the responsibility of the occupant of a building in a city for damages resulting from a fall on the ice on the sidewalk in front of the building. The action was based on the neglect of the occupants of the building to clean the sidewalk in compliance with a city ordinance, which imposed a penalty of two dollars for every neglect, beside the expense of clearing the walk. It was held that the action would not lie, and that the only liability resting upon the occupants of the building was that imposed by the ordinance itself. It is a well-settled principle that, whenever a party causes or creates a nuisance or obstruction in a public street or highway, he is respon- sible in damages to one who receives special injury therefrom ; but in this case the court held that the nuisance, 920 li.iGiiTs, Rejiedies and Liabilities of the Parties. England,' and several of the States of this country,'-' it is held that the landlord's liability is suspended during the existence of the tenancy, and that the obligation and liability respecting the same rests solely upon the tenant," unless the landlord has covenanted to keep the prem- if any, was not caused or created by act of the defendants. The ice was not placed on the sidewalk through their instrumentality ; it was formed solely and exclusively by the action of the elements. Miller, J., delivered an elaborate opinion, at the close of which he said : " The only case discoverable by the researches of counsel and our own, in which the very question now before us has arisen and been adjudi- cated, is that of Kirby b. Boylston Market Association, 14 Gray, 249. There the accident occurred in thecity of Bos- ton, in the same way and from the same cause. The suit was against the prop- erty-owner, and the same ordinance was in force, and there was the same neglect on the part of the defendant. The court held that the action would not lie against the property-owner, and that the remedy for all damages sustained in this way is exclusively against the in- habitants of the city iu their corporate capacity." The decision in this case was in accordance witli this view. 1 Pretty «. Brickmore, L. E., 8 C. P. 401. In Tarry v. Ashton, 34 L. T. R. 9", the Queen's Bench Division held that the duty of him who occupies a house abutting on the highway is to re- pair all known defects of the house and its appurtenances, the non-repair of which may result in danger to the passers-by ; and that duly is not dis- charged by the employment of a con- tractor to repair such defects. If dam- age results from the negligence of a contractor so employed the householder is liable. In that case A occupied a house abutting on a street. Projecting from the front wall, about fifteen feet over the pavement, was a lamp, which A had employed a contractor to repair, along with his other lamps. The con- tractor did his work badly. Another contractor, being afterwards employed by the defendant to examine the lamp, placed a ladder against the bracket which joined it to the wall. The weight of the ladder and the rotten state of the bracket caused the lamp to fall and injure T, a passer-by in the street, and it, was held that A was responsible to T for the injury so caused, and a rule to set aside a verdict entered for T at the trial discharged. Whether A would have been liable if he had never known the decayed condition of the lamp, qtioere. The defendant's counsel relied upon Nichols v. Marsland, L. R., 10 Ex. 205, wherein it was held that the de- fendant was not liable to an action for an escape of water caused by an agent beyond his control, as he had used all reasonable care to keep the water on his own land ; and upon Searle v. Lave- rick, L. R., 9 Q. B. 122, wherein it was held that a livery-stable keeper was not liable for injury caused to carriages placed in his keeping by the fall of the building, in a case where the careless conduct of the builder was the real cause of the accident. But the court based its decision on Rex v. Watson, 1 Ld. Rayd. 8.56, although Quain, J., upon the argument, referred to Francis V. Cockerell, L. R., 5 Q. B. 184 ; affi'd on appeal, L. R., 5 Q. B. 501, in which it was held that the person who had employed a contractor to erect a stand upon a race-course was respon- sible for injuries occasioned by the de- fective construction of the stand. In Gwinnell v. Earner, L. R., 16 C. P. 658, A was injured by the giving way of a grating in a public footway, which was used for a coal-shoot and for letting liglil into the lower part of premises ad- joining. These premises were at the lime of the accident under lease to B, who covenanted to repair and keep in repair all except the roofs, main walls, and main timbers. At the time of the demise the grating was unsafe ; but there was no evidence that C, the land- lady, had any knowledge of its unsafe state ; and the jiuy found that no blame was attributable to her for not knowing it. Held, upon the authority of Pretty I). Bickmore, L. R., 8 C. P. 401, tha,t no action was maintainable against C. At the time of the accident, A was not passing along the way, but was stand- ing on the grating to talk with a person at a window above It. Held, that A was not making an improper use of the grating. Gwinnell b. Earner, L. E., 10* C. P. 658. 2 Clark V. Fay, 8 Ohio St. 358 ; Fisher t. Thirkell, 21 Mich. 1 ; Leonard b. Storer, 115 Mass. 86 ; Bears v. Ambler, 9 Penn. St. 193. ' See last note. Prima facice, as to third persons, the duty of keeping prem- ises in repair and in a safe condition do- Landloed's liability to third Persons. 921 ises in repair, or retains possession over part of the demised prenaises.^ To the tenant, the landlord is not liable for a nuisance existing on the premises at the time when the lease was made, nor for defects therein," unless the defect is latent, and the landlord has been guilty of fraud or actual concsalment or deceit in the letting.^ In one case, the fact that Tolves upon the occupant ; but this rule does not apply if the dangerous condi- tion results from causes beyond his con- trol, Chicago V. O'Brennan, 65 111. 160, .nor where the landlord has expressly agreed to keep the premises in repair, or the nuisance existed when the prem- ises were demised, Gridley v. Blooming- ton, 68 111. 47 ; Whalen v. Gloucester, 7 T. & C. (N. y. ) 135, or results from the negligence of the landlord, either in the coiistruction or repair of the building or premises. But, except where the de- fect is such as amounts to a nuisance, in the absence of a covenant on his part to repair, the landlord is liable neither to the tenant, or third persons upon the premises by the tenant's invitation, for injuries sustainedbyreasonof any disre- pair. Clancy v. Bryne, 56 N. Y. 129. In Jafle V. Harteau, 56 N. Y. .398, certain premises of the defendant were sub-let to the plaintiff's husband and occupied by him as a residence for himself and family. The plaintiff was injured by the explosion of a boiler used in the kitchen, and which was put there by the defendant. It appeared that the explosion resulted from the fact that there was no safety-valve to the boiler, but it did not appeaj- that the defend- ant knew, or had any reason to suspect, that such a deffect existed, or that any danger was to be apprehended from the use of the boiler for the purposes in- tended. It was held that the defendant was not liable for the damages. The question of the liability of a landlord for injury happening to a stranger during a tenancy, caused by the defective repair of the demised premises, was consider- ed in the case of Nelson v. The Liver- pool Brewery Co., L. K, 2 C. P. 311. The defendant let to one Farragher a house by an agreement in writing, by which the tenant agreed " to do all necessary repairs to the said premises, except main walls, roof and main tim- bers." There was no agreement by the defendant to repair, and the house was In good condition at the time of letting it. Owing to defendant's negligence in not repairing a part of the main walls, a chimney pot, during the tenancy of Far- ragher, fell upon plaintiff, who was Farragher's servant, and Injured him. The court of Common Pleas held that the plaintiff was not entitled to recover compensation from the defendant for the injury, saying that there are only two ways, in which landlords or owners can be made liable in the case of an in- jury to a stranger by the defective re- pair of premises let to a tenant, tlie oc- cupier and the occupier alone being prima faciK liable. The lirst way is iu case of a contract by the landlord to do repairs where tlie tenant can sue him for not repairing. Secondly, in the case of a misfeasance by the landlord, as. for instance, when he lets premises in a ruinous condition. See, as supporting this doctrine, Payne b. Rogers, 2 H. BI. 349; Todd «. Flight, 9 C. B. (N". S.) 377 ; Russell v. Shenton, 3 Q. B. 349 ; Pretty v. Brickmore, L. R., 8 C. P. 401; Gwennell u. Eamer, L. R., 10 C. P. 658 ; see also Gwathney ».' Little Miama R. R. Co., 12 Ohio St. 92. But in Allen b. Mack, Hay, 45, a lessor was held liable for injuries suffered in consequence of the lessee having opened and negligent- ly kept a pit on the land. But see also as sustaining the principal case Pickard V. Collins, 23 Barb. (N. Y.)444 ; Taylor x>. Mayor of New York, 4 E. D. S. (N. Y.) 559 ; Kahn v. Levi, .i Oreg. 206 ; Mayor of New York v. Comss, 2 Sandf. (N. Y.) .301. 1 Priest v. Nichols, 118 Mass. 401 ; Lome V. Farren Hotel Co., 116 id. 67. 2 Cleves ». Willougby, 7 Hill (N. Y.), 83; Eiskinei). Adeane, L. R., 8Ch. 7-56; O'Brien v. Capwell, 59 Barb. (N. Y.) 477 ; Robbins v. Mount, 4Robt. (N. Y.) 453 ; Westlake v. DeGraw, 25 Wend. (N. Y.) 669 ; Academy, &c., v. Hackett, 2 Hilt. (N. Y. C. P.) 4 ; Chappell o. Gregory, 34 Beav. 250; Welles v. Castles, 3 Gray (Mass.), 823 ; Hart v. Windsor, 12 M. & W. 68 ; Libbey v. Talford, 48 Me. 316 ; Foster v. Peyser, 9 Cush. (Mass.) 242 ; Coe v. Vodges, 71 Penn. St. 383 ; Jaffe v. Harteau, 56 N. Y. 39S ° In Miner v. Sharon, 112 Mass. 477, the fact that the landlord failed to disclose the fact that the premises were infected with small-pox, was held to amount to such fraud as rendered the landlord liable to the tenant for dam- ages. See note 5, page 624. The ten- ant may rescind the lease immediately upon discovering the fraud, but if he 922 Rights, Remedies and Liabilitibs of the Parties. the landlord did not fairly state the condition of the drains was held actionable.^ But, although a tenant may abandon the premises upon continues to occupy after he becomes cognizant thereof he must pay the rent. Herron ». Abbey, 36 Me. 350 ; Eosen- baum V. Gunter, 3 E. D. S. (N. Y.) 203. ' Wilson V. Finch Hatton, L. E., 2 Exchq. 230 ; Scott v. Simons, 54 N". H. 426 ; Hazletti). Powell, SOPenn. St. 293; Christopher v. Austin, 11 N. Y. 216 ; Eosenbaum v. Gunter, 3 E., D. S. (N". Y. C. P.) 203 ; Westlake v. DeGraw, 26 Wend. (N. Y.) 069. The difSculty arises, and the conflict in the authori- ties, upon tlie question whether the landlord has been guilty of concealment or active deceit. If tlie defect is visible, or one that might have been ascertained upon reasonable inspection or inquiry, the landlord is not liable, because the tenant is bound to look and inquire ; Comfort V. Fowkes, 6 M. & W. 303 ; Keales v. Cadogan, 10 C. B. 591 ; but if by words or acts he misleads the, ten- ant, or prevents inquiry, he is liable. Staples B. Anderson, 3 Eobt. (N. Y. S. C. ) 327. But where the defect is not visible, and is not such as would be like- ly to be anticipated, or is prejudicial to life or health, the landlord is bound to disclose it. McGlasham v. Talmage, 37 Barb. (N. Y. S. G.) 313 ; Ceasar v. Kouiitz, 60 N. Y. 229 ; Minor?). Sharon, 112 Mass. 477 ; Wallaces. Lent, 1 Daly (N. Y. C. P.), 481. If the landlord erects or continues a, nuisance upon leased premises, or in their vicinity, he is liable to the tenant for the resulting damages. Center v. Davis, 39 Ga. 210 ; Eobbius V. Mount, 4 Eobt. (N. Y. S. C.) 5.53 ; Marshall .u. Cohen, 44 Ga. 489, if the nuisance results without any fault on the part of tlie tenant, and as a con- sequence of the landlord's acts or negli- gence. Thus, in a Georgia case, Mar- shall 15. Cohen, 44 Ga. 489, the defend- ant was the owner of a tenement which he leased to several families. Upon the upper floor there was a water-closet which vyas used by all the tenants, and was also open night and day for the use of outsid'.rs, and was at times in a very bad condition. The landlord's atten- tion had been called to it, and a plumb- er, who had been employed to repair it, advised closing it up. This, how- ever, the landlord neglected to do. Pre- vious to the infliction of the damage sued for a leakage had occurred in the pipes, and the landlord had promised to repair them, but neglected to do so. Viually the water-closet overflowed and tlie water injured the goods of the plain- tiff, who was a tenant and occupied one of the lower floors. It was held that the landlord was responsible for the dam- age. Lochram, C. J., in delivering the judgment of the court upon the ques- tion, said, "There is nothing clearer as a principle of law, than that a party is liable for damages done by himself, his servants or agents in maintaining and keeping up a private nuisance. The evidence in this case shows that this closet was at times in very bad order and condition, and that it was kept in this condition. * * And it appears that previous to the damage complained of there was a leakage, of which she was notified, and she pi'om- ised to fi.\ it. * * A general prin- ciple may be recognized, that one who permits a wrong to be done is an liable as he who does it. One who erects any- thing upon his land, which by ignition burns down the house of one adjoining, is liable. * * In this case the dam- age was produced by a water-closet, ' which, if not kept clean and in proper order, was 2^^r se a private nuisance, and the natural and ordinary conse- quence of which was to produce a nui- sance as the inherent consequence of the thing itself. And, when there is proof, as in this case, of the defect being known to the defendant, by information, and by actual notice of a previous leak, we think the reasons of this liability ap- pear." A similar doctrine was held in a case heard in the" Superior Court of New York city. Bobbins v. Mount, 4 Eobt. 553. In that case also the build- ing was occupied by several tenants, and the landlord employed a janitor to take charge of the building; who was paid for his services by the tenants, who paid for his services according to the space that each occupied. A faucet was left open in the room of an upper ten- ant one night and the water left run- ning into a urinal, which, being choked up ■i\ith tobacco, overflowed, and dam- aged the tenants below. Upon the trial in the court belovv, the judge charged the jury that if the overflow was caused by the neglirjence of the defendant ; or ■if the fixture loas improperly construct- ed, or nhould not have been there at all ; or that if all the safeguards that could ■possibly have been placed there were not placed there, and the fixture loas unsafe, the defendant was responsible irrespective of the question of negli- gence, and this ruling was fully sustain- ed upon appeal. That a tenant may maintain an action against any person Right op Entry. 923 discovery of the fraud, and ia absolved from the payment of rent, yet if, after discovering the fraud, he continues to occupy the premises, he cannot set up such fraud either in discharge, or by way of reduction of the rent.^ Hight of entry. ' Sec. 540. Generally, except in the case of tenancies at -will and by sufferance, the landlord cannot re-enter forcibly during the term for 3 breach of any of the covenants, except where the lease contains an ex- press provision to that end, nor then, with a strong hand, invplving a breach of the peace.''' In order to entitle the landlord to re-enter for a breach of any condition in the lease, he must first comply with all the common law and statutory requirements, and also with all the provisions of the lease to that end.' And a tenant who has been expelled by the landlord before his estate is legally determined ' may maintain trespass against the landlord for such entry, and also an action for a recovery of possession, and this is the rule as to tenancies at will, by sufferance, or otherwise, where the statute imposes certain duties upon for an injury to his enjoyment of leased premises by the erection or maintenance of a nuisance is well settled ; Booth v. Wilson, 1 B. & Aid. 59 ; "Wood on Nuisances, p. 864; and the landlord is no more exempt from liability to him in this respect than a mere strangerto the title. During the existence of the tenancy he has parted with all right to interfere with or control the premises, except to the e.Ktent. that exceptions in that re- spect have been made in his favor in the lease, and he is equally liable with a stran^ter for any interference therewith. Kimrael 0. Burfeiud, 2 Daly (N". Y. C. P. ), 155. If the landlord negligently leaves the premises in a condition that by the act of one tenant a nuisance may be created as to another tenant, he is responsible to the tenant injured, although the nuisance was mainly caused by the negligence of the other tenant. Thus, in a Ifew York case, Kimmel «. Burnfeind, 2 Daly (N. Y. C P.), 155, the landlord leased a room to the plaintiff that had open gas pipes in it, and leased a lower room to an- other tenant, and gave him permission to introduce gas into the liouse. The tenant of the lower room introduced the gas, and it escaped through the open pipes into the plaintiff's. room and ex- ploded and injured him The landlord was held responsible for the damages, although the lower tenant was negli- gent in introducing the gas. So where a landlord suffers a building, or any part of it, as a chimney, to go to ruin and fall upon the tenant's goods, he is liable for all the damages that ensue. Eagle V. Swayne, 2 Daly (N. Y. C. P ), 140. But no action can be main- tained by the tenant against the land- lord for personal injuries, or injury to his goods, by reason of the defective condition of the building or premises, although they existed when the tenancy commenced, unless the landlord is chargeable with some affirmative mis- feasance or neglect of positive duty, or has contracted to make repairs. O'Brien ». Capwell, 59 Barb. (N. Y.) 497. And in actions brought against a landlord for injuries resulting from the unsafe condition of the biiildlng leased, or any of its appendages, the declaration or complaint must affirmatively state facts which show that it was the duty of the landlord to make repairs, or that the particular injury resulted from the neglect by him of a positive duty. This duty does not spring from the relation of landlord and tenant, nor will it ever be presumed, but must be both stated and proved. Kulm v. Lauez, 3 Oregon, 206. See ante, Sec. 386, for a, full review of this question. 1 Izon ». Gurton, 5 Bing. N. C. 501. See ante, Chap, on Rent and on Evic- tion. Herrin ». Libhey, 36 Me. 350 ; Eosenbaum i). Gunter, 3 E. D. S. (N. Y. C. P. ) 203. 2 Rich V. Keyser, 54 Penn. St. 86. 3 Jackson V. Kip, 3 Wend. (K. Y.) 23a 924 Rights, Remedies and Liabilities of the Pabties, thfi landlord in reference to their termination.^ But where an estate under a lease has terminated by the effluxion of time and express limi- tation or otherwise, according to the better class of cases the landlord may immediately re-enter, and the burden is upon the tenant to show that lie has acquired the rights of a tenant at will ; ^ and in such case, the landlord may enter forcibly to expel the tenant, without subjecting himself to any other liability than that of indictment for undue or ex- cessive force.^ But in England, and some of the States of this country a doctrine opposed to that held in the English and American cases cited in the last note has been held, and, if the re-entry of the landlord is re- sisted, it is held that he cannot enter forcibly, but must resort to his remedy at law to gain possession ; ' and if the landlord enters forcibly, 1 Dickinson ». Goodspeed, 8 Cusli. (MaBS. ) 119. In Jackson ii. Harrison, 17 John. (N. Y.)66, it was lield that the landlord could not re-enter for a breacli of a covenant on the tenant's part of a Covenant to pay all taxes, and a pro- vision for re-entry in case of breach, un- less he shows that a demand for the pay- ment of the tax had been made upon the tenant within the time required by law. 2 Chesley v. "Welch, 37 Me. 106. 3 1 Hawkin's P. C. 495 ; Butcher v. Butcher, 7 B. & C. 399. The statutes against Forcible Entry and Detainer took away the defence of entry under title so far as an indictment for such entry was concerned, but does not affect the right of forcible entry so far as any civil I'emedy by the tenant is concerned, and, except where undue or excessive force is concerned, the landlord may jiis- tify under his title. Dustin v. Cowdrey, 23 Vt. 631 ; Taylor v. Cole, 3 T. R. 292 ; Turner •o. Meymott, 1 Bing. 158 ; Argent ». Durant, 8 T. R. 403; Co. Litt. 257 o. " Statutes of Forcible Entry and Detainer," says Nelson, C. J., in Jackson o. Fanner, 9 Wend. (X. Y. ) 201, " punish criminally the force, and in some cases make restitution of pos- session; but so far as civil remedy goes, there is none whatever. Law v. Elwell, 121 Mass. 309 ; Todd v. Jackson, 28 2Sr. J. L. 525 ; Jackson v. Cantillon, 1 John. Cas. (N. Y. ) 123 ; Ives v. Wood, 13 John. (N. Y.) 235 ; Hyatt B. Wood, 4 id. 150 ; Jackson o. Morse, 16 id. 167 ; Curtis V. Galvin, 1 Allen (Mass.), 215 ; Com. V. Haley, 4 id. 318 ; Tribbs ». Frame, 7 J. J. Marsh. (Ky.) 599 ; Samp- son B. Henry, 13 Pick. (Mass.) 36 ; Curl B. Lowell, 19 id. 25 ; Com. b. Mc- Neil, 8 ■ Phila. (Penn.) 438; Adams ». Adams, 7 id. 160 ; Overdur v. Lewis, 1 W. & S. (Penn.) 90 ; Rich b. Keyser, 54 Penn. St. 86 ; Sterling «. Warden, 51 N. H- 217 ; Johnson v. Haimahan, 1 Strobh. (S. C. ) ; Stearns b. Sampson, 59 Me. 568 ; Mason c. Holt, 1 Allen (Mass.), 46 ; Pratt b. Farrar, 10 id. 519 ; Moore b. Mason, 1 id. 407 ; Livineston ». Tanner, 14 N. Y. 64; Mayford v. Richardson, 6 Allen (Mass.), 76 ; Wal- ton B. File, 1 Dev. & B. (N. C.) 567. * Hilary b. Gray, 6 C. & P. 284"; Newton b. Harland, 1 M. & G. 644 ; Dustan b. Cowdrey, 23 Vt. 631 ; Noel V. McCrary, 7 Cold. (Tenn.) 623 ; Doty B. Burdick, 83 111. 478 ; Larkin b. Avery, 23 Conn. 308. The English doctrine seems to be, that where at the time (,f the expiration or determination of tlie tenancy there is no person in possession of the premises, — the tenant having wliolly abandoned themwitliout any in- tention of returning, — the landlord may enter and take possession- Lacey v, Lear, Peake's Add. Cas. 210. See Wildbor b. Rainforth, 8 B. & C. 4, 6. If the tenancy of a house is determined, and the tenant and his family have gore away, and the house is locked up — no one being in possessioii^the landltnl i.s justified in breakhig in and obtaining possession, although some articlts of furniture may remain. Hillary b. Ga\-, 6 C. & P. 284 ; Taunton v. Costar. 7 t. R. 431 ; Turner b. Meymott, 1 Bing. 158. Even where the tenant is in pos- session the landlord, after the expiiaiioii of the tenancy, may enter peaceably on the premises. He may also acquire law- ful possession by entering forcibly, Harvey b. Bridges, 14 M. & W. 437, 442 ; Pollen b. Brewer, 7 C. B. N. S, 371, and, after requesting the tenant ta leave the premises, may, in case of his refusing or neglecting to do so, expel him, using, however, only bo much force as may be necessary for that pur- pose. In this case he will not be liable Right of Entey. 925 his entry being unlawful, the tenant may have not only an action against him for damages, but also for a recovery of possession.' But, even in the States where the latter rule prevails, it is held that the hindlord may re-enter if he can do so peaceably, — as, if the tenant is absent, — and having thus obtained possession, he may use all the force reasonably necessary to remove the tenant's goods and retain posses- xi 111 ; '^ and if undue or unreasonable force is used, it is said that the l.iiidlord is to be treated as a trespasser ab initio.^ It is competent for the parties, by express contract, to provide for a forcible re-entry by the landlord, either for a breach of any covenant or condition in the lease or at the expiration of the term, and in such case the tenant has no remedy.^ The mere fact that the premises are vacant during the term does not warrant a re-entry by the landlord,^ but he may re-enter if he chooses where tlie tenant has abandoned the premises ; but in such case the rent will cease from the time of such entry,° unless his entry can be shown to have been merely for the purpose of taking proper care of the premises,' or as agent of the tenant.' So, too, if a lessee fraudulently alters the lease in a material matter, after its execution, his estate under the lease is forfeited, and the landlord may re-enter.' In Illinois '" it has been held, that a landlord entering upon premises and harvesting crojjs sowed by the tenant acquires no title thereto, unless he can establish a forfeiture of the lease. to an action of trespass, or to damages for the expulsion of tlie tenant, Davison «. Wilson, 11 Q. B. 890 ; Burling v. Read, 11 Q. B. 9 )4. But see STewton ». Harlancl. 1 M. & Gr. 614, but he may subject himself to an indictment for a forcible entry. S^e Archbold's Pleading and Evidence in Criminal Cases, p. 736 (15th ed). 1 Hilary b. Gray, ante ; Dustan v. Cowdrey, ante; Daly ». Burdick, ante; Mnore u. Boyd, 24 Me. 242 ; Reeder v. Pui-dy. 41 III. 271 ; Noel s. McCrary. 7 Co.d. (Tenii. ) 623. The landlord is also liable for assault if an assault is made upon the tenant. Sampson v. Henry, 13 Pick. (Mass.) 36 ; Hally v. Brown, 14 Conn. 255. 2 Miissey v. Scott, 32 Vt. 82 ; Brook V. 3e;Ty,31Me. 293 ; Hilbourii c. Fogg, 99 Mus. 11 ; Clark v. Kilcher, 107 id. 406 ; Esty v. Wilmot, 15 Gray (Mass.), 168. Where the landlord and owner in fee, claiming that the term has expired, enters without process and without farce, during the temporary absence of the tenant, the latter has no right to taka the law into his ow^ hands and atteupt to dislodge the former by force. The landlord, being in actual possession, has a right to maintain it, and to use force for that purpose, if necessary. Sage V. Harpending, 49 Barb. (N. T. ) 166. 3 Whitney v. Sweet, 20 N. H. 10. * Feltman v. Cartwright, 7 Scott, 695 ; Paige V. Du Pay, 40 111. 506 ; Fifty As- sociates?). Howland, 5 Cush. (Mass.) 214. 6 Shannon v. Burr, 1 Hilt. (N. Y. C. P.) 39; Brown v. Kite, 2 Overt. (Tenn.) 2.3.3. And especially is this the case where the tenant's estate is not legally determined. In Larkin v. Avery, 23 Conn. 308, the tenant was forcibly re- moved from a house under a warrant is- sued under a statute relating to the re- moval of persons suspected of having the small-pox. The landlord re-entered and kept the tenant out of possession forcibly. Tlie court held, that by such removal the tenant could not be held to have relinquished possession, and, the landlord being in unlawfully, the tenant was entitled to be restored to the pos- session. In Missouri, by statute, the ten- ant who is forcibly expelled may have restitution of possession, but no action for damages. Fahr v. Dean, 26 Mo. 116 ; Krevet c. Meyer, 24 id. 107. "'Schaisler o. Ames, 16 Ala. 73. • State V. McClay, 1 Harr. (Del.) 520. 8 Hackett c. Richards, 13 N. Y. 138. 9 Bliss v. Mclntyre, 18 Vt. 466. »» Cheney v. Bonnell, 53 111. 268. 926 Rights, Remedies and Liabilities of the Parties. While, as has been stated, in many of the States, whero the lease is terminated, eithei- by effluxion of time or otherwise, the landlord may re-enter forcibly and expel the tenant ; yet he may, if he chooses to do so, waive this right, and proceed under the statutes to regain 2JOSses- eion summarily, or by an action of ejectment, and in most cases the remedy by legal process is not only the safest, but also the best, en- abling the landlord to avoid all the liabilities and dangers incident to a forcible expulsion. After the tenancy is determined by the land- lord's entry, or by the act of the tenant, he may go upon the premises within a reasonable time to take away such goods and property be- longing to him remaining thereon as are legally removable ; ^ but a contrary rule is held in the case of a tenant at will, and after demand of possession he is held not entitled even to a reasonable time in which to enter to remove his goods, unless he can do so without excluding the landlord ; ^ nor can a tenant for a tei-m remain in possession after his term has expired for the purpose of removing his goods ; he must do this during his term.* Rights of tenant. Sec. 541. Immediately upon the commencement of the term, unless special reservation in certain particulars is made, the tenant succeeds to all the rights of the landlord that are annexed to the estate, so far as the possession and enjoyment of the premises are concerned, and, even if the term is to commence in futuro, lie immediately, upon the delivery of the lease, acquires an interest in the term, which is as- signable^ and passes to his exeoutore.'^ If the landlord withholds possession he may maintain ejectment, or an action for damages, at his election,* and he may also bring ejectment against any other per- son who is in possession of the premises and refuses to give it up to him.' In case the landlord withholds possession, the tenant may, if he elects to do so, repudiate the contract, and by such act is absolved from all liability under the lease ; ° or he may, as previously stated, jsro- ceed against him for damages. But the fact that a stranger is in pos- session does not have this effect, but the tenant must take proper 1 Cornish o. Stubbs, L. R., 5 C. P. 2 Rolle's Abr. 850; Braerton d. Rains- 334 ; Ellis u. Paige, 1 Pick. (Mass. ) 43 ; ford, Cro. El. 15. Moore v. Boyd, 24 Me. 242. « Chappell x>. Gregory, 34 Beav. 250 .- 2 Doe v. Jones, 10 B. & C. 718 ; Witt Ollendorf ». Cook, 1 K., Y. S. C. 37. v. New York, 5 Eobt. (N. Y. Sup. Ct.) ' Chappell v. Gregory, ante ; Reming- 248. ton V. Casey, 78 111. 317. s Witt u. New York, ante. 8 ciark v. Burt, 26 Ind. 236 ; Trull v. ^ Whitney r>. .\llaine, 1 N. Y. 305 ; Granger, 9 N. Y. 115 ; Spencer u. Bur- Meeting House Co. V. Hilton, 11 Gray ton, 5 Blackf. (Ind.) 57 ; Hay ». Cum- (Mass. ), 407. beriand, 25 Barb. (N. Y. ) 594. s State IJ. McClay, 1 Harr. (Del.) 520 ; Rights of Texaxt. 927 measures to obtain possession.' But in England,'^ and in some of the States of thiS' country, a different rule prevails, and the landlord is bound to put the tenant into possession.'' It makes no difference whether the tenant occupies personally or by another. If he lets a Ntranger occupy he assumes all the liabilities to the landlord that he would be subjected to if he occupied himself.* He is bound to use the premises in a husbaudlike manner, and, if the use is restricted to a certain purpose, he has the right only to use them for that purpose ; ' but if the use is not restricted, he may use them for any ordinary pur- pose.' He is not responsible for an accidental injury to the premises,'' but he is responsible for an injury thereto that results either from his carelessness, or tliat of a servant engaged in the tenant's business.' He is invested with all the rights of tlie landlord so far as the estata conveyed to him by the lease extends, and may sue either the landlord or a stranger for any species of injury thereto that affects his estate,' .'111(1 it makes no difference whether his lease is in writing or by parol." If the tenant is injured in his possession by the taking of any portion of the estate for public purposes, he is entitled to recover compensa- tion of the corporation, municipal or otherwise, taking it;'' and this applies to cases where the buildings are torn down to prevent the spreading of a fire in cases where it does not apfiear that the buildings ^ Cozens c. Stevenson, 5 S. & E. (Peim.) 424; Gardner v. Keteltas, 3 Hill (N. Y.), 330 ; (Jozollo v. Chambers, 73 111. 75 ; Becker v. Forest, 21 N. H. 234 ; Sigmund v. Howard Bank, 29 Md. 324. 2 Jenks V. Edwards, 11 Exchq. 775 ; Coe V. Clay, 5 Bing. 440. » Hughes B. Wood, 50 Mo. 350 ; L'Hussier v. Fallee, 24 id. 13. * Bacon v. Bacon, 9 Conn. 338; How- ard 13. Ellis, 4 Sandf. (N. Y. Sup. Ct.) 369 ; Birkhead v. Cummins, 36 N. J. L. 44 ; Eaton v'. Jaques, Doug. 461 ; Becar V. Flues, 64 N. Y. 518 ; Bellasis v. Bur- briehe, Holt. 199 ; Kendall v. Carland, 5Cush. (Mass.) 74. 6 In Brooks v. Clifton, 22 Ark. 54, a tenant who hired premises for the stor- age of furniture, and placed other heavy articles therein which caused the de- struction of the building, he was held liable for the damages. See Chap, on Miscellaneous Covenants. Manly V. Pearson, 1 N. ,1. L. 377. « Kave u. Berry, ±1 Ala. ?>82. Where, however, the possession is expressly or impliedly restricted, the tenant has no right to use the premises for any other purpose, and if he does the landlord may enjoin sucli use, and may recover such damages as he sustains by reason thereof. Thus, where premises were let for the storage of furniture, and the tenant put other heavy articles therein whereby the building was destroyed, he was held liable for the damages. Brooks B. Clifton, 22 Ark. 54. A lease granting the license, right, and privilege, of gaug- ing, getting out, working, and carrying away granite stone, does not confer the right of carrying away rubble stone. Emery v. Owings, 6 Gill (Md.), 191. And so generally where premises are let for a specified purpose, there is an im- plied agreement that they shall not be used for a purpose inconsistent there- with. ' In Wainscott v. Silvers, 13 Ind. 497, lie was held not liable for the destruc- tion of the premises by an accidental fire. *.! \^k-«j . * In Mason v. Stiles, 374, the tenant was held responsible 'where his clerk wantonly fired a can of powder near the building, causing its destruction. ' Dickinson v. Goodspeed, 8 Cush. (Mass.) 119; Hayward v. Sedgeley, 14 Me. 439 ; Leader v. Moxon, 2 W'. Bl. 924 ; Barker v. Barker, 3 C. & P. 557 ; Bedingfield b. Onslow, 3 Lev. 209 ; Har- rison V. Blackburn, 17 C. B. ]Sf. S. (;7S ; Shadwell b. Hutchinson, 2 B. & Ad. 97. " Wilbur B. Paine, 1 Ohio, 251. 11 Governor b. Meredith, 4 T. R. 797 ; Mayor v. Lord, 17 Wend. (N. Y.) 285. 928 Rights, Remedies and Liabilities of the Parties. would inevitably have been destroyed by the fire if not demolished,* and the burden of showing that the demolition was wholly unnecessary is upon the plaintiff.^ The tenant is liable either to the landlord or third persons for any improper use of the premises producing damages,' as well as for any negligence in their use.* And as the duty of keeping premises in repair prima /bscfe rests upon the occupant, he is prima facie re- sponsible for injuries resulting to a stranger from a failure to properly repair such defects in the premises as are liable to injuriously affect the public or third persons,^ and this includes repairs to fences, party- walls, drains, &c.,^ as well as highways, sidewalks, &c., where the duty of their repair is imposed upon the occupant ; ' and the fact that the defects existed when his right to possession attached is no de- ■ fence.' If other tenants occupy the premises he is bound to respect their rights, and is liable to them for any improper or negligent use of the premises occupied by him injurious to the possession of such co- tenants,^ but he is not liable to them for injuries resulting from inev- itable accidents.^" If repairs are necessary to prevent waste, and are of such a character that his co-tenants ought to contribute thereto, if, upon request, they refuse to do so, he may make such repairs and re- cover of them their proper proportion of the expense, but he cannot compel them to contribute towards improvements made by him." The tenant is also bound to resj^ect the landlord's title, and cannot ordi- narily deny it; and if efforts arc made to dispossess him by a person not in privity with the landlord's title, he is bound to notify the landlord thereof. He cannot, by his acquiescence as against the landlord, en- ' Oorlies v. City Fire Ins. Co., 21 ren b. Kauffman, ante ; Killion n. Pow- Wend. (N. Y.) 367; Pentz d. ^tna Ins. er, 51 Penn. St. 429; Weston ». The In- Co., 9 Paige Cli. (N. T. ) 568. corporation of Tailors, Hay, 66 ; Moore 2 Id. 13. Goedel, 34 N". Y. 527. 3 Marriott u. Stanley, 1 M. & G. 563 ; i^ Ross v. Fedden, L. R., 7 Q. B. 661. Regina r>. Watts, 1 Salk. 357. ^ Coffin v. Heatii, 6 Met. (Mass.) 80 ; * Payne n. Rogers, 2 H. Bl. 349 ; Syb- Calvert v. Aldrieh, 99 Mass. 74 ; Con- rey v. White, 1 M. & W. 435 ; Pickard verse ». Ferre, 11 Mass. 325 ; Taylor u. II. Collins, 23 Barb. (N. Y. ) 444 ; Leslie Baldwin, 10 Barb. (N. Y.) 626 ; Mum- !). Pounds, 4 Taunt. 649 ; Mayor w. Cor- ford d. Brown, 6 Cow. (N. Y. ) 475 ; lies, 2 Sandf. (N. Y. Sup. Ct.) 301 ; Van Orman u. Phelps, 9 Barb. (N. Y.) Laugher ». Pointer, 5 B & C. 551 ; 500; Doane d. Badger, 12 Mass. 95. One Stickney D. Monroe, 44 Me. 195 ; Killon tenant may , purchase an outstanding ». Power, 57 Penn. St. 429 ; Warren d. title or claim upon the common estate, Kaiiffman, 2 Phila. (Penn.) 259 ; Moor but equity will compel him to give his f. Goedel, 34 N. Y. 527. co-tenants tlie benefit thereof upon pay- ^ Regina ». Watts, ante. ment of a proper proportion of tlie ex- 6 Russell V. Shenton, 3 Q. B. 449 ; Al- pense. Duff y>. Wilson, 72 jPenn. St, thorp ». Wolfe, 22 N. Y. 355 ; Clieet- 442 ; Burhaus b. Van Zandt, 7 N. Y. ham ». Hampton, 4 T. B. 318 ; Regina 528 ; Dubois d. Campan, 24 Mich. 360 ; I'. Buskside, 2 Ld. Rayd. 792 ; Chicago Van Horn ». Fonda, 5 John. Cla. (N. v. Brennan, 65 III. 160. Y. ) 388, if under the circumstances the " Lowell ». Spaulding, 4 Cush. (Mass. ) co-tenants ought to be let in. Frentz r. 277 ; Payne ». Rogers, ante. Klotcli, 28 Wis. 312; Buchanan v. King, ' Coupland v. Hurdringliam, 3 Cowp. 22 Gratt. (Va. ) 14; Mandeville o. Solo- 398. mon, 39 Cal. 125. '■' Keay b. Goodwin, 16 Mass. 3 ; War- Ri:;MTS of TlCXANT. 92=) cumber the estate with an easement,^ nor in any way binrl ilie land- lord, so far as the reversion is concerned, by any unlawful act of a stranger.^ The lessee of agricultural lands has no right to remove manure made upon the premises, although made by his own cattle and from his own fodder ; ^ but this rule does not prevail where the prem- ises do not come under the head of agricultural lands, and the manure is not made from the produce of the premises.'' As previously stated, the tenant must respect the landlord's title, and he cannot attorn to a person who is not in privity with such title, and if he does, it has no validity as against the landlord or his grantee.'' By the statute quia emptores,^ after an estate for years, &o., had been conveyed, it was necessary that the tenant should attorn to the grantee before he could maintain an action against the tenant upon the lease. But after the statute 27 PI. 8, chap. 10, this necessity was in a measure remedied, and by the statute 4 Ann, chap. 16, sec. 9, attornments are rendered unnecessary; and after notice to the tenant of the conveyance the grantee of the reversion or assignee of the lease may recover the rent of the tenant and stands in the landlord's pilace as to all remedies under the lease.' He may distrain for the rent.' 1 Daniel c. North, 11 East, 372 ; Jes- ser y>. Gifford, 4 Burr. 2141. 2 Id. 8 Plumer d. Pluraer, 30 N. H. 558 ; Lasssll D. Iteed, 6 Me. 222 ; Middle- brook b. Corvvin, 15 Wend. (N". Y.) 169; Perry c. Carr, 44 N. H. 113; Gallagher r. Shipley, 24 Md. 41S. ■* Needham v. Allison, 24 N. H. 355. Manure made in a livery stable belongs to the tenant. Daniels b. Pond, 21 Pick. (Mass.) .367; Gallagher w. Shipley, ante. ^ Magill c. Hinsdale, 6 Conn. 464 ; Fuller )). Sweet, 30 Mich. 237. » 18 Edward I., Chap. 1. ' Kendall b. Garland, 5 Gush. (Mass.) 74 ; Scott B. Lunt, 7 Pet. (U.-S.) 506 ; Abercrombie b. Redpath, 1 Iowa, 111 ; Newall u. Wright, 3 Mass. 153 ; Mon- tague B. Gay, 17 id. 439. A lessor may grant the whole or any part of the prem- ises out of which rent issues, and the lessee will be bound to pay the whole or a proportionate share of the rent to the gi'anteo, and the latter has all the rem- edies to enforce payment which the les- sor had. Crosby b. Loop, 13 III. 625. Or he may assign liis interest in a lease by an indorsement on it, so as to pass the equitable right to his assignee to receive the rent when it becomes due. Dixon 0. Buell, 21 111. 203. If no reservation is mide, the sale of leased land carries with it the accruing rent. Dixon b. Nichols, 39 111. 372 ; Gale b. Edwards, C2 Me. 363. Where land is conveyed. with full covenants, but is at the time in possession of a tenant, a parol agree- ment to accept the deed and the tenant's possession, as the possession of the pur- chaser, is valid and may be shown ; and such an agreement will be inferred, nothing appearing to the contrary, where the purchaser has full knowl.edge of the tenancy and the rights of the ten- ant. Page B. Lashley, 15 Ind. 152. A conveyance of premises and all appur- tenant thereto, made witliout any res- ervation, carries with it the grantor's rights in a lease of the premises pre- viously made by him. Hatfield c. Lock- wood, 18 Iowa, 296. A tenancy at will is, by alienation of the estate of the landlord, clianged into a tenancy at suf- ferance ; and although the tenant liad occupied the premises for a series of years, by consent of successive owners, the last alienation would effect the same change. E'sty v. Baker, 50 Me. 325. A conveyance of leased premises by the lessor makes the grantee landlord of the lessee, with the right to possession of the premises upon forfeiture for breach of conditions in the lease. Page b. Esty, 54 Me. 319. But until notice is given to the tenant payment to the landlord is good. Farley b. Thompson, 15 Mass. 18. . Kent in arrear does not pass as an incidentof the reversion. Gibbs b. Eoss, 2 Head. (Tenn.)437. 8 Lloyd B. Davies, 2 Exchq. 103 ; Lum- ley B., Hodgson, 16 East, 99 ; Kivis v. 930 Rights, Remedies a\d Liabilities of the Parties. An attornment generally estops the party making it from denying the title of the perspn to whom the attornment is made. Thus where an attornment was made to the claimants in an ejectment, who derived their title under a will, the tenant was held to be estopped from con- tending in a subsequent action that upon the true construction of the will the claimants had no title, ^ although on a previous occasion it had been decided that the tenant might sliow the attornment to have been made by mistake and under suspicious circumstances, and that it had not been acted on for seven years, and a conveyancL' to liimself made by the real owner.^ Where a tenant had attorned and paid rent to a devisee of the landlord, and no fraud or misre])resentation had been practised towards him : held, that he could not afterwards dispute the devisee's title by evidence showing that the testator was incompetent to make a will.' Attornment by a tenant to the heir upon threat of eviction is tantamount to entry by the heir, and ])revents the tenant from afterwards disputing his title.** Sometimes a tenant who has attorned will be allowed to jjrove tliat such attornment was procured by fraud or misrepresentation, or that it was made by mistake and in ignorance of material facts, and that the person to whom he attorned really had no title,^ Thus, where a tenant to a landlord, who died, after- wards attorned to his heir, in ignorance th.at his title as heir was dis- puted, it was held, that the tenant was not thereby estopped from showing that the heir really had no title to the property, and tl\at the attornment to him was a mistake." Where a person having posses- sion of land under a good title baeame tenant and paid rent to a, stranger, it was held, that he was not estopped, after such tenancy had determined and before he had given up possession, from setting up his own prior title in an ejectment by liis lessor.'' But in all such cases the onus of proof as to the title is thrown upon the person who at- torned, and he must dhprove the title of the person to whom such at- tornment was made. Payment of rent by a tenant to his landlord, after the title of the latter has expired, and after the tenant has received notice of an adverse claim, does not amount to an acknowledgment of title in the .landlord, or to a virtual attornment; iinless at the time of such pay- Watson, 5 M. & W. 255. Even though '■ Rogers v. Pitclier, (i Taunt. 202 ; the tenancy is from year to vear. Kog- Cornish v. Searall, 8 B. .& C. 4TI ; ers V. Ilnmphreys, 4 Ad. & El. 31.3 ; Pleviu v. Brown, 7 Ad, & El. 447 ; Evans v. Elliott, 9 id. 342 ; Partington Brook v. Biggs, 2 Bing. N. C. ,572 : . I). Woodcock, id. 690. Hughes b. Hughes, 15 M, & W. 703 ; 1 Gravenor ». Woodhouse, 2 Bing. 71. Cole Ejec. 218, 231. 2 Gravenor v. Woodhouse, 1 Bing. 38. '' Gregory v. Doidge, 3 Bing. 474. * Marlow v. Wiggins, 4 Q. B. 367. '' Accidental Death Insurance Co. i*. " Hill V. Saunders, 4 B. & C. 529 ; Mackenzie, 9 W. K. 713. -Cooke r..LoxJey, 5 T. R. 4. "Remedies poe TIecoveky op Re:^t by Distress. 931 ment the tenant heard the precise nature of the adverse claim, or how the landlord's title had expired^ Remedies for recovery of rent by distress. Sec. 542. In most of the States of this country the common law rem- edy of distress for the recovery of rent, as well as most of the old Eng- lish statutes relating thereto, have been adopted,^ although in the New England States this remedy is superseded by their attaclinient laws,^ and in NeM- York, North Carolin.a, Mississippi, Missouri, Wisconsin, and some of the other States, the remedy is abolished by statute, or is held not to o.\;ist.^ In some of the States, while this remedy has been abol- ished, yet the landlord is so far protected that the tenant's property cannot be taken on execution on be fixed by arbitration, Myers v. Mansfield, ante, or where it- is pay- able in United States gold coin, Kauf- man V. .Myers, 38 Ga. 133, or where the rent is to be proportioned to the im- provements put upon the place. Det- weller v. Cox, 7.5 Penn. St. 200. So it has been held that an "agreement to shear all the sheep pastured in the land- lord's pasture was suflSciently suscep- tible of computation as to be the ground of a distress, because the number could be readily ascertained. Co. Litt. 90 a. But in Indiana it is held that a distress will not lie where rent is payable in a certain share of the crops raised, although it is confined to a certain species of crop,^as corn, wheat, &c. Clarke w. Fraley, 3 Blackf. (Ind) 264. And in Soitth Carolina it is held, that thei'e must be a reservation of a specific sum as rent. Marshall v. Giles, 2 Const. (S. C. ) 637. Upon the general ques- tion, see Cornell v. Lamb, 2 Cow. (N. Y. ) 652 ; Smith c. Calson, 10 John. (N. T.) 91 ; Watkins v. Taliaferro, 52 6a. 208 ; Reeves v. McKenzie, 1 Bailey (S. C), 500 ; Grier u. Cowan, Addis. 347; Roberts v. Termell, 4 J. J. Mar. (Ky.) 166 ; Dailey d. Grimes, 27 Md. 440. A void lease may be referred to, to make the rent certain. Edwards v. Clemons, 24 Wend. (N. Y.)4S0. 2 Daniel v. Gracie, ante. But in Ken- tucky a distress lies only when the rent is payable in money. Poer u. Peebles, 1 B. Men. (Ky.) 1. 8 Pollitt J). Forrest, 11 Q. B. 549 ; Rotilston V. Clark, 2 H. B. 563. 1 Pollitt V. Forrest, 11 Q. B. 949. * Johnstone v. Huddlestone, 4 B. t& C. 922 ; Humberstone v. Dubois, 10 M. & W. 765. « Edmondson v. Kuttall, 17 C. B. N. S. 280 ; Hancock v. Austin, 14 id. 634. ' Newman v. Anderlon, 2 B. & P. 224. 8 Buckley v. Taylor, 2 T. R. 600; Williams v. Holmes, 8 Excliq. 861 ; Har- rison V. Barry, 7 Pi'ice, 690 ; Lee v. Smith, 9 Exchq. 602 ; Hale v. Burton, Dud. (Ga.) 105. There can be no dis- tress for rent under a mere agreement for a lease not amounting to an actual demise, Dunk v. Hunter, 5 B. & Aid. 322 ; Hegan v. Johnson, 2 Taunt. 148, unless by the terms of the agreement the same remedies are to be enforced as if the lease was actually executed. Rol- lason !). Leon, 7 H. & N. 73 ; Pinero v. Judson, 6 Bing. 206 ; Anderson v. Mid- land R. R. Co., 7Jur. N. S. 411. But a tenancy may be implied from slight Remedies for Recovbey of Rent hy Distress. 933 attornoil to a grantee, assignee, or mortgagee, enables such persons to pursue this remedy.^ I« order to render this remedy available the rent must be in arrear,^ and if payable in advance, it is in arrear and may be distrained for the day after it becomes due according to the lease.' The takinst of a bill or note for rent due does not defeat this circumstances, and wliere the person in possession lias paid rent, and tliereby aclinowledged a tenancyat a fixed rent, a distress lies. Cox m. Bent, .5 Bing. 185 ; Vincent D. Godson, 24 L. J. Cli. 122 ; Bridges k. Smyth, 5 Bing. 410 ; Jones 73. Carter, 15 M. & W. 718 ; Franlv- lin ». Carter, 1- C. B. 750 ; Regnant x:. Porter, 7 Bing. 451 : M'Leish v. Ta'e, Cowp. 781 ; G-iadmanB. PI inner, lOJur. 109 ; Eagleton v. Gutteridge, 11 M. & W. 465. Arid wliere a tenancy has ex- isted, and the tenant still continues to occupy, the landlord may distrain, as this right continues until, the surrender of the term is complete. Coupland ?'. Maynard, 12 East, 134. But where the landlord has given notice to quit, and the tenant holds over, a distress will not lie for rent accruing ajlur the lime when the notice expires. Williams b. Stiven, 9 Q. B. 14 ; Alford v. Vickery, 1 C. & M. 280. i Morton b. Woods, L. P., 3 Q. B. 658. But the distinction, so far as dis- tress is concerned, was abolished by 4 Geo. 2, chap. 28, and whereas, prior to that statute, a reversionary interest was necessary to support a distress, yet after the adoption of this statute the right of distress was separated from the rever- sion, and a gi'antor who has reserved rent may distrain for it whether he has any reversion or not. Schuyler v. Leg- gett, 2 Cow. (N". Y.) 660 ; Bradbury B. Wright, Doug. 624. But the question , whether this right exists or not in the different States of this country depends upon the circumstance whether this statute has been adopted or not. Upon the general proposition stated in the text, see Evans w Elliott, 9 Ad. Hunter v. Le Conte, 6 Cow. (N. Y.) 728 ; Brown v. Powell, 4 Bing. 230. i» Smith V. Goodwin, 4 B. & Ad. 413. '1 Bennett v. Bayes, ante ; Hatch v. Hale, ante. But a tender made to a person in cliarge of the goods, Boiilton V. Reynolds, 2 "E. & E. 309, or to a servant, Pilkington v. Hastings, Cro. Eliz. 813, or in fact to any person who has no authority to receive the rent, ex- press or implied, is bad. Id. i'-* Absalom v. King, ante ; Andrew ». Hancock, ante. '3 Bennett v. Bayes, ante. In Finch v. Miller, 5 C. B.'42S, a tender coupled with a demand for a receipt was lield bad, but merely requenting a receipt does not invalidate the tender; Jennings V. Major, 8 (;. & P. 01 ; nor is the' tender invalidated by a demand for a receipt, if it is refused upon other What may be Disteained. 935 the landlord accepts the tender, he must deliver up the goods or he -wiil be liable in trover therefor, but cannot thus be treated as a trespasser.' The property in the goods distrained remains in the tenant until they are sold, and he may sell or assign his interest therein so as to enable a purchaser to maintain trover against the landlord therefor when the distress is determined.^ What may be distrained. Sec. 543. At the common law a di.stress is treated as a mere pledge, and consequently nothing can be taken that cannot be returned in the same good plight that it was when taken.^ This rule, of course, ex- empts fixtures and perishable property, such as milk and the flesh of animals lately slaughtered ; * and previous to the statute 2 Wm. & M., chap. 5, corn in sheaves or cocks was exempt. But, except the class of property that cannot be returned in specie and undamaged, it may be laid down as a general rule, that all movable property upon the premises^ whether belonging to the tenant or a stranger, may be taken, the reason being that tlio landlord has a lien upon them in i-espect of the place where they are found, rather than the person to whom they belong.'' But so far as the right to take the goods of a stranger ai'e concerned, it seems to be confined to goods in. the use of the tenant with the owner''s co?isent, and does tiot extend to goods in his hands under such circumstances as to put the landlord upon inquiry as to the title. Therefore property belonging to a boarder," unless in use •by the tenant with the bordei-'s consent, cannot be taken.' The fact that the landlord /otoms that the property does not belong" to the tenant does not relieve it from liability to distress. The decisive question is, whether the tenant had such a possession of the property as indicates ownership.* The property of a stranger cannot be taken when it is in the ] o.-:.session of the tenant in the way of his trade," — as corn sent to a grounds. Richardson b. Jackson, 8 M. (S. C.)88; Matthews v. Stone, 1 Hill & W. 29S ; Cole «. Blake, Peake K. P. (N". Y.), 5fi5 ; Keller v. Webber, 27 Md.' C 179. 660 ; Spencer v. MeSovern, 13 Wend. 1 West i;. ]S"ibbs, 4 C. B. 172. (^T. T. ) 2.56 ; Howard ». Ramsay, 7 H. 2 Kin,' B. England, 4 B. & S. 782 ; & J. (Md. ) 113 ; Kessler b. McConachy, Turner v. Ford, 1-5 M. & W. 212. 1 Rawle (Penn.l, 435 ; Davis b. Payne, ■' JI jore B. Drinkwater, 1 F. & P. 1-34 ; 4 Rand. ( Va. ) .3.32 ; Reeves b. McKenzie, Pitt B. Shaw. 4 B. & Aid. 207 ; Simpson 1 Bailey (S. C), 497; O'Donnell v. Sy- B. Hartopp, Willes, 515 ; Darby v. Har- bert, 13 S. & R. (Penn.) 57. ris, 1 Q. B. 893 ; Thompson b. Pettitt, « Riddle b. Walden, 5 WTiart. (Penn. ) 10 id. 101 ; Diilton b. Whittem, 3 id. 9. 9:n ; Gilbert on Distresses, 34 Co. Lltt. ' Matthews b. Stone, 1 Hill (IST. T.), 47 /). 565. ^ Brown b. Shevill, 2 Ad. & El. 138 ; 8 Reeves b. McKenzie, 1 Bailey (S. C), Murley b. Pincombe, 2 Exehq. 101. 497. ii Hiraely B. Wvatt, 1 Bay. (S. C.) 102 ; « Simpson u. Hartopii, WiUes, 512 ; Blanche b. Bradford, 38 Penn. St. 344 ; Wood b. Clark, 1 C. ife J. 484 ; Gibson Cadwallader v. Tiiidall, 20 id. 422 ; b. Iveson, 3 Q. B. 39. A horse in a black- Price V. McAllister. 3 Grant's Gas. smith's shop to be shod, Gibson b. (Penn.) 320 ; Elford b. Clark, 2 Brew. Hurst, 1 Salk. 249 ; Co. Litt. 47 a, ma- 936 Rk^hts, Remedies and Liabilities of the Parties. miller to be grountl,i cattle sent to a butcher to be slaughtered,^ materials sent to a mechanic or manufacturer to be worked up," or sent to a commission merchant, auctioneer or factor to be sold,* or goods sent to a carrier to be transported,'* or brought to an inn by a guest," and generally when property of any kind is in the hands of a tenant in the way of his trade, and his possession of them is a necessary incident to the consummation of the purpose for which they were left with liim, they are exempt from distress.' Animals ferce naturcB are not distrainable,* nor growing crops," beasts of the plough, cattle which gain the land, nor sheep, if there is other sufficient property subject to distress.'" Things in actual use are exempt," so are goods in the custody of the law.i^ terials in the hands of a person to be niiinufacturecl, or the article when man- ufactured, are exempt. Wood v. Clarke, ante ; Haskins ij. Pond, 9 N. J. L. ilo. So are goods in the hands of a ware- houseman, or of a person who takes goods to store. Briggs v. Large, 30 Penn. St. 287, or in the hands of a com- mission merchant to be sold or stored, Bevan b. Crooks, 1 W. & S. (Penn.) 452 ; Connah d. Hale, 23 Wend. (N. Y.) 462, arid a horse sent to a livery stable to be fed and cared for. Toungblood v. Low- ry, 2 JMcCord (S. C), 39. Goods pledged witli a pawnbroker, Swire v. Leach, 18 C. B. N. S. 479, and generally it may be said that, when the tenant exercises a public trade, property in his possession in the way of his trade, belonging to a customer, cannot be distrained for rent, the rule being that, where goods are in tlie hands of a tenant for his use, or to remain there, they are distrainable ; but not when they are in his possession for a particular purpose, and his possession of them is a necessary incident to the completion of the object. Parsons v. Gingell, 4 C. B. 545 ; Lewis c. Gingell, id. 561 n. ' Co. Litt. 47 a. 2 Brown c. Shevill, 2 Ad. & El. 138. 3 Hoskins v. Paul, 9 N. J. L. 110 ; Wood ». Clarke, 1 C;r. & J. 484 ; Gibson ■0. Iveson, 3 Q. B. 39. * Mathias v. Mesnard, 2 C. & P. 353 ; Gilman v. Elton, 3 B. & B. 75 ; Findon B. McLaren, 6 Q. B. 891 ; Willams v. Holmes, 8 Exchq. 861 ; Adams n. Greene, 1 Cr. cS; M. 80 ; Brown c. Arundel, 10 C. B. 54. ° Gisbourn ». Hurst, 1 Salk. 249. " Crozier u. Tomkinson, 2 Ld. Ken. 439. ■ Parsons v. Gingell, ante ; Hoskins r. Paul, ante : Connah v. Hale, 23 Wrnl. (N. V.)4(i2. " vJo. Litt. 47 a, such as cats, uild rabbits, &c. But deer kept in a park or private enclosure, Davis v. Po«elI, Willes, 46 ; Moj'gan v. Abersjavenny, 7 C. B. 768 ; Ford v. Tynte, 2 ,J.' & H. 150, birds in cages, dogs domesticated, and all animals that are kept in the custody of the tenant for gain or profit are dis- ti-ainable. Bunch B. Kenningtou, 1 Q. B. 679 ; Davis v. Powell, ante. " Simpson v. tiartopp, Willes, 512. ^" 51 Hen. 3, cbap.4; 2Inst. 132. Young colts and steei-s not broken arc not ex- empt as beiiiff beasts which gain the land, Keen v. Priest, 4 H. & ]Sr.'2.36, and cattle taken for agistment may be dis- trained. Eolle's Abr. 669 ; Fawkes u. Joyce, 2 Vent. 50 ; Tate b. Gleed, 2 Wm. Saund. 290. So may cattle that are- upon the land as trespassers ; Rolle' s Abr. 668 ; Kemp b. Crawes, 1 Ld. Eayd. 168 ; but not cattle that escape on to the land by i-eason of defects in fences which the tenant is bound to repair. Poole b. Longueville, 2 Saund. 289 ; Singleton v. Williamson, 7 H. & N. 410. 11 Woodf all's L. & T. 405 ; Storey b. Robinson, 6 T. R. 138 ; Co. Litt. 47 a ; Field B. Adams, 12 Ad. & El. 649 ; Read's Case, Cro. Eliz. 594. Tools of the tenant's trade, in actual use, are ex- empt, although there is no other suf- ficient distress. Gorton b. Falkner, 4 T. R. 565. And if not in actual use they are exempt if there is other sufficient dis- tress on the premises. Nargett v. Xias, 1 E. & E. 439 ; Attack ». Bramwell, 3 B. & S. .520 ; Davies o. Aston, 1 C. B. 746 ; Harvey b. Pocock, 11 M. & W. 740 ; Fenton b. Logan, 9 Bing. 676 ; Simpson B. Hartopp, ante. 1^ Eaton B. Southby, Willes, 1.31 ; Co. Litt. 47 a ; Wharton v. Taylor, 12 Q. B. 673 ; Wright b. Dewes, 1 Ad. & El. 641. But by statute, 8 Ann., chap. 14, sect, it is provided that no goods on any lands leased for life, years, or at will, shall be taken on execution, unless tlie Where and when must be made. 937 Where and ■vtrhen must be made. Sec. 544. By the statute of Marlebridge, 52 ITun. 3, cli.ip. 15, it was provided that no person should take a distress out of Ids fee, and except as hereinafter stated no distress can be taken off the demised premises.^ Of course, this jJi'oposition does not apply where, as in creditor, before the goods are removeil, shall first pay or tender the landlord the arrears of rent due, unless more than one year's rent is due, in which case one year's rent shall be paid. Whore goods are taken under a fraudulent execution they may be distrained. Smith o. Russell, .3 Taunt. 400. So if the execution has been waived, Leven ». Miliel, 1 Ld Ken. 370, or tlie levy is irregular. Blades v. Arundel, 1 M & S. 7U, or where the judgment is void. St. John's College V. Murcott, 7 T. R. 259. 1 GilUngliain v. Dwyer, 16 L. T. X. S. 640 ; Buzzard o. Capel, 4 Bing. 140 ; Capel V. Buzzard, 7 id. 1.50 ; Co. Litt. 161 a ; 1 Rolle's Abr. 671 ; Burr v. Van Buskirk, ;3 Cow. (N. Y.) 200 ; Mosby u. Leeds, :! Call (Va. ), 4:39; Brown u. Duu- can, Harper (S. C.), 338. Where the lease was of premises with a right of way or passage appurtenant, it was held that a distress could not be made of goods in the passage-way. .5 Hill ( N". Y. ), 481 ; Capel o. Buzzard. 7 Biug. 150. But in Gilliiigham v. Dwyer, ante, the tenant rented a stable, and was in the habit of lceej)iiig liis cart on a part of the road adjoining the stable, which tlie landlord had paved for him for that purpose, and it was held that the paved part must be treated as a part of the de- mised premises, and that a distress made there was lawful. Wliere two pieces of land are let by separate demises, al- though both are contained in one deed, a joint distress cannot be made for them ; as that would malce the rent of one issue out of the other. Rogers v. Birkmire, 2 Stra. 1040. Where a single rent issues out of land in the occupa- tion of several tenants, a distress may be made for the whole amount upon the land of any one of them. 1 Roll. Abr. 671 ; BuUen, 125 ; Woodcoclc v. Titter- ton, 12 W. R. 685, Q. B. The distress may be made upon any part of the land, as the entire rent issues out of the whole and every nart. Cora. Dig. tit. Distress (A. 3) ; Bullen, 125 ; Wood- cock B. Titterton, 12 W. R. 865. Where the tenant of a farm holds over part of it after the expiration of the term, pur- suant to some clause in the lease or the custom of the country, a distress may be made on that part for all the arrears u Itliin six months after the expiration of the tenancy. Nuttall v. Staunton, 4 B. & C. 51 ; Beavau d. Delahay, 1 H. Bl. 5 ; Lewis «. Harris, id. 7, n. a ; Knight !). Bennett, 3 Bing. 361; Bullen, 121, 125. Where A demised to B a wharf, next the River Thames, de- scribed by abutments, together with all ways, paths,- passages, easements, prof- its, commodities and appurtenances whatsoever to the said wharf belonging; and by the indenture tlie (exclusive use of the land of the River Thames oppo- site to and in front of the wliarf be- tween higli and low water mark, as well when covered with water as dry, for the accommodation of the tenants of the wharf, was demised as appurtenant to the wharf, but tlie land itself between high and low water mark was not de- mised ; it was held, that the lessor could not distrain for rent in arrear barges the property of B lying in the space between high and low water mark, and attached to the wliarf by ropes. Capel !). Buzzard, 8 B. & C. 141. The owner of a factory consisting of several rooms was in the habit of letting " standings " therein for lace machines, and supplying the power foi' working them, tliere being no demise oi the room : held, that the weekly payments could not be distrained for as "rent." Hancock v. Austin, 14 C. B. N". S. 634 ; Edmondson v. Xuttall, 17 C. B. K. S. 280. Where lands lying in different counties are held under one demise, at one entire rent, a distress may be law- fully taken in either county for the whole rent in arrear, and pursuing a distress over is a continuance of the tak- ing ; but wliere the counties do not ad- join, a distress cannot be pursued out of one county into the other. Walter v. Rumball, 1 Salk. 247. No person can make a distress on the highway; Co. Litt. 160 6 ,■ Glib. Distr. 51 ; but it would seem that where a farm joins a highway, goods standing in the high- way, within the middle of it, and on that part of it next the demised prem- ises, may be distrained. Hodges t>, Lawrence, 18 .Just. Pea. 347, Excli. If the landlord or his agent como to dis- train cattle which he sees upon the land, and the tenant or any other per- son drives the cattle off the land, the landlord or his agent inav then follow 938 IiiGiiTS, Remedies and Liabilities op the Parties. some of the States, the laiullord's right to make distress is extended to any property belonging to the tenant in the eounty.-' By the statute of 11 Geo. -, ehap. 19, sec. 1, where the tenant fraudulently or clandestinely carries away his goods, &c., off from the demised premises to prevent the landlord from distraining them for arrears of rent, the landlord may, within tliirty days after such re- moval, seize them wherever they can be found. In order to enable the landlord to pursue the goods under this statute the burden of prov- ing that they Mere removed fraudulently or clandestinely is upon liini.- If the gi^uds have been removed and sold to a bona fide purchaser they cannot be distrained;" noi- does this statute apply to goods not belonging to the tenant.-* If goods are fraudulently, &c., removed, the landlord may call upon the constable and witliout previous request may break open any building, or enter any premises where they are concealed; but if they are conceded in a dwelling-house oath must first be made of a reasonable ground of suspicion that the goods are therein, and such entry can only be made in the da}- time." By sec- tion 4 of the statute, tlie tenant, or any person privy to the removal*^ or knowing of the fraudulent intent,' who aids or .assists in the removal, although no distress was at the time being made or contemplated,* forfeits to the landlord double the value of the goods removed, which may be recovered by an action of debt ; or, where the value of the goods does not exceed £.50, by complaint before two or more of the nearest justices of the peace who may adjudge the offender to pay double the value of such goods within such lime as they shall appoint. But, before seeking to avail himself of either of the remedies under this statute, the landlord should first ascertain whether the goods re- moved belonged to llie tenant, for a stranger or lodger has a riglit to remove his goods off the premises at any time, or under any circum- stances, before the commencement of a distress.^ Ho should also be sure that the goods were carried off with a view to dqtricc the hnul- lord of his rtmecly by distress, and that no sufficient goods remained and distrain tliem, even on tlie high- ^ Williams v. IJoberts, 7 Exchq. (US. way : but if lie have no view of the cat- * Martin v. Black, i) Paige Ch. (iST. V.J tie whilst on the land, although the t(_'n- 641 ; Frisbey «. Thayer, 25 Wend. (N\ ant drive them off purposely to prevent Y. ) 39. a distress ; or if the cattle themselves, ^ Sec. 7, Stat. 11, Geo. 2, chap. 19. after the vie^v, go out of the fee. or the Sec also, Williams ». Roberts, ante, tenant or any other person, after the " Lyster b. Brown, 1 C. & P. 121; sec. view, remove them for any other pur- 4, stat. 11, Geo. 2, chap. 19. pose than that of preventing a distress ; ' Brooke v. Noakes, 8 B. & C. 537. in these cases the landlord or his agent ^ Stanley v. Wharton. 10 Price, 138. cainiot distrahi them. Co. Litt. 161a,- ^ Foulger ii. Taj'lor, 5 H. ct N. 210; 2 Inst. 132 ; Clement ». Milner, 3 Esp. Thornton u. Adams, 5 M. & S. 38; Post- 9.5; Smith L. & T. 212. man !). Harrell, (i C. & P. 225; Fletcher 1 Uhl !). Dighton, 2.'j 111. 154 ; Longee u. Marillier, 9 Ad. & El. 457 ; Wood x\ t). Colton, 9 Dana (Ky.), 123. Kuun, 5 Bing. 10. 2 Perry v. Duncan, M. & W. 533. Where and when must be made. 939 071 the jTremises to satisft/ the rent then due} The mere removal of goods by tlio tenant from tho demised premises, wlien rent is in arrear, is not of itself fraudulent as against the landlord,^ nor is every convey- ing away of the goods of a tenant penal, althoiigli it may operate to defeat tlie landlord's right. To constitute a fraudulent removal, the fraud must bo that of tlie tenant, or porscm removing the property for his benefit.* Tho statute was never meant to exti'.nd to a creditor who is seeking payment of his debt bona fide ; and such creditor may, for the purpose of satisfying such debt and with the assent of the debtor, take possession of his goods and remove them, although he knew that the tenant apprehended a distress.* So, too, the removal must have been made after the rent became due.^ As to whether or not this rule prevails in a given State depends upon the question whether it has been changed by statute.^ A distress cannot be made at niglit ; ' and if made before sunrise in the morning or after sunset at niglit it is illegal, although there may be ample daylight." At the common law, a distress could not be made after the lease had terminated ; but by statute 8 Anne, chap. 14, sec- tions 6 and 7, a distress can be made any time within six calendar months after the lease is ended, if the landlord still retains tlie title. This statute was necessary to protect the landlord, because, j)i-ior to its passage, the last year's rent, when the rent was payable annually, could not be distrained for, as it did not become due until the last second of the tenant's term.^ Rent is not in arrear on the day upon 1 Parry v. Duncan, 7 Bing. 243 ; John v. John, 37 N. J. L. 93. And in Louisi- j). Jenkins, 1 C!r. & M. 227 ; Opperman ana, if a tenant removes his goods and B. Smith, 4 D. & R. 33 ; Parry e. Dun- quits tlie premises lie at once becomes can, 7 Bing. 243. But see Gilham v. liable for the rent for the whole term. Ark Wright, 16 L. T. 88; Woodfall, L. both that which is due and that which & T. 422. is to become due, but e.xecntion issues 2 Parry ». Duncan, 7 Bing. 243. only as the rent becomes due. Rey- 8 Bach V. Meats, .5 M. & S. 200. nolds v. Swain, 13 La. 193. « Bach V. Meats, 5 M. & S. 200. ' Aldenburgh v. People, C. & P. 5 Rand v. Vaughan, 7 Bing. N. C. 767; 212 ; Tutton o. Darke, .5 H. & N. 647 ; "Watson i). Main, 3 Esp. 15 ; Furneaux Keen i\ Priest. 4 id. 240. V. Fotherby, 4 Camp. 136 ; Grace v. * Aldenburgh o. People, ante. It is Shively, 12 S. & B.. (Penn. j217. doubtful whether sunrise begins with ^ Scheiiley's Appeal, 70 ]?enn. St. 98. the first beams of the sini above the hor- In Maryland the goods may be dis izon, or when the middle of the sun is trained thirty days after their removal, upon the horizon, or when the sun has although the lease has e.\-pired and the completely emerged ; Tutton v. Darke, tenant has quit the premises. Dorsi>y ante; and an almanac is not evidence of V. Hays, 7 H. & J! ( Md. ) 370. In Ken- the time when the sun rises or sets. Col- tucky the landlord m.iy attach the lier v. Nokes, 2 C. ' but the distress can oidy em- brace rent, and not damages.* In going to distrain, it is doubtful whether the officer may lawfully gain access to the tenant's house by climbing over a fence.^ If the door of the house is shut, the officer has authority by law to open it in the ordinary way in which other persons can do it, when it is left so as to be accessible to all who have occasion to go into the premises ; as, for in- stance, by lifting a latch oi' pulling out a staple which serves to keep the door closed.'" An entry may be lawfully made through an open win- dow ; " but it is illegal to open a window for the purpose of entering, whether such window is fastened with a hasp ^'^ or shut and not fastened.'* If the outer door is open, the person distraining may break open an inner door or lock." But the outer door"" or window '^ of the tenant's house or stable '" must not be forcibly broken open, or the officer who has en- tered to distrain, and has sold the goods distrained, will be liable to an action of trespass, in which the tenant may recover the full value of 1 Taplis V. Grane, 5 Bing, N. C. 651, ZSZ ; Bantleon c. Smith, 2 Blim. - Wooclfall's L. & T. 413. (Penn. ) 1.53. 3 Jenkins ij. Pell, 17 Wend. (ST. Y.) ^ Scott v. Bucldey, 1(> L. T. J^'. S. 417 ; liut it is sufficient if it sets forth 573. But see Eldridge v. Stacey, 15 C. the amount claimed, and that it is for B. N. S. 458. rent falling due for a quarter's rent, '" Ryan ti. Shilcoek, 7 Ex. 72. Seethe (fee. Marquisseei). Ormston, 15 id. 368. observations of Cockbukn, C, J., on ^ Jones u. Gundrim, 3 W.. Rumbal, 1 Ld. Rayd. 53. Wallace w. King. 1 H. Bl. 13. ' Bishop B. Byrant, 6 C. & P. 484. '^ Evans v. Wright, 2 H. & ^". UL(. Sale of Distress. 945 If the goods are not sold for the best price the tenant may bring an action against the landlord, and go into evidence to show that they were improperly kept ; ' but goods sold at the appraised value are ]n-esumed to have been sold for the best prioe.^ It seems that there is no order required by law to be observed in the sale of goods under a distress. If the landlord distrains, among other goods, his tenant's cattle and beasts of the plough, it seems that ho is not bound to sell the other goods first; and although it turns out after the sale (judging by the result) that there would have been sufBcient to satisfy the rent and ex- penses without selling the cattle, the distress is not thereby proved to be illegal, if there was ground for supposing, from the appraisement of competent persons, made at the time of the seizure, that, without taking the cattle, the amount of the rent and expenses would not be realized.^ Where the goods of a lodger are distrained together with the goods of the tenant, and are sold first, after notice from the lodger, and the tenant's goods turn out to be sufiicient to satisfy the rent and charges, the lodger is entitled to sue for an excessive distress.^ A landlord who has distrained hay and straw prohibited by coven- ant from being carried off the premise.^;, will render himself liable to an action for not selling at the best priee, if he sells such distress subject to a condition that the purchaser shall consume it on the premises, by reason whereof it produces less than the usual price.^ The sale may, in general, be made either upon the demised prem- ises, if the goods are impounded there, or at any other place. But corn, grain or hay must not be " removed by the person or persons distraining, to the damage of the owner thereof, out of the place where the same shall be found and seized, but be kept there, as impounded, until the same shall be replevied or sold." Until the goods distrained are sold, the property in them remains in the tenant,® subject to the right of the landlord to detain or sell them. The person distraining does not acquire even the possession of the cattle or things distrained.' Where the goods distrained are of small value, the appraisers some times take them at their own valuation, a receipt written at the foot of the inventory being considered a sufficient discharge.* But this prac- tice is so obviously unjust to the tenant that it should not be adopted in any case where the goods can be profitably disposed of by public auction. The landlord must not take the goods at the appraised value. If he does, the transaction will not be considered as a sale, and the prop- ^ Poynter v. Buckley, .5 C. & P. 512. Abbeys. Fetch, 8 M. & W. 419: Frusher 2 Walter d. Rumbal, 1 Ld. Raym. 55. ». Lee, 10 M. & W. 709. ' Jenner v. Yolland, 6 Price, 3. 6 King v. England, 4 B. & S. 182 ; * Wilkinson v. Ibbett, 2 F. & F. .300. Turner v. Ford, 15 M. & W. 212. 5 Kidgway v. Stafford, 6 Ex. 404 ; ' Rex u. Cotton, Parker, 121 ; Turner Eoden ». Eyton, 6 C. B. 427 ; Jones v. v. Ford, 15 M. & W. 212. Hamp, cited in 10 M. & W. 710. See « See Bullen on Distress, 160. 946 Rights, Remedies and Liabilities of the Pakties. erty in the goods will not be divested from the tenant or owner ; un- less they belong to the tenant, and are so taken with his consent.' If the sale is made before the expiration of five clear days, and actual damage is thereby occasioned to the tenant^ he may maintain an action against the landlord ; but the tenant is not entitled to a verdict unless he proves actual damage.^ It is lawful for the landlord, and those acting under him, to remain more than five days on the premises for the purpose of selling the goods distrained.' If, however, the sale is not made, or the goods are not removed from the premises, within a reasonable time after the expiration of the five days, the landlord will be liable to an action of trespass by the tenant.* It must be left to the jury to say what is a reasonable time. In one case, where the distress was made on April 14th, and the sale on April 27th, the jury found that the sale was made within a reasonable time.^ The sale is often postponed at the request of the tenant, from whom the landlord should invariably obtain a written consent to his remain- ing on the premises." 'When distress is illegal, and remedy for. Sec. 547. A distress is illegal if no rent is due at the time when it was made,' or where no tenancy /exists between the owner of the goods and the person distraining,' or where a legal tender has been made of the rent before the seizure, or where the seizure was made at night, or where the entry was unlawful,' — as where he breaks open a window or an outer door,"— or where the property seized was exempt from distress,^' or where tools or implements of trade, beasts of the plough and sheep are taken where there was sufficient un^srivileged property which might have been taken,'^ or tools and beasts of burden when in actual use,^* or where the goods are not upon the demised premises, except in cases where they have been fraudulently or clandestinely removed." In such cases the tenant may bring replevin and recover the goods,^^ or tres- 1 King v. England, 4 B. & S. 782. is; Davies v. Aston, 1 C. B, 740 ; Kargett = Lucas u. Tarleton,3 H. & N". 116 ; e. NiuS,l E. & E. 439; Lear r, Caldecott, R. Burgess, 5 B. & C. 333 ; Smith v. 943 Rights, Remedies and Liabilities of the Parties. is a perfected instrument, an action for use and occupation does not lie, but the remedy must be sought upon the special contract in an action of debt,' or covenant,^ unless the character of the demise has been changed by a subsequent agreement of the parties in writing not under seal, relating to the contract of demise, either indorsed uj)on the lease or contained in a separate instrument, in which event the whole instrument is changed from a specialty to a simple contract, and all the remedies thereon are changed from debt or covenant to assumi^sit.' i An action for use and occupation cannot be maintained unless the relation of landlord and tenant is established. An occupancy under some contract, express or implied, must be shown. ^ The mere fact Eldridge, 1-5 C. B. 230, "it shall be law- ful for the landlord, where the agree- ment is not hy deed, to recover a reason- able satisfaction for the lands, tene- ments or hereditaments lield or occu- pied by the defendant, in an action on the case, for the use and occupation of what was so held or enjoyed ; and if in evidence on the trial of sach action any parol demise or any agreement (not being by deed), whereon a certain rent was reserved, shall appear, the plaintiif shall not therefore be nonsuited, but may make use thereof as an evidence of the quantum of the damages to be recover- ed." This statute is in force in most of the States. Perrine v. Hankinsou, 11 N. J. L. 181. In Massachusetts, how- ever, where there is a written lease, whether under seal or not, use and oc- cupation does not he. Fuller -o. Sweet, 6 Allen (Mass.), 219 n.; Mann ». Bremer, 7 id. 202 ; Warren ?). Ferdinand, 9 id. .357. The statute 11 Geo. 2, did not create a new remedy, as this remedy ex- isted before its passage in all cases where there was not. a strict demise, Dartnal v. Morgan, Cro. Jae. 598, but its object, as expressed in the statute itself, was to obviate "some difflcul- ties" that occurred ih the recovery of rents where the lease was not by deed. Previous to that statute, where a de- mise at a fixed rent was proved the plaintiff was nonsuited, and it was to relieve parties from that danger that the statute was enacted, and thereafter, unless the demise was by deed, a re- covery would be had in this form of ac- tion. Gibson d. Kirk, 1 Q. B. 8.50 ; Reade b. Johnson, Cro. Eliz. 242 ; Brett B. Bead, Cro. Car. 'ii'A ; Symcock ». Payn, Cro. Eliz. 786 ; Clerk v. Palady, Id. 859. The statute did not extend the remedy, except in that respect, to cases where it could not be maintaiued be- fore. BbamwbIjL, B., in Churcliward p. Ford, 2 H. & N. 449. Debt for use and occupation lay at the common law where the demise was not under seal. Gibson v. Kirlc, ante ; Curtis d. Spitty, 1 Bing. N. C. 17 ; Egler v. Marsden, 5 Taunt. 25 ; King v. Frazer, 6 East. 348. 1 Leach ». Thomas, 7 C. & P. .327 ; Anworth v. Johnson, 5 id. 239 ; Hunt !). Thompson, 2 Allen (Mass.), 341; Durgay ». Angone, 2 Ves. Jr. 307 ; Kiersted v. Orange, &c., K. E. Co. , 69 N. Y. 349 ; Burnham v. Rogers, 103 Mass. 379. While in Michigan it is held that assumpsit lies whether the lease is under seal or not. Dalton 'o. Lmidahn, 30 Mich. 349. In those States where the distinction between forms of actions is abolished, yet the substance of them remains and the same rules apply as though the form was unchanged. 2 See previous note. s Hydeville, &c., Co. «. Eagle R. E. & S. Co., 40 Vt. 384. * Redden b. Barker, 4 Harr. (Del.) 179; LaFargeB. Park, 1 Edm. Sel. Cas. (N.T.) 223 » Williams v. Hollis, 19 Ga. 313 ; Marquette, &c., R. R. Co. b. Harlow, 37 Mich. 554 ; Dudding b. Hill, 15 111. 61 ; Hurd B. Miller. 2 Hilt. (N. Y. C. P.) 540 ; Moore b. Harvey, 50 Vt. 297 ; Brewer v. Craig, 18 N, J. L. 214 ; Stew- art b. Fitch, 31 id. 17 ; Boston b. Binney, 11 Pick. (Mass.) 1 ; Newly s. Vestal,'6 Ind. 412 ; Richmond, &c., R. R. Co. b. Rogers, 7 Bush. (Ky.) 532; Scales b. Anderson, 26 Miss. 94 ; Cohen b. Kyler, 27 Mo. 122. The action is founded on privity of contract, and not on privity of estate. Henwood b. Cheeseman, 3 S. & R. (Penn. ) 500. The action does not necessarily presuppose a former de- mise, but there must be an occupancy under such circumstances as warrant an inference that tlie use was to be paid for. Chambers b. Ross, 25 N. J. L. 293, as where a person occupies by the ex- press permission of the landlord. Pierce B. Pierce, 25 Barb. (N. T.) 243 ; Osgood Use and Occupation. 949 that a person has occupied iireniises is not sufficient to create the rela- tion of landlord and tenant. Such circumstances must be estab- lished as at least show that the occupancy was with the owner's assent/ and the question as to whetlier an implied contract of te.iancy existed is for the jury.^ Neither an express demise nor an express promise is necessary ; it is sufficient if the defendant held as tenant of the j^lain- tiff, or by his permission or sufferance, recognizing the plaintiff's title, as in such cases the law will imply a promise to pay a reasonable sum for such use and occupation,^ and this is so, even though there is a lease in writing containing a condition precedent, which has not been perform- ed by the plaintiff,^ or which is void.^ So this action may be main- tained where a person enters under an agreement for a lease for a term, although he subsequently refuses to accept a lease." This action lies v. Dewey. 13 .lohn. (W. Y.) 240; Steb- bins J). Peck, 8 Gray (Mass.), 553. It does not lie where the entry and hold- ing is tortious, Wiggin v. Wiggin, 6 N. H. 293 ; Riehey v. 'lliiide, 6 Oliio, 371 ; Name v. Alexander, 49 Md. 416 ; Ryan V. Marsh, 2 N. & M. (S. C.) 15fi ; Acker- man V. Lyman, 20 Wis. 454 ; McCloskey V. Milbr, 72 Penn. St. 151 ; Henwood?). Cheesemaii, ante ; Smith v. Houston, 16 Ala. Ill, nor where the possession is adverse, no tenancy having previously existed, Watson v. Brainard, 33 Vt. 88 ; Home v. Russell, 41 Me. 446 ; Cur- tis B. Treat, 21 id. 525 ; Sampson v. ShaefEer, 3 Cal. 198 ; Byrd u. Chase, 10 Ark. 602; Wharton v. Fitzgerald, 3Dall. (Penn.) 503 ; Edmonson v. Kite, 43 Mo. 170 ; Cincinnati v. Walls, 1 Ohio St. 222, nor where there was an entry under a contract to purchase, but whicli is not performed, Smith v. Stewart, 6 John. (X. Y. ) 46 ; Stacey v. Vt. Central E. R. Co., 32 Vt. "A ; Hough v. Birge, 11 id. 190 ; Milf s v. Elkin, 10 Ind. 329 ; Vandarhamra! c. StoiTs, .3 Conn. 203 ; Little V. Pearson, 7 Pick. (Mass.) 301 ; Miles B. Elkins, 10 Ind. 329, nor where there has been a demise, but the lessee never entered into possession, Maitland ■c. Wilcox, 18 Penn. St. 321, nor where the owner never consented to the oc- cupancy, Marquette, &e.,R. R. Co. b. Harlow, 37 Mich. 554, or where the oc- cupant , is a mere trespasser. Church- ward V. Ford, 2 H. & N. 449 ; Cripps b. Blank, 9 D. & K. 480 ; Litchfield v. Ready, o Exchq. 939 ; Turner v. Cam- eron, &c., Co., 5 id. 932 ; Camden B. Batterbury, 5 C. B. N". S. 808, or where the occupancy is under a third person, Tew B. Jones, 13 M. & W. 12, nor where the conduct of the parties is such as to rebut the idea of a tenancy, Greton v. Smith, 33 N. Y. 245, as where the ten- ant repudiates the landlord's title, Bos- ton b. Binney, 11 Pick. (Mas.?.) 1 ; Jack- son u. Mowry, 30 Ga. 143, nor does this action lie where the rent is payable in specific articles, the value of whicli has not been fixed, and no rule by which to calculate the value is furnished by the lease. Eastland b. Sparks, 22 Ala. 607 ; Oswald B. Godbald, 20 id. 811. Nor can this action be maintained after an action of ejectment has been brought to turn him out of possession. Featherston- haugh 1). Bradshaw, 1 Wend. (N. Y.) 134 ; Strong b. Garfield, 10 Vt. 502. 1 Hall B. Jacobs, 8 Bush. (Ky.) 595 ; Mitchell B. Pendleton, 21 Ohio St. 664 ; Nance b. Alexander, 49 Ind. 516 ; Dal- ton V. Landahn, 30 Mich. 349 ; Espy b. Fenton, 5 Oregon, 423 ; Lankford ». Green, 52 Ala. 103 ; Quimby ». Stebbins, 55 N. H. 420. In Georgia a contract for use and occupation will be enforced on proof of title in the plaintiif and occu- pation by the defendant. Clark ». Green, 35 Ga. 92. ^ Chamberlin b. Donahue, 44 Vt. 57. 3 Levi B. Lewis, 5 C. B. N. S. 766 ; La Farge v. Park, 1 Edra. Sel. Cas. (N. Y ) 223 ; Estep v. Estep, 23 Ind. 114 ; Hall V. Burgess, 5 B. & C. 533 ; Gunn B. Scovill, 4 Day (Conn.), 228 ; Churcli- ward V. Ford, 2 H. vfe N. 446 ; Crouch d. Briles, 7 J. J. Mar. (Ky.) 257 ; Gibson n. Kirk, 1 Q. B.850 ; Stockett b. Watkins, 2 G. & J. (Md.) 320. But in North Caro- lina it is held that use and occupation will not lie except where there is an express promise to pay rent. Long v. Bonner, 11 Ired. (N. C.) L. 27. * Smith B. Twoart, 2 M. & G. 841 ; Smith B. Eldridge, 15 C. B. 236. ** Stebbins c. "Park, 8 Gray (Mass.), 553 ; Warner v. Hale, 65 111. 319 ; Craw- ford B. Jones, 54 Ala. 459 ; Smith v. Kinkaid, 1 III. App. 620. « Little B. Martin. 3 Wend. (N. T.) 219. 950 Rights, Remedies and Liabilities of the Parties. against a tenant who holds ovei' after his term has expired, the law pre- suming that he holds as tenant upon the same terms as he held under the lease. ^ But, in the absence of an express demise, if the occupancy can be referred to any other ground than that of tenancy, no promise to pay rent can be implied, — as where a person goes in under a contract to purchase, which is not performed.^ In order to maintain this action the defendant must have actually entered into possession under the lease, either by himself or an agent or sub-tenant. It is not sufficient in this form of action to show that there was a lease or an agi-eement, but soma occupation under it must be shown.* Where, however, the lessee has once entered, he is liable for the rent for the whole term in this form of action, although he quit before his term expired, and" thereafter derived no benefit therefrom.* In some cases an action of debt for rent may be maintained where an action for use and occupation will not lie. For instance, a lessee who has never entered to take possession as tenant may be liable on his contract to pay rent,^ but not to an action for use and occupation ; ® ■ I Evertsen x,. Sawyer, 2 Wend. (K. Y.) 507 ; Kussell d. Fabyan, .34 N. H. 218 ; Abeel d. Kadeliffe, 13 John. (N. Y.) 297. 2 Osgood t. Dewey, 13 John. (JT. Y. ) 280 ; Curtis d. Treat, 21 Me. 525 ; Den- nett v. Penobscot F. Ins. Co., 57 Me. 425 ; Coffman ». Howard, 19 Mo. 435 ; Kichmond Co. v. Treat, 7 Bush. (Ky.) 532. See chap. 1, where this matter is fully considered. 8 Town -0. De Heinrich, 13 C. B. 892 ; Edge w. Strafford, 1 C. & J. 391 ; Hall v. Western Trans. Co., 34 N. Y. 284 ; Lowe V. Eoss, 5 Exchq. 553 ; Jones ». Reynolds, 7 C. & P. 335. The question as to whether an entry has been made is for the jury. How v. Kennett, 3 Ad. & El. 659, and where a lease is made to two, and only one enters, in the ab- sence of any proof to the contrary, the jury may find that he entered for all. Glen V. Dnrgey, 4 Exchq. 61. But where an entry is only made by one, and he holds over, he alone is responsible for the rent after the expiration of the term. Theological Institute v. Barbour, 4 Gray (Mass.), 329. In Delano d. Montague, 4 Cush. (Mass. ) 42, the par- ties to a written lease for years, before the expiration thereof, entei-ed into an agi'eement, the one to let the estate and tlie other to hire it, for another year, on the same terms ; and before the expira- tion of the lease, the lessee verbally notified the lessor that he would not carry the agreement into effect ; but the lessee, nevertheless, held over the ter- mination of the lease, although without intending to occupy under the agree- ment, or under any other agreement, and left within the year. It was held, that the lessee was not liable for the use and occupation of tlie premises beyond the time of his actual occupation. In Maitland v. Wilcox, 17 Penn. St. 231, the plaintiff agreed to lease, and the de- fendant to hire, a house for seven years, at a specified rent. A lease was pre- pared, in conformity with the engage- ment, but the defendant soon after gave notice that he would not take the property, and being requested, refused to execute the lease, and to rec-eive the key when tendered. It was held, that an action for use and occupation, or for rent as due on an actual lease, could not be maintained. * Walker ». Furbush, 11 Cush. (Mass.) 366. The rule is, that if the lessee has once entered into possession as tenant, he " holds " until the term is legally determined. Canaan u. Hartley, 9 C. B. 634 ; Bishop u. Howard, 2 B. & C. 100 ; Jones j). Reynolds, 4 Ad. & El. 405 ; Berrey B. Lindley, 3 M. & G. 498 ; Bessel ». Landsbei^, 7 Q. B. 638. A constructive holding or occupancy as tenant is sufficient after entry, Pinero B. Judsou, 6 Bing. 206 ; Papillon b. Brunton, 5 H. & N. 518 ; Smith v. Twoart, 2 M. & G. 841 ; Pollock b. Stacey, 9 Q. B. 1033 ; Atkins v. Hum- phrey, 2 C. B. 654, but a mere construc- tive occupancy is not sufficient before there has been an entry. Towne v. De Heinrich, 13 C. B. 892. 5 Bull i\ Stibbs, 8 T. E. 327. « Edge i;. Strafford. 1 C. & J. 301 ; Defences to Action. 951 so an assignee of the term who has never entered to take possession as assignee may be liable to an action for the vent,' but not to an action for use and occupation.^ So the assignees of a bankrupt who enter and take possession ns nssignees during a current quarter, or half year, and continued in ])ossession until the rent becomes due, are liable to an action of debt for the rent, but not to an action for use and occupation, they not having occupied during the whole period.^ So a luisband is not liable in an action for use and occupation to pay for the enjoyment of a house by his wife dam sola, such occupation not having been by liim, nor at his request ; but he would be liable to an action for the rent, the declaration being framed specially according to the facts.* It has been held, that an action for use and occupation will not lie where the title is in dispute, ejectment being the proper remedy.^ Defences to action. Sec. 550. An "viction from the whole^remises by the landlord is a good ground of defence in this action ; but if the tenant is only evicted from a part of the premises, such eviction is only a defence pro tanio * if he remains in possession of the other part of the premises.' Under tlie general issue the defendant may show that nothing is due, or that no cause of action ever existed against him, as, that tlie plaintiff's title was defeasible, and was in fact legally defe.ated before any rent ac- crued ;" but if the plaintiff's title was not defeated until after the rent claimed became due, the fact that it was subsequently defeated is no defence when raised either under the general issue or by special plea,' So it has been held that jtayment, on an accord -and satisfaction,^" a Lowe V. Ross, 5 Exchq. .553 ; Towne o. ^ McGimigle o. Blake, 3 C.-anch (tj. De Heinrich, 13 C. B. 892. S. C. C), fii; Smith v. Ralei-li, 3 Camp. 1 Khiger ». Canu, 3 M, & W. 343 ; -513. And the fact that the eviction is by Burton v. Barclay, 7 Bing. 745 ; Wil- a third person by paramount title is f Haras u. Bosanquet, 1 B & B. 238;Stone sSfficient. ]N"e\vport v. Hardy, 2 D. & L. r. Erans, Peake, Add. Gas. 94. 921. Or where tlie premises are taken for 2 How 0. Ketinett, 3 Ad. & El. 659 ; public purposes under legal proceed- Lowe 0. Ross, 5 E.Kohq. 556 ; Clarke v. ings, Taylor d. Clemson, 11 CI. & F. Webb, 1 C. M. & R. 29 ; Jones v. Key- 610. nolds, 7 C. & P. 335. ^ Stokes v. Cooper, 3 Camp. 515 n. 5 Cole Ejec. 539 ; Hanson d. Steven- In Re Ware, 9 Exchq. 403. son, 1 B. & Ad. 303 ; Thomas v. Pem- ' Newport v. Hardy, 2 1). & L. 921. berton, 7 Taunt. 206 ; Clark u. Hume, >> Waddilove ». Barnett, 2 Bing. N. 0. B. & Moo. 207; Welch v. Myers, 4 533: Hartsliorne d. Watson, 4 Bing. N. Camp. 333 : Ansellii. Robson, 2C. & J. C. 178 ; Boodle v. Campbell, 7 M. & G. 610 ; WaI;efiold v. Brown, 9 Q. B. 209 ; 386 ; Selby ». Browne, 7 Q. B. 620. Magnay B. Edwards, 13 C. B. 479 ; Gud- i" Drakes. Drake, 11 John. (N. Y.) g(!n 0. Besset, 6 E. & B. 983. 531 ; Bird b. Carital, 2 id. 346 ; Martin ■' Naish B. Tatlock, 2 H. Bl. 319 ; b. Thornton, 4 Esp. 181. But this doc- Clarke B. Webb, 1 C. M. & R. 29 ; trine is questionable, and it is safer to Lambert b. Norris, 2 M. (2W.).50. ' Sewport V. Hardy, ante. » Gibson v. Kirk, 1 Q. B. 850. If tlfe deed was executed merely as an escrow, Gudgen v. Besset, 6 E. & B. 986 ; Mil- lersliip v. Brookes, 5 H. & N. 7!37, or was never executed by all the lessors it will not defeat the action. Pitman B. Woodbury, 3 Exchq. 4 ; How b. Greek, 3 H. & C. 391. i» Day V. Crack-veil, 1 F. & F. 59. 11 Cripps V. Blank, ante ; Turner ». Coal Co., 5 Exchq. 932. 12 Hearm v. Tomlin, N. P. C. 192. If an entry is made on. land under a con- tract for a deed, the relation of landlord and tenant does not exist ; and on his refusing to perform the contract, or on tlie owner's neglecting to execute a dc.id. lie is not liable, iu assumpsit, for use and occupation. Smith v. Stewart, 6 JohiiE. (N. Y.) 46; Vandarheuvel B. Pbemises let fok Unlawful Purposes, Fraud, Etc. 953 defendant for the express purpose of being used by it in drawing oil of tar, and boiling oil and tar, contrary to the provisions of the building act,^ and that, too, even though suchpiirpose had not been curried iiUo effect} So, too, if premises are let to be used for tiie purposes of gamb- ling, or as a house of prostitution, or for cmi/ unlawful or immoral pur- pose, no I'ent can be recovered therefor, and the lease is absolutely void.^ But the fact that they are used for such purposes will not de- ^23 Geo, 3, c. 77. ^TiNDAL, C. J., in Gas Li?ht Co. b. Turner, ante ; Langton c. Hughes, 1 M. & S. 5!)>3 ; Ciirran b. Bryce, 3 B. & Aid. 179 ; Lightfoot v. Tenant, 1 B. & P. 551. 3 In Smith V. White, L. R., 1 Eq. 626, the plaintiff was lessee under a lease granted in 1S13, by the Marquis of E.'!;- eter, for a term of twenty-oue years, at the yearly rent of 150i., of the Fountain Tavern, iu Catherine Street, Strand. This lease contained a covenant to re- pair and yielil up the premises in good repair at the end of the term, and also a covenant not to suffer the house to be used as a brothel, &c. , during the term thereby granted. In December, 1845, the plaintiff agreed to sell the lease of the Fountain with furniture and fix- tures, to Lacey, for li'ydl. ; but as Laoey had not sufficient capital, in order to secure the unpaid purchase-money the agreement was carried out by means of an underlease, the rent reserved for the first four years (in addition to the 1.50J. a year) amounting to 14:)M., and inter- est, which included furniture, &c., to the value of lOOJI., and 150i. the cost of repairs. Tliis underlease contained an express covenant tliat the premises should not be used as a brothel, and also a proviso for re-entry by Smith on -default in payment of rent or on breach of covenant by Lacey. It also contained a covenant on the part of Smith, that if Lacey should duly pay the rent reserved during the first four years of the term, then .Smith would assign the premises to Lacey for all the residue of the term granted by the original lease. The un- derlease then contained a recital, that bills of exchange should be given to Lacey as collateral security, and a cov- enant by Sraitli, that in the event of the demise thereby made being avoided be- fore the bills had become due and pay- able, he would keep Lacey indemnified against payment of such parts of them as should fall due after the avoidance of the demise. The rent reserved during the four years having been paid, Smith, by an indenture dated in March, 1850, assigned to Lacey the premises in ques- tion for all the residue of the terra grant- ed by the lease of 1843 ; and this assign- ment contained a covenant on the part of Lacey, to pay the rent and observe and perform the lessee's covenants contain- ed in the original lease, and to save, de- fend, keep harmless, and indemnify the said Heniy Smith of and from the same, and the payment, and observance, and performance thereof, respectively. On the termination of the term granted by the lease of 1843, the Marquis of Exeter applied to Lacey for 65i. for dilapida- tions under the covenant contained in the lease, but Lacsy not paying that amount, he applied to, and compelled, tiiB plaintiff to pay that sura, uuder a threat of proceedings ; and the plai ntiff having paid it, now souglit to have it repaid to him from the estate of Lacey, who had dieJ, in accordance with the indemnity clause in the assigiununt to Lacey. The evidence went to show that the rent of the house was very much larger '^lian the house was worth for ordinary purposes. Tire plaintiff iuhis examination swore tliat he derived no benefit frim the purposes for which the house wa? used, but declined to swear that he did not know that it was used for an immoral purpose. It will be seen from the judgment that upon the evi- dence the court arrived at the conclu- sion that the house had been used as a brothel for many years, and that the plaintiff was aware of that fact, and knew that Lacey intended to continue so to use it. KiNDERSLEY, V. C, said : — It appears to me impossible to hold that the plaintiff is a creditor of Lacey, his claim arising out of an ille- gal transaction ; that is, a transaction which was intended to carry into effect an immoral purpose. The evidence shows that for the last forty years the house in question has been used as a brothel by the persons who have been successively lessees or occupiers there- of ; and I conclude from the evidence that the plaintiff, when he granted the lease to Lacey, and agreed to assign, and also when he assigned, the prem- ises to Lacey, perfectly well knew tliat the house had long been so used, and that it was intended by Lacey to be used for the same purpose. Knowing all this, 95J: Eights, Remedies and Liabilities of the P^vkties. i'eat a recovery of the rent, unless it is shown that. they were let for that purpose, or that the landlord knew when he made tlie lease that they were to be so used.'^ The fact that the landlord knew, when he he assigned his lease over to Lacey. Xow, It axjpi'ais to iiie that tlie authori- ties clearly show that out of such a transaction as this no legal right can be created ; and that no action would lie for the rent, or f(ji- the breach of any of the covenants, or for anything else arising out of the transaction. U'he case most nearly in point is that of Jennings v. Throgmorton, Ey. ct Mood. 251, where rent was sought to be recovered for lodgings let to a jDrostitiite on a weekly tenancy. In that case it signified notli- ing to the lessor whether the woman carried on the business of a courtezan or any most proper business, provided only she paid her rent ; and the only difference between that case and tlie present is, that in that case there was a weekly tenancy, so tliattlie lessor might at any time have determined the ten- ancy without the impediment of any ex- isting lease ; but knowing the purpose for which the woman hired tlie lodgings he continued to let to lier ; and it was held that the contract was so tainted with immoralil;y that tl.e plaintiff' could not recover. Another case cited is also in point, namely, Eowry v. Bennet, 1 Camp. o48, where the plaintitt knew that the articles of dress supplied by him to the defendant were intended to be used by her in carrying on her voca- tion of a prostitute ; and it was lield that he could not recover. It cannot be doubted that in the present case the plaintiff knew lliat tlie means of paying the high rent which v.as to be paid by Lacey for the premises -would be derived from the profits of the immoral trade to be carried on in the house ; and altliough he had no lien on those profits, he ex- pected to be paid out of them , and knew that unless Lacey carried on svicli a trade he would not be able to pay the rent. It has been argued, on the part of the plaintiff , that his claim is not a claim for rent, but for money which Lacey ought to have paid, and which the plaintiff lias been forced to pay un- der his covenant with the Marquis of Ex- eter contained in tiie original lease ; and tliatitisin effect money paid by plain- tiff to tlie use of Lacey, which ouglit to be repaid to liim out of Lacey's estate. But it appears to me tliat this claim arises just as much out of the immoral contract, and is just as much affected by tlie taint of immorality as a claim for rent. I am of opinion that every right and obligation arising out of tliis con- tract is affected by the taint of immor- ality, and, therefore, that the plaintiff cannot be regarded as a creditor of Lacey. See also, Ealston v. Boady, 20 Ga. 449, wliere the same doctrine was lield ; but it was also held that proof that the landlord kneu that it might he so used would not defeat his riglit to recover rent. Actual knowledge that the premises u-ere to be Llctvted to an unlawful pvrpoke must be sho^wn. Gibson ». Pearsall, ] E.D. S. (N. Y. C. P.) 90. In Louisiana it has been lield that where the landlord leases a house in a section of the city where the keep- ing of houses of prostitution is allowed, to be used as a house of piostitulion, and the landlord hnou-f-- the fact, that he may nevertheless recover the rent. Ly- man V. Townsend, 24 La. An. 025. As to the necessity of jiroof that the land- lord knowingly let the premises for an unlawful purpose, see C'cinargene v. Brown, 27 La. An. 314 ; Zink ti. Grant, 25 Ohio St. 352. In Jennings v. Throg- morton, Ey. & M. 251, wliere the prem- ises were let by the week, it was held that, although wlien the premises v,'ere let he did not know that tlie tenant in- tended to usethtm for the purposes of prostitution, yet that, if he permitted her to remain after lie knew the fact, and after the original term had ended, he could recover no rent. In this case it v,i\l be observed that the letting in the first instance Icing for a -neck, every succeeding week was practically a re- newal of the lease, and such renewal being with knowledge of the illegal use to which the premises were to be devoted would invalidate the lease, and place the lessor in 2>ari dclictov/ith the tenant. Girardy v. Eichardscn, 1 Esp. 13 ; Howard v- Hodges, 1 Selwyn's N. P. 68 ; Gibson v. Pearsall, 1 E. D. S. (N. Y. C. P.) 90 ; Crisp v. Churchill, cited in 1 B. iSr P. 340 ; Jennings v. Throgmorton, Ey. & Moo. 251 ; Tro- vinger v. McBurney, 5 Cow. (K. Y.) 253 ; Fellows v. Emperor, 13 Barb. (N. Y.) 92. 2 Armstrong v. Taler, 11 Wheat. (IT. S. ) 258 ; Stockdale v. Onwhyn, 5 B. & C. 173 ; Fores v. Jones, 4 Esp. 97 ; Tracy v. Talmage, 14 N. Y. 162. In Gibson v. Pearsall, 1 E. D. S. (N. Y. C. P.) 90, it was held, that in order to es- tablish a defence to an action for rent, on the ground that tlie agreement un- der wliich the premises were occuiiied was void, because it was let for a ganib- Premises let fob Unlawful Purposes, Fraud, Etc. 955 lot the premises, that the lessee was a gambler or a prostitute, will not defeat a recovery, nor docs it tend even to establish the fact that lie knew that the lessee intended to apply the premises to the purposes of gambling or prostitution.' Mere knowledge of ling house, the defendant was bound to show that Ihe lessor knew when the agreement was made with the tenant that the premises were to be so used, and let them for that purpose. In Ral- ston t). Boady, ante, it was held that, if the landlord knew that the premises were to be used for the purposes of pros- titution there could be no recovery for rent, but that the fact that he knew that they might be so used is not enough. An action for rent is not bar- red by the failure of the lessor fully to perform his contract, where the lessees enter into possession, and occupy the premises. The remedy of the lessees is by recouping from the rent such dam- ages as they have sustained by failure of the lessor to fulfill his contract, or by bringing a sejiarate action for the re- covery of such damages. Kelsey v. Ward, 38 IS". Y. 83. Where premises are leased to be used as a boarding- house, there is no implied covenant that Ihey are suitable for any particular de- scription of boarding-house, — such as a " lirst-class " boarding-house. Roose- velt V. Abbatt, 2 Robt. {N. Y.) lo6. It is, however, a subject of defence and re- coupment, in an actian for rent, that premises demised for the purpose of keeping a respectable boarding-house therein, had been previously occupied, to the knowledge of the lessor, without disclosing it, as a house of ill-fama, and continued after such demise, in conse- quenei tliereof, to be subject to nightly visits at all hours, from disreputable persims of both sexes, to tlie annoyance and disturbance of the tenant, thus de- feating the purposes and uses for which she rented the house, and forcing her to aband )n her business therein. Staples V. Anderson, 3 Robt. fN". Y.) .327. 1 This rule was well illustrated in a Missouri case, Michaels v. Bacon, 49 Mo. 474, in which the plaintiff brought an action to i-ecover for work done and materials furnished in fitting up and papering a house for the defendant, knowing that it was to be used by the defendant as a gambling-house. The evidence did not disclose that the plaintiff's purpose in supplying the materials and performing the labor was that the house should be used as a gambling-house, but there was cvidenoe that the defendant intended t,n to use it. and that the plaintiff kneio the fact. Ada.ms, J., in delivering the opinion of the court, said : "This was an action on an account for work and labor and materials furnished, and fitting and papering a house on Fourth Street, in St. Louis. Tlie main defence set up and relied on was, that the paper was fur- nished and woi-Ic done with the knowl- edge on the part of plaintiff, and by ex- press agreement on his part, that the house was to be used by the defendants as a gambling-house. There was no evidence tliat the plaintiff's purpose, in supplying the materials and fitting up the house, was tliat it should be used as a gambliug-house. There was evidence, however, conducing to show that the defendants intended to use the house as a gambling-house, and that the plaintiff knew that such was their intention. The case seems to have been tried on a wrong theory, as we understand the law. The instructions on both sides base the defendants' exemption from liability on the simple fact that the plaintiff knew the purpose for which the defendants intended to use the house. While the plaintiff conceded this proposition, in the instructions asked and given for him, he ohjected to the same proposition as embodied in instructions given for defendants. If gamblers can procure work and la- bor to be performed, and houses to be built and furnished at a heavy expense, by mechanics and others, and then escape all responsibility, under the plei that the laborer, titled to recover rent from the first tenant, from the expiration of the current year when he quit the premises to the time when the landlord relet the same to the second tenant.' Where it is mutually agreed to put an end to a tenancy during a current quarter, the tenant to pay^?-o rata to that time, and the land- lord accordingly retakes possession, the amount so agreed to be paid may be recovered in an action for use and occupation." So vrhere the > Tomllnson «. Day, 2 B. & B. 680. OoUett v. Curling, 10 Q. B. 785 ; Coom- 2 Mayor «. Tyler, 8 Q. B. 100 ; Parker ber v. Howard, 1 C. B. 440. 0. Gibblns, 1 Q. B. 421 ; Slack v. Sliarpe, ** Grimman u. Legge, 8 B. A C. 324 ; S Ad. & El. .373 ; Kirkman v. Jervis, 7 Hall v. Burgess, 5 B. & C 332. Dowl. 678. ' Grimmau u. Legge, ante. = Smith t). Eldridge, IB C. B. 236. « Hall v. Burgess, ante. ■' Mechelen «. Wallace, 7 Ad. & El. « Thomas ». Williams, 1 Ad. & El. 5-t, n. 47§. '' Slack «. Sliarpe, 8 Ad. & El, 373 ; Damages Recoveeable. 059 tenant holds over for a -week after such an agreement has been come to, and then quits possession, and the landlord then accepts possession, the rent to the end of that week may be recovered, together with any previous arrears of rent pro rata ; ^ but the landlord cannot recover as for any subsequent use and occupation.^ If the term or tenancy as agreed on has commenced (the tenant havino- entered), the lessee or tenant will be liable to all the rent as agreed, notwithstanding he has ceased to ocoupy : unless indeed some- thino- has since happened to put an end to the term or tenancy, as a surrender by deed or by act and operation of law." Where houses or other buildings are demised at a rent certain, whether orally or otherwise, and there is no stipulation that the rent shall cease in the event of the premises being destroyed by fire, which event happens, the landlord may recover the subsequently accruing rent in an action for use and occupation ; for thi land remains and is "held " by the tenant, although the houses and buildings are uninhab- itable until rebuilt.* The tenant himself may rebuild them if it be Avorth his while, or he may give due notice to quit, but he must con- tinue to pay his rent until his terra expires, or is duly determined by notice to quit, or otherwise. If there be a special stipulation that the rent shall cease in the event of a fire, which happens, a proportionable part of the rent to that time may be recovered in an action for use and occupation, the agreement showing a contract in resj)Gct of the occupation de die in diem.^ Where the rent is agreed to be paid quar- terly, " damage by fire excepted," and the demised premises are to be kept and left in repair, " danjage by fire excepted," and the premises are partly destroyed by fire during the term, the whole rent is not thereby suspended, but a proportionate abatement should be made.' Where a tenancy is continued beyond the time for which the prem- ises were originally taken, and nothing is arranged respecting the amount to be paid on the new holding, that new holding is not of ne- cessity to be on the same terms as the former, but the jury may give the landlord a larger sura for the continued occupation, if there are circumstances to show that such incre.nsed rent was expected by him in the event of the tenant holding over, and that such expectation was known to and not repudiated by the tenant.' If during a term of years the landlord agrees to do certain repairs, or to erect additional buildings, or otherwise to improve the demised premises, in consideration of an agreed percentage on the outlay to be 1 Kirkman v. Jervia, 7 Dowl. 67S. * Baker «. Holtzapffell. 4 Taunt. 45 ; 2 Whitehead «. Clifford, 5 Taunt. 518. Izoii «. Gorton. 5 Bing. JT. C. 501. 3 Whitehead u. CliiTord, ante ; Grim- " Packer v. Gibbins, 1 Q. B. 421. man v. Legse, 8 B. & D. 324 ; Hall v. « Bennett v. Ireland. E. B. & E. 326. Burgess, 5 B. & C. 333; Ward B, Mason, ' Elgar v. Watson, Car. & JI. 404, U Price, 291. 960 Rights, Remedies and Liabilities of the Parties. paid him by the tenant during the residue of the term in addition to the rent previously reserved, such percentage is not in the nature of rent and cannot be distrained for, nor recovered under a count for use and occupation. It is a mere collateral stipulation which must be de- clared on specially.^ A mere oral agreement to reduce the rent re- served upon a demise does not create any new demise; and notwith- standing such agreement, the full amount of rent as originally reserved may be recovered.^ 1 The defendant will not be entitled to any reduction of rent because of acts done by a third person which reduced the value of his occupa- tion, but which were done without the authority of the plaintiff.^ Debt for rent, -vtrhea maintainable. Sec. .'JSS. The action of debt for rent is founded sometimes upon privity of contract, express or implied, and sometimes upon privity of estate.* It may be supported, whether the contract of demise is by deed, by writing not under seal, or by parol ; but an action for use and occupation can be maintained only where the demise was not hy deed.'' At common law, rents reserved on leases for years, or tenancies at will, were at all times reco-\-erable by action of debt ;'^ but it did not lie for rent reserved upon a freehold lease during the continuance of the lease.' Since the statute abolishing real actions,' debt will lie for a rent in fee if such a rent is expressly covenanted to be paid.^ By 8 Ann. c. 14, K. 4, any persons entitled to rent in arrear, on a lease for life or lives, may have an action of debt during the existence of the life, as on a lease for years during the term. Debt does not lie .at common law, nor by this statute, for the arrears of an annuity or yearly rent devised, p.ayable out of lands to A during the life of B, to whom the lands are devised for life, B paying the same thereout, so long as the estate of freehold continues.'"' By 32 Hen. 8, c. 37, s. 1, the executors and ad- ministrators of tenants in fee, fee-t,ail, or for life, of rent-services, rent- charges, rent-seek, and fee-farms, m,ay bring debt for the arrearages against the tenant who ought to have paid the same.^^ Any words .which are sufficient to create a privity of contract be- V 1 Hoby B. Roebuck, 7 TauTit. 157 ; « Esp. N. P. 188. Donellan v. Read. ?, B. & Ad. 899: Lam- ' Bp. of Winchester ». WrigM, 2 Ld. bert V. Norris, 2 M. & W. .33.3 ; Foquet Rayd. 1056 ; Kelly ». Clubbe, 3 B. & B. ». Moor, 7 Ex(;li. 870 ; Martyii o. Clue, 130. 18 Q. B. 661. 8 8 & 4 Will. 4, c. 27, s. 36. 2 Crowley ». Vitty, 7 Exch. .319. => 4 Co. R. 49 a ; Varley ;;. Leigh, 2 8 Drury Lane Theatre Co, t. Chap- Exch. 440. man, 1 C. & K. 14. » Webb v. Jiggs, 4 M. & S. 113 ; * Bull. N. P. 167 ; Lord Ward v. Braithwaite v. Skinner, 5 M. & W. Lumley. 5 H. & N. 87, 651). 013. 6 11 Geo. 2, r. 10, s. M ; Gibson ». "■ Bac. Abr. Debt (C). Kirlv, 1 Q. B. 850. Debx for Rent, whex Maintain-abt.e. 961 tween the parties will enable the landlord to maintain an action of debt ; it lies, therefore, for non-payment of the rent on the words " yielding and paying " in a lease for years ; for it is an agreement to pay the rent, which amounts to a contract.' As between the parties to the contract, an entry by the tenant upon the land demised by deed is not necessary to enable the landlord to support an action of debt for rent ;•' whereas no action for use and occupation lies before the lessee has entered." Again, the action of debt for rent lies, though the defendant entered before his title began ; for though clearly he is a disseizor by his entry, and the accruing of his term shall not alter his estate, yet there is a privity of contract, and whether the entry be tortious or not, it cannot discharge the contract for payment of the rent.* If the lessor assigns his rent, without the reversion, the assignee may maintain an action of debt for the rent, because the privity of contBact is transferred ; ^ but if the lessor grants away his reversion he cannot have an action of debt for the subsequent rent, because, be- ing incident to the reversion, it passes with it.° The grantee of the re- version who has assigned it over cannot have debt against the lessee for subsequent rent; for tliere was no j^rivity between them but by reason of the privity of estate, and that being gone by the assignment this action will not lie.'' If a lessee for years assign all his interest to another, the lessor may still have an action of debt against him, for rent in arrear, after the assignment.' The lessor may, however, either tacitly or expressly accept the assignee for his tenant, and so discharge the original lessee from liability to an action of debt for rent ; and if he once accept rent from the assignee, he can never resort to this par- ticular remedy against the lessee ; ' but he may maintain an action of covenant. Where A, being lessee for years, assigns all his term to B, rendering rent, debt lies by A for the rent as " rent," for it is not a sum -in gross, although no reversion remains in A." So if A demises to B for a longer term than his own, A, or his executor or administrator, may maintain debt for the rent which accrues during the continuance 1 Bower v. Hodges, 13 C. B. 765, * Alexander w. Dyer, Cro. Eliz. 169. 774 ; Woodfall's L. & T. 689-90. ' Allen v. Bryan,- 5 B. & C. 512 ; 2 Bellasis v. Burbrick, 1 Salk. 209 ; Robins v. Cox, 1 Lev. 22 ; Marie v. Bull V. Stibbs, 8 T. K. 327. But there Flake, 3 Salk. 118 ; Williams r. Hay- must be a sufficient contract for the ward, 1 E. & E. 1040 ; 28 L. J. Q- B. payment of such rent. Clarke v. Fuller, 374. 16 C. B. N. S. 24 ; Harrison v. Black- « Esp. N. P. 202. burn, 17 C. B. N. o. 678 ; Chitty on ' Humble v. Glover. Cro. Eliz. 328. Contracts, 292, 7th ed. ; Smith L. & T. « Auriol v. Mills, 4 T. R. 98 ; 1 Smith 13, n. (10) (2d ed.). L. C 660, 673 (4th ed.). » Edge V. Strafford, 1 C. & J. 391, 398; « Esp. N. P. 201. Lowe V. Ross, 5 Exch. 553 ; Towne v. '" Newcombe v. Harvey, Carth. 161 ; D'Heinrich, 13C. B. 892. Com. Dig. tit. Debt (C) ; Clarke v. 61 Couglan, 3 Ir. C. L. Rep. 427. 962 Rights, Remedies and Liabilities of the Paeties. of A's term.^ So may an assignee of the rent for such rent as accrues after the assignment and during the continuance of A's term ; ^ were it otherwise great injustice might be occasioned, as the tenant, if evicted, would have no answer to an action on his covenant for the payment of the rent.° , Remedies in courts of equity. Sec. 554. In those States where the powers of a court of equity are not blended with courts of law it may often be necessary for a person entitled to rents to resort to a court of equity for a recovery thereof. Especially is this a proper and efficient remedy where the premises are occupied by an undertenant and the lessee has become insolvent. In such cases a court of equity, treating the rent as a trust or charge upon the land, will upon proper application direct the rents to be paid to the lessor direct,* unless the lessor has an ample remedy at law, or, by his own laches, has been deprived of such remedy.* So, too, a court of equity may be called upon to adjust the rights of the parties where the lease requires expenditures on one side ai.d an allowance therefor on the other, or where there are accounts against the lessor in favor of the lessee which ought to be allowed in liquidation of the rent, or where a discovery is necessary,^ or where a judgment in ejectment has been restrained by an injunction procured by the tenant, wlio dies before the bill is disposed of, equity will relieve the tenant by compell- ing the tenant's representative to account for the mesne profits.'' But, unless the equities of the case demand it, interest will not bo allowed.' Equity will not interfere where the tenant or person entitled to mesne ])rofits has never entered, unless in behalf of a trustee or an infant, or the plaintiff has been by fraud prevented from asserting his title ; ^ nor where the plaintiff has lost his right to recover at law by reason of his own laches,^" unless such laches are referable to fraud on the part -'i 1 Tlakfir v. Gosfiiiis, 1 Bing. N. C. 19. Sanlas, 1 Y. & J. 574; Barker v. Dacie, "■Willinms t. Hayward, IK. A E. 6 Ves. 687. lO-in ; as L. J. Q. B. 374. ' Landsdowne jj. Landsdowne,! Madd. ' Baker v. Gostlijig, 1 Bing. N. C. 116. As trespass for mesne profits, Im- '21. ing a tortious action, dies with Oie ' 1 Story's Eq. .Juris., sec. 687 ; Fon- tenant. Bisliop of Winchester t. blanque's Eq. Rec.-5; Goddardr. Keats, Knisht, 1 P. Wms. 407. 1 Vern. S7. " Batten u. Eaniley, 2 P. Wms. 163 ; 5 Blackiiall v. Combs, 2 P. Wms. Teer v. Winterton, 1 Ves. 451. 70 ; Palmer v. Whittenhall, 1 Cas. in " H&iton v. Simpson, 2 Vern. 724 ; CA\. 184 ; Thorndek v. Allison, 1 id. Owen v. Aprice, 1 Ch. E. 17. In such 79. cases the account will only be decreed '* O'Connor r. Spaight, 1 Sch. & L. from the time the plaintiff's title accru-ed 305 ; Rex v. Wliitst'able, 7 East. 353 ; unless the equities of the case require Porter v. Spencer, 2 .Tnlin. Ch. (N. Y. ) that it should commence from the 171 ; Armstrong v. Gilchrist, 2 John, date of entry or of the filing of the bill. Cas. (N. Y.) 424 ; Post v. Kimberley, 9 Doniier ». Fortescue, 3 Atk. 130. .Tobn. (N'. Y. ) 479 ; Hawlev v. Cramer, " Davov r. Davev, 1 Cas. in Ch. 414 ; 1 Cow. (N. Y.) 727; Fr'ietas i'. Dos I-nc'.ic\- r, l.oi'kpy, 'Prcc. Ch. 618. Penalty foi: Failure to deliver up Possession'. tJGS tho defendant.' In cases where the plaintiff is entitled to a discovery which is essential to the protection of the plaintiff's rights, and in such cases will give such relief as is consequent upon the discovery.^ So where several persons claim the rent, equity will entertain an inter- pleader in behalf of the tenant to determine to whom it should be paid.' So where a trustee has become bankrupt or insolvent, equity will com- pel the cestui que trust who takes the profits to pay the rent.* Tenant must deliver up possession. Penalty for failure. Sec. 555. When a tenant holds over after the expiration of a notice to quit, tlie landlord is entitled to recover against him the reasonable damages and costs sustained by him in an action at the suit of a party to whom he had contracted to let the premises, but to whom the tenant's wrongful act had prevented him from delivering possession.^ If, at the expiration of the term, the tenant and his family have gone away from the house, and the house is locked up, no one being in possession, the landlord would be justified in breaking into the house forcibly and ob- taining possession ; and trespass quare clausum fregit, at the suit of the tenant, could not be maintained against him.^ So where a pauper, who was not a tenant, but had been permitted to occupy a parish house, went away from home, it was held that the overseers might lawfully resume possession.'' A tenant wrongfully holding over cannot main- tain trespass quare clausum fregit against his landlord for a peaceable entry,' or even for an entry with strong hand ; but the landlord having entered may maintain trespass quare clausum fregit against such tenant for remaining in the possession." It was once held that the landlord could not acquire lawful possession by a forcible entry after the expirar tion of the term ; " but the contrary has since been repeatedly decided." And it is now settled that a lessoi-, at the determination of the term, 1 Cottrell ». Purchase, Forrest, 63. ' Wildbor v. Rainforth, 8 B. & C. 4. ^ Livingston ». Livingston, 4 John. * Taunton ». Costar, 7 T. R. 431 ; Tur- Ch. (N. Y.) 287. ner v. Meymott, 1 Bing. 158 ; Lacey ». 3 Badeau o. Tyler, 1 Sandf. Ch. (N. Lear, Peake, Add. Gas. 210. T. ) 270. As in such a case, the tenant * Burling v. Read, 11 Q. B. 904; Davi- is not treated as disputing the landlord's son v. Wilson., id. 890; Meriton v. title, but as merely taking measures to Coombes, 1 L. M. & P. 510 ; Harvey v. protect himself against the embarrass- Bridges, 14 M. & W. 437 ; Jones a. ment of an uncertainty as to his liability Chapman, 2 Exch. 803 ; Browne v. Daw- and the consequences of an erroneous son, 12 Ad. & El. 624 ; Blades v. Higgg, payment. Clarke v. Boyne, 13 Ves. 10 C. B. N. S. 713 ; 13 id. 844 ; Cole .383 ; Crumsliay v. Thornton, 7 Sim. Ejec. 67, 68, 689. 391 ; Durgey v. Angone, 2 Ves. 304. '» Butcher v. Butcher, 7 B. & C 399 ; * Clavering v. Westley, 3 P. Wms. Key v. Moorhouse, 6 Bing. N. C. 52 ; 402. Co. Lit. 245. 5 Bramley o. Chesterton, 2 .C. B. K. " Newton v. Harland, 1 M. & G. 644. S. 592. 12 Harvey v. Bridges, 14 M. & W. 437 ^ Turner B. Meyinott, 1 Bing. 158; Hil- -442 ; 1 Exch. 261; Jones v. Chapman, lary v. Gay, 6 C. & P. 284 ; Davison v. 2 Exch. 803 ; Davis v. Burrell, 10 C. B. Wilson, 11 Q. B. 890 ; Burling u. Read, 821 ; Pollen v. Brewer, 7 C. B. N. S. id. 90.' 371 ; Appleton v. Murray, 8 W. R. 653. 964 Rights, Remedies and Liabilities of the Parties. may enter forcibly into possession of the demised premises, and after civilly requesting the tenant to depart, may, in case of his refusal or neglect to comply with such request, gently lay hands upon him to turn or push him out ; and in case of any resistance on his part, may use such force and violence as may be necessary to overcome such resist- ance, but no more, and so expel the tenant from the possession without being liable to an action of trespass quare clausum fregit, or for assault, at the suit of the tenant ; although he may have made himself liable to an indictment for a forcible entry.^ But excess of violence must be avoided, and that creates the principal difficulty and danger in proceed- ing to expel a tenant in the manner above mentioned, and renders it more advisable to proceed by action of ejectment or by summary pro- ceedings under the statute,where the statute provides a summary remedy. A proviso for re-entry may be so framed as expressly to justify the lessor, on breach of any of the covenants, in forcibly resuming )'<)sses- sion of the premises and expelling the tenant ; ° but in framing such a clause, care should be taken to provide for a waiver of all common law requirements, otherwise they must be complied with before the right attaches. Thus, where a forfeiture is provided for a breach of a cove- nant to pay rent, unless a legal demand is expressly dispensed with such demand must be made according to the strict rules of the common law before the landlord can lawfully dispossess the tenant.^ Encroachments by tenants. Sec. 556. Encroachments made by a tenant from the adjoining land during the term are prima facie for the benefit of the tenant during the term, and afterwards of his landlord, unless it appears by some evidence that the tenant at the time they were made intended them for his own exclusive benefit, and not to hold them as he held the land to which they were adjacent, and, therefore, he is bound to deliver them up at the end of his term.^ The landlord may afterwards maintain ejectment to recover possession of them with or without the other premises com- prised in the lease.'' The covenants to repair, &c., contained in the lease will be held to extend, by implication, to the encroachments and the buildings thereon.' This presumption holds only as between the tenant and his landlord, and will not prevail for the landlord's benefit 1 Davison v. Wilson, 11 Q. B. 890 ; d. Lloyd ». Jones, 15 M. & W. 580 ; Bm-liiis; u. Read, id. 904. Andrews M.Hailes, 2 E. & B. 349; Croft 2 Miiler v. Myers, 15 L. J. Q. B. 157 ; ». Tidbury, 14 C. B. 304 ; Kingsmill v. Kavanaugb u. Gudge, 7 M. & G. 316. Millard, 11 Exdiq. 313 ; Earl of Lis- 8 Barry i). Glover, 10 Ir. 0. L. 113 ; burne d Davies, L. R., 1 C. P. 259. Acocks v. Phillips, 5 H. & K. 183. * Andrews v. Hailes, 2 E. & B. 349 ; « Lewis V. Rees. 6 C. & P. 610 ; Earl Croft b. Tidbury, 14 C. B. 304 ; Earl of of Dunraveii v. Williams, 7 C. & P. 322; Dunraven o. WilUains, 7 C. cfe P. 332. Harrison v, Murrell, 8 C. & P. 134; Doe « White v. Wakley, 26 Beav. 17. DounLB Value; 965 against third persons.'' A conveyance by a lessee of the encroachments to his son not appearing to have been delivered, and not followed by possession, does not rebut the presumption that the lessee made the en- croachments for the benefit of his lessor. An indorsement on a lease, by which the lessee agrees to surrender all inolosures made by him at the end of his lease, and to pay a certain sum annually as an acknowl- edgment, is an admission they were made for the benefit of the lessor.* Double value. Sec. 557. The statute' providing for the recovery of double the yearly value of the premises, where a tenant ■wilfully holds over after demand a?id notice m icriiwy, is a penal statute, and therefore is con- strued strictly.^ It only extends to tenants for any term "of life, lives or years," and does not embrace weekly, quarterly or half-yearly tenancies.' In order to maintain an action for double value, the fact must be established that the tenant held over wilfully^ contumaciously, and not byaocident, or mistake as to his rights.'^ So, too, it must be shown that a demand was made and notice in writing given pursuant to the statute.' This demand and notice may be served before the term is ended, requiring possession to be given up when the tim'e is ended.' Or the notice may be given within a reasonable time after the term is ended, if the landlord has done no act in the mean time to acknowledge t 1 Baddeley u. Massey, 17 Q. B. 373 ; ing given, for delivering; the possession Bluck ». Moyes, 13 L. T, 325 . thereof by his or their landlords or * Lloyd «. Jones, 13 M. & W. 580. lessors, or the person or persons to ' 4 Geo. 2, chap. 28, sec. 1. whom the remainder or reversion of such *Lloydt). Rosbee, 2 Camp. 4.53 ; Eobin- lands, tenements or hereditaments shall son B. Learoyd, 7 M. & W. .54. belong, his or their agent or agents * Sullivan v. Bisliop, 2 C. & P. 359 ; thereunto lawfully authorized, then and Wilkinson v. Hall, 3 Bijig. X. C. 508 ; in such case such person or persons so Ll'jyd V. Rosbee, ante. holding over shall, for and during the " Lake v. Smith, 1 B. & P. 174 ; time he, she or they shall so hold over. Wright V. Smitli, 5 Esp. 203 ; Hirst i). or keep the person or'persons entitled Horn, 6 M. & W. 393 ; Soulsby b. Nev- out of possession of the said lands, tene- ing, 9 East, 313. But only the tenant ments and hereditaments as aforesaid, holding over is liable, although the pay to the person or persons so kept out terra vras to and enjoyed by several of possession, their executors, adminis- tenants. Di-aper v. Crofts, 15 M. & W. trators or assigns, a,t the rate of double 166 ; Anonymous, 3 Esp. 215 ; Poole the yearly value of the lands, tenements V. Warren, 8 Ad. & El. 5S2 ; Swinfen c and hereditaments so detained, for so Bacon, 6 H. & Jf. 184. long time as the same are detained, to be ' The statute provides that "in case recovered in any of his Majesty's courts any tenant or tenants for any term of of record, by action of debt, whovennto life, livef or years, or other person or the defendant or defendants shall be persons who are or shall come into pos- obliged to give special bail ; against the session "of any lands, tenements or her- recovering of which said penalty there editaments, by, from or under, or by shall be no relief in equity." collusion with such tenant or tenants, ' Cutting v. Derby, 2 W. Bl. 1075 ; sliall wilfully hold over any lands, tene- Messenger o. Armstron,2, 1 T. E. 53 ; ments or hereditaments after the de- Wilkinson r. folley, 5 Burr. 2694 ; termination of such terra or terms, and IVvith u. Macfirlane. 1 B. & Ad. 904; after demand made, and notice in lorit- Wright u. Smith, 5 Esp. 203. 966 Rights, Remedies and Liabilities of the Paetii:-.,. the continuance of the tenancy, ov rather to create a new one ; and he will thereupon be entitled to double value, calculated from the time of such demand, and not from the expiration of the tenancy. If the rent was before reserved quarterly, and such demand is made in the middle of a quartei', the laiidlord cannot recover any rent or compensa- tion for use and occupation for the antecedent fraction of such quarter.' The demand and notice should always be given before, or as soon as jjos- sible after, the expiration of the term. Whore the tenancy was only from year to year, the usual written notice to quit is a sufficient demand and notice whereby to satisfy the statute, and no further demand or notice need be made after the tenancy has ceased.^ But the notice must amount to a valid and binding notice to quit.' If it requires' the tenant to quit on the wrong day, or on the right day at twelve o'clock at noon, that is not sufScient.* A notice requiring the tenant to quit on the proper day "or I shall insist on double rent" (instead of double value) is sufficient, and does not give'the tenant the option of holding over.* A second notice, given after the expiration of the term, to quit on a subsequent day or to pay double rent, is no waiver of the first notice given before the expiration of the term, or of the double rent which lias accrued under it.^ A notice to quit lands on a given day, " or at such time as your holding shall expire next after the expiration of half a year from the receipt of this notice," is sufficient in an action for double value.' Where a sufficient notice to quit is given to a female tenant, and she afterwards marries, no further notice need be given to the hus- band to support an action against him for double value for holding over." The notice must be signed by the landlord or his agent " thereunto law- fully authorized." A receiver or agent authorized to let, and to sue or distrain for rent, has sufficient authority to give the notice." So a re- ceiver in chancery, with the usual powers, may give the notice in his own name.-"* Double value cannot be distrained because it is not in the nature of rent, but of unliquidated damages, recoverable onlyby action pursuant to the statute. But it is otherwise with respect to double rent. After recovering the possession in ejectment, the landlord may maintain debt for double value for the time the tenant held over after the expiration of the notice to quit until possession is obtained in the ejectment suit. This remedy has no reference to any antecedent remedy for the recov- ' Cobb u. Stokes, 8 East, 338. ' Matthews t. Jactson, 1 Doug. 175 ; 2 Wilkinson v. CoDey, 5 Burr. 2694 ; Lyster v. Goklwin, 2 Q. B. 143. Cuttinsi I). Derby, 2 W. 131. 11)75 ; Hirst ^ Messenger v. Armstrong, 1 T. K. 53. V. 'Horn, 6 M. & W. 393 ; Cole Ejec. ' Hii-st v. Horn, 6 M. & \V. 393. 646. 8 Lake v. Smitb, 1 B. cfc P. 174. s .Johnstone v. Hudlestone, 4 B. & C. ^ Poole v. Warren, 8 Ad. & El. 582. 922. . " Wilkinson v. CoUey, 5 Burr. 2694. * Page B. More, 13 Q. B. 684. See Trent v. Hunt, 9 Exch. 14. ' Out-going and in-coming Tenants. 967 ei-y of possession, but is cumulative.^ This amount ot recovery in this action is double the yearly value of the premises, and not double the yearly rent ; '' and in estimating the value, only the value of the lands and tenements can be considered.' Double rent. Sec. 558. The statute * providing for the recovery of double rent in certain oases only applies where the tenant, having the power to put an end to the tenixncy, by notice, gives notice of liis intention to quit at a certain time, and neglects or refuses to give up possession at the lime. In order to recover under this statute, it is not necessary to show that the tenant held over wilfully or contumaciously, iis the act (.loes not so provide;* and it applies to all species of tenancies, whether weekly, quarterly, or yearly, and whether the lease is in writing or by parol." This species of rent is recoverable in the same way and .at the same time as single rent, and may be distrained for, or recovered by suit at law.' Out-going and in-coming tenants. Sec. 5t)9. It is very generally the case, that by the terms of the lease or the custom of the country out-going tenants of farms leave, and the in-coming tenants enter upon, the jsremises at different periods of the year : as, the house and buildings at one time, the ar.able land at another, and the pasture and meadow land at a third. Sometimes, how- ever, the general quitting of the farm takes j^lace at one time ; and there exists the privilege for the out-going tenant to retain possession of the land upon which his away-going crops are growing, and the use of some of the barns and stables for the purjjose of threshing and con- veying them to raai'ket. This privilege is occasionally given on condi- tion of his payiftg the rent and taxes applicable to the premises which he retains; but, perhaps, more commonly without any such stipulation. The in-coming tenant has also the privilege of entering before the ex- piration of the existing tenancy, for the purpose of ploughing and pre- paring for his crops. These privileges of partial occupation are some- times expressly given by the terms of the lease ; " and, where that is not the case, frequently may be supported by tlie custom of the country. The proof of any such custom lies upon the party who claims under it.' 1 Soulsby e. Neving, ante. jSTo pre- * Timrains ». Eawlinson, ante, vious action of ejectment is necessary, 'Wickliam v. Lee, 12 Q. B. •^nd it may be brought in place of, or ' Ex parte Maundrell, In re Dark, 2 after ejectment. Cutting ». Derby, 2 Madd. 315, .S16 ; Buck, 83 ; Earl of St. W. Bl. 1077. Germains o. Willan, 2 B. & C. 216 ; 2 Soulsby B. Neving, ante. Strickland v. Maxwell, 2 Cr. & M. 539 ; 3 Robinson u. Learoyd, 7 M. & W. 48. Woodfall's L. & T. 590-3. 4 11 Geo. 2, chap. 19, sec. 18. '■' Caldecott v. Smythies, 7 C. & P. 6 Woodfall's L. & T. 584. 808. 968 Rights, Remedies and Liabilities of the Parties. If the terms of the lease or agreement are inconsistent with the custom it will exclude it.' But so far as such terms are not utterly inconsistent with the custom the latter will prevail.^ In one case it was held, that the lease must in express terms exclude the custom.' But that case went too far, and it is clearly sufficient if the terms of the lease are in- consistent with the custom.* A custom that the tenant should hold over for half a year after the expiration of his term is bad ; ^ but a custom to take an away-going crop, and house the same in the barns of the farm for a certain time after he has quitted possession of the bulk of the farm, is good.' Where by the custom of the country, or by the termf^ of the lease, the tenant has a right to retain possession of any part of the de- mised premises after the end of the term, ex. gi'., a right to retain the barns for the purpose of threshing out his crops, &c.. such right will in effect operate as a prolongation of the term as to such part ; and there- fore during that period the landlord may distrain thereon;' or the (jut- going tenant, or his assignees, may maintain trespass;^ or defend an action of trespass at the suit of the in-coming tenant;^ or defend an action of ejectment at the suit of the landlord ; but he should confine his defence by notice to the particular part;'" and during sucli period the out-going tenant cannot remove any of the straw, &c., which lie has covenanted not to remove " during the leased term." " So, where there is a right reserved to the tenant to take the away-going crop, it operates as a prolongation of the tej-m on which such crop grows, and the pos- session of the land continues in the tenant till the crop is or miglit bo cut and carried away.'^ He also retains his parliamentary franchise if the part held over is of sufficient value.'* Right to crops, &o., under lease or cistom. Sec. 560. When the lease or tenancy of a farm expires or determines , otherwise than by the death of the lessor, the tenant must give up pos- session of the whole to the landlord or his assigns, crops and everything else,'* unless there be some special stipulation to the contrary in the lease, or some custom of the country for the tenant to hold over part 'Webb B. Plummer, 2 B. & Ad. Delaliay, 1 H. Bl. .5; Boraston b. Green, 746 ; Roberts v. Barker, 1 Cr. & M. 16 East, 71. 808 ; Clarke v Eoystone, 13 M. & W. ' Beavan r. Delahay, 1 H. Bl. 5 • 752. Knight v. Bennett, .3 Bnig. 364. 2 Holding V. Pigott, 7 Bing. 465 ; » Beatv v. Gibbons, 16 East, 116. Hutton V. Warren, 1 M. & "W. 460 ; ^ Griffiths v. Pulestoii, 13 M. & W. Faviell ». Gaskoin, 7 Exch. 273 ; Muncey 358. I'. Dennis, 1 H. & N. 216. i" Alcock v. Wilshaw, 2 E. & E. 6.33. = Senior «. Armytage, Bart., Holt, " Earl of St. Germains f. Willan,2 B. i'J7. & 0. 216. ■* Hutton J). Warren, 1 M, & W. 476 ; '^ Roraston v. Oreoii, 16 East, 81 ; Sutton V. Temple, 12 M. & W. 63. Griffiths v. Puleston, ante. '' Wliite V. Sayer, Palm. 211. " Wythe's Case. 1 Kiiapp & O. 53. " Wigglesworth i;. Dallison, 1 Doug. " Caldecott v. Smythies, 7 C. & P. 201 ; 1 Sraitli L. C. 453 ; Beavan u. 808 ; Davies u. Counop, 1 Price, 53. Right to Chops, &c., under Lease ok Custom. 969 of the demised premises, or take some of the crops. If tlie tonns of the lease are inconsistent witli the custom they will exclude it; and in such case the tenant must look to his remedy under the covenants in the lease.^ But where the custom is not excluded by the terms of the lease the out-going tenant may maintain an action against the in-coming tenant for the value of such tillages, manure, &c., as he is entitled to be paid for according to the custom.^ If there be no in-coming tenant such action may be maintained against the landlord.^ The right which an out-going tenant has to take an away-going crop — which is the crop sown during ,the last year of his tenancy, but not ripe until after the expiration of it — is sometimes given to him by the express terms of the lease or agreement, and sometimes by the custom of the country : such custom, or, more properly speaking, usage, has been held to be reasonable and valid, and to apply equally to tenants by oral agreement or by writing, or even by deed. Such a custom is good and just, and for the benefit and encouragement of agriculture ; for that it is but reasonable, that he who sows should reap the profit.* A strictly- legal custom, which has immemorially existed, is not necessary ; for a common usage of the neighborhood is quite sufiicicnt to confer the right, in the absence of any specific agreement between the parties, or any express words which would exclude the custom where any agreement does exist ; ^ but the custom of the country can have no place where the off-going tenant holds under a lease expressly making a different provi- sion in respect of the away-going crop ; '^ or where he continues to hold over after the expiration of such a lease, without coming to any fresh agreement with his landlord, by which he must be taken to hold under the same terms.' Where the lease contains no stipulations as to the mode of quitting, the off-going tenant is entitled to his away-going crop according to the custom, even though the terms of holdiii'g mxyhe inconsistent with such a custom.* ' The fact of the existence of the usage is to be collected not only from what is usually done in cases of tenancy from year to year, but from the usual course pursued where tenants hold under regular leases. The principle applies equally to the case of a tenancy from year to year as to a lease for a longer term with respect to the right to take an away-going crop.' 1 Earl of St. Germains ». Willan, 2 B. 6 Webb v. Plummer, 2 B . & Ad. 746 & C. 216 ; In re Darlv, 2 Madd. 315 ; Huttou jj. Warren, 1 M. & W. 466 Strickland v. Maxwell, 2 Cr. & M. 5.39 ; Roberts v. Barker, 1 Cr. & M. 808 Newson ». Smythies, 3 H. & N. 840 ; Clarke v. Roystone, 13 M. & W. 752. Hyatt 0. Griffitbs, 17 Q. B. 505. ' Boraston v. Green, 16 East, 71. 2 Muneey v. Dennis, 1 H. & N. 216. * Holding v. Pigott, 7 Bing. 465 ^Faviell v. Gaskoin, 7 Exch. 273; Webb v. Plummer, 2 B. & Ad. 746 Mousley ». Ludlam, 15 Jur. 1107. Hutton v. Warren, 1 M. & W. 466 4 Wigglesworth u. Dallison, 1 Doug. Muneey v. Dennis, 1 II. ife N. 216. 201. ' Onslow V. , 16 Ves. 173 ; Thorpe '" Senior ». Armytage, Bart., Holt, 197. ». Eyre, 1 Ad. & El. 920. 970 Rights, Remedies and Liabilities of the Paeties. Where the out-going tenant is entitled to take an away-going crop, he may avail Iiimself of that right, whether the farm revert back into the hands of his landlord,^ or an in-coming tenant take possession." An agreement between tlie out-going and in-coming tenants with respect to crops does not affect any existing rights of the hxndlord.^ If it refers to the lease the lease must be put in.^ By a clause in a lease it was agreed that the tenant should be entitled to an away-going crop, which was to be left for the laudloi-d or his in-coming tenant at a valuation ; it was held, that this clause did not give the tenant the right of posses- sion as against the landlord, after the determination of the tenancy, but that the tenant at most could only go on the land for the purposes of an away-going crop, and could not exclude the landlord.^ A permission by a landlord to an out-going tenant to sow more land than by the cus- tom of the country he was entitled to on quitting, is good against the in-coming tenant.^ Where an out-going tenant has no right to an away-going crop, but cuts and carries it away after the expiration of his term, an action of trover may be maintained aga]nst him by the landlord, although the crop was sown by him during his tenancy, under the idea ,that he was entitled to an away-going crop.' It has, however, been held, that trover does not lie by an in-connng tenant to recover the value of the away- going crops taken by the off-going tenant, who continued to hold the land as tenant from year to year after the expiration of an old lease, which reserved to Lim tlio right, after the end of the term, " to fence in and preserve all such hard corn as should be sown on the premises the winter seed-time preceding, so as the same exceeded not twenty-nine acres, and was summer fallowed and well manured, &c., and at harvest to reap and carry away the same ; " for neither is trover the proper action to try the question as to the right to the land, nor does the proper remedy for any mismanagement of the land during the former time ap- pertain to the in-coming tenant, but to the landlord.' Where thei-e was an agreement between an out-going and an in-coming tenant, that the latter should buy the hay, &c., of the former upon the farm, and that the former should allow to the latter the expenses of repairing the gates. and fences of the farm, and that the value of the Kay, &c., and of repairs, should be settled by third persons ; it was held, that the balance settled to be due to the out-going tenant for his hay, &c., after deduct- ing the value of the rei^airs, might be recovered by him under a common 1 Faviell v. ttaskoin, 7 Exch. 273 ; <' Strickland v. Maxwell, 2 Cr. & M. Mousley v. Ludlam, 21 L. J. Q. B. 64 ; 539. 15 Jur. 1107. >* Griffiths p. Tombs, 7 C. & P. HIO. 2 Mnncey v. Dennis, 1 H. & N. 216. ' DaviesB. Connop, 1 Price, 53. 3 Petrie v. Daniel. 2 Smith R. 199. e Borastou v. Green, 16 East, 71. ■• Tanner v. Washbourne, 1 F. & F. 330. Emblements. 971 count for goods sold and delivered, although he failed upon a special count on the agreement, for want of including in it that part of the agreement which related to the valuation of the repairs.' Where A agreed with B to let him land rent free, on condition that A sliould have a moiety of the crops ; and while the crop was on the ground it was appraised for both parties ; it was held, that A might declare in indebitatus assumpsit for a moiety of the value of the crop sold to B, without stating the ^special agreement ; as the special agreement was executed by the appraisement, and the action arose out of something collateral to it.'^ Where the plaintiff gave up possession of a farm to the defendant, having previously sown forty acres of it with wheat, and at a meeting in the previous month the plaintiff asked_the defendant if he would take the wheat at 200?., saying, that if he would not, he should not have the farm ; to which the defendant replied, that he would take the wheat ; and being asked to whom the dead stock should be valued, replied, " to me ; " the defendant afterwards undertook to pay for the wheat and dead stock on a specified day, and did pay 75Z. on account generally, and eventually had possession of the farm, the wheat, and the dead stock. In an action for crops bargained and sold, and for goods sold and delivered, it was held, 1st, that the contract forthedead stock being distinct from the contract for the sale of the wheat, or the giving up of the farm, the plaintiff might recover for the dead stock ; 2, that the defendant having received the wheat, and made a payment on ac- count of it, the plaintiff might also recover for that.^ A contract with an in-coming tenant for the sale of growing crops, connected with and forming part of a contract for taking the land itself, is within the statute of frauds ; ^ but in one case it was intimated, that a mere contract between out-going and in-coming tenants for such a sale was not, because the contract for the interest in the land proceeded from the landlord.^ Where the contract refers to the lease, the lease must be put in.° Emblements. Sec. 561. "Emblements," as a legal term, signifies a right on the part of a tenant for an uncertain term, which has terminated without fault on his part, to take away the crops growing upon the land, al- though the estate itself -has ceased to exist.' Those only ai-e entitled 1 Leeds v. Burrows, 12 East, 1. " Tanner ». Washbourne, 1 F. & P. spoulter B. Killinbeck, 1 Bos. & P. 330. 897. ' Woodfall's L. & T. 585. The word ' Mayfield v. Wadsley, ?> B. & C. -357. is derived from the Fi-ench emblavence * Earl of Falmouth v. Thomas, 1 Cr. de bled, which means " corn sprung or & M. 89 ; Harvey u.Grabham, 5 Ad. put up above ground," but strictly it &E1.61. . signifies "the growing crops of sown ^ Mayfield v. Wadsley, ajue. land," and embraces all kinds of grow- 972 Ri Remedies and Liabilities op the Parties. to emblements who have an uncertain estate or interest in land, wliicli is determined either by the act of the law or of God between the period of sowing and of the severance of the crop,^ without any fault on the part of the tenant.^ Tenants at will,'* for life,* by dower,'^ or, indeed, any tenants who hold by an indefinite and uncertain tenure, come within the rule, and are entitled to emblements." A tenant for years, whose term depends upon a certainty, is not entitled to emble- ments, for it is his folly to sow when he knows that his terra will ex- pire before he can reap.' Emblements are distinct from the real estate iiig crops, the prochictioii of whicli is aided by the labov of the tenant. Co. LiLt. 55 h, n. 1 ; Latham v. Atwood, Cro. Car. 515. Hops, growing out of old roots, are lield to conie under this head, because they require annual cultiva- tion ; but grass, apples, grapes and fruit generally that grow of themselves, and which are not planted annually at the expense of the tenant, do not come under this head. 1 Wms. Executors, 631 ; Co. Litt. 55 b ; 2 Blackstone's Com. 123 ; Comyn's Dig. Bieus (G. 1). Teazles are held to be subject to this right, and indeed any crop that requires that the labor of tlie tenant should be expended upon it for its production. Kingsbury ». Collins, 4 Bing. 202. 1 Shepherd's Touch. 244 n. 2 Gland's Case, 5 W. R. 116 ; Johns V. Whitley, 3 Wils. 127; Bulwer d. Bul- wer, 2 B. cfe Ad. 470 ; Davis v. Eyton, 7 Bing. 154 ; Nicholas v. Simonds, 2 Roll. 468. 3 Davis V. Thompson, 13 Me. 207 ; Davis I). Broeklebank, 9 N. H. 73 ; Shel- burne v. .Jones, 20 Me. 70. * Co. Ijitt. 55 /; ; Bulwer v. Bulwer, ante ; Knevett v. Poole, Cro. Eliz. 463. ^ Fisher v. Follies, 9 Vin. Abr. tit. Emblements, pi. 82 ; 2 Inst. 80. « Woodfall's L. &■ T. r,87, et seq. 'Harris v. Carson, 7 Leigh. (Va. ) 632 ; Whitmarsh v. Cutting, 10 John. (N. T. ) 300 ; Mason v. Moyers, 2 Rob. (Va.) 606 ; Bain v. C:lark, 10 Jolui. (N". Y.) 424; Howell v. Schenck, 24 N. J. L. 89. If a tenant has a term which may continue until the seed which he sows may grow and ripen for harvest he may enter and reap the crop, tliough his es- tate, in the meaTi time, has been deter- mined by the act of God or by act of law ; but if his estate is determined be- tween seed and harvest time by his own act the cropi passes to the landlord. Debow 0. Colfax, 10 N". J. L. 128. By the custom of Pennsylvania, New Jer- sey, and Delaware, a lessee for a term certain is entitled lo the way-going crop (i. e. the grain soivii in the autumn, to bfe reaped the next harvest), though such right be not recognised in tlie con- tract ; and he may enter to gather it, or may maintain trespass for it against the lessor or his vendee, after the expiration of the lease. Stultz v. Dickey, 5 Binn. (Penn. ) 285 ; Diffedorffer v. Jones, id. 281) ; Comfort v. Duncan, 1 Miles {Penn.),-231 ; Biggs v. Brown, 2 S. & R. (Penn.) 14; Demi v. Bossier, 1 Penn. 224; Van Doreu v. Everitt, 5 N. J. L. 460 ; Templeman v. Biddle, 1 Harr. (Del.) 522 ; Clark u. Harvey, 54 Penn. St. 142. Where the lease is for one year, to wit, from 1st April to 1st April, a tenant is not entitled to the crop of grain sown in the spring, and cut after the term has expired, whether the lease is upon a pe- cuniary rent or upon shares. Demi v. Bossier, 1 Penn. 224. See also Temple- man 0. Biddle, 1 Harr. (Del.) 522. And though the lessor's vendee obtains pos- session on a judgment in ejectment, ob- tained by the lessor against a former tenant, the lessee's right to the crop continues, and the record of the eject- ment is not a justification of the ven- dee's act in taking off the crop. Biggs V. Brown, 2 S. & R. (Penn.) 14. The custom which allows a tenant to enter after his term and reap the way-going crop, does not apply to a spring crop of oats sown without consent of the land- lord in March, when the term expires in April. Howell v. Schenck, 24 N. J. L. 89. In the lease of a farm for six years, if it be agreed that either party may put an end to tlie lease, on giving to the other six months' notice ; but if the lessor give notice to the lessee to quit, he shall- allow the latter for pre- paring the ground for seed, and for any other extra labor, &c. ; yet if the lessor determine the tenancy, by giving notice to quit, after the lessee has sowed the ground, the lessee is entitled to emble- ments. Stewart v. Doughty, 9 Johns, (N. y.) 108. The way-going crop in- clulc'S as well the stra^\• as the grain, which the tenant may remove and dis- pose of as he pleases, being subject ouhi FOKCIHLK EnTKV AND DETAINER. 973 in the land, find subject to many, though not all, the incidents attend- ing personal chattels : thus they were devisable by testament before the statute of wills, and at the death of the owner they vest in his executor, and not his heir, and by 11 Geo. 2, c. 19, ss. 8, 9, they may be distrained for rent in arrear. Where there is a right to take em- blements, they belong either to the tenant himself, whose estate is determined in such a manner as to give him the right; to his grantee or devisee, where he has granted or devised them ; or to his personal representatives, where the right anses upon the death of a tenant who has made no disposition respecting them.^ In most, if not in all the States, the tenant's right to emblements is largely regulated by statute, and that should be consulted for any change in the common law rule. Where there is a right to emble- ments, ingress, egress and regress are allowed by law to enable the party to enter, cut and carry them away after the estate is deter- mined : " so if a party who is entitled to emblements grants them to another, the grantee may cut and take them away after the death of the grantor.^ The right to emblements does not, however, give a title to the exclusive occupation of the land ; therefore it seems that if the executors occupy till the corn or other produce is ripe, the landlord may maintain an action for the use and occupation of the land.* Forcible entry and detainer. Nature and punishment of the offence by indictment. Sec. 562. Forcible entry and detainer is the violent taking or keep- ing possession of lands and tenements, with menaces, force and arms, and without the authority of the law.'^ This was formerly permitted, under certain circumstances, where a person had been disseized or put to the tenns of his contract, and not to to a purchaser at shen'fFs sale, under any supposed custom of the country on the juda^nent. Adams v. McKesson, ."i:? the subject. Craig v. Dale, ] W. & S. Penn. St. 81 ; Sallade «. James, fi id. (Penn.).509. Where a lease was for five 144. But see Bittinger w. Bater, 29 id. years, with a stipulation that if the les- 66. But if a hnshand lease lands of his sor should sell the demised premises wife, and, before the expiration of the during the tenn, three months' notice term, she procure a divorce a vinculo, to quit should be given, and no rent &c., the lessee shall hold the emble- should be paid for tlie year, and the les- ments. Gould v. Webster, 1 Tyler (Vt.), see, on entering, received the crop of 409, winter grain that had been sown by a ^ 2 Blackstone's Com. 404. former tenant ; and, the premises being ^ Co. Litt. 56 a; Hayling v. Okey, 8 sold, the lessee removed, leaving in the Exch. 531 ; 1 Wms. Exors. 639 (5th f round a crop which he had sown,— ed.); Smith L. & T. 349 (2d ed.). [eld, that he was entitled to this crop ' Shep. Touch. 244. as emblements, whether he received * Chamb. L. & T. 340 ; Plowden's three months' notice to guit.or not. Queries, No. 239 ; 1 Wms. Exors. 640 Comfort V. Duncan, 1 Miles (Penn.), i" See Cole Ejec. Chap. 74 ; Areli. I'i. 229. A lessee of land encunibered by a & Ev. C. C. 736-740 (15th ed.) ; 1 liiiss. judgment older than the lease is enti- on Crimes, 421-434 (4th ed. ) ; 4 Blac. tied to the way-going crop in preference Com. 148. 974 Rights, Remediks and Liabilities op the Paeties. out of possession ; ^ but being prejudicial to the public peace it was found necessary to restrain the use of such violent methods." Although a man may forcibly defend the possession of liis house against such aS threaten to make an unlawful entry, he cannot lawfully do the same in defence of his close.^ Where there has been a forcible entry made into A freehold., it is punishable by 5 Rich. 2, st. 1, c. 8, with imprison- ment and ransom. Though the statute mentions entry only, if expul- sion is laid in the indictment and proved, the prosecutor may obtain restitution ; ^ but no restitution can be awarded if the defendant has been permitted to remain quietly in possession for three years previ- ously to the finding of the indictment.^ The indictment for forcible entry into leasehold jJi'emises is founded on 21 Jao. 1, c. 15 ; for a forcible detainer, on 8 Hen. 6, c. 9, or 21 Jac. 1, c. 15. An indictment lies also at common law for a forcible entry ; ' but in order to main- tain either an indictment or a process for a forcible entry, either at common law or upon the statutes in force in the several States, there must either be actual violence or circumstances tending to excite fear of such violence, either to his person, goods, buildings or inciosui-es." But, if possession is obtained surreptitiously, and maintained by force, the entry will be regarded as forcible ; * so if the detainer is riotous.' No expulsion or detainer need be proved under an indictment for a forcible entry merely at common law," because no restitution can be awarded ; " but an entry with such force and violence as exceeds a mere trespass is sufficient ; '^ but an indictment for a forcible entry cannot be supported without some evidence of actual force or threats and appearance of ill usage ; ^' and a simple trespass upon premises, without menaces or other circumstances offeree or terror, is insuffi- cient." The tenehient in which the force was made must be described 1 1 Hawk. P. C. c. 64, a. 1 ; 1 Euss. on band of armed men entered an iiiclosure .Crimes. 421 (4th ed. ). and began to miild a house and refused - ;") Ric. 2, St. 1, c. 8 ; 15 Ric. 2, c. 2 ; to yield possession, and make a show of 8 Hen. 6, c. 9 ; 31 Eliz. c. 11 ; 21 Jac. 1, force, it is forcible entry and detainer, c. 15 ; 2 Chit. Stat. 154-157 ; 1 Russ. on Watson v. Wliitney, 23 Cal. 375. So Crimes, Ch, 29. where possession is obtained and tlie ■■* Rex V. Bishop of Bangor, 1 Russ. on party refuses to leave unless put out by Crimes, 388 (?/), 4th ed. force, but not where he I'efuses to leave * 1 Hawli. P. C. c. 64, s. 41. until put out bv law. Hodgkins o. Jor- s 8 Hen. 6, c. 9, s. 7 ; 31 Eliz. c. 11 ; don, 29 Cal. 577. Cole Ejec. 688. '" Pullen o. Bonney, 4 N. J. L. 125 ; 6 Rex B. Baker, 3 Burr. 1731. Cruiser e. State, 18 id. 206. ' Hopkins «. Calloway, 3 Sneea. " Rex b. Wilson, 8 T. R. 357. (Tenn.) 11 ; Butts b. Voorhees, 13 N. J. i" gt^te v. Pollok, 4 Ired. (S. C.) L. L. 13 ; lIcMinn b. Bliss, 31 Cal. 122 ; 305. State B. Pollok, 4 Ired. (N. C.) L. 305 ; '-^ State ». Cargill, 2 Brev. (S. C.) 445 ; Holmes e. Halloway, 21 Tex. 658. Curry ». Hendry, 46 Ga. 631. » Burt B. State, Treadw. (S. C.) Const. i* Foster B. Kelsey, 36 Vt. 199; Merrill ■ISO ; Botts 8. Arm.strong, 8 Port. (Ala.) ». Forbes, 23 Cal. 379; People u. Smith, .',7. 24 Barb. (N. Y. I 16 ; Greer b. Wroe, 1 '■* Prazer B. Hanlon, 5 Cal. 156 ; O'Cal- Siieed. (Temi.) 246. But in Burt v. laghau B. Bootli, 6 id. (i3 ; Harrow b. State, 3 Brev. (S. C.) 143, an unlawful Baker, 2 Greene (Iowa), 201 Where a entry was held sufficient. , Punishment by Justices. 975 with convenient certainty ; and the indictment must set forth, that the defendant actually entered and ousted the party grieved, and con- tinued his possession at the time of finding the indictment, otherwise he c;innot have restitution, because it does not appear that he needs it.' If, however, a man's wife, children or servants continue in the house, or upon the land, he is not ousted of his possession ; but his cattle being upoi\ the ground do not preserve his possession.- A re- ])ugnanoy in setthig forth the offence in an indictment upon any of the statutes is an incurable fault.'' An indictment for forcible entry will bo quashed if it does not set forth that the party was seized or disseized, or what estate he had in the tenement ; for if he had only a term for years, then the entry must be laid into the freehold of A in the possession of B.'' Upon the iinding by the grand jury of the in- dictment, the judge has a discretion to refuse to award restitution.^ Punishment by action. Sec. 563. By 8 Hen. 6, c. 9, s. 6, if any person be put out, or dis- seized of any lands or tenements in a forcible manner, or put out peaceably, and after holding out with strong hand, the party grieved shall have a writ of trespass against the disseizor ; and if lie recovers, he shall have treble damages, and the defendant moreover shall make fine and I'ansom to the king. This statute applies only to a person havinsr the freehold : ^ and he shall recover as well for the mesne oc- cupation as for the first entry : and although he shall recover treble damages, yet he shall recover costs, for the word " damages " includes costs of suit.' Punishment by justices. Sec. 564. By 8 Hen. 6, c. 9, for a more speedy remedy, the party grieved may complain to any one justice, or to a mayor, sheriff or Ibailiff, within their liberties. Concerning which power of the justice, it is enacted as follows : — After complaint made to such justice, by the party grieved, of a forcible entry made into lands, tenements or other possessions, or forcibly holding thereof, he shall, within a con- venient time, at the costs of the party grieved (without any examining 1 Hawk. P. C. c. 64, ss. 37, 41. " Here no force or violence is shown 2 Dalt. c. 132. ' upon the face of the indictment to make ' 1 Hawk. P. C. c. 64, s. 39. it appear to be an actual force uidicta- * Eeg. 0. Bowser, .8 Dowl. 128. In ble. Nor is any riot charged or any un- Eegina v. Griffith et al., 3 Salk. 169, tlie lawful assembly." AsTON, J., said ; court say that in an indictment under "The true rule is, that it ought to ap- the Stat. H. 8, the word seizin is a word pear upon the face of the indictment to of art, and therefore does not have the be an indictable offence." same effect as was given it in a case in ^ Reg. v. Harland, 8 Ad. & El. 826. Paph. 205, which was predicated upon " Cole t>. Eagle, 8 B. & C. 409 ; Allen the Stat. 21 Jac. chap. 15. In Rex o. e England, 3 P. & E. 49. B.ilre, 3 Burr. 1731, Yatbs, J., eaid : ' Dalt. c, 129. 976 Rights, Remedies and Liabilities op the Parties. or standing upon the right or title of either party), take sufficient power of tlie county, and go to the place where the force is made.^ All peojjle of the county, as well the. sheriff as others, shall be attend- ant on the justices, to arrest the offenders, on pain of imjDrisoninent and fine to the queen : and if the doors be shut, and they within the house shall deny the justice to enter, it seems he may bi-eak open the house to remove the force : ^ if, after the entiy made, the justice " shall find such force, he shall cause the offenders to be arrested ; " and the offenders being arrested, they shall be put in the next jail, there to abide convict by the record of the same justice, until they have made fine and ransom to the queen.^ The justice ought to "make a record of such force by him viewed;" which record shall be a sufKcient conviction of the offenders, and the parties shall not be allowed to traverse it. This record, being made out of the sessions, by a particular justice, may be kept by him ; br he may make it in- dented, and certify the one part into the Queen's Bench, or leave it with the clerk of the peace ; and the other part he may keep himself. For this view of the force by the justice, being a judge of record, makes his record thereof, in the judgment of the law, as strong and effectual as if the offenders had confessed the force before liim ; and as far as regards the restraining of traverse, more effectual than if the force had been found by a jury, upon the evidence of others. A con- viction for a forcible detainer must show on the face of it an unlawful entry, as well as a forcible detainer : a conviction on the view merely of the justices, without any evidence of an unlawful entry, is bad even though information and complaint of an unlawful expulsion be stated.* An inquisition taken under the 8 Hen. 6, c. 9, should set forth the estate possessed by the party in the property.^ It is doubt- ful whether the holding over by a termor after the expiration of his term is constructively an unlawful entry.* The court will not compel magistrates to hear a complaint and act summarily under the statutes.' Restitution by the Queen's Bench. Sec. 565. Although regularly the justices only who were present at the inquiry, and when the indictment was found, ought to award resti- tution ; yet if the record of the presentment or indictment is certified by the justice or justices into the Queen's Bench, or the same present- ment or indictment be removed or certified thither by certiorari, the justices of that court may award a writ of restitutio.n to the sheriff, to restore possession to the party expelled ; for the justices of the Queen's 1 Dalt. c. 44; 1 Hawk. P. C. c. 66, s. 8. ^ Re?, v. Bowser, S Dowl. 128. 2 Dalt. c. 44. 8 Eex v. Oakley, 4 B. & Ad. .307. 3 1.5 Ric. 2, c. 2. ' Ex parte Davy, 2 Dowl. N. S. 24. * RexB. Wilson, 1 Ad, & El. 627 ; 8 id. 817. What is a Fouciele ENTuy. 977 Bench have a supreme authority in all cases of the crown.^ Also where, upon removal of the proceedings into the Queen's Bench, the conviction shall be quashed, the court will order restitution to the party injured. Where a conviction of forcible entry was quashed for the uncertainty of " messuage or tenement," but the restitution was opposed, on an affidavit tliat the party's title (which was by lease) was expired since the conviction ; the court said, they had no discretionary power in this case, but were bound to award restitution on quashing the conviction.^ 5 Eic. 2, c. 3. Sec. 566. By this statute it was enacted, " And also the king de- fendeth that none from henceforth make entry into any lands and tenements, but in case where entry is given by the law; and in such case, not with strong hand, nor with multitude of people, but only with peaceable and easy manner ; and if any man from henceforth do to the contrary, and thereof be duly convict, he shall be punished by imprisonment of his body, and thereof ransomed at the king's will." By Stat. 21 Jac. 1, c. 15, authority was conferred upon those who by previous statutes were empowered to order restitution in case of a forcible entry and detainer of freeholds, to order like restitution in case of tenants for years, &c. Riot. Sec. 567. If a forcible entry or detainer shall be made by three per- sons or more, it is also a riot, and may be proceeded against as such, if no inquiry has before been made of the force.' What is a forcible entry. Sec. 568. In order to make the entry forcible, it must be accom- panied with some circumstances of actual violence or terror ; and an entry, which has no other force than such as is implied in every tres- pass, is not within these statutes.* With respect to, violence, an entry may be forcible, not only in respect of a violence actually done to the person of a man, — as by beating him if he refuses to relinquish his pos- session, — but also in respect of any othei- kind of violence in the man- ner of the entry, — as by breaking open the doors of a house, whether any person is in it or not, especially if it is a dwelling-house ; and per- haps, also, by an act of outrage after the entry, — as by carrying away the party's goods. But an entry is not forcible by the bare lifting up a latch, or pulling back the bolt of the door, there being no appearance J Dalt. c. 44. •• Eex ». Smyth, 5 C. & P. 201 ; 1 ' Eex B. Jones, 1 Stra. 474. Russ. on Crimes, 426 (4th ed.). " Dalt. c. 44 ; 1 Euss. on Crimes, 330, 428 (4th ed.). 978 Rights, Remedies and Liabilities of the Parties. of its having been done by a strong hand or multitude of people : and it has been held, that an entry into a house through a window, or by opening a door with a key, is not forcible.^ In order to constitute such a forcible entry as will justify a process of forcible entry and detainer, there must be actual violence, or circumstances tending to excite /ear of such violence, either to the person, goods, house or inclosure,* unless the entry or detainer is riotous, in which case violence will be presumed.' Actual violence to the person or property affords sufficient evidence to sustain a forcible entry or detainer ; but although it is not sliown, yet if actual possession is taken and held under circumstances which show that it will not be surrendered without a breach of the peace it is a forcible entry and detainer.* An entry which constitutes a simple tres- pass merely, unattended by menaces or any circumstances of force or terror, is insufficient.^ Nor is it sufficient to show that a person in possession of the premises detained declared that he would remain until put out by force or law.* But if a person so in possession de- clares that he will not give up possession, and that be will forcibly maintain his possession — as, that he will shoot any person attempting to dispossess him — ^he is guilty of a forcible entry and detainer.' So, in some cases, the requisite force and violence will be presumed. Thus, where a person took possession and locked the doors, and nailed up the windows, and his agent, when applied to therefor, refused to give up possession, and a person was subsequently found in possession, claim- ing under an adverse title to the person who fastened up the house, it was held that it would be inferred that such person obtained posses- sion by breaking open the doors and windows, and that this con- stituted a forcible entry and detainer.' As to what may be denom- inated terror, it is held that loherever a man, either by his behavior or speech at the time of his entry, gives thoseioho are in possession just cause to fear that he will do them some bodily hurt if they do not give way to him, his entry is forcible. This is the case whether he causes such a terror, by carrying with him an unusual number of attendants ; or by arming himself in such a manner as plainly intimates a design to kill, maim or beat those who shall continue in possession ; or threaten- 1 1 Hawk. P. C. c. 64, s. 26 ; 1 Russ. * Childress r. Black* 9 Yerg. (Temi.) on Crimes, 427 {4th ed.). 317 ; Scarlett v. Lainavquc, .5 Cal. 6:}. ^ Hendricksoii v. Hendrickson, 12 N. ^ Foster v. Kelsey, 3.i Vt. li)9 ; People J. L. 202 ; Brick v. Middleton, 12 id. v. Smith, 24 Barb. ;K. Y. ) 16 ; llerrill 266 ; Hopkins v. Calloway, 3 Sneed. «. Forbes, 23 Cal. 37i) ; Greer t. Wroe, (Tenn.) 11 ; McMinn v. Bliss, 31 Cal. 1 Sneed. (Teun.) 246. 122 ; Cummock ». Macy, 3 A. K. Mar. " Hodgkius v. .lordan, 29 Cal. ')77. (Kyj 296 ; Holmes v. Halloway, 21 Tex, " Vanhook v. Sloi-y, 4 Humph. (Tenn.) 658 ; State v. Pollock, 4 Ired, (X. C.) 59. 30.") ; Butts I'. Voorhees, 13 N. .J. L. 13; ^Davidson v. Phillips, 9 Yerjr. (Tenn.) Harrow B. Baker, 2 (Ireeiie (Iowa), 201. 93; Jarvis x> Hamilton, 19 Wis. 187; "O'Calla^han t. Ho'Kh. 6 Cal. CtS ; Bart u. State, 2 Treadw. (S. C.)- 489; l'';'.;..o;' r. Haul )ii, 5 id. 1>> i. liEMKUIEP TO ObtUN POSSESSION. EjECTMENT. 979 ing to do so, or using such expressions as plainly imply a purpose of using force.^ It seems that if a person enters into another man's house or ground with apparent violence, merely to cut or take away his corn, grass or other goods, ot to fell or chop wood, or do any other like tres- pass, it is a forcible entry, although he does not put the party out of possession. If the entry was peaceable, and after such entry made pai'ties cut or take away any other man's corn, grass, wood, or other goods, without apparent violence or force, such acts are not punishable as forcible entries : but if he enters peaceably, and then by force Or violence cuts or takes away any corn, grass or wood, or forcibly or wrongfully carries away any other goods there being, it seems to be a forcible entry punishable by the statutes. But no entry is forcible from any threatening to spoil another's goods, or to destroy his cattle, or to do him any other damage which is not personal." It is a forcible entry if a man, having an estate in land, by a defeasible title, con- tinues with force in the possession, after a claim made by one who had a right of entry thereto.' By •whom may be made. Sec. 569. It is clear that a forcible entry may be committed by a single pferson as well as by twenty ; * but those who accompany a man when he makes a forcible entry are treated as having entered with him, whether they actually go upon the lands or not.^ lie, however, who barely agrees to a forcible entry made to his own use, without his knowledge or privity, shall not be adjudged to make an entry within these statutes, because he did not concur in or promote the force." What is a forcible detainer. Sec. 570. The same circumstances of violence and terror which will make an entry forcible, will make a detainer forcible also ; and a de- tainer may be forcible' whether the entry was forcible or not.' Remedies to obtain possession. Sjectment. Sec. 571- When the tenant's term has expired from any cause, whether from effluxion of time or by reason of a breach of any condition in the lease, involving a forfeiture, the landlord may bring ejectment to re- cover possession of the premises,' and, as the tenant cannot dispute the landlord's title, no other proof of title is required than the mere fact that the tenant held under the plaintiff as landlord.' And this is the rule ' 1 Hawk. P. C. c. 64, s. 27. ' Penn u. Divellen, 2 Teates (Penn.), " Dalt. c. 126. 309 ; Jackson b. Brownson, 7 John. (N. 3 1 Hawk. P. C. c. 64, s. 23. Y. ) 227. * Id. s. 29, " Hatchett u. Hykes, 3 Brewst. (Penn.) s Id. s. 22. 162 ; Tompkins v. Snow, 68 Barb. (N. « 1 Hawk. P. C. c. 64, s. 24. Y. ) 525 ; Silver v. Sumner, 61 Mo. 253 ; ' Id. s. 30; 1 Kuss. on Crimes, 427 Townsend d. Davis, Forrest, 120 ; Hawes (4th oil.). V. Shaw, 100 Mass. 287; Barwick u. 980 Rights, Remedies and Liabilities of the Parties. as to a tenant holding over, an assignee, undertenant, or a tenant lioldingby any species of tenancy; and it is a matter of no importance whether they hold by a lease under seal or by parol.^ Having entered under the landlord's title, lie is i^reclnded from ctenying it or setting up an outstanding title in another,- or an adverse title in himself,* unless the same was acquired in an open and notorious manner.^ Therefore, Thompson, 7 T. R. 4S8 ; Roe v. Pride- aux, 10 East, 158. The settled general rule is, that a tenant cannot dispute his landlord's title. Shepard o. Martin, 31 Mo. 492 ; Pope v. Harkius, 16 Ala. 321 ; Hoen V. Siminonds, 1 Cal. 119 ; Morse V. Roberts, 2 id. 515 ; Tewsbury v. Ma- graff, 33 id. 237 ; Cody v. C^uarlei-man, 12 Ga. 386 ; Alwood i;'. Man.sfiekl, 33 111. 452 ; Harle v. McCoy, 7 J. J. Maisb. (Ky.) 318; Winston" u. President, 28 Miss, lis ; Walker v. Harper, 33 Mo. 592 ; Jackson v. Stiles, 1 Cow. (N".Y.) 575 ; Jackson v. Stewart, 6 Johns. (X. Y.) 34 ; Jackson?). Vosburgh, 7 id. ISD ; Jackson v. Harper, 5 Weud. {N. Y. ) 246 ; People v. Siner, 45 Barb. (N. Y.) r>Q ; Moore v. 13easley, 3 Ohio, 291 ; Hamel v. Lawrence, 1 A. K. Marsh. (Ky. ) 330; Hamit v. Lawrence, 2 id. .366 ; Galloway v. Ogle, 2 Einn. (Pa.) 468 ; Graham «. Moore, 4 Watts (Pa.), 467 ; Phillips v. Robertson, 2 Overt. (Tenn.) 399; Robinson v. Hathaway, Brayt. (Vt. ) 151 ; Anderson v. Darby, 1 Nott. & M. (S. C. ) 369 ; Rogers b. Wal- ler, 4 Hayw. (Tenn.) 205 ; Cowley o. Chiles, 5 J. J. Marsh. (Ky.) 302 ; Wol- den !). Bodley, 14 Pet. 156 ; Mclntire v. Patton, 9 Humph. (Tenn.) 447 ; Burke V. Hale, 9 Ark. 328 ; Tondro v. Cush- inan, 5 Wis. 279 ; Cranz v. Kroger, 22 III. 74 ; Sims v. Glazener, 14 Ala. 695 ; Plumer v. Phmier, 30 N. H. (lOFost.) 5.58 ; Elliott v. Smith, 23 Pa. St. 131 ; Morse v. Roberts, 2 Cal. 515 ; Ramires V. Kent, id. 558 ; Hood o. Mathis, 21 Mo. 308 ; Paquetel v. Gauche, 17 La. Ann. 63 ; Sientes v. Odier, id. 153 ; Griffith i). Parmley, 38 Ala. 393 ; Grant V. White, 42 Mo. 285. The rule that a tenant cannot dispute his landlord's title without surrendering the posses- sion, applies even where the tenant was In possession before the making of the rent contract. Richardson v. Harvey, 37 Ga. 224 ; Gleaton v. Gleaton, id. 650 ; McConnell v. Bowdry, 4 T. B. Mon. (Ky.) 392 ; Patterson o. Hansel, 4 Bush (Kv. ), 654; Hockenburv u. Snider, 2 Watts & S. (Pa.) 240 ; Tliyer v. Soc. of United Brethren, 20 Pa. St. 60. With- out proof of fraud or mistake in the ex- ecution of the lease. Lively v. Ball, 2 B, Mon. (Ky.) 53 ; St. Louis ». Morton, Mo. '170 ; Ingriiham i;. Baldwin, 9 N. Y. (5 Seld.) 45 ; Boyer b. Smith, 5 Watts (Pa.), 55 ; Miller v. McBrian, 14 S. & R. , (Pa. ) 382. But see Cooper c. Smitli, 8 Watts (Pa.), 536. And if a tenant,, after renting premises, acquires liglits adverse to his landlord, he is bound to surrender the property before he can be permitted to assert them. Brown v. Keller, 32 111. 151 ; Moshier v. Reding, 12 Me. 478 ; Ryerson o. Eldred, 18 Mich. 12 ; Red d. Shepley, 8 Vt. 602 ; Greene D. Munson, 9 id. 37. A lessee at will is estopped to assert a title inconsistent with tliat of the lessor at the time of making the lease, without surrender of the possession, or eviction by the owner of a paramount title or its equivalent. Towne o. Butterfield, 97 Mass. 105. A tenant in possession cannot question the title of his landlord in an action for rent, Allen v. Chatfield, 8 Minn. 435 ; Binney o. Chapman, 5 Pick. (Mass.) 124 ; Codman v. Jenkins, 14 Mass. 93 ; Watson i). Alexander, 1 Wash. (Va. ) 340, or in an actJion on a bond given in consideration of rent. Perkins r. Gov ernor. Minor (Ala.), 352. This rule ap- plies to a stranger who obtains posses- sion through a tenant, thougli by pur- chase of the land, cannot dispute the landlord's title. Lockwood c. Walker, 3 McLean, 431 ; Phillips v. Rothwell, 4 Bibb (Ky.), 33 : Turly v. Rogers, 1 A. K. Marsh. (Ky.) 245 ; Newman «. Jiae- kin, 21 Miss. (ISSmed. & M.) 383. The estoppel which binds the tenant, binds all who claim under or through him. Rose B. Davis, 11 Cal. 133 ; McCi-avey i\ Rem son, 19 A la. 4.30; Blackeney u. Fer- guson, 20 Ark. 547. i Iiigraham v. Baldwin, 9 tH. Y. 45 ; Jackson d. Stiles, 1 Cow. (jS". Y.) 575 ; Stagg V. Car Co., 56 Mo. 317 ; Binney V. Cliapman, 5 Pick. (Mass.) 124 ; Jack- son V. Harder, 4 John. (N. Y.) 202; Varnum v- Smith, 15 N. Y. 327. •^ O'Halloran D. Fitzgerald, 71 111. 58 ; Galloway v. Ogle, 2 Binn. (Penn.) 472 ; Johnson v. Hinman, 10 John. (N. Y.) 292. 3 Blanchard v. Tyler, 12 Mich. 339 ; Gwynne v. Jones, 2 G. & J. (Md.) 173 ; Lecott V. Stewart, 2 Stew. (Ala.) 474 ; Bertram v. Cook, .32 Mich. 518. * Stacey v. Buttrick, 48 Vt. 192 ; Gwynne v. Johnson, ante ; Allen v. Remedies to Obtain Possession". Ejectment. 981 where the lense is in writing, oi- under seal, it is sufficient to produoe the lease and show an entry under it ; ^ and where the lease is by jjarol, a mere entry under the plaintiff is sufficient, and no other proof of title is necessary.' But an entry under the plaintiff or his grantors must be shown. In other words, the relation of landlord and tenant must be established, and if, by reason of the jjlaintiff's fraud or violence in inducing the defendant to take a lease, the violation never lawfully existed, the defendant may show that the plaintiff had no valid title when the lease was givQn or the entry was made.^ If the tenant did not go into possession under the plaintiff, the mere fact that he has paid rent to him will not preclude him from showing that the plaintiff had no title, and that he paid rent to him through mistake.* Although Chatfield, 8 Minn. 435 ; Byrne v. Sea- son, 1 Doug. (Mich.) 179. See sees. 233-237. 1 Roe V. Davis, 7 East, 363 ; Willdus V. Wingate, 6 T. R. 62. = Jackson v. DeWatts, 7 Jolm. (N. Y.) 1.57 ; Jackson v. Dobbin, 3 id. 223 ; Jackson v. McLeod, 12 id. 182 ; Jack- son V. Cooley, 2 John. Cas. 223. " Miller v. McBrier,'l4S. & R. (Penn.) 382 ; Johnson v. Cheley, 43 Cal. 300 ; Swift V. Dean, 11 Vt. 323 ; Brown v. Dysinger, 1 Rawle (Penn.), 148 ; Scliultz V. Arnot, 33 Mo. 172 ; Hamilton v. Marsden, 6 Binn. (Penn;) 45 ; Lison v. Yawn, 15 Ga. 491 ; Smith»).MoCurdy,3 Phila. (Penn.) 438; Thayer v. Society, &c., 20 Penn. St. 60 ; Cramers. Carlisle Bank, 2 Grant's Cas. (Penn.) 267. The landlord's fraud will only avail the im- mediate tenant. An assignee of the lessee cannot avail himself of it. Wil- liam V. Wliitfield, 44 Ga. 51 ; Wyoming Coal Co. V . Price, 81 Penn. St. 156. « * Anderson v. Smith, 63 III. 126 ; Fen- Vier V. Duploek, 2 Bing. 10 ; Schultz v. Arnot, 33 Mo. 172 ; Milton v. Hayden, 32 Ala. 30 ; Anderson v. Miller, 15 Gratt. (Va.) 270 ; Jackson v. Leek, 12 Wend. (N". Y.) 1C5 ; Givens ». Mulli- neux, 4 Rich. (S. C.) 593 ; Franklin v. Medina, 35 Cal. 558 ; Washington v. Conrad, 2 Humph. (Tenn.) 562. If a tenant is compelled to purchase mort- gages in order to protect his possession, equity will protect his equitable title until he is reimbursed. Bates v. Con- row, 11 N". J. Eq. 137. A tenant may show an outstanding title against his landlord, where the title of his landlord has expired, or been extinguished mice the relation of landlord and tenant be- tween them was created. Jackson v. Rowland, 6 Wend. (If. Y.) 666 ; Ran- dolph 11. Carlton, 8 Ala. 606 ; McDevitt D. Sullivan, 8 Cal. 592 ; Wheelock n. Warschaner, 21 id. 309 ; Camp v. Camp, 5 Conn. 291 ; Wells v. Mason, 5 111. 84 ; Tilghman v. Little, 13 111. 239 ; Kinney !). Doe, 8 Blackf. (Ind. ) 350 ; Gregory V. Crab, 2 B. Mon. (Ky.) 234 ; Casey v. Gregory, 13 id. 505 ; Hintze v. Thomas, 7 Md. 346 ; Giles v. Ebsworth, 10 Md. 333 ; Wolf D. Johnson, 30 Miss. 513 ; Pentz «. Cuester, 41 Mo. 447; Russell V. Allard, 18 N. H. 222 ; Howell o. Ash-' more, 22 N". J. L. 261 ; Homer v. Leeds, 25 N. J. L. 106 ; Hoag v. Hoag, 35 N. Y. 469 ; Ryress v. Farwell, 9 Barb. (N". Y.) 615 ; Lawrence v. Miller, 1 Sandf. (N. Y.) 516 ; Devatch v. Newsam, 3 Ohio, 57. A party in possession, ac- knowledging the title of another, is not estopped from subsequently disclaim- ing holding under such title, if the orig- inal entry is not under theperson whose title is acknowledged. Jackson t'. Leek, 12 Wend. (N". Y.) 105 ; Franklin c. Medina, .35 Cal. 558 ; Wasliington v. Conrad, 2 Humph. (Tenn.) 662 ; Givens c. Mullinaux, 4 Rich. (S. C. ) 590 ; Al- derson v. Miller, 15 Gratt. (Va.) 279. Although a person, entering into the possession of land under another, either as his tenant or by virtue of an agree- ment to purchase, cannot dispute the title of such person, nor attorn to a stranger, so as to affect such title, while he continues in possession, still his at- tornment to a stranger is operative as to himself. Kenadat). Gardner, 3 Barb, (N". Y. ) 589. After a judgment of evic- tion by paramount title lie may attorn to the successful party. Moffatt v. Strong, 9 Bos. (IST. Y. Sup. Ct. ) 57 ; Lunsford n. Turner, 5 J. J. Mar. (Ky.) 104 ; Foster v. Morris, 3 A. K. Mar. (Ky.) 104. So he may show that the landlord holds in violation of law. Milton v. Heyden, 32 Ala. 30 ; Satterlee v. Matthewson, 13 S. & E. (Penn.) 133. 982 Rights, Remedies and Liabilities of the Parties. the tenant cannot show that the landlord had no title when the lease and entry was made, yet he may show that the title subsequently failed,^ and that he has attorned to the person thus acquiring it," or is liable to be compelled to do so.' As to whether or not the tenant can be permitted to redeem his terra, either before or after judgment, depends upon the statute. At common law no such right exists, but in some of the States the statute provides for such redemption either during the pendency of the action or within six months after judgment, upon paying the rent, costs, &c., which have accrued into court. Of course the practitioner, in determin- ing whether such a right exists in a given State, must consult the statute. In New York, provision is made by statute ' for such relief in favor of a mortgagee of a lessee ; and similar relief in equity is pro- vided for a tenant, in case the bill is brought within six months after execution is executed on a judgment in ejectment.^ The. whole mat- ter relating to ejectment is so generally regulated by statute, that the statute should always be consulted to ascertain the rights and remedies of the parties. Mesne profits. Sec. 572. After the plaintiff in ejectment has recovered a judgment, he is entitled to recover of the defendant a fair cornpensation for the use of the premises during the period of his wrongful exclusion there- from by the tenant, which are denominated mesne profits. An action 1 Lancashire v. Mason, 75 N. C. 455 ; held merely as executor during the in- Kamsdell o. Maxwell, 32 Mich. 285 ; fancy of a legatee, and that the infant Satterlee ». Matthewson, 13 S. & B. has attained his majority, Andrews v. (Penn.) 133 ; Grundin b. Carter, 99 Pearce, 4 B. & P, 158, or that he was Mass. 15 ; Den. v. Ashmore, 22 N. J. L. seized in right of his wife only for her 261; Dobsonti. Culpepper, 23 Gratt.(Va.) Ufe, and that she has deceased. Samson 352 ; Jaclvson «. Davis, 5 Cow. (N. Y.) v. Clarkson, 113 Mass. 348; Blake ». Fos- 123; Supervisors B. Herrington, 50 111. ter, 8 T. K. 487. The tenant cannot, after 232 ; Duff v. Wilson, 69 Peun. St. 316 ; he has voluntarily attorned to another, ,. Newman t>. Rutter, SWatts (Penn.), 51; set off the title of such person against - Ryder I). Maiisell, 66 Me. 167 ; Miller?). his landlord, but if he has been com- Bonsandan, 9 Ala. 317 ; Hilborn w. Fogg, pelled to attorn to such person or be 99 Mass. 11 ; Higgins ». Turner, 81 Mo. evicted, he may set up such title. Jones 249 ; gtajohn d. Quitzlow, 72 111. 334 ; v. Clark, 20 John. (N. Y. ) 51 ; Magill o. Silvey u. Thomas, 61 Mo. 253 ; Frank- Hinsdale, 6 Conn. 464; Stedman v. lin V. Palmer, 50 111: 202. Gassett, 18 Vt. 346. So where the les- 2 Kingman *. Abington, 56 Mo. 46 ; sor's title has been transferred he Holt 0. Martin, 51 Penii. St. 299. may show that it is invalid. Palmer B. 8 Palmer d. Bo'wker, 106 Mass. 317 ; Bowker, 106 Mass. 317 ; Funk v. Kin- Miller B. Lang, 99 Mass. 13 ; Winstell caid, 5 Md. 404 ; CamarUlo v. Folsom, 0. Hehl, 6 Bush. (Ky. ) 58 ; Haw6s v. 49 Cal 168 ; Ball v. Chadwick, 46 111. Shaw, 100 Mass. 187 ; Whalin v. White, 98 ; Blautier v. Whittaker, 11 Humph. 25 N. Y. 462 ; Simer ». Salters, 3 Deii. (Tenn.) 313 ; Bergman .». Roberts, 61 (N. Y.) 214 : Doe v. Barton, 11 Ad.!*; Penn. St. 497 ; Gillett v. Matthews, 45 El. 307. Tlie tenant is bound, hoW- Mo. 307 ; Hilbourn ». Fogg, 99 Mass. ever, to make out by competent proof 11. that the landlord's title is ended. Wal- < 2 Rev. Stat. 505. leii «. Forrest, L. R., 7 Q. B. 239. He ^ 2 Rev. Slat. 505, sees. 33-38, may do this hy showing that the lessor Mesne Profits. 983 of trespass for mesne profits may also be maintained where a person wrongfully withholds possession from the landlord after the landlord has obtained possession, whether such possession was obtained in an ejectment suit or otherwise. This action may be said to be conse- quential to a recovery in an action of ejectment ; for, by bringing eject- ment the plaintiff treats the person in possession as a trespasser from the date of the writ, and, consequently, cannot sue him for rent under a lease or agreement,^ nor for use and occupation subsequent to that time ; '^ and except for this action the owner would in many cases be without a remedy. Where a person entered as tenant, and holds over, but yields up possession without an ejectment suit, the landlord may recover the mesne profits in an action for use and ocuupatiou.' But after the landlord has brought ejectment an action for use and occupa- tion will not lie j* but, where a tenant holds over after the expiration of a notice to quit, the landlord may, after a recovery in ejectment, waive his action for mesne profits and bring debt under the statute for double the yearly value of the premises during the time the tenant wrongfully withheld possession from him.^ In this action the plaintiff is entitled to recover — 1st, compensation for the use and occupation of the premises recovered during tlie time they were actually or constructively occupied by the defendant ; ° 2dly, compensation for any special damage that the plaintiff may be legally entitled to in respect of the trespasses, provided it has been claimed in the declaration, as if the defendant has shut up an inn (being the prem- ises in question), and has thereby destroyed the custom ; ' and lastly, the costs of the action of ejectment.* The damages under the first head, however, are not confined to the mere rent of the premises, but the jury may give more if they please, as for the plaintiff's trouble in the recov- ery of the premises, &c.' The action may be brought, although proceedings in error upon the ejectment may be pending," and the production by the plaintiff of a judgment by default in a previous action of ejectment for the same premises is sufficient evidence of the plaintiff's title from the date of the writ," and also, as it seems, of the defendant's possession of the.prem- 1 Jones 1). Carter, 15 M. & "W. 718. allowed to the extent of reducing the ^ Birch B. Wright, 1 T. K. 378 ; Smith value of the premises below what they t. Teft, 9 E.Ychq. 307. would be worth without them. Averill " Doe V. Batten, 1 Co\vp. 243 ; Van r. Brady, 20 Ga. 523 ; Morrison t). Rob- Allen V. Rogers, 1 John. Cas. (X. Y.) inson, 31 Penn. St. 456 ; Doe v. Har- 281 ; Goodtitle «. North, Doug. 584. low, 12 Ad.&.Jil. 40. See Doe t). Challis, * Birch D. Wright, ante. 17 Q. B. 166. ' Timmins v. Rawlinson, 3 Burr. 1603. ' Dunn v. Large, 3 Dougl. 335. ^ But if permanent improvements ^ Pearse b. Coker, L. R. , 4 Exehq. 92. have been made by the person in pos- ° Goodtitle ». Tombs, 3 Wils. 121. session, or those of whom he purchased, " Donford v. Ellys, 12 Mod. 138. the value of the jjuprovements are to be i» See Witkinson v. Kirby, 15 G. B. allowed him, provided they must not be 430. 98J: Rights, Remedies and Liabilities of the Parties. ises at that date.^ If, however, the plaintiff seeks to recover mesne profits from a day anterior to that on which possession was claimed iu the writ of ejectment, he must be prepared to prove his title in the usual way.^ The action is a local one,' and may be brought by one tenant-in-common against his co-tenant.* The defendant, if in posses- sion by his undertenant, is not liable for the wrongful holding over of such sub-tenant,^ unless he has authorized it.' In an action for mesne profits the defendant may set up any matters that would be a defence in an action of debt for rent,' — as, that he was not in jjossession,' the statute of limitations,' and indeed any matter that legally defeats the plaintiff's right of action. The action being tortious, except where it is saved by statute, it dies with the defend- ant, and cannot be upheld against his representatives ; nor, except where the landlord was prevented from pursuing his legal remedy by a rule of court or an injunction, will a court of equity interfere to give relief.i" Summary proceedings. ■ Sec. 573. The remedy by ejectment, for the recovery of the posses- sion of premises, is necessarily slow, tedious and expensive, and illy adapted to protect the rights of landlords against obstinate, contuma- cious and generally irresponsible tenants; consequently, in most, if not in all the States, a summary mode of obtaining possession is j^ro- vided by statute. This remedy being purely statutory can only be resorted to in those instances, and in the manner provided by the stat- ute. The statutory provisions in the several States, and consequently the practice under them, are so diverse, as to make it inadvisable to attempt to give even a synopsis of all of them here, and, in obedience to the wishes of the publishers, I shall only give the law and practice relating thereto as it exists in the State of New York. When .a tenant may be removed summarily in Nevy York. Sec. 574. By title 2, chap*. 17, of the Code of 1880, sec. 2231, it is provided that a tenant or lessee at will, by sufferance, for a part of a year, or for one or more years, of real estate, including a specific or undivided portion of a house or other dwelling, and his assigns, under- ^ Pearse v. Colcer, ante. Wheat. (TJ. S. ) 280 ; Burne v. Richard ^ See Barnett v. Earl of Guildford, 11 son, 4 Taunt. 720. Exchq. 32. ' Aslin v. Parkin, 2 Burr.. 668 ; Doe 3 Cole on Ejectment, p. 638. n. Huddart, 2 C. M. & R. .323; Jackson u. * Goodtitle v. Tombs, ante. Randall, 11 .John. (N. Y. ) 405; Lungen- '• Mansfield, C. J., Burne v. Rich- dyck v. Burhaus, 11 id. 461. ardson, 4 Taunt. 720. * Jackson v. Randall, ante ; Chirac ». '■ Doe V. Harlow, ante ; Eoec. Wiggs, Rehiicker. 11 Wheat. (U. S.) 280. 5 B. & P. 330 ; Chirac v. Reinicker, 11 ^ Bullen's N. P. 88. lo Poultney ». Warren, 6 Wis. 78. When a Tenant may be Removed. 985 tenants or legal representatives, may be removed therefrom under the provisions of the title named — 1st. Where he holds over and continues •in possession of the demised premises, after the expiration of his term, without the permission of his landlord. This clause applies as well to oases where the term expires by reason of a breach of any condition in the lease, to which a forfeiture is attached, as to cases where it expires by effluxion of time. But, where the proceedings are based upon a forfeiture of the term, it is always a good defence, that the landlord, after the forfeiture was incurred, and with knowledge thereof, has done some act affirming the tenancy. That is, has done some act that shows that he regarded the defendant as a tenant after the forfeiture arose,^ — as, that he accepted rent ac- cruing after the forfeiture,^ or that he distrained or brought an action for the same." So an unqualified demand of such rent by the landlord, or any person having authority to demand it ; * or an agreement by the landlord to grant anew lease after the old lease has expired; '" or advice given by. him to a third person to purchase the lease, after a forfeiture has been incurred, amount to a waiver thereof ; ° and if the landlord has done an act which amounts to a waiver, no words of his at the time the act was done can prevent the legal effect of the act." 2d. " Where he holds over without permission after a default in the payment of rent pursuant to the agreement under which the de- mised premises are held, and a demand of the rent has been made, or at least three days' notice in writing, requiring in the alternative the payment of the rent or the possession of the premises, has been served in behalf of the person entitled to the rent upon the person owing it," as prescribed in the title for the service of a precept. It will be seen by the language of this clause, that a personal de- mand of the rent dispenses with the necessity of a written notice, and ,that a written notice, properly served, dispenses with the demand. The advantage of a personal demand is, that proceedings may be insti- tuted without delay, while if a written notice is relied upon, a delay of at least three days is a necessary consequence. 3d. Where a tenant, " being in possession under a lease for a term 'Doe v. All2;i. 3 Taunt. 81 ; Ward v. ment of tenancy will preclude him from Day, 5 B. & S. -KU. availing himself of a subsequent forfeit- ^ Arnsby u. WoodarJ, (i B. & C. 519 ; ure. Doe v. Jones, 5 Exchq. 498 ; Doe Doe V. Pri'tcliaril, 5 B. iz Ad. 70". : Doe o. v. Woodbridge, 9 B. & C. 376. Kees, 4 Biug. N. C. 34; McGlvun i-. Moore, ^ Doe v. Peck, 1 B. & Ad. 428 ; Dandy 25 Cal. 384. An acceptance of i-ent due ». Nicholl, 4C. B. IS". S. 376 ; McKildoe before and Lip to the time of forfeiture x>. Darracott, 13 Gratt. ( Va. ) 278. does not operate as a waiver. Price u. * Doe ». Birch, 1 M, & W. 408. Worwood, ante ; Jones u. Carter, 15 M. ^ Price v. Worwood, 4 H. & N. 512. & W. 718. Nor where the breach oc- ° Ward ». Day, ante, oasioning the forfeiture is continuous, ' Croft v. Lumley, 6 H. L. Cas. 672. neither the receipt or other aeknowledg- 986 Rights, Remedies and Liabilities of the Parties. of three years or less, has, during the term, taken the benefit of an in- solvent act, or has been adjudicated a bankrupt under a bankrupt law of the United States." It is only necessai-y, to bring the tenant within this clause, to show that he holds under a lease for a term, however short. If, however, he holds under a lease for a longer term than three years, he does not come within the provisions of this clause, because leases for a longer term are excluded from the operation of the act by necessary impli- cation, as the maximum limitation is expressly fixed ; while by the terms of the act the minimum limitation is indefinite, leaving no ground upon which the clause can be extended by intendment to a lease for a longer term than three years. If the words " or less " were not used, the clause might be susceptible of a different interpretation. 4th. Where the demised premises, or any. part tliereof, are used or occupied as a bawdy house, or house of assignation for lewd purjjoses, or for any illegal trade or manufacture., or other illegal business. As to what is an illegal trade, manufacture, or business, it may bo said that any trade or business which is prohibited by statute,"or which is held to be illegal or immoral at the common law, clearly come within the provisions of this clause. So too does the exercise of a trade or business m«AoM< a license, for the exercise of which the statute re- quires that a license shall be obtained. Under this clause, the exercise of an illegal trade or business by an undertenant of the lessee works a forfeiture, whether the lessee knew the fact or not.^ It is provided by sec. 2232 of chap. 17 of the Code, that persons hold- ing over after notice to quit may be removed in the following cases : 1st. " Where the property has been sold by virtue of an execution against him, or the person under whom he claims, and a title under the same has been perfected." 2d. Where the property has been duly sold under foreclosure pro- ceedings taken as prescribed in title 9 of chap. 17, of a mortgage exe- cuted by the tenant or the person under whom he claims, and the title has been duly perfected. 3d. Where the tenant holds under an agi-eement to occupy and cultivate on shares, or for a share of the crops, and the time fixed in the agreement for his occupancy has expired. 4th. Where he, or the person under whom he claims, has intruded into or squatted upon a parcel of land in a city or incorporated village, without tiie permission of the person entitled to possession thereof, either at the commencement of, or during such possession, or who con- tinues in possession after a permission given has been revoked by proper notice to the occupant or person to be removed, and 1 People V. Bennett, 14 Hun, 0.3. Who is Entitled to Summary Relief. 987 6th. Where a person makes a forcible entry upon real property, or, having peaceably entered, holds possession thereof by force.^ The first and second clauses of sec. 2232, referred to supra, are ob- scure, if given such an enlarged interpretation as they are susceptible of, can hardly stand in the face of the provision in the national constitution, which prohibits the passage of any law which impairs the obligations of a contract. The intention of the legislature, undoubtedly, was to pro- vide for the recovery of possession by the landlord where the estate of the lessee or occupant is taken on execution ; but the addition of the words, " or a person under whom he claims," while doubtless intended to apply merely to levies made against the lessee or an undertenant, makes it apparently equally applicable where the property is sold upon an execution against the landlord. If restricted to instances where the property is sold upon an execution against the lessee or his under- tenant, the law is notobujxious to objection, and this was doubtless the intention of the legislatui'C. At least its application cannot be extended beyond such cases, and the remedy under this clause exisffe only in favor of the lessor or his assigns, and not in favor of the execution creditor. The same may be said in reference to the second clause. Except where the tenant enters under a lease made after the mortgage is executed, the mortgagee takes subject to the lease, and the lessee's rights are prior ; but, where the lease is subsequent to the mortgage, the mortgagee's rights are prior, and the lessee's estate falls with the estate of the lessor, if the mortgagee so elects.^ Where, as in New York, a judgment, in certain cases, operates as a lien upon all real estate then owned or subsequently acquired by the execiltion debtor within twenty years from the date thereof, a lessee taking a lease after a judgment has been obtained against the lessor, and proper step's taken to give it full operation as a lien, takes subject to sucK lien, and subject to the prioi- right of the execution creditor ; and in either of the latter class of cases, clauses 1 and 2 supra might apply, without being subject to the objections stated. Who is entitled to smninary relief. Sec. 575. Under the 'Code," the application for summary relief must (except in the single instance of a bawdy-house) be made by the person legally entitled to possession, as, the landlord or lessor, a purchaser upon the execution of foreclosure sale, the person forcibly put or kept out, the person with whom as owner the agreement was made, or the owner of the property under whom the- property is occupied, to culti- 1 Sec. 2233, chap. 17, of N. Y. Code, » See ante. 1880. 3 Sec. 2235. 988 Eights, Remedies and Liabilities of the Parties. vate upon shares, or the person lawfully entitled to the possession of the property intruded or squatted upon, as the case requires, or by the legal representative, agent or assignee of the landlord, purchaser, or other person so entitled to apply. HoTv application must be made. Sec. 576. A person applying for summary relief must present a peti- tion in writing to the judge or justice having jurisdiction, which must be verified in the same manner as a verified complaint brought in the Supreme Court. The petition must describe the premises of which possession is sought, and must set forth the petitioner's interest therein, or the interest of the person whom he represents, and the facts upon which he claims the removal of the tenant or person in possession. The names of the person or persons sought to be removed must be stated, or they must otherwise be intelligibly designated, where th'e names of such person or persons are unknown ; and where there are two or more persons who hold in different rights, as tenants, or underten- ants or assignees, the petition must specify who are tenants, and who are undertenants, assignees, &c., and the petition must also contain a prayer, for an order for the removal of such person or persons.^ Petition by a neighbor of a bavrdy-house. Sec. 577. A person who owns or occupies premises in the immediate neighborhood of premises held under a lease, which are used or occu- pied as a bawdy-house, or house of assignation for lewd persons, may, under the provisions of the Code,'^ serve upon the owner or landlord of such premises, or upon his agent, personally, a written notice requiring the owner or landlord to apply for the removal of the person or persons so using such premises, and if such owner, landlord or agent does not so apply within five days after such notice is served, or, having made suchi application, does not in good faith diligently pursue it, the person giving such notice may make such an application, stating therein the facts which he claims entitle him to make it. Of course, the petition must state that he owns, or occupies as tenant, premises in the imme- diate neighborhood of the premises so wrongfully used, and that he has served the notice required by this section, and in the manner required, upon the owner or landlord thereof, or his agent, and that they have failed to institute proceedings for the removal of such per- sons, within five days after the service of such notice. If the applica- tion is based upon the claim that such owner, &c., having instituted proceedings, has failed in good faitli to diligently prosecute them, the petition must set forth fully the facts, and they must be of such a char- J Sec. 2235, Code of 1880. ^ Sec. 2237. That should be Stated ix the Petition. 989 acter as cleai-ly indicate that the proceedings were not instituted and prosecuted in good faitli, or that their prosecution has been unreason- ably delayed or prolonged. Of course, the applicant takes the burden of showing that the premises are occupied or used by the persons in possession thereof, either as a bawdy-house, or as a house of assignation for lewd persons; and upon failure to establish the fact of such use by satisfactory proof. I 1 To whom application should be made. Sec. .578. A county judge, or special county judge of the county, or a justice of the peace of the city or town, or the mayor or recorder of the city wherein the premises are situated, and the city judge or judge of general sessions, or a judge of the Marine Court of the city of New York, or the District Court of the district within which the property or a portion of it is situated,' and a police justice in the city of Brooklyn, or a justice of the Justices' Court in the cities of Albany and Troy, and the city judge of Yonkers and a judge of the Municipal Court of Rochester, are given jurisdiction in this class of cases, and no other judges, magistrates or courts have the power to entertain an application or to issue a precept for the summary removal of tenants or occupants of premises his application will fail.'^ That should be stated in the petition. Sec. 579. Proceedings for summary removal being in derogation of the common law, and jiureiy statutory, every requirement of the statute in reference thereto must be strictly complied with. The petition must state facts, and the facts stated must be such as clearly show that, if proved, the petitioner is entitled to the relief prayed for. Every essrential fact requisite to entitle the petitioner to this remedy should be clearly stated.^ The right of the j)etitioner to immediate possession must clearly appear, and it must also appear that the iirer#ses are within the county, city or district over which the judi>e, magistrate or court has jurisdiction ; and an omission in this respect is a jurisdic- tional defect.* So, too, it must appear when the petition was verified, so that .it may be known whether the officer before which it was verified had authority to administer the oath.^ Jurisdiction depends upon the petition, and every fact requisite to give jurisdiction must be stated ; and if it lacks an essential requisite — and all the matters specified by the statute as requisite to give this remedy are essential — all subsequent > In Brown v. New York, 66 N". T. 385, ^ Powers ». Witty, 42 How. Pr. 359 ; it was held that proceedings against the Campbell ». Mallory, 22 id. 183. city of New York under this provision * People v. De Cami), 12 Hun, 37"^. of the statute would lie .in a district '' Cook v. Staats, 18 Barb. 407; Sano court. e. Morse, C How. Pr. 391. - Sec. 2234, Code of 1880. 990 Rights, Remedies and Liabilities of the Pauties. proceedings are void, unless the defect is waived;^ consequently, the petition must state the petitioner's right to possession, and whether he claims as landlord or lessor, as a purchaser upon execution or fore- closure sale, or of premises upon which a stranger has squatted, or as a former occupant who has been put and kept out of possession, or as owner who let the premises to be. cultivated, or as the representative, agent or assignee of the landlord, purchaser or other person who, under the provisions of the Code, is entitled to apply for this species of relief. So, too, it must state under what claim of right the person sought to be removed holds, and tmless it appears that the defendant holds in some one of the capacities specified in the Code, the petition will not lie. The remedy, being purely statutory, can only be main- tained in those instances, and in the mode specified by the statute. The petition must state facts, and not inferences from facts,^ and should make out a plain case within the provisions of the statute.' It must appear from the petition that all the preliminary steps requisite to be taken to entitle the party to the remedy have been taken, and also precisely what was done, as, in the case of a tenant at will, or by sufferance, that the tenancy has been terminated by giving notice to quit by a certain specified day, which must have been of at least ten days' duration;* or, if a demand of the rent is required to be made, that such demand has been made as required by the statute,^ and gen- erally th.it everything has been done thfit is required by the statute as preliminary to a right to this remedy; and a mere statement that such requirement has been performed is not enough, as such a statement is a mere infei-enee from facts ; the facts must be stated, so that the court can see whether such an inference is properly deducible there- from. Hovr served. Spc. 580. The Code, sec. 2240, provides that the precept, if directed to a corporation, must be served by delivering to an officer thereof, upon whom a summons issued out of the Supreme Court, in an .action against the corporation, may be served, a copy of the precept, and at the same time showing him the original. If upon an individual, the precept must be served upon him by delivering him a copy thereof, and also showing him the original, and if there are several defendants similar service must be made upon each of them. iBarjtaed, p. J., in People i). De In writing, a copy of wliich is hereto Camp, ante. annexed," and it was held tliat, as the 2 Hill V. Stacking, 6 Hill, 317. statute prescribed how the notice should ' Wiggin V. Woodruff, ante. be served, the aflSdavit was defective in * Sec. 2236, Code 1880. not setting out the manner of service, so f- In People V. Keteltas, 12 Hun, 67, that the court could see whether the Ihe .nffijavit stated that "lie has de- statute had been complied with, and lT?"nded the rent by a Ihroo days' notice jurisdiclion acquired. 1 How , Served. 991 If, however, the defendant resides in the city or town where the property is situated, and is absent from his dwelling-house, service may be made by delivering a copy of th« precept at his dwelling-house, to a person of suitable age and discretion who resides therein, and if no such person can be found there, then by delivering a copy of the precept at the property sought to be recovered, either to some person of suitable iii^e and discretion residing there, or if no such person can be found there to any person of suitable age and discretion employed there.' In case service cannot be made in either of the modes previously named, then the precept may be served by affixing a copy of the precept upon a conspicuous part of the property. The statutory provisions as to ser- vice must be strictly complied with in order to give jurisdiction, and an omission to show that the tenant or person on whom the precept is to be served resides in the city or town where the property is located and was absent from his dwelling-house, will invalidate the service. So, too, where personal service is made, it has been held that a failure to show that the original summons was shown the defendant rendered the service irregular.'' If there are several defendants the return must show service upon each one.' If the precept is made returnable upon the day upon which it issues it must be served at least two hours before the hour at which it is returnable ; but in all other cases, it must be served at least two days before the day on which it is returnable. Under this provision, it has been held that service made on the 23d of Nov. to appear on the 25th is sufficient.* Where a petition is made by a neighbor of a bawdy-house the precept must be directed to the land- lord or his agent and the tenant or occupant of tlio property, and must be served upon both. In case the precept is served by a sheriff, constable or marshal service may be proved by the certificate of the officer, stating the facts ; but vhere it is served by an indifferent person, the service should be proved 1 By sec. 2241 it is provided that a per- fully viplates any provision of this sec- son to wliom a copy of a precept, directed tion, la guilty of a misdemeanor ; and, to another, is delivered, as prescribed if he is a tenant upon the property, for- in this title, must, without any avoid- fells to his landlord the value of three able delay, deliver it to the person to years' rent of the premises occupied by whom it is directed, if he can be found him. A copy of this section must be within the same town or city ; or, if he indorsed upon each copy of a precept cannot be sofound, to his agent therein; served otiierwise than personally upon and if neither can be so foixnd, after the person to whom it Is directed, the exercise of reasonable diligence, be- ^ People ». Matthews, 43 Barb. 168. fore the time when the precept is return- Unless it appears from the record that the able, to the judge or justice who issued prenept was legally served jurisdiction tlie same, at the time of the return is not acquired, and the judgment is thereof, with a written statement in- void. Beach «. Bainbridge, '7-Hun, 81. dorsed thereupon, that lie has been im- ' People «. DeCamp, 12 Hun, 378 ; able, after the exercise of reasonable Matter of Glern, 1 How. 213. diligence, to find the person to whom the * People xi. Marvin Safe Co., 5 Hun, lirejept is directed, oi' his agent, within 218. tlie town or city. A person who wil- 992 Rights, Remedies and Liabilities of the Paeties. by affidavit ; and in either case the return or the affidavit should set forth the facts as to the mode of service. If service is made personally, it should appear in the return that^ copy of the precept was delivered , to the defendant and the original shown to him ; ^ and if service is made by delivering a copy of the precept at his dwelling-house to a person of suitable age and discretion residing there, the fact of the defendant's residence in the city or town in which the property is located, as well as his absence from the dwelling at the time of service, should be clearly^ and distinctly stated, as a justification of that mode of service ; and if service is made by delivering a copy of the precept at the property, &c., with a person of suitable age and discretion residing there, it should be stated that neither the defendant or any person of suitable age and discretion could, with reasonable diligence, be found at the defendant's dwelling ; and if service is made by deliverirg a copy at the pi-operty with a i:)erson of suitable age and discretion employed there, all the foregoing matters should appear, as well also the fact that no person of suitable age and discretion residing at the property could be found there. If service is made by affixing a copy of the precei^t upon a conspicu- ous part of the property, it should also appear from the return or affi- davit that service could not be made in anyiother of the modes desig- nated in sec. 2240. This is essential, because the statutory method of service, in the order stated, is essential to give jurisdiction, and, unless it appears from the record that jjersonal service could not be made, it will not be presumed from the mere fact that service was made by either of the other modes that personal service, &c., could not be made. The petitioner is bound, upon the return day of the precept, unless the defendant appears, to prove the due service thereof, and the time, place and manner of service ; and uuless service was made personally upon the defendant, or by affixing a copy of the precept upon a con- spicuous part of the property, the name of the person to whom the copy was delivered should appear, if it can be ascertained with rea- sonable diligence. As previously stated, where the precept is served by a regular officer, as a sheriff, constable or marshal, his return, so far as it states the facts, will be taken as sufficient proof of such service ; but whether service is proved by such certificate or by the affidavit of any other person serv- ing the precept, it seems that if the return or affidavit is insufficient the oral testimony of the officer or person making affidavit of service is admissible to show the manner of service, and that the statute was com- plied with by him in making such service, although such fact does not 1 Duel o. r.ust, 24 Barb. 438. Answer, Issues, Etc. 993 appear upon the face of the return or affidavit. Thus, where a precept was served by a constable, and in his affidavit of service he stated that he left, a copy of the precept at the dwelling, &o., of the defendant, " with his wife, a person of mature age, residing on the premises," but did not state that the defendant was absent from his last or usual j)lace of residence, and the record show that upon the return of the summons to the justice the constable was sworn and examined orally as to its service, and then testified that before delivering the copy to tlie defendant's wife he inquired of her if he was at home, and she said that lie was not, it was held that the defect was cured and the justice acquired jurisdiction.^ But such defect cannot be cured after judg- ment.^ ^ Amendments to petition, precept, &c. Sec. 581. If there is a defect in the petition, precept or answer, the statute does not confer authority upon the justice or court to permit amendments thereto, or to permit a supplemental petition or answer to be filed ; therefore, where the defect is such as affects the jurisdic- tion of the court — as, where facts sufficient to uphold such remedy tmder the statute are not stated — the only remedy of the petitioner is to commence de novo. Of course, where the defect is merely technical, it is treated as having been waived unless seasonably objected to ; but if objection is seasonably taken, it may seriously prejudice if not entirely defeat the claim or defence.' Answer, issues, &c. Sec. 582. 3^he Code provides * that, when the precept iS; returnable, without waiting as prescribed in an action before a justice of the peace, or in a District Court of New York City, the person to whom it is di- rected, or his landlord, or any person in possession or claiming posses- sion of the prenjises, or of any of them, may file with the judge or justice who jssued the precept a written answer, verified in tbe same manner as an answer in the Supreme Court, denying generally the alle- gations, or specifically any material allegation of the petition. It was not intended by the legislature to cut off special defences by the tenant, although such might be the apparent effect of this section. Such a construction would be highly inequitable, and would have the effect to dispossess the tenant in instances where he had a complete legal ^ Robinson v. McManus, 4 Lans. 381. goes by default. McAdam's L. & T. 262 ; Tbe power of amendment does not de- Perry ». Tynen, 22 Barb. 137. .peiid upon the defendant's appearance ^ xjie People «. Boardman, 4 Keyes, in the snlt, but an amendment will be 59. permitted even in case where judgment ^ McAdam's L. & T. 263, 270. 63 < Sec. 2244. 994 Rights, Remedies and Liabilities of the Paeties. defence. The spirit of the statute rather than its letter is to be regarded, and special defences, even where the tenant cannot deny any of the alle- gations in the petition, are undoubtedly permissible. Mr. McAdam, in his excellent treatise upon this topic in discussing this question, says : ' " Take the case of a tenant whose 'defence is payment ; he cannot dis- pute the hiring, nor its terms, nor can he deny that the rent became due as alleged by the landlord, nor can he deny that the landlord demanded it, and these admissions substantially make out the land- lord's case, and yet the tenant, after admitting all these facts, may have paid the landlord at the time he demanded the rent. The legislature did not intend to exclude this affirmative defence. Take another case : Suppose the tenant has been evicted by title paranfonnt before the rent claimed accrued, and was, in consequence, compulsorily obliged to attorn and pay rent to the paramount owner, in order to protect his possession ; the tenant could not, in such a case, deny any of the facts required to be stated in the affidavit of the original landlord, if he saw fit to institute a proceeding of dispossession, and still the tenant has a complete defence in law. The legislature did not intend to exclude such an affirmative defence. The denial contemplated by the statute, means the denial hy the tenant of the landlord's claim for rent or possession hy the pleading of facts, which of themselves constitute such denial, hy showing that for some reason, recognized in law as valid, the claim made hy the landlord, although it once existed, has, by reason of the facts alleged, ceased to exist ; or, if the right never existed, the same result is accomplished by a simple denial of the facts alleged by the landlord. That this was the intention of the legislature is manifest from the spirit if not from the language of the statute, particularly when construed with reference to the plea of the general issue under the system of pleading in use at the time the statute was passed ; for under this plea almost every affirmative defence was admitted which went to defeat the plaintiff's claim. The modern system of pleading has, however, changed the former rule by requiring affirmative matter to be specially pleaded." Where the application is for a forcible entry or holding over, the petitioner is required to allege and prove an actual peaceable possession of the premises by him at the time when the forcible entry was made, or that he had a constructive possession thereof at the time of the forcible holding.^ The defendant must deny the forcible entry or hold- ing, or he must allege in defence that he, or his ancestor, or those whose interest he claims, had been in quiet possession of the premises for three consecutive years next before the alleged forcible entry or detainer, and that such interest is not ended or determined at the time of trial. 1 McAdam's L. & T. 266. " Sec. 2245, Code 1880. Adjouknment, 995 'Trial, jury, &o. Sec. 583. When the issue is made up in these proceedings by the petition and answer, it must be ti-ied by the judge or justice, unless some one of the parties answering files with his answer a written de- mand that the issues be tried by jury, and at the same time pays to the judge or justice, or to the clerk of the court, the fees of the jurors and of the officer for notifying them. The right to demand a jury is con- fined to the defendant, and does not exist unless demanded in the mode provided, and upon full compliance with all the preliminaries named.' If tTie statutory requirements are complied with a jury must be sum- moned, and the right of the judge or justice to try the issues is gone, unless they agree to waive a jury trial.^ The jury is to be summoned and the issues tried by it in the same manner as in other actions in the court of which the judge or justice who issued the precept is the pre- siding officer, and the court possesses the same powers in these proceed- ings as in other actions in his court, except so far as such powers are specially abridged in title 2 of chapter 17 of the Code. Change of venue. Sec. 584. In New York City, a justice sitting in a District Court, at the time of joining issue in these proceedings, may, in his discretion, upon motion of either of the parties, or if no justice is present the clerk may, hy consent of both parties, make an order transferring the cause for trial in a District Court of an adjoining district, and the court to which the cause is transferred has the same powers as though the proceedings had been commenced in that court, and as though the property was situated in the district.' Adjourniaent. Sec. 585. The judge or justice has no power to grant or order an adjournment, except where an adjournment is requested by one of the parties upon the ground that such adjournment is necessary to enable the applicant to procure bis necessary witnesses, or by consent of aU the parties; and an adjournment for any other cause, or upon any other ground, ousts the court of its jurisdiction.* When an adjournment is granted to enable a party to procure his necessary witnesses, the record should show the fact that it was granted for that cause, and upon satis- factory proof, either by affidavit or orally, that such adjournment for that purpose was necessary. An adjournment cannot be granted for 1 Sec. 2247, Code 1880. and paid the fees, the rights to a jury ^ People V. Hovey, 4 Lans. 86. In this trial is waived, and the court then has case it was held that, unless tlie parties no power to order the empannelling of a complied with the statute and demanded jury. " Sec. 2246. a jury at the time of filing the answer, * Boiler v. New York, 8 J. & S. 364. , 996 Rights, Remedies and Liabilities of the Parties. more than ten days, unless all the parties consent, nor can more than one adjournment be granted by the court ; although, if all the parties consent to a second adjournment, the jurisdiction of the court is not thereby ousted.^ If none of the defendants appear, upon the return of the summons the justice may enter a judgment by default, and is not bound to wait an hour, as in ordinary civil actions.^ Final order. Sec. 586. If the verdict of the jury is in favor of the petitioner, or if the issue is tried by the judge or justice and found in favor of the petitioner, the judge or justice must make an order awarding to the petitioner the delivery of the possession of the premises, and the costs of the special proceedings. But if the verdict or decision is in favor of the defendant, an order that the petitioner is not entitled, &c., and that the defendant is entitled to retain possession, and awarding him his costs, must be made.' This, however, is not the case where the petition is brought by the neighbor of a bawdy-house, as, in such, a case, the petition is not based upon the petitioner's right to possession, but rather upon his right to have a nuisance abated ; and the order, according to the provisions of the section last referred to, must direct the removal of the occupant or occupants of the bawdy-house, and the payment of the petitioner's costs. Costs, except as otherwise provided in chapter 21, must be at the rate allowed by law in the court in which the action is tried, and sub- ject to all the limitations in that respect. Where the petition is based upon a forcible entry or detainer, the judge or justice may award to the party recovering a specific sum as costs, not exceeding fifty dollars, in addition to his disbursements.* The final order for costs may be docketed, and an execution may be issued to collect the same, as is done in cases of other actions in the court of which the judge or justice is presiding officer. Bow possession is obtaiiied. Stay of warrant, etc. Sec. 587. Where an order is in favor of the petitioner (except whea the petition is brought by the neighbor of a bawdy-house), the judge or justice must issue his warrant, directed to the sheriff of the county, or to any constable or marshal of the town or city in which the premises, or a part thereof, is situated, describing the property, and commanding the officer to remove all persons therefrom, and to put the petitioner in full possession thereof.^ The warrant must be executed only in the 1 Brown v. New York, 66 N. T. 385; » Sec. 2249. sec. 2248. * Sec. 22.50, X!ode of 1880. s Mordant v. Niles, 1 Abb. N. C. 300. ^ gee. 2251. How Possession is Obtained. 997 day-time, between the hours of sunrise and sunset.^ The issuing of a warrant cancels the contract or lease under which the defendant holds, and annuls the relation of landlord and tenant, except that it does not defeat the landlord's right to recover by action under such agreement or lease the rent which had accrued at the time when the precept was issued ; or, if no sum was agreed upon, a reasonable sum for the use and occupation of the premises to the time when the warrant was issued.'^ If an order for the removal of the tenant is made for non-payment of rent, the tenant may, at any time before a warrant is issued, stay the issuinw of such warrant by payment of the rent due and all costs, or by delivering to the judge or justice, or the clerk of the court, his undertaking to thepetitioner in such sum and with such sureties as the judge or justice approves, to the effect that he will pay the rent and costs within ten days, at the expiration of which time a warrant may issue, unless he produces satisfactory evidence of the payment. Where the petition is predicated upon the ground that the lessee or tenant has been adjudicated a bankrupt, or has taken advantage of an insolvent act, he may stay the warrant by paying the costs and deliver- ing to the judge or justice, or the clerk of the court, with sureties, and for a sum approved of by thorn, an undertaking to the petitioner that he will pay the rent of the premises as it has become, or may thereafter become, due. Where the final order establishes that the defendant continues in possession of real property, w^hich has been sold by virtue of an execu- tion against his property, he may effect a stay by paying the costs of the special proceeding, and delivering to the judge or justice, or the clerk of the court, an affidavit that he claims the possession of the property by virtue of a right or title acquired after the sale, or as guardian or trustee for another, together with his undertaking to the petitioner, in such a sum and with such sureties as the judge or justice approves, to the effect that he will pay any costs and damages which may be recovered against him, in an action of ejectment to recover the property, brought against him by the petitioner within six months thereaftei-, and that he will not commit any waste upon or injury to the property during his occupation thereof.' Where an undertaking is given, in a case where the final order is ob- tained for the non-payment of the rent, the judge or justice must de- liver it to the person against whom the final order was made upon satis- factory proof of payment of the rent, &c.; but if such proof is not pro- duced within ten days the undertaking belongs, and must be delivered, 1 Sec. 2252. ^ Sec. 2253. ^ gee. 2254. 998 Rights, Remedies and Liabilities of the Parties. to the petitioner. In all other cases, the undertaking must be delivered" to the petitioner immediately after its approval.^ When lessee may redeem. Sec. 588. When a warrant for the removal of a tenant is obtained for the non-payment of rent, and the unexpired tei-m of the lease ex- ceeds five years, at the time when the warrant is issued the tenant, or his assignee or legal representative, may, within one year after the execution of the warrant, tender to the landlord, his assignee or legal representative, all rent in arrear at the time of the payment or tender, with legal interest thereon, and all costs and charges incurred by the petitioner ; or if within five days before the expiration of the year the petitioner, his assignee or legal representative, cannot with reasonable- diligence be found, such tender or payment may be made to the judge or justice who issued the warrant, or his successor in office, and there- upon he shall be entitled to the possession of the demised premises- under the lease, and may hold and enjoy the same according to the terms thereof." The right of redemption is extended to a judgment creditor of the lessee whose judgment was docketed in the county, and to a mortgagee of the lease whose mortgage was duly recorded in the county, where such execution was docketed or mortgage recorded before- the precept was issued. But in order to avail themselves of this right- they must, unless the tenant has previously redeemed within one year after the execution of the warrant, file with the judge or justice who issued the warrant, or with his successor in office, a notice specifying; his interest and the sum due to him, and describing the premises, and stating his intention to redeem the same. After having taken this pre- liminary step, such creditor or mortgagee may, if the tennnt, or those entitled to do so under or through him, does not redeem at any time before two o'clock of the day (not a Sunday or a public holiday) next succeeding the last day of the year within which the lessee might redeem, redeem for his own benefit, in like manner as the lessee may redeem. If there are two or more execution creditors or mortagees^ they must redeem in the order of the priority of their claims, to be de- termined in the order in which their liens are filed or recorded. Where two or more such judgment creditors or mortgagees have filed such notices, the holder of the second lien may redeem at any time before two o'clock of the day (not being a Sunday or public holiday) next, succeeding that in which his predecessor might have redeemed.' But a second or subsequent redemption is not valid unless the person re- Sec. 2255. ject to all the duties and liabilities of the Sec. 2256. lessee under the lease, accruing after ' The person redeeming as judgment redemption, the same as though he was creditor, mortgagee, &c., becomes sub- named as lessee in the lease. Sec. 2259. Appeal, Effect of. Poweb of Appellate Couet. 999 deeming pays or tenders to each of his predecessors who has redeemed the sum paid by him to redeem, and also the sura due upon his judg- ment or mortgage, or deposits the same with the judge or justice for the benefit of his predecessors.^ In every case the rights of the person redeeming are subject to a lease, if any has been executed by the petitioner subsequent to the issuing of the warrant, so far that the new lessee, his assigns, undertenants or other representatives may, upon complying with the terms of the lease, hold the premises so leased until 12 o'clock, noon, of the first day of May next after such redemp- tion. And in all other respects the person redeeming, as well as his assigns and representatives, succeed to all the rights and liabilities of the petitioner under such a lease.'' The person redeeming, or the owner of the property redeemed, may present to the justice or judge who issued the warrant, or to his successor in office, a duly verified petition setting forth the facts of the redemption, and praying for an order establishing the rights of the parties under such redemption. Upon such petition the judge or justice must issue an order requiring the other pai'ty to the redemption to show cause before him, at a time and place specified, why the prayer of the petition should not be granted. Such oi-der must be returnable in not less than two nor more than ten days after it is granted, and must be served at least two days before it is returnable. Upon the return day named in the order the judge or justice must hear the parties, and make such final order aa justice requires, which may be recorded in the same manner as a deed. The petitioner must pay the costs of such proceeding.^ Appeal, effect of. PoTver of Appellate Court. Sec. 589. An appeal may be taken from a final order, made in these proceedings, to the same court, within the same time, and in the same manner, as where an appeal is taken from a judgment rendered in the court, of which the judge or justice is the presiding officer, and with like effect,* except that the issuing or execution of the warrant cannot be stayed by such an appeal, or by the giving of an undertaking thereupon, except as hereinafter stated. An appeal cannot be taken to the Court of Appeals, from a final determination of the general term of the Supreme Court or of a superior city court, upon such an appeal, unless the latter court, by an oraer made at the general term where the final order is niade, or the next general term thereafter, allows it to be taken.^ Where an appeal is taken from a final order, awarding delivery of possession to the petitioner, which establishes that a lessee or tenant holds over, after a default in the payment of rent, the issuing and ex- 1 Sec. 225*7. = Sec. 2258. " Sec. 2269. ■• Sec. 2260. ' gee. 2261. 1000 Rights, Remedies amd Liabilities of the Parties. ■ecution of the warrant may, except in the city and county of New York, be stayed by the order of the county judge. Such an order can be made only upon the appellant's giving the security required to per- fect the appeal, and to stay the execution of the order appealed from, and also an undertaking to the petitioner, in a sum, and with sureties, approved by the county judge, to the effect that if, upon the appeal, a final determination is rendered against the appellant, he will pay all rent accruing or to accrue upon the premises, or, if there is no lease thereof, the value of the use and occupation of the premises, subse- quent to the institution of the special proceeding.^ If the final order is reversed upon the appeal, the appellate coui-t may award restitution to the party injured, with costs ; and it may make any order, or issue any other mandate, necessary to carry its determination into effect. The person who has been dispossessed under the warrant may also maintain an action to recover the damages he has sustained by the dis- possession." Proceedings under a petition for any of the causes here- inbefore referred to, before the final order or before the issuing of a warrant under a final order awarding possession to the petition, can- not be stayed by any court or judge except as above stated, and by an injunction order granted in an action against the petitioner. An iu- j unction order cannot be issued before the final order is made in the special proceedings, except in a case where an injunction would be granted to stay proceedings in an action of ejectment brought by the petitioner, and upon the same terms ; nor after the final order is made, except in a case where an injunction would be granted to stay the execution of a final judgment in ejectment, and upon the same terms.* 1 Sec. 2262, a Sec, 2263. « Sec, 2265. THE BSD. INDEX. A. ACCEPTANCE : of rent, operates as waiver of forfeiture for breach of covenant when, 530, also n 1, 870. operates as waiver of notice to quit, 88. ACCIDENT : inevitable, tenant not responsible for, 583, 812. does not suspend rent, 816, or discharge from covenant, 812. ACCIDENTAL FIRES: tenant not responsible for, 707. formerly otherwise at common law, 707. statute 6 Anne, chap. 31, effect of, 707. Stat. 14 Geo. 3, chap. 78, 707. liable for fires negligently set, 707. ACKNOWLEDGEMENT : of lease, when necessary, 333. must substantially conform to statute, 334. A.CTION (see CovENAifT— Debt— Use and Occtipation— Ejectment— Mbsnb Profits — Trespass ) . when landlord may bring ejectment for breach of covenant to repair, 638. how forfeiture may be waived, 638. damages recoverable for breach of covenant to repair, 639-646 . lessor may maintain against lessee after assignment when, 496. against assignee, 496-498. tenant may maintain trespass when, 915, 926. landlord may bring for trespass when, 915. may maintain against tenant for injury to estate when, 916. what constitutes injury to reversion, 916 n, 2. liable to strangers for defects in premises, when, 917-923. liable for injuries from nuisances when, 917-923. of replevin, 946. trespass for illegal distress, 946. trover, 946. case, 946, 947. •use and occupation, 947-951. :for wrongful distress, 946. 1002 Index. ACTION— Continued irregular distress, 947. for double value, 965. for double rent, 967. for forcible entry and detainer, 975. ejectment, lies when, 979. for mesne profits, 982. debt, 960. in equity for rent, 962. ADMINISTRATOR (see Executors ajtd Administkatobs). of either party may give notice to quit, 85. ADMISSION : acts of occupant amounting to, of tenancy, 17. ADVANCE : rent may he made payable in, 736. payment of, in, when lease does not provide for, effect of, 737- rights of tenant paying in, 736-738. when agreement to pay in may be implied, 737. may, by custom, be payable in, 737. not liable to execution creditor for, 738. ADVERSE POSSESSION : lease of lands held by, void, 246 n, 7. AFFIDAVIT : to authorize distress, 941. foi summary proceedings, 988. for injunction to restrain waste, 716. AGENTS : ases by, 200. real estate, 205. authority must be strictly pursued, 205. misrepresentation by, 207. lease executed by, authority should be stated, 329. may be ratified by principal, 329. notice to quit given by, 85, 86. notice to quit given to, 87. how lease by, should be executed, 203 n, 3. cannot delegate his power, 204. when he exceeds his authority, lease good pro tanto, 206. taking lease for, how far can bind his principal by covenants, 207. taking lease in his own name, principal may compel assignment, 20T, principal bound by fraudulent representations made by, 207. lease by, for unlawful purpose, effect on principal, 348 n, 3. AGREEMENT FOR LEASE : entry under, creates tenancy, 10 n, 1. invalid, entry under, effect of, 7. valid entry under, effect of, 71 n, 2, 262. what covenants will be implied, 73. when a present demise, 250. must be complete, 250, 258, 263. illustrations, 250-258. Index. 1003^ AGREEMENT FOR h'EAS'E— Continued not, if anything remains to be done, 250. must contain all elements of contract, 258-263, when not a present demise, 260. all intended covenants should he in agreement, 263. statute of frauds, effect of, upon, 265. valid, remedies upon, 269. remedy at law, upon, 270. in equity by specific performance, 271. (see Specific Pbbkfomance— liEASEs)^ AGRICULTURAL FIXTURES : what are, 875 et seq. ALTERATION : of lease after delivery, effect of, 342 re, 3 et seq. of-buildings, waste, when, 698-703. indorsed before lease is executed, 342. presumed to have been made before execution except, 343. rule when made before lease is sealed and delivered, -343. indorsement treated as new instrument when, 343. alteration of by lessee invalidates, when, 342 n, 3. general effect of, fradulent alteration by lessee, 312 n, 3. as to what alteration may or may not he made, 342-348 and notes^ alteration by stranger, effect of, .343 n, 4. rule as to alterations made after estate has vested, 343 n, 3. how far altered lease admissable as evidence, 343 n, 3. what is not an alteration, 843-4. AMBIGUITY : construed in favor of lessee, 463. latent, may be explained by parol, 467-470. patent, cannot be explained, 473. when lease is void for, 464. ANCIENT LIGHTS (see Light). APARTMENTS: rights of hirer of, 92. let for immoral purposes, 93. when rent can be recovered for, 93. duty of landlord in reference to, destruction of, terminates the relation of landlord and tenant, 603. APPURTENANCES : word, not important in lease, 310, 314. test as to what is embraced as, 311, 314 illustration, 311 n, 6. rule in Maitland v. Mackinnon, 311 n, 1. rule in Ogden v. Jennings, 311 n, 2, 312 re. rule in Tyrringham's Case, 312 re. lease of house with, what passes, 314. what ways and easements pass as, 315, 319 n, 2. light, when right to passes as, 315 re, 3, 319. drains, ,32t pump, 321. 1004 Index. APPORTIONMENT : of rent cannot be made when lease is void in part, 337. assignee of part of premises, only liable for part of rent, 539. of rent, when may be made, 787-791. what the term signifies, 787. takes place by act of law, when, 787, 794 n, 3. by act of parties, when, 787. by eviction, when, 787. under 11 Geo. 2, c. 19, § 15, 788. extended by 4 & 5 W. & M. 4, c. 27, 789. how made, 791. ARREARS : of rent, at death of lessor, who entitled to, 763. ASSIGN : tenant may, unless expressly prohibited in lease, 529 n, 1. covenants not to, nature and effect of, 528. how broken, 533. license to, effect of, 529-533. license to assign part, effect of, 529 n. how must be given, 529. when covenants provide mode, 530. covenant not to, without license, unreasonably withholding, effect of, 530, rights of assignee, when lessee has covenanted not to assign, 530. covenant may be waived, 530-533. what amounts to waiver, 530-533. underletting not breach of, except, 533 n, 1. involuntary assignment is not, 534, 537. bequest of term, not a breach, 534. taking lodgers, is not, 533 n 1. parting with possession of part of premises Is not, 533 n, 1. depositing lease as collateral security is not, 535. marriage of feme-sole lessee does not operate as breach except, 537. involuntary transfers, operate as breach when, 537. tenant at will, cannot, 538 n, 1. ASSIGNEE : of lease liable as tenant, 10. of either party may give notice to quit, 85. may avail Uimself of notice given by assignor, 86. of lease liable to landlord under, 132. cannot enforce forfeiture incurred before assignment, 340. liability of, upon covenants in lease, 496 n, 2. only liable in respect of privity of estate, 552. liability ceases by assignment over, 552 n, 6. may sue lessor for breach of covenant when, 548. •what covenants run with the land, 548, 550. mortgagee not liable as, except, 547 n 6. not liable on personal covenants, 547. takes subject to liability of lessee, 547. not liable on collateral covenants, 548. liable when he expressly assumes all the lessee's covenants, 55. may enforce against lessor covenants running with land, 558. Index. 1005 ASSIGNEE— ConKrawed as covenant to renew, 556. for further assurance, 556. to insure, 556. •what covenants bind, although " assigns" are not mentioned, 550. when " assigns" is used, 551. rights of, 554. by way of mortgage, liability of, 554. mortgagee liable as assignee, when, 554. how may avoid liability, 554. assigning part of term does not discharge from liability as to part retained, 554. of lease containing covenant not to assign, rights of, 536. what amounts to an assignment, 536-542. nature of, 537. distinction between and underlease, 542-545. of lessee, when liable to lessor; 548. of reversion can enforce forfeiture, when, 559. on what covenants, is "liable, 547. attornment not necessary, 560. only liable in debt at common law, 546. not liable on collateral covenants, 548. exceptions, 548. of lessor, becomes landlord, 539. ol part, rights of, 539, 549, 554. entitled to apportionment of rent, when, 539. must notify tenant of transfer, 539. assignee of lessee liable only to extent of interest assigned, 539. equitable, not liable for rent, unless, 542 n, 4. liability of, 546. liability of lessee, 548, 558. on what covenants liable, 547. when liability commences, 551. need not have taken possession, 551. mortgagee liable as, when, 5.52. liable for rent, &c., after terra expires, 553. executors, &c., liable as for rent and breaches after death of testator, 561. of lease, damages against for breach of covenant to repair, 62g rights of, when lessee assigns without lessor's assent, ,530. ASSIGNMENT : distinction between, and sub-lease, 104, 132. nature of, 537. what amo\mts to, 537, 533 Ji, 1, 541, 545. what is subject to, 538. operative words in, 545. covenants against, not favored, 533. what amounts to breach of covenant against, 533 n, 1. lights of assignee under, when lessee has covenanted not to assign, 530 n, 6. usual covenants in, 546. under lease for term longer than tenant possesses operates as, 543, 556. conveyance of all tenant's interest operates as, although rent is reserved, &c., 543. 1006 Index:. -ASSIGNMENT— Continwet?. distinction between, and underlease, 542. by deposit of lease, effect of, 555. "what passes by, under general words of, 556. to persons in trust, effect of, over, discharges assignee, 552. breaches prior to assignment over, not discharged by, 553, 557. not discharged from express covenants entered into by him, 553. executor, &c., of assignee may assign so as to discharge estate from subse- quent breaches, 553. ■by assignee of assignee, 553. covenants against, nature and effect of, 528. how broken, 533. when administrators, &c., may assign, 533 n, 1, 536. void or invalid, does not operate as breach of covenant against, 535. when permitting person to occupy operates as breach, 535. good will of a lease, subject to, 533. of reversion, 540. rights of assignee under, 540. Stat. 32 Hen. 8, effect of, 540. how reversion may be assigned, 540. mortgage of reversion, 541. effect of, 541. rights of mortgagee, 541. of lease, as collateral security, effect of, 541 n, 4. re-assignment, effect of, 557. liability discharged by, without notice to lessor or consent, 557. attornment not necessary, 560. rights of, when lessee assigns without lessors assent, 530. acceptance of rent from assignee waives forfeiture, 530. lease is merely voidable at landlord's election, although it provides that it shall become void upon assignment, 531, 532. landlord bound by his election, 532. re-assignment, effect of, 552-554-557. effect of, as to covenants that run with the land, 550-551. what covenants run with the land, 550. what do not, 551. when liability of assignee begins, 551. of part of land, effect of, 554. by way of mortgage, 554. liability of mortgagee under, 554. equitable deposit may amount to, 555. trustees under deed of assignment, right of election, 555. what passes under general words in assignment by deed, 556, good without attornment, 560. effect of Stat. 4 Anne, chap. 16, 560. effect of death of lessee, 560. ATTESTATION : of lease, requisites of, 330-1. who may attest, 331. parol lease, needs none, 331. Index. 1007 J4.TT0RNMENT: to lessee under concurrent lease not necessary, 363. effect of not attorning to him, 363. ATTORNEY: person acting under power of, cannot delegate authority, 204. BANKRUPTCY : determine tenancy at will when estate vests in assignee, 51. assignee in, liable as tenant when, 10. BLANKS : in lease, filled by lessee, effect of, 347, see n 1 and 2. BUILDINGS : not fixtures, when, 881. covenant to pay tenant for, 672. BUILD : covenant to, not implied, 73. void lease containing covenants, not binding on tenant entirely under, 74. ■CANCELLATION : of lease by parties, effect of, 3J:7 n, 3. •CESTUI QUE TRUST : person going in under, becomes tenant by sufferance when, 14, powers of, to lease, 236. should join with trustee, 236. confirmation of imperfect lease by, 237. e shown to establish, 974, 977. pimishment of by action, 975. statute of 8 Hen. 6, 975. Stat. 8 Hen. 6, as to power of justices, 975. restitution, 976. Stat. 5 Ric. 2, 977. EORFEITURE : tenant holding after, becomes tenant by sufferance, when, 13. for improper or prohibited use of premises, 113. lessor parting with reversion after breach cannot enforce, 340. assignee cannot enforce forfeiture incurred before assignment, .340, effect of waiver of, 340. when entry may be made, 340. what amounts to waiver, 340. incurred by breach of covenant as to character of occupancy waived, bow, 652. , entry by landlord to enforce, not eviction, 781. when and how incurred, 857. by record, how incurred, 8.57. by acknowledging title in stranger, 858. when and how incurred, 859. by statute, 859. by provisions in deed, 859. can only operate during term, 860. rule when time is fixed for performance, 860. effect of statute of limitations, 860. what estate person entering for, must have, 860. construction of provisoes for re-entry, 861-865. option of taking advantage of, rests in lessor only, 861-S65. tenant cannot avail himself of, 861. fact that tenant is infant does not defeat, 862. Index. 1029 FORFEIT UB.E— Continued nor that slie is married woman, 862. can be no entry ueless so provided in the lease, 862. proviso for re-entry being insensible, courts will not support, 862. who may take advantage of, 865, 866. Stat. 32, Hen. 6, c. 34, 866. entry for, generally, 867, 868. demand of rent, when unnecessary, 868. waiver of, what amounts to, 870-871. lessor must, in order to make acceptance of rent after, operate as waiver of forfeiture, have notice that forfeiture exists, 871- FORMALITIES : required to make a valid lease, 322. informal, may operate as agreement for lease, when, 32? leases by deed, what are, 323. by indentui-e, what are, 323. leases by deed must be written or printed on parchment or paper, 383. must be under seal, except, 325. what is a seal, 325-328. signed how, 328. by whom, 328. by corporation, how, 326. by third person without authority, validated how, 329. attested, how, 330. delivery, 331. record, 333. acknowledgment, 333. date, 335. entry by lessee not essential, 336. FRAUD : lease made by person under influence of, 174. must have been an intent to deceive, 174. equity will relieve against, when, 174. wliat constitutes, 174. sufficient to avoid lease, 362. misrepresentation by tenant as to contemplated use of property sufficient when, 362. on part of landlord in concealing facts relating to premises, maintainable when, 805. statute of, leases within, 188, 333, 829. agreement for lease affected by, 188. what leases are good under, 829. FRAUDULENT : removal of goods to avoid distress, effect of, 9-38. representations as to premises, concealment of matters affecting health, y determine tenancy at will, 47 n, 6 et seq. how may determine tenancy by sufferance, 47. need not give notice except, 47. demand not necessary except, 47. acts of that determine tenancy at will, 47-49. implied obligations of, in the" letting of furnished houses, 92. duty as to lodgers, 92. letting apartments, duty in reference to, 94. must use reasonable care for protection of tenant, 94. letting for storage or deposit, duty of, 94. 1036 Index. LASDLOB.D— Continued may enjoin prohibited or illegal use of premises by tenant or sub-teuant, 1 13. has no remedy on covenants in lease against sub-tenant, 131, 132, 133. cannot deny his own title or right to lease, 367. tenant cannot dispute title of, 363-375. exceptions, 368 n, 4. , estoppel extends to all claiming under the lessee, 368 n, 4 not bound to repair unless he has covenanted to do so, 610. exceptions to this rule, 618. under covenant to repair, entitled to notice to do so before he can )jo charged, 610. promise by, to' repair during the term, not binding, .5',»6. fact that he makes repairs raises no presumption that he agreed to do so, 607. instances in which he is bound to repair, 618. when duty is imposed by statute, 618. who liable when nuisance results from want of repair, 618- when landlord retains possession o£ part of the premises, 618. as to adjoining premises owned by him, 618. liability when several tenants occupy distant portions of the same building, 619. only liable when guilty of negligence, 619. injuries resulting from apparent defects, 620. rule in Carstairs v. Taylor, 620. not liable for injuries resulting from misconduct of tenants, 620. rule in Ross v. Fedden, 620. when not liable for injuries resulting from non-repair of part of premises in possession of different tenants, 622. fraud of in misrepresenting condition of premises when liable for, 624. liable for failure to disclose defects, when, 624. rule in Minor v. Sharon, 624 n, 5. rule as to covenants where there are several lessors, 625. rule when landlord has repaired, 625. rights of, when tena'xy is ended, 821. right to enter forcibly, 821. not justified in making forcible entry when tenant is in actual possession, unless, 821. cannot maintain trespass against tenant without re-entry, 821. when undertenant holds over, lessee liable for rent unless, 821. on termination of agricultural leases, rights of, 821. position of, after lease takes effect, as to estate, 915. no right to enter upon, 915. even to repair, 915. tenant possesses all landlord's rights respecting, 915. landlord cannot sue for injury to the possession, 915. may for injuries affecting reversion, 915 n, 1. cannot sue for mere trespass, 916 n, 2. cannot alter or cliange buildings without tenant's consent, 917. liability of to third persons, 917. nuisance, when both are liable, 917. when may be liable for nuisance created by tenant, 918. "by tenants from year to year, 918. Index. 1037 hA^nhOBD— Continued right of to enter for condition broken, 923-926. must have complied with all legal requirements, 923. may enter forcibly when, 924. may enter whefi he can do so peacefully, 92.5. right when premises are vacant, 925. or abandoned, 92.5. better remedy is to resort to legal methods, 926. remedies for rent, by distress, 931. when distress lies, 931-9:35. what may be distrained, 935-9.S7. where distress must be made, 937-940. how may be made, 940-944. sale of, 944-946. right to enter forcibly when term is ended, 964 rights and remedies of, generally, 915-917. distress, 931 et seq. debt, 960. use and occupaltion, 947. covenant, 947. waste, 698 et seq. ejectment, 979. in equity, 962. summary proceedings, 984. by injunction, 113, 713-718. liability of, to third persons, 917-92.1 LANDLORD AND TENANT : how relation is created, 1-12. mere possession of lands by one, does not make him tenant, t. assent to occupancy by third person, necessary, 1-6. trespasser cannot be held as tenant, 1-9. elements requisite to create relation, 1. relation may be implied when, 1 n, 2, .?. tmless character of occupancy negatives, tenancy may l>e Implied, 1 h, 2. consent of owner express or implied requisite, 2 7i, 1. contract to pay rent, not essential to create relation of, 2. person who occupies gratis, may be tenant, 2. instances, 2 n, 6. no particular form of words necp.ssary to create relation of, 3. payment of rent, evidence of relation when, 10-11. when not, 10-11 and notes. LANDLORD'S FIXTURES : what are, 881. illustrations, 881. LATERAL SUPPORT • right of, 417. LEASE : " occupancy under void, evidence of tenancy, 5 n, 1. upon terms stated therein, 5 n, 1. making of, determines tenancy at will. 47. 49. . 103i) Index. LEAS:E,— Continued for seven, fourteen or twenty years as lessor shall elect is lease foi seven years certain, 69. how becomes lease for fourteen years, 69. for term of years certain, and additional tim.e upon performance of condi- tions, effect of performance, 68. entry under agreement for, becomes tenant from year to year when, 71. void, effect of entry under, 71, 74. gives right of entry only, 108, 104. for years, contract for possession, 104. or under-lease, 104. concurrent, what is, 10.5. in reversion, 105. must be by deed when, 105. by State must be by deed, 106. by corporation, 106. husband and wife, 106. parol, valid when, 323. statute of frauds, to what leases applies, 323. what is a deed, 106. elements of, 106. indenture, what is, 323. for a term confers chattel interest, 107. may be for any term, 107. no limitation as to dm-ation, 107. as to term ma^ be subject to option of either party, 108. condition precedent to exercise of, 108. of premises for immoral or illegal purposes, effect of, 93. by lessee, sub-tenant using premises for illegal purposes, 113. sub-ten.ant using premises, for prohibited purpos?s, 113. by tenant, valid when, 113. by tenant at will, 114. by tenant per autre vie, effect of, 117. how determined, 117. by jpin,t tenants, how may be made, 118. effect of, 118-122. by tenants in comnjoij, 123. by co-parceners, 122. by tenant at will, effect of, 114. at sufferance, 115. dower, 115. curtesy, 115. life, 96, 115. pur autre vie, 117 joint tenants, 118. co-parceners, 122. tenants in common, 123. for years, 130. for less than years, 136. corporations, 137. I Infants, 143. guardians, 154. Index. 103,9 LEASE —Continud feme-sole, 159. feme-covert, 166. husband and wife, 162. lunatics, 169. idiots, 169. intoxicated person, 170. duress, by person under, 170. fraud, by person under, 174. e-xecutors, 176. administrators, 176. mortgagor, 185. mortgagee, 196. . agents, 200. "under powers, 215. trustees, 235. disseizor, 245. disseizee, 245. distinction between and assignment, 132. reversion must exist in lessor, 132. contract to sell, not met by giving under-lease, 134. for longer time than lessor lias, how far valid, 136. corporation may make by parol, 138, 139. by corporation, need not be under corporate seal, 139. hy agents, validity of, 200. how should be executed, 203. , cannot delegate powers, 204. between principal and agent, 202. by client to attorney, 202, 212. ward to guardian, 202. cestui que trust to trustee, 202. mortgagor to mortgagee, 214. between near relatives, 214. rule in Mulhallen v. Marum, 214. under powers, general rules as to, 21-5. construction of power, 216. execution of, 217. what kind of leases may be made, 221. in whom powers may vest, 224. usual covenants, 225, 228. by trustees, rules as to, &c., 235-244 by cestui que trust, 236. proviso for re-entry, 225, 229. counterpart, 225. in possession or reversion, 226. on what land may attach, 226. In reversion, what is, 227. effect of existing, 228. agreement for will be specifically enforced when, 271-290. of lands in adverse possession of another void, 246 n, 7. possession in fact or in law essential to uphold, 246-249. agreement for, 250-290 1040 Index. LEASE— Continued what are, and of what may be made, 291. essential requisites of, 298. must be reversion in lessor, 297. operative words, 298. description of premises, 298. receipt may be sufficient, 299. license may be when, 299. intention of parties material, 299. the premises, 300. what should contain, 300. should be certain, 300. erroneous description will not vitiate, when, 302. more or less in lease, effect of, 303. when statement of quantity, will not control, 303. what passes as land, 304. what passes under general description, 303. what passes under special description, 304. as meadow land, 304. tillable lands, 304. mining lands, 304. what passes under, as incident to the property, 304. of furniture, what embraced under, 304-310. of upper floor, what passes as incident to, 30.5. of house, what passes with, 30.5, 306, 307. of farm, what passes under , 307. of use of thing, passes thing itself except, 309. of products of land, carries land, 81 of fishery, what passes with, 310. of house and garden, what passes with, 312, 314. " with appurtenances," what passes, 314. of premises described as being in possession of a certain person named, what passes, 314. what easements pass under as apportioned ways, .315, 319 n, 2, 3S0. ways, 315, 319 71, 2, 380. light, 515 n, 3, 319. drains, 321. pump, 321. formalities requisite in execution of, 322. parol, for one year, &c., good when, 323. by deed, what are, 323. by indentui-e, what is, 323. signed how, .328. should be read by or to person signing, 32S, who may sign, 328. by corporation, by whom should be signed, 329. attested, how, 330. delivery of, essential, .331. what constitutes, 331. as escrow, 333. record of, necessity for, 733. acknowledgment of, 313. Index. 1041 UEAS^— Continued acknowledgment of, how relating to In different states, 334. ' date of, not material, 335. takes effect from delivery, 385. presumption as to date, 335. dispenses with entry, 336. interesse termini conveyed hy, 336, 337-360. void, may operate as agreement for lease 322. void or voidable, 339. hy deed, effect of, 323. presumed to he by deed when, 324. must be written or printed upon parchment or paper, 324. may he good in part and void in part, 337. tenant entering under void, becomes tenant from year to year when, 341. acts of parties that invalidate, 342-348-361. alterations, effect of, 342 n, 3, 343. erasures, 342, 361. interlineations, 342, 361. destruction of 342 n, 3, 161. alteration hy stranger, effect of, 343 n, 4, 361. when premises are leased for unlawful use, 347. distinction between, and license, 347. in reversion, what are, 357. rights of lessee when interesse termini is conferred, 359. when avoided by fraud of either party, 362. concurrent, what are, 363. effect of, 363. hy estoppel, what are, 364. essential requisites of, 364. not favored, 364 n, 2. must be certain, 364. mutual, 365, 366. not binding on infant, 365. on feme-covert, 365. unless both parties are hound, 365. hy deed, construction of, 375. falsa demonstratio non nocet, 377. rule as to precedence of different clauses of, 377. parol evidence inadmissible to vary, 378. exceptions, 378. to commence a datu, excludes or includes the day of date, according to cir- cumstances, 450. in case of doubt, construction of, 450. to commence from or after a certain event, 451. rule when date is impossible, 452. reddendum what is, ofiSce of, 460. exceptions in, what are, 425. reservations, what are, 427. distinction between exceptions and reservations, 426. construction of, 4.30. conditions and provisoes in, what are, 432. may he annexed to estate, 433. 66 1042 Index. LEASE — Continued distinction between, and a covenant, 433. tlie word "provided" imparts a condition, 433. alternative conditions, 434. conditions precedent, wliat are, 485. conditions subsequent, what are, 43-5. construction of, 438. by wliat words created, 439. between what parties binding, 441. indorsements on, when should be made, 441. f alterations indorsed on lease, before execution, effect of, 442. habendum, what is, 444 n, 1, 446b, 1. office of, in, 444. when void, 444 n, 1, 445. when may be dispensed with, 445. construction of, 444, 445 n, 1. premises in a lease or deed office, 445 n, 1, when may dispense with habendum, 445 n, 1. commencement of term, under, 448. may be made to commence from day past, 448. certainty as to commencement and duration, essential, 448. rent, payable in advance, 461. certainty as to amount of rent, 461. mode of receiving rent, 461 net rent, what is, 462. construction of, 463. rule when may operate either of two ways, when word is omitted, 463. when wrong word is used, 468. what inferences will be drawn, 464. when description is vague and uncertain, 464. when several particulars are included in description, 465. when a covenant will be implied from, 465. oral evidence, how far admissible to explain, 465-479. rules for construction of, 463-465. oral evidence to explain, 465-479. construction when lease may operate either of two ways, 463. when material word is omitted, 463. when wrong word is used, 468. when premises are not clearly described, 464. when description includes several particulars, 465. when a covenant will be extracted from lease, 465. what is implied in sale of, 559. effect of death of lessee, 560. not necessary under 4 Anne 16, to effectuate assignment, &c., 560. entry by landlord under special provisions of, not eviction, 781. under powers do not create easement, 229. or lands usually let, what are, 230. whether lands not before in lease may be demised, 231. when may be good as to part of premises, 232. under statutory power, statute must be strictly pursued, 234. lease in, what is, 857. Index. 1043 LAESES— Conttntied lessee under, acquires a mere interesse termini, 358. when term takes effect, illustration, 358. assignment of, 540, 559. rights of assignee under, 540, 559. Stat. 32 Hen. 8, 540, 559. how may be assigned, 540. mortgage of, 541. effect of, 541. right of mortgagee, 541. LESSEE : liability of upon covenant in lease after assignment, 496 n, 2. after assignment, liability of, 546, 558. assignee of, stands as surety for lessee, 558. discharged when landlord accepts assignee as tenant, 558. should require assignee to indemnify him against liability, 558. effect of death of, 560. (See Tenant.) LESSOR : determining tenancy at will, not entitled to crops sown or growing, i5i who may be, 112-250. tenant as, 112. tenant at will, 114. sufferance, 115. dower, 115. curtesy, 115. life, 115. pur autre vie, 117. joint tenants, 118. co-parceners, 122. tenants in common, 123. tenants for years, 130. less tlian years, 136. ■ corporations, 187. infants, 143. guardians, 154. feme-sole, 159. feme-covert, 160. husband and wife, 162. lunatics, 169. idiots, 169. intoxicated person, 170. duress, person under, 170, 171. fraud, person under influence of, 174. executors, 176. administrators, 176. mortgagor, 185. mortgagee, 196. agents, 200. person acting under power, 215, trustees, 235. disseizor, 245. 1044 Index. h^^SOBr— Continued disseizee, 245. parting with reversion cannot enforce forfeiture, 340. estopped from denying his own title or right to lease, 367. LICE?rSE : distinction between and lease, 347-357. illustration, 349. rule in Taylor v. Caldwell, 349. rule in Hill v. Tupper, 350, n, 2. not assignable, 350, n, 2. parol, may be operative by way of estoppel, when, 850-352. may be implied, 353, n, 2. operation where no interest in the land is conferred, 350, must not be exceeded, 351-357. nor abused, 351, n, 3. revocable, when, 351, n, 3. carries with it all necessary incidents, 353. illustration, 353-357. LIFE (See Tenant foe Life.) leases for, 96. different kinds of, 96. how made, 96-98. constructions of, 96-98. to commence in futuro, 96. intention of parties, 97. how arrived at, 97. rule when life on which estate depends is not given, 96. tenant for, lease for, construction of, 460. LIGHT : when right to, passes as Incident of property, 315, n, 3. American doctrine as to ancient, 315, n, 3. rule in Doyle v. Lloyd, 317, n, 1. obstruction of right, gives right of action, 319. LIVERT OF SEIZIN : distinction between and grant, 185. LODGINGS : rooms let for, rights of tenants of, 92. notice to quit, 95. M. MACHINERY : tenant must replace broken or worn out, when, 395. MASTER AND SERVANT (See Sbkvant.) MEADOW LAND : what passes imder lease of, 304. ISDEX. 1045 MERGER ; when it occurs, 853. wlien may transpire, 853. wlien cannot, 853. rule in equity as to, 853. wliat amounts to a, 854^856. MESNE PROFITS : who entitled to, 982-984. when action for lies, 982-984. action is consequential on ejectment, 983. when may be recovered in action for use and occupation, 983. what is recoverable as, 983. what is sufficient evidence to uphold action for, 983. when plaintiff must prove title, 984. action is local, 984. rule as to under tenant holding over, 984. what may be shown in defence of action for, 984. MESSUAGE : what passes under lease of, 807. MILL OWNERS (See Water Coorsbs.) MINES : right of tenant for life to work, 99. covenant to work, how broken, 654. MINING LAND : what passes under lease of, 304. MISREPRESENTATION See (Fraud.) by agent of landlord, 205. lease to, 209. MONTHLY TENANCY : length of notice to quit, 79-83-90. reservation of rent, no term being fixed constitutes, 90. MORE OR LESS : in lease, eiiect of, 303. MORTGAGE : rights of person holding, on leased estate, 183-199. of first and second, 187. mortgagee may intercept the rents, 185. treated as assignment, 187, n. on reversion, tenant for life, bound to pay interest on, 100. not bound to pay principal, 100. tenant for life purchasing mortgage of reversion, rule as to, 100. MORTGAGEE : rights of, 183-197. cannot lease until condition broken, 196. right to intercept rents, 186-191. covenant by, that mortgagor may take the rents, 196. cannot dispossess tenant entering before mortgage, 185. taking lease from mortgagor, holds as tenant, 189, n, 1, 214 rules as to in different States, 184, n, 188, n, 190, n. in New York cannot maintain ejectment, 184, n, 1. iiabilities of, in possession, 198. 1046 Index. MOETGAGOR : tenanL by sufferance, when, 13. right to lease, 184r-195. tenant's rights under, 184 after raoitgage, 185, n, 2, 196. bef uie mortgage, 185. not a tenant until, 183-195. MOETGAGOR AND MORTGAGEE : relation to each other, 183-195. mortgagor's right to lease, 184^185-195. right acquired by tenant under, 184. lease by before mortgage, 185-190, and notes. after mortgage, 185, n, 2, 190. rights of mortgagee as to rents, 186. second mortgagee, 187. should Join in lease, 195. tenant going in under lease subsequent to mortgage when not entitled to crops, 195. receiver of rents will be appointed when, 189, n. N. NAVIGABLE STREAMS : what are, 392-398. rights of reparian owners upon, 393-398. NECESSITY : ways by, what are, 380. NEGLIGENCE : landlord bound to repair, guilty of, liable for damages resulting from, 618~ 625. injury to or tenant liable for destruction of premises by his, 927. NOTICE : when necessary to determine tenancy at will, 50-51. NOTICE TO QUIT : necessary to determine tenancy from year to year, 64. six mouths' notice necessary, 64. right exercisable by either lessor or lessee, 64. tenant quitting without giving, liable for rent for the year, 64. length of notice may be fixed by express contract, 64. half yearly tenancy, what is, 64. quarterly tenancy, 65. weelily tenancy, 65. regulated by custom as to duration, 78. tenant must establish custom, 78. half years, required by common law, 78, n. 10. changes by statute in several States, 78, n, 10. duty of giving is mutual, 78, n, 10. may be regulated by special agreement, 78-79. quarterly tenancy, length of, 79-90. weekly, 79-90. monthly 79-90. Index. 1047 NOTICE TO qUIT— Continued stipulation for in void lease not binding when, 72. period with reference to which notice must be given, 79. • time of commencement must be correctly stated in, 79. less than required notice, is bad, 80. more, is not, 80. when length of notice is fixed in lease, 85. when reasonable notice is stipulated for, 85. admission of tenant as to commencement of term, effect of, 80. when tenant enters on different parts of premises at different times, 81. when he enters between two quarter days, 81. when notice is indispensable, 82. when not, 82. illustrations, 82-84. in the case of weekly, monthly, &c., tenancies, not necessary unless, 83. form of notice, 84 n, 10. by whom should be given, 84. to whom should be given, 84, 86. by agents, 85, 86. by receiver, 85. how served, 87. waiver of, 87. second notice, effect of, 87. rent, acceptance of, accruing after notice, effect of, 87. guarantor of rent, not liable for after expiation of notice given by land* lord, 88. disclaimer dispenses with notice, 88. not necessary in case of tenancy for a term. 111. by joint tenant, how must be given, 119. NUISANCE : created by one tenant in common, others not liable for except, 129. erected by landlord operates as eviction when, 801-805. see rule in Alger v. Kennedy, 803 n, 1. see Dyett v. Pendleton, 803 n, 1. letting part of premises for purposes of prostitution not, 803 n, 3. rule in Gilhooley v. W.ishington, 803 n, 3. rule in DeWitt v. Pearson, 804 n. created by stranger is not, 804. existing when premises were let, who liable for, 918. when landlord may be for nuisances erected by tenant, 918. when landlord and tenant may both be gained in action for, 918. when assignee of landlord is liable for, 918. test of landlord's liability for, 918. liability for injuries resulting from defective coal holes, gratings, &c., 919. rule of liability b. such cases in England, 920 n, 1. same rule in several States, 920. generally, in this country, landlord liable for, 919. rule where landlord has covenanted to repair, 919. when landlord retains control over part of premises, 921. landlord not liable to tenant for nuisance or defects existing when lease waj made, 921. 1048 Index. NUISANCE— Continued exception when landlord guilty of fraud in concealing, 921. •rule in Wilson T. Finch Hatton, 922. see 922 n, 1. NUESEEr : lands let for, inference as to duration of term, 67. 0. OCCUPANCY : not necessarily evidence of tenancy. 1-10, and notes. when it is, 1-10, and notes. as agent of owner, 3 under expired lease, 3 n, 1. and payment of rent, 3. imder agreement for lease. 3, 4 n, 1. instances, 4 n, 1. under void or invalid lease, 4, 5 n, 1. assent to, may be implied, 5. OCCUPY : covenant to, in a particular way, effect of, 647-653. OFFICES : ministerial, formerly could be loosed at common law, 295 n, 4. OLD EENT : what is, 736. OPTIONAL : lease for years may be made, 108. condition precedent to exercise of, 108. OENAMENTAL FIXTUEES : tenant may remove, 875. what are, 875. pier-glasses, 875. chimney-pieces, 875. wainscots, 875. hangings, 875. OUT- GOING TENANT: rights of, 967. P. PAINT : when tenant bound to under covenant to repair, 594 when not, 595. PAEOL LEASE : person entering under for term of years, becomes tenant by sufferance when, 14, 323. entry under, and agreement to quit on sale of premises, effect of sale, 14 evidence, not admissible to show intention of parties in lease for life, 97. estate for life cannot be created by, 96. agreement for lease, when will be enforced in equity, 283-289. when are valid, 238. Index. 1049 PART PERFORMANCE : of parol agreements for lease, what constitutes, 284. when equity will enforce performance, 283. PARTICULAR TRADES : covenants against, 647-653. lessor, in absence of fraud on part of, cannot prevent use of premises by tenant, different from that contemplated, 649. PARTITIOSr : of estate of tenants in common, rules applicable to 124-125. PARTY WALLS : presumption as to ownership of, when origin is not known, 721. who bound to repair, 722. PARAMOUNT TITLE (see Title Paeamount). PASTURE : common of, when exists, nature and extent of, 385. PAVEMENT : tenant must keep in repair when, 595. PENALTY OR LIQUIDATED DAMAGES : distinction between, 754-762. rights of landlord under provisions for, 754. POND : covenant to keep in repair, how kept, 594. POWERS : what are, 215. construction of, 216. kind of leases that may be granted, 221. in whom power may vest, 224. usual covenants, 225, 228. re-entry, proviso for, 225. counterpart, 225. in possession or reversion, 226. on what lands attach, 226. what is lease in reversion, 227-228. effect on existing leases, 228. lands " usually let," 229-232. lease under good in part, 232. execution of by Infant, 233. by lunatic, 233. by feme-covert, 233. leases tinder, 215-235. execution of, 217. by infants, 233. by lunatics, 233. feme-covert, 233. donor of dying, power falls, 233. when purpose of is completed, 233. under statutes, 234. statute must be strictly pursued, 234. POWER OF ATTORNEY (see Powers). person acting under, 215-235. 1050 Index. PKESCEIPTION : ways by, what are, 380. PRINCIPAL AKD AGENT (see Agent). PROHIBITED : use of premises may be enjoined, 113. forfeiture for, rights of landlord to elect, 113. PUMP : use of passes as appurtenant, when, 321. PURCHASER : one who enters as, not tenant, 8 n, 9. liable as for occupancy after contract is off, 9 n, 8, 39. Q. QUARTERLY TENANCY : what is, 65. length of notice to quit, TO. effect of entering upon new quarter, 70. reservation of rent by, no time being fixed, constitutes, 90. QUARRIES : tenant for life may work when, 99. QUIET ENJOYMENT : covenant for implied, 562, 564. what amounts to breach of, 562-564. character of entry that must be shown, 563. when entry by landlord does not create breach, 563. lessor of such covenants, 566. not implied, when lease contains express covenants for, 564, 569. illustration, 564-566. form of usual covenants for, 567. what operate as breach of, 567, 572. must be entry, under, not against landlord, 567, 569- unqualified amounts for, 568. decisions under peculiar covenants for, 567-572. what is a breach of, 572-578. illustrations, 572-578. see nole 7, page 573. special covenants for, 575. damages recoverable for breach of, 578. covenant for, does not bind landlord to restore buildings aestroyed by fire or other casualty, 602. QUIT-RENT : what is, 736. R RACK RENT : what is, 736. REAL ESTATE : agents, powers of, 205. IxDBX. 105i RECEIVEK :. may give notice to quit when, 85, 86. when not, 86. of rents, on application of mortgagee, 189 n. BECOED : of lease, necessity for, 333. of lease, necessary when, 333-335. effect of notice of lease upon third persons, 334. good without, between parties, 335. BECOUPMENT : uncertain damages may be set up by 'way of, when, 767. what the term signifies, 768. how it differs from set-off, 768 what daraages may be recouped, 768. what ma^ be set up by way of, 816 n, 1. what may not be, 816 n, 1. BEDDENDUM : what is, 460. office of, 461. REMEDIES : upon valid agreement for lease, 269. at law, 270. in equity, 271. for waste, 698, 712. by injunction, 713. by distress, 931. debt, 960. use and occupation, 947. covenant, 947. ejectment, 979. summary proceedings, 984. EENEWAL : of lease, covenant to, nms with land, 666. equity will compel performance, 667. covenant to renew perpetually, binding, 667, 668. conditions, precedent must be performed by tenant, 667 n, 1. in case of trust estates, perpetual renewals will not be enforced, except, 669.. unqualified covenant to renew, effect of, 669. covenant to renew by lease with same covenants does not require covenant to renew to be inserted in, 670, 673. rule when covenant requires rent to be fixed by arbitrators, 670. covenant to renew upon such terms as may be agreed on by the parties, ef- fect of, 673. covenant must be definite as to duration of time, 673. covenant imports giving of new lease, 673. rent must be fixed, or means for reducing to certainty, provided, 673. rule when lessor refuses to agree on arbitration as provided in covenant, 674. what amounts to breach of covenant to renew, 674, 675. tenant's remedies for, 674. right to renewal is assignable, 675. rule when tenant has option to take renewal, 675. 1052 Index. HENEWAL— Coniin&ed when tenant bound to perform condition precedent, 676. substantial compliance sufficient in equity, 676. strict compliance essential at law, 676-678. illustrations, 676-678. rule when tenant is required to give written notice of his election, 677. rule when tenant has lost his legal right, 677. rule when tenant has option to take renewal and no provision for notice exists, 678. rule when length of renewed term is optional, 678. effect of remaining in possession render optional covenant, 678. rule when lessor covenants to renew on request of tenant, 679. when there are two or more lessees, renewal to one enures to both, 680. rule where lessees are partners, 680. rule when mortgagor takes renewal, 680 rule when mortgagee takes renewal, 680. rule when trustee takes renewal, 683. rule when renewal embraces other premises, 680. custom to renew, effect of, 681. wilful violation of covenants by tenant, excuses lessor from renewing, 682. violation of agreed covenants, effect of, 682. effect of bankruptcy or insolvency of tenant on covenant for renewal 682. surrender and conveyance to lessor of an imderlease, does not discharge covenant, 682. surrender of underlease not condition precedent to renewal, 682. rule changed by stat. 4 Geo. 2, c. 28, 683. EENT : contract to pay, not essential to create tenancy, 2, 3 n, 1. is badge of tenancy, 2, 10. payment of, prima facie evidence of tenancy, 10. when not, instances, 10-11. payment of under mistake, not evidence of tenancy, 11. Strahan v. Smith, 11 n, 1. Neave v. Moss, 11 n, 2. Higginbotham v. Barton, 11 n, 3. ' payment by tenant holding over, effect of, 76. reservation of weekly, monthly, &c., no term being fixed measures duration of, 90. furnished houses, &c., issues out of land alone, 91. conditions precedent must be performed before recovery can be had for, by distress, 91. .• > j cannot be recovered for apartment let for immoral purposes, 94. payment of to one joint tenant, binds all, 119. distress for by one joint tenant, 119. payment of to one tenant in common, 12S. tenants in common may join or renew in action of debt for rent, 126-128. €xcept, 126. death of one tenant in common, others cannot sue for whole rent, 127. tenant of mortgagor before mortgage not liable to mortgagee for, ISi. mortgagor not liable for, 18.3-196. receiver of from tenant of mortgagor, will be ap;)oin(ed wlien, 189 n. Index. IO53. ^RENT— Continued cannot be distrained for when lease Is void in part, 337. use and occupation lies for, 338. actual payment of, not necessary to create tenancy from year to year under void lease, 341. recognition by tenant of liability to pay, sufficient, 341. payment of, does not create, but evidences tenancy, 341. reddendum, office of, 468. reservation of in lease, 460, 461. net rent what is, 461. certainty as to amount of, 461. payable in advance, 461. certainty as to amount of, essential, 461. to whom should be reserved, 461. mode of reservation, 461. net rent, what is, 462. covenant to pay, runs with the land, 502. payment under license to occupy for certain purposes, treated as, 541. mortgagee of lessee not liable for rent unless, 541. mortgage of leased premises, effect of, 541, rights of mortgagee, 541. mortgagee of lessee not liable for rent unless, 541 tenant not excused from paying, because buildings have been destroyed, 600n, 5, 611. fact that landlord had buildings insured and refuses to rebuild, does nof. change the rule, 601. covenants to repair and pay rent are independent, 596, 615 n. when destruction of estate releases tenant from rent, 615 n, 1. issues out of the land, and tenant liable for, so long as land remains, 616. statute excusing tenant from in New York, 617. in Louisiana tenant may relieve himself from by surrendering the lease, 618. what is, as a legal term, 729. out of what, it issues, 729. twofold nature of, 729. need not be payable in money, 731. may be payable in grain, fowls, services or any species of property, 731. reservation of part of profits of estate, not strictly rent, 731. must be certain, or capable of being made so, 732. must issue annually, although need not be payable yearly, 732. is suflBcient if may be reduced to annual, 732. must issue of lands, and of the estate demised, 732. part of the herbage of lands, cannot be reserved as, 732. royalty upon stone, ores, &c., is rent, 733. may be reserved out of remainders and reversions, 733. not out of personal chattels, 733. when land and chattels aje leased together, whole rent issues out of the land, 733. ■where twc parcels of land are leased for an entire rent, in one of which les- sor has no title, rent issues out of one to which he has title, 733 n, 6. if distinct sums are reserved for each, rent issues from each, 733 n, Q., sum reserved for mere license to use premises, not rent, 734. sums reserved on assignment of a lease, not rent, 734 • 1054 Index. KENT — Continued payments in addition to rent reserved, not strictly rent, 734. only distinction relates to remedy for recovery of, 734, Tib. kinds of, 735. rent-service, what is, 735. rent-cliarge, what is, 735. rent-secl?, what is, 735. fee farm rent, what is, 735. rents of assize what are, 735. quit-rent, what is, 736. old-rent, what is, 736. improved-rent, what is, 736. rack-rent, what is, 736. may be made payable in advance, 736. rights of tenant so paying, 736. payment of in advance, when lease does not provide for, effect of, 737. tenant has whole of last day in which to pay, 740. rule when lease commences on certain date, as Jan. 10th, rent payable quar- terly, 740. Tule in New York where lease is for less than year, payable quarterly, 740 n, 10. rule when rent is apportioned to several parcels, 741. apportionment of rent, 741. tenant liable for although he has lost use of premises by the casualties of Var, 741. or by fire or other casualty, 741. lessee cannot where he has covenanted to^ pay rent, release himself from liability by assigning lease, 742. lessee in such case acquires double security by the assignment, 742. assignee of lessor acquires all the lessor's rights, 742. when in arrears, 742. where rent is payable, when no place is named, 742. rule when payable in specific articles, 742. when and where landlord must demand the rent to enforce forfeiture for non-payment, 743. precise sum must be demanded, 743. Interest may be included, 743. must be demanded on precise day when due, 743. demand before or after day it becomes due, is bad, 743. must be made such a time before sunset as to allow sufficient light to count the money, 744. landlord must remain until after sunset, 744. what landlord must show to establish demand, 745. demand may be waived by clause in lease, 745. waiver will not be implied, 745. object of demand, 746. forfeitures odious to courts, 747. payment of, as evidence of tenancy, 747. effect of, 747. assignable qualities of, 749-751. reservation of, or sums in gross, 751. reservation of, may be made to third person, 751. Index. 1055 EE'ST— Continued rights of such person, 752. how,^ should be reserved, 752. incid'ent of reversion, and, when payable to third person, ceases when les- sor's estate ceases, 752. effect of omitting words "to his heirs, executors, &c.," 753. penalty or liquidated damages, 754. when performance of covenant is secured by a penalty, effect of, and what landlord must do to fix rights to, 754. when damages are liquidated, 754. rules for determining, 754r-762. payment of, what are, 762. to whom must be made, 763, 769. rent in arrear at death of lessor, 763. payment to wrong person by mistake, 763. deduction from allowed by mistake, effect of, 763. where payable, 763. low may be paid, 764. tenant may safely follow lessor's directions as to, 764 sent by mail by lessor's orders, 764. payment by hill or note, what is, 764. what are payments of, pro tanto, 765. ■what may be set off against, 765 n, 4. payment or tender of, may be made to agent when, 769. payment of before due, effect of, 770. tenant holding over, hability for, 770. payment of suspended while title is in dispute in certain cases, rule as to, 772. instances where tenant holding over cannot be held subject to terms of former lease, 772. alternative provisions as to, in lease, effect of, 772. when landlord has once elected, rule as to, 772, 773 payable in specific articles, rule as to, 773. rule when no time for payment is fixed, 775. when payable in perishable property, crops, &c., 775. under covenant to pay, tenant must seek out the landlord, 775, 776 n, 1. rule in Haldane v. Johnson, 776 n, 1. tenant not bound to pay for incidental benefits resulting under lease. 777. except, 777, 778. effect of eviction upon liability of tenant to pay, 779-812. when may be apportioned, 787-791. taking key and letting premises, excuses tenant from payment of, after abandonment, when, 811 n, -3. acts of landlord that absolve tenant from rent, 816. tenant must quit possession or pay, 810. "When acts of landlord are conditions precedent to payment of rent, 816 n, 1, 5,7. double rent recoverable when, 824, 965, 967. what must be shown. to warrant recovery of, 824, 965, 967 provisions of stat. 4, Geo. 2, relative to, 824. must have been legal notice to quit, 825. holding over must be continuous, 825. 1056 Index. 'B.'E'NT— Continued who may recover, 825. destruction or disrepair of premises no defence to action for, 814-819, instances of, 814-819. -when premises let for illegal purposes, not recoverable, 9.52. what is unlawful use, 952-957. what must be shown to defeat rent, 952-957. (See Eviction). KENTAL VALUE : of premises, how ascertained, 243. BENTS OF ASSIZE : what are, 735. KENT-CHARGE : what is, 735. BENT-SECK : what is, 735. BENT-SERVICE : what is, 735. BEPAIR : tenant for life bound to, 100. of private ways, who liable for, 382. parol evidence not admissible to show that tenant agreed to, 466. covenant to, runs with the land, 502. who liable to, 582. express covenants to, 587. to repair and keep in repair, effect of, 588. what constitutes a breach of, 588 n, 6. tenant may repair and recover the expense of the landlord, or sue for dam- ages, 588. what tenant must do, to bind landlord to pay for, 608-9. must be actual non-repair, 588 n, 6. tenant covenanting to make, not liable for natural wear and decay, 594, 597. not liable to lay new floors or put on new roof, 594. when bound to paint, 594. cutting new door breach of when, 694. enlargement of windows, doors, &c., is not when, 594. pulling down wall of yard, is breach of when, 594. must repair partition wall when, 594. when bound to keep premises in same condition as when he took them, 595. carrying away gas burners is breach of when, 595. keys, losing or carrying away is, 595. so of any fixture, 595. as shelves, drawers, wall brackets, stalls in barn, &c., 595. neglecting to replace gate taken away by stranger, 595. must replace broken or worn ^-'it machinery, when, 595. broken glass, 595. leaving up pavement, 595. effect of covenant to keep farm in good substantial repair, 698. effect of covenant to leave the premises in substantial repair, 595. effect of covenant to repair as often as necessary, 595. / Index. 1057 'KEF Am— Continued wlien tenant not bovmd to repaint buildings, 595. buildings about to be pulled down, tenant not absolved from covenant be- cause of, 595. landlord liable to tenant for repairs made by him when, 596. when tenant not bound to repair damages resulting from the elements, 598. when not bound to keep or leave in better repair than when he took the premises, 598. under what covenant, tenant not liable for breach until term is ended, 598 n, J., effect of covenant to put and keep in repair, 598. effect of covenant to maintain, 599. effect of covenant "to repair" and "surrender in repair," damages by elements excepted, 599. effect of general covenant to make improvements, 599. effect of covenant " to leave in repair," 599. tenant bound to re-build premises destroyed by fire when, 599-603. construction of peculiar covenants, 589 n, 6, 591. covenant to keep old buildings in repair, 591. tenant covenanting to, must repair buildings erected during the term, 596. lessor covenanting to, is entitled to rent though he fails to repair, 596 covenant to yield up in, what amounts to breach of, 596. bound to rebuild, when buildings are destroyed by fire, 599. instances of covenants under which tenant has been held bound to rebuild, 599, 600 n, 5. not excused from performing because the injury resulted from act of God, 600 n, 5. damages for breach of covenant to, 627. to what, covenant extends, 627. damages not recoverable, unless, 627. what amount of, must be made, 628. evidence of disrepair, 628. effect of condition precedent, 629 action against lessor, 630. effect of entire destruction of estate, 630. neglect of landlord to, who has so covenanted does not excuse tenant from rent, 816. may recoup damages resulting from breach of such covenant, in action for rent, 816 n, 1. failure of landlord to, no ground for relief in equity, 818. REMOVAL : of fixtures, right of tenant holding over, 904 under new lease, unless lease provides for, cannot although former lease gave such right, 905. rule in Watriss v. First Natl. Bank of Cambridge, 905, n, 2. RESERVATION : what is, and how made, 427. distinction between and an exception, 426. construction of 430. „_ o7 1058 LvuEx. EEVEESION : essential to lease, 107. must remain, or no lease, 132. sub, what is, 130-136. what is leave in, 227. possession or reversion, 228. in lessor, 297. EEVEESIONER : accepting rent from tenant of tenant for life, after death of, efEect, 116. RIGHTS : of tenant, 926. liabilities of, 926-931. RIOT : what forcible entry, &c., is, 977. RIPARIAN OWNERS : rights of on navigable streams, 393-398. ROOF : tenant not bound to put on new, covenant to repair, 594. SALE OF LEASE as to, 134. SEAL: essential to deed, 325. statute may dispense with, 326. what is a, 326. small in some States, is, 326. words cannot dispense with, 326. what is not a seal, 327. endorsement not under seal, upon sealed instrument, effect of, 328. SERVANT : occupying master's premises not tenant, 52-58. relation created thereby, 52-58. tests by which to determine character of relation, 52. illustration, 52-58. SET-OFF : against rent, what may be, 765 n, 4. taxes paid by tenant may be when, 766. rates, 766. payments made to prevent being ousted of possession, 766. compulsory payments, what are, and when may be, 766. instances of, 766-769. money must actually have been paid by tenant, 767. must have been paid under threat of expulsion, 767. uncertain damages cannot be set-off, 767. SHELVES : taking down, or carry anying, is one each of tenants, covenants to keep in repair, 695. Index. 1053 SKYLIGHT : right of hLrers of apartments to use, 92. SHERIFF : entry by landlord as, not eviction, 781. SPECIFIC ARTICLES : rent payable in, rules as to, 113-111. ' when landlord may sue for money, 773. amount of recovery limited to value of property, 773. tenant caTinot pay in money, at his option, 774. parties may agree as to sum of money to be paid in lien of property, 774 rule when no time for payment is fixed, 775. rule when payable in perishable articles, 775. in share of crops, 775. where payable, 775. where tender may be made, 775. > tenant not liable for destruction of from natural decay, 775. rule when payable at such place as lessor shall fix, 775. must be delivered in usual manner, 777. SPECIFIC PERFORMAjSTCE : of contract by feme-covert, cannot be enforced, 161. of agreement for lease, when will be 'enforced, 271-290. what agreement must contain, 272. illegal purposes, 276. want of authority in intended lessor, 276. surprise, 277. mistake, 277. fraiids, 277. contract will not be varied, 277. lessee not compelled to accept less than he contracted for except, 279. rule when anything remains to be fixed by third persons, 280. when conditional, 280. when lessor has no sufficient title, 280. when contract is uncertain, 281. equity will not enforce common covenants, 281. nor part of contract, except, 281. rule when plaintiff is chargeable with delay, 282, of oral agreements partly performed, 283. what constitutes part performance, 284. who may be plaintiffs in, 289. who should be made defendants, 289. -S':'ALLS : in barn, taking down, is breach of tenants covenant's to keep in repair, 595i STAIRS : rights of hirer of apartments to use, 92. STATE : lease by, must be by deed, 106. STATUTE : confirming power to .ease, must be strictly pursued, 234. entry by landlord under, does not create eviction, 781. 11)60 Index. STATUTE OF FEAUDS : effect of upon leases, 265. upon agreement for lease, 265. agreemeut and memoranda need not be contemporaneous, 266. need not be contained in one paper, 266. letters sufficient as memorandum, 266, 267. telegrams, 266. any written document signed, 266. must contain all elements of lease without aid of exfrinsic evidence, 267. must describe premises, 267. .duration of term, 267. amount of rent, 267. names of both parties, 267. must he signed by party to be charged thereby, or his agent, 267. partner may sign for firm, 268. STORAGE : premises let for, 94. duty and liability of landlord, 94. STOEE HOUSES : (See Stokage). SUBJACENT SUPPORT : right of, 417. SUB-LEASE : what Is, 130-133. distinction between an assignment, 132. (See Underlease). SUB-LETTING : tenant may, except, 113. effect of in Louisiana, 114. SUB-TENANT : only liable for rent to his lessor, 113. using premises for illegal purpose, 113. equity will enjoin, 113. estate of determines with estate of lessee, 114. of tenant at will, rights of, 114. of tenant by sufferance, 114. not liable to landlord for rent'or on covenants in lease except, 131, 132, 133. SUFFERANCE TENANT BY. guilty of commissive waste, terminates estate, 712. (See Tenant by Sdffekance). SUMMARY PROCEEDINGS : in New York, when they lie, 984-987. who is entitled to relief, 987. how application may be made, 988. petition by neighborhood of a bawdy house, 988. to whom application should be made, 979. what should be stated in petition, 989. how sei-ved, 990-993. amendments to petition, &c., 993. answer, issues, &c., when and how should be made, 993. Index. .1061 SUMMARY PROCEEDING— Contwited jury trial, liow obtained, change of venue, 995. adioumment, 996. final order in, 995. how possession is obtained, 99b. how warrant may be stayed, 996. when lessee may redeem, 998. appeal, effect of, 999. power of appellate court, 999. remedy of tenant when wrongfully dispossessed, 1000. injunction order in, when allowed, lOuO. SURETY : for lessee, discharged by tenant's eviction, 782. other matters discharging, 782-784. payment by tenant discharges, pro tanto, 783. for tenant from year to year may put an end to liability, how, 783. cannot set-oif debt due tenant, 783. cannot recoup damages accruing to tenant unless, 783. destruction of buildings, no defence by, 783 n, i. not discharged by tenant giving note for rent unless, 783 n, discharged when lease is altered by agreement between landlord and tenant unless, 784. when surety, and when guarantor, 784. only for rent during the term named in lease, 784. liable when additional term is made optional with tenant by the terms of the lease, 784. landlord not bound to demand rent of lessee, 784. or notify surety that lessee has abandoned premises, 784. two or more, although lease is joint each may set up distinct defence, 784. judgment may be reversed as to one and affirmed as to other, 785. release Of one under seal releases both, 780. contribution by, 785. SURFACE Water : right and liabilities respecting, 416. SURRENDER : tenant taking concursent lease, operate a surrender of previous term, 363. tenant still bound in equity to perform covenants in first lease when, 363. illustrations, 363. tenant must, before he can dispute landlord's title, 367-375. when re-letting by landlord does not operate as acceptance of, 783 n, 1. what is, and by whom may be made, 827. to whom should be made, 828. how may be made, 829. must be by deed or writing when, 829 and notes. statutory provision in different States, 829 n, 2. merely cancelling lease, does not operate as, 829. on conditions, effect, 830. when surrender may be made, 830. what writing is sufficient, 830. instances, 831. 1062 Index. STJBSEND:EB.— Continued ■vrritteu notice by tenant to landlord to re-let, may be when, 831. by acceptance of new lease, 832-835. when operates as, 832-835. instances, 832-835. reducing rent does not operate as unless, 832. unsealed agreement to relinquish upon failure to perform certain conditions may amount to, 833. parol agreement for a \vew lease for longer term than might be valid by parol, does not amount to, 833. rule in Coe v. Hobby, 833 n, 3. reason why acceptance of new lease operate as surrender of first, 833-835. what is a sufficient new lease, 835. illustrations, 835-837. collateral grant does not operate as, 837. provision for in lease, must be strictly pursued, 837. what acts of tenant, &c. , do not amount to, 837. effect of new, invalid lease, 838. acceptance voidable lease, 838. new lease of part only, effect of, 839. by estoppel, when occurs, 839-849 by act and operation of law, 839. by consent of landlord and acceptance of possession, 840. acceptance of key, &c., may operate as, 841, 844 n, 5. instances where acts of landlord have been held operative to effect, 840-849. acceptance of new tenant, 846-849. by lessee, does not defeat estate of under-tenant, 849. effect of upon under-leases, 850. when presumed, 851-852. T TAXES : tenant for life bound to pay, 100, 694. covenant to pay, runs with the land, 502. paid by tenant when not required to do so by covenant may be deducted from rent, 683. or may he recovered by action, in certain cases, 683. rule in England, 684. different rules in this country, 685. covenant to pay, does not include assessments, 685-688. meaning of word " tax," 685. what is embraced under covenant to pay, 687. distinction between covenant to pay all taxes " assessed " and all " levied " during the term, 688. effect of covenant to pay all taxes, &c. , assessed, when due and payable, 690, covenant to pay all taxes and assessments, 691. what is embraced under, 691. rule in Massachusetts, 692. destruction of premises does not discharge the tenant from the covenant, 692. to what such covenants extend, 693. duty as to assessments, &c., 693. Indbx. 1063 TENANCY : determination of, by eflBux of time, 819. lessor's rights when ended, 821. when length of term is optional, who may exercise option, 819. when determinable at certain time, if parties see fit, both must assent to, 819. when determinable by either party, their assigns, &c., 819. when notice in writing is reqmred, 819. whole estate must be determined, 820. when right to terminate is conditional, 820. TENANT (see Tenant at Will). definition of term, 1, 12. what creates relation, 1, 10. mere possession of lands does not make person a, 1. trespasser not a, 1. assent of owner, does not make person a, except, 1. acceptance of assent necessary, 2. person who enters under consent of owner, is, though he is to pay no rent, 2, 3 n, 1. person may become, by operation of law, 10, who enters under permission of owner, rent free cannot be removed by force, 3 B, 1. fact that owner is municipal corporation, or department of, does not change rule, 3 n, 1. taking key to building, with intent to occupy makes person a, thoijgh no occupancy in fact, 3 n, 4. occupancy makes person a, when, 1-10 and notes. person may become tenant by operation of law, 10. instances, 10. what acts of, amount to admission of tenancy, 1. person who enters by apparent permission of owner may claim rights as tenant, 9 n, 2. person who entered tortiously cannot be made, unless he subsequently con- sents to occupy under owner, 9. entry under agreement for lease effect of, 10 n, 1. assignee in bankruptcy, 10. assignee of lease, 10. by provision of statute, 10. holding over, becomes tenant by sufferance, 12-15. consent of agent having no authority to let, does not change the rule, 34, by sufferance, when, 12-15. holding over, liability of, 18-29 and notes. at will, when as, 30-49. servant not, 52-58. for a term, not entitled to notice to quit, 111. lease by, 112. valid when, 112. how far binding on himself, 113. at will, lease by, 114. for years, lease by, 130. mortgagor not, until, 183-196. of mortgagor, before mortgage, rights of, 185. after mortgage, 185 n, 2, 190. 1064 Index. TENANT— Continued how rent may be intercepted by mortgagee, 186. by estoppel, what constitutes, 363-375. Tvlio cannot be, 365. cannot deny landlord's title, 367-375. exception, 369 n. assignee of, and undertenant subject to the same rule, 368 n, 4. not bound to restore buildings destroyed by fire, &c., unless he has cove- nanted to do so, 602. instances in which tenant is excused, 602 n. no implied covenant on part of to repair, 634. proof of custom, 6;35. to what tenancies applicable, 635. obligation of, as to cultivation of land, 662. as to expenditure of produce on land, 663. express covenants as to cultivation of, 663. holding over, when not subject to terms of former lease, 772. rule as to, as to amount of rent, 771. holding over while title is in dispute, 772. when not liable to pay for incidental benefits under lease, 777, 778. implied benefits, 778. may enter to harvest crops after term has expired, when, 778. holding over, becomes, from year to year when, 823. rights of on commencement of lease, 926. succeeds to all landlord's rights, except such as have been reserved, 926. may maintain ejectment against, 926. or action for damages, 926 or may abandon lease, 926. bound to use premises in husband-like manner, 927. may sue landlord or stranger for injury to his estate, 927. entitled to compensation when part of estate taken for public purposes, 927. liable to landlord for improper use of premises producing damage, 928. prima facie liable to stranger for injuries resulting to from defects in prem- ises, 928. when premises are occupied by other tenant, 928. cannot deny landlord's title, 928. cannot encumber estate with easement, 929. right as to manure, 929. can only attorn to landlord, 929. effect of attornment, 930. when payment of rent to person does not amount to attornment, 930. duty of, when term is ended, 963. penalty for failure, 963. encroachments by, enure to landlord, 964. rights of outgoing, 967. rights of incoming, 967. right to crops, under lease, 968-971. emblements, right to, 971. for years, not entitled to emblements, 972. cannot dispute landlord's title, 980 n, rights of, 926-931. liabilities of, 913-923. Index. 1065 TENANCY FOR LIFE (See Tenant fob Life). how created, 96. qualities of, 96. ^ rights of tenant for, 987 liabilities of, 100. cannot be created by parol, 96. interest of tenant may be taken in execution, 96. cannot be made to commence infutwo except, 96. cannot be enlarged into a fee, except, 96. instances where conveyances were construed as conveying mere life inter- est, 96. • rule when no life is named on which estate depends, 97. TENANT PER AUTRE VIE : lease by, effect of, 117. how determined, 117. TENANTS IN COMMON : one, cannot give notice to quit binding on the others except, 85, 86. leases by, 123. effect of, 123. each may lease his share, 123. cannot lease whole estate, 123. cannot lease distinct part of estate except, 123. , rights of in quarries, mines, &c., 124. one cannot create easement on estate, 124. rights of when one has improved part of estate, 124. partition of estate, rules applicable to, 124. relative rights of, 125. either may receive whole rent due under joint lease, 125. rights of as to rent, when one dies, 127. rights of, in actions generally, 128. liability for nuisance created by one, 129. TENANT BY CURTESY : lessee of, becomes tenant by sufferance when, 13. lease by, rights under, 114. TENANT BY DOWER : lessee of, tenant by sufferance when, 18. lease by, rights under, 114. TENANT FOR LIFE : lease by, void as to reversioner when, 114. acceptance of rent by reversioner effect of in equity, 110. two or more, survivorship of, 97. when does not survive, 97-98. husband does not become, in lands held by wife for life, 98. takes freehold estate. %?>. entitled to beneficial enjoyment of, 99. may work out open quarries and mines, 99. cannot open new ones, 99. cannot cut and sell wood and timber, 99. may cut wood for his fires, 99. timber for repairs, 90. cannot sell to pay expenses of repairs, 99. 1066 Index. TENANT FOR 'LIFE— Continued how estate of is created, 96. qualities of estates, 96. H rights of, 98. liabilities of, 100. estate of is subject to levy on execution, 9C. possesses freehold interest, 96. lessee of, tenant by sufferance, when, 13. has insurable interest in buildings, 99. how moneys received niust be applied, 99. may sue for injury to heneficial enjoyment, 99. representatives of, entitled to crops and increase of stock at his death, 99, rights of lessee of, 100. permanent improvements made by, 100. bound to pay taxes when, 100. interest on mortgage, 100. repairs, 100. waste, 100. purchasing mortgage on reversion, 100. purchasing estate at tax sale, 100. TENANT BY SUFFERANCE : parol lease, entry under, person becomes when, 14, vendor of premises, becomes when, 14. lease by, rights conferred by, 114. person cannot be, against the government, 12 n, 2. distinction between and tenancy at will, 14. joint occupancy by owner and tenant, 14. cestui que trust person going in under, when, 14. who is, 12-15. tenant holding over, 13. mortgagor after expiration of decree, 18. tenant holding after forfeiture, may be, 13. lessee of tenant for life after death of tenant, 13. dower, lessee of tenant by, when, 13. curtesy, lessee of tenant by, when, 13. undertenant, when, 13, 28. tenant at will, when, 13. not liable as trespasser, 12 n, 2. origin of, 15. nature of, 15. no assent to occupancy presumed, 15. assent of owner changes into tenancy at will, 15. illustrations, 15 and notes. how may be determined, 17. has no demisable estate, 16. cannot maintain trespass against landlord, 16. not entitled to notice to quit, 16. statutory provision for notice exist in some States, 16. landlord may dispossess by force, 16. but cannot maintain trespass against until after entry, 16. how tenancy may be terminated, 17. ejectment lies against, without previous notice to quit or demand, 17. Index. 1067 TENANT BY SUFFERANCE— ConimuetZ removed by force, may maintain trespass for assault, or injury to goods, but not to lands, 17. must enter under the owner or is trespasser, 17. rent not recoverable from except under statutes, 17. landlord may elect to treat him as tenant or trespasser when, 18. right to remove fixtures, 17. "servant occupying master's premises is not, 52. who is, 30-49. how relation is created, 32-49. illustrations, 32-39 and notes. » right of, to crops, &c., 45. how tenancy may be ended, 47, 114. no notice to quit necessary, 51. exception in some States, 51. vendee of lands under contract to purchase tenant at will when, 39. has no demisable estate except, 45. rights in estate, 45. lease by, rights conferred under, 113. guilty of commissive waste, terminates estate, 712. TENANT AT WILL : right to crops, 45 n, 8. right to terminate tenancy, 45. can maintain trespass, when, 45. becomes tenant by sufferance when, 13 also n, 8. slight evidence converts it into tenancy at will again, 14. estate determined by sub-letting, 44 m, 6. demand terminates estate of, 49 et seq. entitled to notice when, 50. what amounts to demand, 50. not liable for rent when, 51. servant occupying master's premises, is not, 52. how occupancy of may ripen into tenancy at will, 54. TENANT FOR YEARS : how tenancy is created, 108. may be determinable at option, 108. what constitutes, 101. what is a year, 101. what is a month, in law, 102. exceptions, 102. origin of estate for years, 102. what constitutes a term, 10.3- right of entry given by lease, 103. entry gives the term, 103. livery of seizin not necessary, 103. lease gives only right of possession, 104. making lease for period longer than his term, effect of, 104. lease by, 130. effect of, 130-132. rights of sub-tenant, 132-134. liabilities of, 135. 1068 Index. TEITANCT FROM TEAR TO TEAR : (See Tenant fbom Tbab to Tbae) TENANT FROM TEAR TO TEAR : distinction between and tenant at will, 59-63 how relation is created, 63. tenant for a term holding over, becomes when, 18-29i holds under terms of former lease, 62. term commences with each year, 18-29, 62. may be created by express agreement, 63. or by implication, 18-29. when may be for two years, 64, 68. TENANT'S FIXTURES : what are, 875. TERM : unless fixed by lease, must be fixed by implication, 66-71, 74 n, 9. illustration, 68. what constitutes, 102. may expire before time fixed in lease, 103. what it embraces, 103. lease for, confers only chattel interest, 106. determination of, 110. expires by eiflux of time, 110. tenant for, not entitled to notice to quit. 111. lease for longer than lessor has, valid for what he has, 136. for what, trustees may lease, 236. commencement of, 448. may be made to begin from day past, 448. certainty as to commencement and duration essential, 448. under-lease to commence from date, rule as to, 450. in ease of doubt, construction of, 450. to commence from or after a certain event, 451. when date is impossible, 452. for years, duration of, 453. what certainty is requisite, 453. certainty with reference to collateral matters, 455. when duration of is optional, 456. when there is a recurring number of years, 457. when depends upon contingency, 457. leases for life, 459. TIME : lease for time, expires by efflux of, 110. instances, 110-111. TILLABLE LAND : what passes under lease of, 304. TITLE : tenant cannot dis pute landlord's, 363-375. except, 369 n, 370 n, 1. landlord cannot deny his own title or right to lease, 369. effect of denial of, by tenant, 367. Index- 1069 TITLE PARAMOUNT : eviction by, 807. wliat is, 807-810. effect of, 807-810. may quit whole, though eviction extends only to part of premises, 807. if he remains in possession of part, rent may be apportioned, 807. TRADE FIXTURES : what are, 875. rule for determining whether or not movable, 876. TRESPASSER : cannot be charged as tenant, 1. may become tenant, by express contract, 2. mere waiver of trespass by owner, does not make the trespasser a tenant; 2-9. TREES: blown down, tenant not bound to replace, 600. TREES AND TIMBER : what is timber, 725. implied rights as to trees, 726. windfalls, 726. express contracts as to trees, 727. for what purpose may be cut without making tenant chargeable for waste,. 728. what acts amount to waste, 728. TRUSTEES : under general assignment for benefit of creditors, may disclaim lease when 555. ' as lessors, powers of, 235-244. of ceatui que trust, 236. for what term, may lease, 236. not liable for loss, when, 237. cannot be compelled specifically to perform contract of grantor when, 238. cannot subject property to his debts, 238. leases by, may be good in part, 238. lease by, under power requiring best rent, liability and duty of, 239. leases by trustees of charities, 239. equity will intervene when, 240. how rental value of premises leased by should be ascertained 243 TURBARY : common of, what is, 385. u. UNDER-LEASE : amounting to assignment treated as sub-lease when, 13. who may make, 113 et seq. tenant may make unless restrained by covenants in lease, 529 n, 1. assignment of only part of term, operates as under-lease, 545. what is, 542 -n, 7, 543 n, 5, 556 distinction between, and assignment, 542, 556. lease for longer term than tenant possesses, operates as an assignment 543, sale of, 557. 1070 Index. UNDEE-TENANT : becomes tenant by sufferance when, 13. notice to quit given by or to not binding on lessee, 86. estate determines with estate of lessee, 114. liability to his lessor, 135. may pay rent to original landlord, when, 135. presumed to know terms of the lease, 647. lessee cannot enter for breach of covenant by, against prohibited trade unless he shows that imdertenant knew that such use was prohibited, 648. not liable to lessor, for rent, 740. lessee liable for, even in use and occupation, 740 . not liable to laiidlord under covenants in lease, 785. may be ousted by landlord for forfeiture incurred by, 785. lessor may restrain him from committing breach of covenants in lease, 785. bomid to know contents of original lease, 785. when covenants in underlease are same as in original lease, liability of, 786, rule when undertenant expends money in performing lessee's covenants to prevent forfeiture, 786. rule when one of several undertenants under separate leases, expends money in performing lessee's covenants to prevent forfeiture, 786. UPPER ELOOK : lease of, what passes as incident to, 305 of one room on, 305. USE AND OCCUPATION : does not lie against vendor in possession except, 40-45. rent under lease void in fact, may be recovered in, 338. when it lies for rent, 947. does not lie when is lease under seal, 948. relation of landlord and tenant must exist, 948. occupancy under and with owner's assent must be shown, 949. may be maintained where defendant entered under agreement for lease, 949. against tenant holding over, 950. actual occupancy must be shown, 950. entry under contract to purchase, not enough, 949 n. does not lie against trespasser, 949 n. nor when rent is payable in specific articles, 949 «. lies where entry is under void lease, 949 n. when promise to pay will be implied, 949. when not, 950. defences to action for, 951. premises let for unlawful purposes, 952. what is, and what not unlawful use, 952-957. what must be shown to defeat recovery, 952-957. measui'e of recovery in actions for, 957. does not lie after ejectment brought, 983. mesne profits may be recovered in when, 983. USUAL COVENANTS : (See Covenants). Index. 1071 V. TENDEE : person who enters as, not tenant, 8 n, 939, 45. when liable as, 9 n. in possession under contract to purchase, tenant at will, when, 39 n, 3. must be determined by demand before ejectment, 87. when relation of landlord and tenant exists, 40. •when tenant during term, entering into contract to purchase ceases to ba tenanf, 44. not liable for rent, except, 40-45 and notes, liable for use and occupation when, 45. TENDOK : of lands becomes tenant by sufferance after time for delivery of possession has elapsed, 14. VENDOK AND VENDEE : (See Vendee). VIS MAJOR : landlord not liable for damages resulting from, 620 n, 182. VOID LEASE : occupancy under, evidence of tenancy, 5 n, 1. entry under, effect of, 71 n, 2, 75. expires by efflux of time, 73 n, 5. terms of, imposed on tenant entering under, except, 73, payment of rent under, effect of, 74. leases by infants are not, 143. lease by infants not void but voidable, 143. must be personal act of infant, 145. lease may be in part, and good in part, 337. lease, tenant entering under becomes tenant from year to year when, 341. unless tenant enters tmder, no liability, 341, VOIDABLE : lease, distinction between, and void, 116. lease, at election of one party,, how avoided, 339. how confirmed, 339, 357-360. w. WAIVER : of trespass does not make person a tenant, 2. owner cannot elect to treat person as trespasser or tenant, 2. of notice to quit, 87. of effect of by landlord, 88. of forfeiture, what amounts to, 340.. of demand for rent, how may be made, 745. will not be implied, 745. WALL BRACKETS : taking down is breach of tenant's covenant to keep in repair, when, 595. 1072 Index. "WASTE : by tenant at will destroys estate, 48. agreement to purchase, by tenant at will terminates tenancy, 48. assignment of estate by tenant at will, effect of, 49. tenure for life liable for, 100. remedies for, 712. who liable for, 712. commission, what is, 698, 728. permissive, what is, 703. tenants from year to year or at will not liable for, 710, 712 n, 2. accidental fines, 707. fines extending from railways adjoining property, 709. fines occasioned by negligence of servants, 709. injuries from gunpowder and other explosives, 710. without Impeachment for, meaning of term, 711. when trees, &c., may be cut without waste, 728. WAYS : what pass as appurtenances, 315, 319 n 2, 321, 380. what are, 380. . by grant, 380. prescription, 380. necessity, 380, duty of those using, 381. who must repair, 382. public may acquire, 383. who liable for obstruction of, 383. WATER CLOSET : right of hirer of apartments to use, 92, WATER COURSES : what are, 398. nature of landowner's right in, 399, rights between mill owners, 403. reasonableness of use, 404. limitation upon right to dam, 404. precautions to be adopted, 405. prescriptions to be adopted, 405. prescriptive rights to, how acquired, 406, extent of right acquired, 406. rule in Gilford v. Lake Co., 407. Lawlor v. Potter, 408. Carlisle v. Potter, 409. Mentz V. Dorney, 409, change of machinery, 410. ancient mills, 411. effect of prior use, 411. what is a mill seat, 412. artificial water courses, 412. license to make or use a drain, 414. implied grant or reservation of right to drain, 414, extinguishment or suspension of drains, 415, vinderground water, 415. sm-face water, 416. Index. 1073 WEEKLY TENANCY . what is, 65. right of notice to quit, 79, 83, 90. reservation' of rent by, no term being fixed, constitute, 90. WRIT OF POSSESSION : entry by landlord under, does not amount to eviction, 781. WORKMANLIKE; MANNEK : covenant to cultivate farm in, meaning of, 375. YARD: quitting down wall of, is breach of covenant to keep in repair, when, 594 YEAR TO YEAR : tenant holding over for any time becomes, when, 18-29. mere occupancy render permission, no rent being reserved does nbt make person a tenant from, 60. lands leased at annual rent for ever so long as rent is paid is, 68 general hiring creates tenancy from, 67. reservation of rent, essential, 70. need not be in money, 70. tenant entering under agreement for lease, 71-73. void lease, 71-73. covenants applicable to, 74. determination of, 78. when determinable, 78. notice to quit, 78. when there is no express agreement, 78. where there is an express agreement, 79. period with reference to which notice must be given, 79, admission of tenant as to commencement of term, 86. tenant keeping possession after term expires, 80. entry under void or parol lease, 80. entry by tenant on different parts of demised premises at different times, 81. entry between two quarter days, 81. when notice to quit is indispensable, 82. when not, 82. form of notice, 84. by whom may be given, 84. to whom, 84, 86. agents, 85, 86. mode of service, 87. waiver of notice, 87, 88. second notice, 87. acceptance of rent accruing after notice, 88. lease may be for fixed term, and then from, 109. (See Tenant fbom Year to Yeak). YEARS : tenant for not entitled to emblements, 972. (See Tenant foe Years). ^ 68 KF 590 W87 ¥ood, Horace GAy Title Copy A Treatise on the law of li uujLUZ'u tiUiu ot;uu.iio Date Borrower's Name m w