.3i in OJnrnpU Ham ^rl^nnl Hibtaty KFP 117!W72" mT'*" '■'""^ I Cornell University §/ Library The original of this book is in the Cornell University Library. There are no known copyright restrictions in the United States on the use of the text. http://www.archive.org/cletails/cu31924024706032 THE LAW OF Landlord and Tenant IN PENNSYLVANIA BY EICHARD J. WILLIAMS Of the Philadelphia Bar SECOND EDITION PHILADELPHIA T. & J. W. JOHNSON & CO. 1901 Copyright, igoi, T. & J. W. Johnson & Co. Mm ' 3 io5 L..\ <■.' i.j/1;-«.-v TABLE OF CONTENTS. CHAPTER I. LEASES. Page 5. Agreements for a Lease. SECTION 1. Directions for preparing. 2. A specific performance will be decreed. 3. Damages for a breach of an agreement for a lease. 4. Where a tenant under a parol agreement for a lease is let into possession and makes improvements. 5- A lease completed by an actual entry of the tenant. Parol Evidence as applied to Written Agreements. 6. Admissible in case of fraud, accident or mistake. 7. Admissible in some other cases. 8. Agreement in writing to ex- clude verbal understand- ings, etc. Construction of Leases. 9. Rules for construction. The Nature of a Lease. 10. Definition of a lease. SECTION 11. Distinction between a lease and license. 12. Incorporeal things may be rented. 13. Lease of a farm on shares. Implied Renting. 14. In case a tenant remains with permission and pays rent after lease expires. 15. Occupancy under an agree- ment for a lease. 16. Occupancy of land where there is no agreement to pay rent. 17. Where a purchaser at sheriffs sale elects not to take the tenant. 18. Where a tenant remains in possession after the end of his lease without consent. 19. A tenant in possession under a void lease. Unwritten Leases. 20. Act of 1772, requiring writing. Date of Lease. 21. Mistake or omission of date. V VI TABLE OF CONTENTS. The Names of the Parties. SECTION 22. Mistakes or omissions of Leases by Agents. 23. The manner of signing and sealing a lease by an agent. 24. Ratification of a parol lease void under the statute of frauds. 25. An agent should have sealed authority to make a sealed lease. 26. Agents sealing leases without authority personally liable. 27. Leases by agents not under seal. 28. Parol evidence admissible to prove a lease not under seal as principal's. 29. Agents making leases in their own names deprive their principals of their rights as landlords. 30. When agent makes a lease without disclosing his prin- cipal, tenant cannot deny that the agent is not land- lord. 31. Agent without authority in writing may make lease not over three years. 32. Personal liability of agents for their contracts when they do not disclose their prin- cipals. Leases by and to Partners. 33. Leases by partners should be sealed by all the partners. 34. Lease by one partner of part- nership property. 35. Partners taking leases in their own names for the firm, hold in trust for the firm. Leases by Minors and Guard- ians. SECTION 36. Minors' leases. 37. Leases by guardians. Leases by and to Married Women. 38. Power to lease under act of 1893. 39. Leases to married women. Leases by Tenants for Life. 40. Lease must terminate at death. Leases by and to Corporations. 41 May make leases as natural persons. 42. May contract without writing. 43. Leases to foreign corpora- tions. 44. Officers must be authorized to lease. 45. Corporation cannot disable itself from performing pub- lic duties by a lease. 46. Corporate seal not necessary to hold a corporation in assumpsit. 47. Corporation may ratify agent's acts. Leases by Tenants in Common. 48. May make joint or separate leases. 49 When a joint lease is made by tenants in common they must sue jointly. 50. Liability of tenant in common to pay his co-tenants not in possession. Leases by Trustees and Ex- ecutors. 51. Powers of trustees limited by the trusts. TABLE OF CONTENTS. Vll SECTION 52., Administrator cannot lease. 53. Until real estate is sold to pay debts the rents go to heirs or devisees. 54. An executor, unless he is made a trustee of real estate, can- not lease the same. 55. In case executors have a mere power to sell real estate. 56. In case of a trust to sell, but not to rent. 57. Power of trustees to agree to a renewal of lease. 58. Case of personal liability of an executrix under a lease. 59. Assignee for the benefit of creditors cannot lease. Description of Property Rented. 60. Not necessary to particularly describe premises in a lease. 61. Ambiguous description sup- plied by evidence outside of the lease. 62. List of furniture should be an- nexed to lease. 63. Intention of what is leased, from actual use. 64. Case of property described as on the wrong corner. 65. Exceptions and reservations in leases. 66. Implied grant of things neces- sary 'for the use of property. 67. Authority of landlord to enter after he has leased. Term of a Lease. 68. Estate for years. 69. Estate at will. 70. Tenant from year to year. 71. Tenancy from quarter to quar- ter, from month to month, etc. 72. Perpetual leases. 73. Lease without a term stated. SECTION 74. Tenancy from year to year by express agreement. 75. Term of tenancy implied by the payment of rent. 76. Landlord may elect to treat tenant holding over after lease as tenant or trespasser. 77- Tenant by the month may terminate lease at end of , any month. 78. A lease from year to year, at the pleasure of the parties, a continuous lease. 79. The beginning and end of a lease. 80. Continuation of lease at op- tion of tenant. 81. Agreements for extension of terms and options. Rent. 82. In what payable. 83. What rent may issue out of. 84. Interest on rent. 85. When no time fixed for the payment of rent. 86. Rent due after a sale. 87. Custom in Philadelphia to ap- portion rent. 88. A tenant bound by his cov- enant to pay rent, although he assigns lease. 89. Rent due landlord before he dies goes to his executor as personal property. 90. Rent due after death of lessor goes to his heir or devisee. 91. An agreement of tenant to pay assessments. 92. Notice to lessor on contin- gency releasing lessee. 93. A landlord leaving a number of children, each child is en- titled to his or her share. 94. Apportionment of rent in case of sale of reversion by landlord in parts. Vlll TABLE OF CONTENTS. SECTION 95. Rent payable in advance upon contingency. 96. Tenant bound by his cove- nant to pay rent though property is burned. 97. Instances of losses to tenants for the want of an exemp- tion from the payment of rent in case of fire. 98. Rents made payable to tenant for life apportioned under act of 1834. 99. Rent payable in grain, etc., apportioned under act of 1834. 100. When rent is payable in grain, it is not due until de- livered. loi. Interest of landlord in share of grain cannot be taken in execution before severance. 102. Good-will of demised prem- ises. Covenants. 103. Covenants running with the land. 104. Implied covenants run with the land. 103. When covenants run with the land. 106. Assignees bound by cove- nants running with the land. 107. Examples of covenants run- ning with the land. 108. Covenant to pay rent. 109. Covenants not to assign or underlet, no. Are construed strictly. m. An assignment by law not a breach. 112. Covenant as to use and occu- pancy. 113. Landlord not bound to re- pair. 114. The repairs a tenant is bound to make. SECTION 115. Express covenant of tenant to repair. 116. Tenant is not bound by his covenant to repair injuries by act of God or public enemies. 117. Tenant cannot charge land- lord for permanent repairs made without his authority. 118. Agreement of landlord to re- pair minor to that of tenant to pay rent. 119. Measure of damages when landlord breaks his agree- ment to repair. 120. Tenant not relieved from loss in business during repairs. 121. The covenant that improve- ments shall remain should be guarded against by the tenant as dangerous. 122. Definition of the word "im- provement." 123. Covenant of landlord to sell to tenant. 124. Covenant for re-entry. 125. Requisites before entry. 126. There must not be a breach of the peace in making entry. 127. In Pennsylvania a re-entry is not necessary for a for- feiture. 128. Waiver of forfeiture. 129. Amicable action and confes- sion of judgment in eject- ment. 130. If tenant has not paid his rent punctually he must be warned before entry of the judgment for non-payment. 131. For a purchaser to have benefit, the lease should be assigned. 132. No appeal to Supreme Court allowed. 133. Position of under-tenants. TABLE OF CONTENTS. IX SECTION 134. Possession by those holding paramount title. 135. Implied covenant for quiet possession. 136. Implied covenant to pro- tect tenant against para- mount claims. 137. Implied covenant to use property in tenant-like man- ner. 138. Covenants as to farming. Inability of Tenant to Dis- pute THE Title of his Landlord. 139. The rule and its operation. 140. Liability of tenant to forfeit his lease. SECTION 141. Case of collusion with ten- ant. 142. Case of fraud by the landlord. Sealing and Execution of Lease, Stamps and Re- cording. 143. Where landlord does not sign lease. 144. Where tenant does not sign lease. 14s Kind of seal. 146. Witnesses required. 147. Erasures and Interlinea- ations. 148. Stamps on leases. 149. Recording. CHAPTER II. FIXTURES. Page 51. SECTION 150. Domestic fixtures. 151. Trade fixtures. 152. Agricultural fixtures. 153. Fixtures not removed at the end of lease. 154. Tenant's fixtures liable to execution. SECTION 155. Notice to landlord upon con- stable's sale of a house as a trade fixture. 156. The duty of placing fire escapes in Philadelphia. CHAPTER III. SECURITY FOR RENT. Page 56. SECTION 157. Where surety is liable to be sued at once. 158. Covenant of suretyship runs with the land. 159. Tenant bound to exonerate surety. 160. Position of surety in case of a tenant holding over. 161. Alteration of lease as it afifects surety. 162. Discharge of surety by varia- tion of lease. TABLE OF CONTENTS. 163. Discharge of surety if land- lord allows goods distrained to be removed. 164. Demand of rent by landlord. SECTION 165. Discharge of surety by giving time. 166, Surety liable under a void lease. CHAPTER IV. TRANSFERS OF INTERESTS OF LANDLORDS IN DEMISED PREMISES. Page 60. SECTION 167. By a sale and conveyance of the demised premises. 168. By an assignment of the landlord for the benefit of creditors. 169. By a conveyance to a trustee to collect rents, etc. 170. By a judicial sale. 171. Notice of affirmation of lease to be given to tenant. 172. When lease antedates incum- brance, lease preserved. 173. When rent is paid in advance. 174. Rent before and after date of sherifif's deed. 175. The right of a purchaser at an orphans' court sale to rents or possession. 176. Transfer by the will of the landlord. 177. Transfer by descent. CHAPTER V. TRANSFERS OF INTERESTS OF TENANTS IN DEMISED PREMISES. Pace 71. Assignment of Lease by Ten- ant AND Underletting. SECTION 178. Leases not to be assigned ex- cept by writing. 179. Difiference between assign- ments and underletting. 180. Position of under-tenant. 181. Power of tenant to assign or underlet. 182. Tenant bound to pay rent after he assigns his lease. 183. Assignee liable as long as he holds title. 184. Implied indemnity of as- signee. 185. Implied indemnity of tenant to under-tenant. Assignment of Lease when Tenant Dies. 186. A lease a part of decedent's assets. TABLE OF CONTENTS. XI SECTION. 187. When representatives come personally liable. be- Lease in case of an Assignment for the benefit of Creditors. 188. Assignee for the benefit of creditors has the right to accept lease or not. 189. Landlord's preference under SECTION the act of i89i,in case of as- signments for the benefit of creditors. 190. Agreement of assignee with sheriff for sale of goods. 191. Liability of assignee for rent. Sheriff's Levy and Sale of a Lease. 192. Practice as to levy and sale. CHAPTER VI. POWERS OF TENANT AND LANDLORD TO MORTGAGE. Page 77. SECTION 193. Powders under the act of 1855. 194. Lease must be recorded. 195. Machinery put in after mort- gage. 196. Mortgage a breach of cove- nant not to assign. 197. The act is not restricted to mining leases. SECTION 198. Fixtures and machinery can- not be removed without consent of mortgagee. 199. Act of 1853 as to mortgages of mines. 200. Act of 1891 as to mortgages of ores, etc. 201. Mortgages of rentals or roy- alty. CHAPTER VII. THE RECOVERY OF POSSESSION OF DEMISED PREMISES UNDER THE ACT OF APRIL 3, 183O, FOR THE NON-PAYMENT OF RENT. Page 80. SECTION 202. The act of 1830. 203. Who may have the benefit of the act. 204. The rent due must be certain. 205. The notice to quit. 206. By whom notice can be given. SECTION 207. To whom notice should be given and manner of serv- ice. 208. Payment of rent on removal. 209. The complaint. 210. Summons. 211. The service of the summons. Xll TABLE OF CONTENTS. SECTION 212. The hearing. 213. The necessary proof. 214. The judgment. 215. Appeal. SECTION 216. Certiorari. 217. The execution. 218. Appeal to Supreme Court CHAPTER VIII. PROCEEDINGS TO OBTAIN SECURITY FOR RENT OR POSSESSION WHEN TENANT REMOVES FROM THE DEMISED PREMISES, IN PHILADELPHIA. Page ( SECTION 219. Act of March 25, 1825. 220. Tenant must remove. 221. Notice must be signed landlord or his agent. by SECTION 222. Complaint must show a lease for years. 223. Tender of rent. CHAPTER IX. COLLECTING RENTS. Page 92, 224. Jurisdiction of justices of the peace, etc. 225. The hearing. 226. Suits in court. 227. Practice in equity as to re- ceivers collecting rents. 228. Collection of rent due during administration of receivers. 229. Loss of rents collected by re- ceiver from sub-tenants. 230. Recovery of rent in case of death of tenant. 231. Landlord to present claim to the orphans' court. 232. Collection of rent in case of bankruptcy. 233. Rent under the bankrupt act of 1898 not apportioned. Rights to Rent from Sheriff's Sales of Personal Prop- erty. SECTION 234. Act of 1836. 235. Rent apportioned. 236. Landlord should notify sher- ifif of his claim. 237. Note taken no waiver of claim. 238. The goods must have been liable to distraint. Equitable Relief to a Tenant IN case Rent is claimed BY Two Adverse Parties. 239. The nature of the proceeding. TABLE OP CONTENTS. Xlll Preference of Wages over Rent. SECTION 240. Act of April 9, 1872. 241. The claim for wages may be sold and assigned. Collection of Rent by At- tachment. SECTION 242. Liability of rent due to be attached by an attachment- execution. 243. Liability of tenant in case of foreign attachment against the landlord. CHAPTER X. DISTRAINT FOR RENT. Page ioi. SECTION 244. Act of March 21, 1772, regu- lating distraints for rent. 245. Distraint after termination of lease. 246. Distraint by lessor who has conveyed. 247. Distraint by executors and administrators. 248. Distraint by an assignee of the reversion. 249. Distraint by joint tenants. 250. Distraint by tenants in com- mon. 251. Distraint by guardians. 252. Distraint by receivers. 253. Distraint by heirs, devisees, etc. 254. What rent may be distrained for. 255. Goods liable to distress. 256. Goods privileged from dis- tress. 257. Authority given to distrain. 258. Penalty for distraining when no rent is due. 259. Distraining for more rent than is due. 260. Entering premises to make a distraint. 261. Distraining upon the goods. SECTION' 262. Rescue of goods distrained. 263. Interference • with distraint proceedings. 264. Unreasonable or excessive distraint. 265. Placing watchman. 266. Leaving goods on premises. 267. Notice, etc., to tenant. 268. Tender of rent. 269. Replevin. 270. The time for issuing the writ. 271. Order for the writ. 272. Entering security. 273. The pleadings. 274. Trial and judgment. 275. Replevin the proper remedy for illegal distraint upon stranger's goods. 276. Liability of landlord for dis- training on goods of a stranger. 277. Appraisement of the goods. 278. Sale of goods. 279. Manner of sale. 280. Exemption of rented pianos. 281. Exemption of sewing ma- chines. 282. Liability of goods sold ac- cording to instalment plan. XIV TABLE OF CONTENTS. SECTION 283. Three hundred dollars ex- emption law. 284. Appraisers to be appointed. 285. Under-tenants cannot claim benefit. 286. Refusal of exemption. 287. Who can claim exemption. 288. When claim should be made. 289. Request for appraisement. 290. How claim is to be made when tenant absent. SECTION 291. Right to distrain on prop- erty fraudulently removed under act of 1772. 292. Goods of a stranger not to be followed. 293. Goods sold are exempt. 294. Rent must be due at time of removal. 295. Right to collect rent not due under act of 1825. CHAPTER XL LIABILITY OF GOODS OF TENANT FOR TAXES OF LANDLORD. Page 124. SECTION 296. Act of April 19, 1883, provid- ing for a right to distrain on tenant's goods for taxes in cities of the first class. CHAPTER XH. RIGHTS TO CROPS AND EMBLEMENTS. Page 126. SECTION 297. Definition of emblements. 298. Growing grass. 299. Things not of annual growth. 300. Right lost by forfeiture of lease. 301. Definition of waygoing crop. 302. Who entitled to the crop. 303. Straw included. 304. Must be fall grain. 305. Crop may be sold by tenant. 306. The protection of the crop. SECTION 307. Crop in case of execution. 308. Definition of a cropper. 309. Landlord not entitled to grain as rent until de- livered. 310. Under orphans' court sale, crops as rent pass to pur- chaser. 311. Crops payable as rent, grow- ing at the death of landlord, go to heirs. TABLE OF CONTENTS. XV CHAPTER XIII. power of tenant to bind owner's property for mechanics' liens. Page 130, section; section 312. In what cases properties are quiring written consent ot bound. landlord for tenant to bind 313. Act of May 18, 1887, re- premises for repairs, etc. CHAPTER XIV. insurance by TENANTS. Page 133. SECTION 314. Such insurance distinguished from other insurance. CHAPTER XV. EVICTION. Page 134. section section 315. Eviction in part does not 319. Landlord using a way. suspend the whole rent 320. Operation against current when tenant remains. rent. 316. Landlord taking poss'ession 321. Eviction by an injunction. of ruins after a fire. 322. No eviction by conduct not 317. Physical expulsion not neces- depriving tenant of the use sary. of property. 318. Where tenant takes posses- 323. Waiver of eviction by paying sion in case of tenant's de- rent, sertion. XVI TABLE OP CONTENTS. CHAPTER XVI. SURRENDER. Page 138. SECTION 324. Parol surrender of lease for more than three years. 325. Surrender must be accepted. 326. Evidence of acceptance. 327. Surrender to agent. 328. Efifect of surrender on re- quest. SECTION 329. Surrender by a tenant does not extinguish the term of a sub-tenant. 330. Efifect of silence of landlord upon a surrender. CHAPTER XVII. FORCIBLE ENTRY AND DETAINER. Page 141. SECTION 331. Act of assembly relating to same. 332. Must be a breach of the peace. 333. Forcible detainer. SECTION 334. Tenant holder-over not liable for forcible detainer. 335- To constitute forcible entry or detainer there must be violence. CHAPTER XVIII. PROCEEDINGS TO RECOVER POSSESSION OF DEMISED PREM- ISES AT THE END OF THE TERM UNDER THE ACT OF MARCH 21, 1772. Page 145. SECTION 336. Words of the act. 337. Who are entitled to the bene- fit of the act. 338. Rent must be certain. 339. Notice to quit. 340. Service of notice to quit. 341. Complaint. 342. Venire to the sheriff. SECTION 343. Service of summons. 344. Proceedings before the jury. 345. Proceedings when the title is disputed. 346. Finding of the jury, judg- ment and writ for posses- sion. TABLE OF CONTENTS. XVll 347. Proper form for the record. 348. Removal by certiorari. 349. What can be shown at hear- ing upon certiorari. 350. Appeal to the Supreme Court. 35 1. Tenant may traverse the in- quisition in an action of ejectment. CHAPTER XIX. PROCEEDINGS TO RECOVER POSSESSION AT THE END OF THE LEASE UNDER THE ACT OF DECEMBER I4, 1863. Page 155. SECTION 3S2. Words of the act. Power of justice of the peace extended to aldermen. Act extended to assignees. Appeal will be a supersedeas in Philadelphia. 356. Tenancy to be established by parol or written agreement. Notice to quit. Tenant not bound to give notice to quit. Notice given by assignee of lease. 360. Verbal notice. 361. Time of giving notice. 353- 354- 355. 357. 358. 359- SECTION 362. No limitation for landlord to proceed on notice. Notice to quit may be waived. Service of notice for posses- sion. Complaint. Summons. Service of summons. Hearing. Warrant for possession. 370. Appeal. 371. Judgment. 372. Record. 373. Certiorari. 374. Appeal to Superior Court. 363. 364- 365. 366. 367- 368. 369. CHAPTER XX. PROCEEDINGS TO RECOVER POSSESSION IN PHILADELPHIA ON A LOST LEASE. Page 167. SECTION 375. Act of February 28, 1865. xvm TABLE OF CONTENTS. CHAPTER XXI. NEGLIGENCE AS TO RENTED PROPERTY. Page 169. SECTION 376. Defects before renting. 377. Where property rented is un- fit for use. 378. Landlord employing plumber. 379. Liability of owners. 380. Landlord and tenant may both be liable. 381. Liability in case of an open grate. 382. Landlord and tenant may sue at same time. 383. Where landlord interferes with tenant. 384. Where tenant injures prop- erty. 385. Liability between tenants. 386. Liability depending upon ob- ligation to repair. 387. Remedy in case tenant com- mits waste. 388. Act of 1822 as a remedy for waste. 389. Order to permit inspection of waste. 390. Writ of estrepement. 391. Remedy by suit for waste. 392. Remedy by an injunction for waste. 393. Liability of contractor for in- jury. 394. Liability for leakage from a cess-pool. 393. Liability for not repairing sidewalk. CHAPTER XXn. RIGHTS OF LANDLORDS AND TENANTS IN CASE RENTED PROP- ERTY IS TAKEN FOR PUBLIC USE. Page 176. SECTION 396. Constitutional provision. Diflference when state takes. Damages awarded to land- lords and tenants. Party wall condemned and taken down by public authority. Tenant can recover damages to building erected before ordinance for removal. 397. 398. 399- 400. SECTION 401. Landlords and tenants may unite to recover damages for taking property for public use. 402. Land may be cultivated until possession taken. 403. Effect of taking on liability for rent. 404. What damages can be re- covered. TABLE OF CONTENTS. XIX CHAPTER XXIII. FEES OF CONSTABLES, JUSTICES OF THE PEACE AND WATCH- MEN IN LANDLORD AND TENANT PROCEEDINGS. SECTION 405. The act of Feb. 17, 1899, re- lating to fees of constables. 405*. The act of May 23, 1893, re- lating to the fees of justices and magistrates. 406. No provision in the act of 1899 for watchman. CHAPTER XXIV. MINING LEASES. Page 184. SECTION 407. Mining leases in Pennsyl- vania. 408. Mining right distinct from surface right. 409. Rights of tenant for life. 410. Rights of guardians to lease. 411. Tenant bound to work mine. 412. Clause for re-entry necessary. 413. Incidental rights of mining tenant. 414. Right of support. 415. Loss of springs on surface. 416. Tenant cannot open mines. 417. Rent to be paid, though no clay be taken out, not damages. No warranty of coal. Relief in case of mistake. 420. Tenants taking partners. 421. Forfeiture for not developing favored. Manner of conveying in case of sales of minerals. Questions as to whether there is a sale, a lease or right to take coal without a sale. 418. 419. 422. 423- SECTION 424. Mining by tenants in com- mon. 425. Oil and gas leases. 426. Right to mine for oil or gas is necessarily exclusive of the right of the landlord to mine. 427. Liability to pay compensa- tion in case of exhaustion of mines. 428. Obligation to drill through land worthless for oil or gas. 429. Mortgages of mineral lease- holds. 430. Perpetual lease of Ore lands. 431. Options to drill or to pay rent. 432. Provisions for the forfeiture of an oil or gas lease for the benefit of the lessor only. 433. Right of mining tenants to pollute streams. 434. Liability for manufacturing coke and injuring crops, etc., of adjoining premises. 435. As to whether or not a min- XX TABLE OP CONTENTS. SECTION ing lease has been forfeited for not operating. 436. Rights to make openings to reach coal. 437. Agreements for diligence in drilling and working for oil, etc. 438. In agreements for coal leases time is of the essence of the contract. 439. Relief against forfeiture of an oil and gas lease for non- payment of rent. 440. Partnership in mineral lease- holds. 441. Relief against forfeiture of raining leases. 442. A lease for exploration for oil ceases when exploration finished. 443. Interest on royalties. SECTION 444. Tenant will not be compelled in equity to test land for oil or gas if there is no fraud. 445. Covenants to pay royalties run with the land. 446. When lessee to follow his own judgment in sinking additional wells. 447. The 'meaning of the phrase, "to continue so long as oil or gas are produced in pay- ing quantities." 448. Necessity for having oil leases recorded. 449. Jurisdiction in equity for ac- count of gas, etc. 450.' Rent may be payable in oil or gas. 451. Liability of assignee of an oil or gas lease for the payment of royalties. CHAPTER XXV. PRACTICAL DIRECTIONS IN MATTERS RELATING TO THE RENTING OF PROPERTY. Page 199. SECTION 452. Examination of the prop- erty. 453. See what neighbors can do in diminishing the value of demised premises. 454. Inquiries of landlord before renting. 455. False representations by les- see. 456. See if demised premises in the city of Philadelphia are liable to be taken for public use. 457. Examination of the title of the landlord. SECTION 458. Examination as to encum- brances. 459. See if lease can be destroyed by an orphans' court sale. 460. See if there is a liability for a distraint for taxes. 461. Obtaining rights for a show case. 462. Obtaining sign rights by tenant. 463. Provisions in case of fire or other casualty. 464. Directions for making rents certain for distraint and possession. TABLE OF CONTENTS. XXI SECTION 465. Directions in case of an underletting. 466. Giving rights to tenants to purchase. 467. Fixtures of tenant to be pro- tected in cases of renewed leases. 468. Making a penalty to be paid as rent. 469. Directions in taking assign- ments of leases. 470. Provisions prohibiting parol testimony to affect wfritten leases. 471. Restrictions as to the use of demised premises. 472. Making rent due in advance by occurrences after the lease. 473. Providing against the lia- bility of the owner for nuisances. 474. Prevention of defences being waived by paying rent or other action. 475. Prevention of the termina- tion of farm leases by death of tenant. 476. Provisions for amicable eject- ments. 477. Providing for distraint after removal of tenant. 478. Giving sub-tenants the bene- fit of the exemption law. 479. Providing for surety in cases of extensions of lease. 480. Getting the consent of the surety to alter lease. 481. Extension of right to termi- nate lease to assignees, etc. 482. Danger of landlord losing his right to rent by the non- performance of an entire contract. 483. Cautions in preparing agree- SECTION ments for the extension of term and for options. 484. Necessity of a consideration for an agreement to change the terms of a lease. 485. Protecting landlord in farm leases. 486. Making the payment of taxes, charges, etc., as rent. 487. Necessity of reading leases. 488. Protecting fire insurance from conduct of tenant. 489. Distinguishing between a lease and sale in granting mining rights. 490. Necessity of a particular de- scription of the extent of a right to mine. 491. Ascertaining if any old min- ing leases are outstanding. 492. Protection to landlord who reserves the surface in a lease to mine. 493. Binding remainderman in case of a lease by tenant for life. 494. Necessity of recording oil lease when tenant does not take possession. 495. Necessity for having time fixed for delivery of land- lord's share of crops. 496. Protection of parties in agreements to pay for taxes, charges, assessments, etc. 497. Dangers in using clause that landlord may change terms of lease. 498. In case of doubtful con- struction, the tenant fa- vored. 499. Fixing a time for the tenant to perform an agreement to make improvements. 500. Protecting landlord's right to xxn TABLE OP CONTENTS. tenant's fixtures at the end of the lease from levy, etc. 501. If an assignee assigns his lease and retains an interest he will remain liable. 502. Necessity of having a clause for forfeiture for a breach of a covenant not to assign. 503. Guarding against the breach of trifling covenants giving the right to recover pos- session. 504. In case a tenant agrees to use SECTION or not to use demised prem- ises for a certain business or purpose. 505. Danger of there being a breach of a covenant not to assign lease by taking a partner. 506. Necessity for a description to locate premises in leases or amicable ejectments. 506*. Giving right to distrain off the demised premises. CHAPTER XXVI. FORMS. Page 238. SECTION 507. A lease. 508. Farm lease. 509. Farm lease on shares. 510. Farm lease on shares, short form. 511. Covenant that lessee shall fallow the land and mow but once a year, etc. 512. Covenant that lessee may dispose of hay • and straw. 513. Covenant to lay down part of the ground with clover, etc. 514. That the lessee shall use the hay, dung, etc., on the premises. 515. Fire clause for farm lease. No. I. 516. Fire clause for farm lease, No. 2. 517. Fire clause for a dwelling. 518. Fire clause for a business property. 519. To protect against assign- ment of lease. SECTION 520. For insertion after ejectment clause. 521. Giving an option to pur- chase. 522. Surety for tenant. 523. Assignment of lease. 524. Surrender of lease. 525. Distress warrant. 526. Notice of distraint. 527. Affidavit of appraisers and appraisement. 528. Consent of tenant to permit distrained goods to re- main. 529. Notice of constable's sale. 530. Claim for benefit of exemp- tion law. 531. Summons of appraisers. 532. Affidavit of appraisers and election. 533. Appraisement of exempted goods. 534. Amicable action and judg- ment in ejectment. 535. Notice to quit for non-pay- TABLE OF CONTENTS. XXIU SECTION ment of rent under act of 1830. 536. Complaint. 537. Summons. 538. Writ of restitution. 539. Record. 540. Notices to quit at end of lease. 541. Complaint for possession under act of 1772. 542. Precept to the sheriff. 543. Inquisition. SECTION 544. Record. 545. Summons to third party claiming title. 546. Complaint for possession under act of 1863. 547. Summons. 548. Record. 549. Writ of restitution. 550. Notice in case of lost lease. 551. Second notice. 552. Notice when tenant is unable to answer first notice. THE LAW OF LANDLORD AND TENANT. CHAPTER I. LEASES. Page 5. Agreements for a Lease. SECTION 1. Directions for preparing. 2. A specific performance will be decreed. 3. Damages for a breach of an agreement for a lease. 4. Where a tenant under a parol agreement for a lease is let into possession and makes improvements. 5. A lease completed by an actual entry of the tenant. Parol Evidence as applied to Written Agreements. 6. Admissible in case of fraud, accident or mistake. 7. Admissible in some other cases. 8. Agreement in writing to ex- clude verbal understand- ings, etc. Construction of Leases. 9. Rules for construction. The Nature of a Lease. SECTION 10. Definition of a lease. 11. Distinction between a lease and license. 12. Incorporeal things may be rented. 13. Lease of a farm on shares. Implied Renting. 14. In case a tenant remains with permission and pays rent after lease expires. 15. Occupancy under an agree- ment for a lease. 16. Occupancy of land where there is no agreement to pay rent. 17. Where a purchaser at sheriffs sale elects not to take the tenant. 18. Where a tenant remains in possession after the end of his lease without consent. 19. A tenant in possession under a void lease. 1 LANDLORD AND TENANT. Unwritten Leases. SECTION 20. Act of 1772, requiring writing. Date of Lease. 21. Mistake or omission of date. The Names of the Parties. 22. Mistakes or omissions of names. Leases by Agents. 23. The manner of signing and sealing a lease by an agent. 24. Ratification of a parol lease void under the statute of frauds. 25. An agent should have sealed authority to make a sealed lease. 26. Agents sealing leases without authority personally liable. 27. Leases by agents not under seal. 28. Parol evidence admissible to prove a lease not under seal as principal's. 29. Agents making leases in their own names deprive their principals of their rights as landlords. 30. When agent makes a lease without disclosing his prin- cipal, tenant cannot deny that the agent is not land- lord. 31. Agent without authority in writing may make lease not over three years. 32. Personal liability of agents for their contracts when they do not disclose their prin- cipals. Leases by and to Partners. 33. Leases by partners should be sealed by all the partners. 34. Lease by one partner of part- nership property. 35. Partners taking leases in their own names for the firm, hold in trust for the firm. Leases by Minors and Guard- ians. 36. Minors' leases. 37. Leases by guardians. Leases by and to Married Women. 38. Power to lease under act of 1893. 39. Leases to married women. Leases by Tenants for Life. 40. Lease must terminate at death. Leases by and to Corporations. 41 May make leases as natural persons. 42. May contract without writing. 43. Leases to foreign corpora- tions. 44. Officers must be authorized to lease. 45. Corporation cannot disable itself from performing pub- lic duties by a lease. 46. Corporate seal not necessary to hold a corporation ir. assumpsit. 47. Corporation may ratify agent's acts. Leases by Tenants in Common. 48. May make joint or separate leases. 49 When a joint lease is made by tenants in common they must sue jointly, so. Liability of tenant in common to pay his co-tenants not in possession. LEASES. Leases by Trustees and Ex- ecutors. SECTION 51. Powers of trustees limited by the trusts. 52. Administrator cannot lease. 53. Until real estate is sold to pay debts the rents go to heirs or devisees. 54. An executor, unless he is made a trustee of real estate, can- not lease the same. 55. In case executors have a mere power to sell real estate. 56. In case of a trust to sell, but not to rent. 57. Power of trustees to agree to a renewal of lease. 58. Case of personal liability of an executrix under a lease. 59. Assignee for the benefit of creditors cannot lease. Description of Property Rented. 60. Not necessary to particularly describe premises in a lease. 61. Ambiguous description sup- plied by evidence outside of the lease. 62. List of furniture should be an- nexed to lease. 63. Intention of what is leased, from actual use. 64. Case of property described as on the wrong corner. 65. Exceptions and reservations in leases. 66. Implied grant of things neces- sary for the use of property. dj. Authority of landlord to enter after he has leased. Term of a Lease. 68. Estate for years. 69. Estate at will. 70. Tenant from year to year. SECTION 71. Tenancy from quarter to quar- ter, from month to month, etc. 72. Perpetual leases. 73. Lease without a term stated. 74. Tenancy from year to year by express agreement. 75. Term of tenancy implied by the payment of rent. 76. Landlord may elect to treat tenant holding over after lease as tenant or trespasser. TJ. Tenant by the month may terminate lease at end of any month. 78. A lease from year to year, at the pleasure of the parties, a continuous lease. 79. The beginning and end o: a lease. 80. Continuation of lease at op- tion of tenant. 81. Agreements for extension of terms and options. Rent. 82. In what payable. 83. What rent may issue out of. 84. Interest on rent. 85. When no time fixed for the payment of rent. 86. Rent due after a sale. 87. Custom in Philadelphia to ap- portion rent. 88. A tenant bound by his cov- enant to pay rent, although he assigns lease. 89. Rent due landlord before he dies goes to his executor as personal property. 90. Rent due after death of lessor goes to his heir or devisee. 91. An agreement of tenant to pay assessments. 92. Notice to lessor on contin- gency releasing lessee. 93. A landlord leaving a number LANDLORD AND TENANT. SECTION of children, each child is en- titled to his or her share. 94. Apportionment of rent in case of sale of reversion by landlord in parts. 95. Rent payable in advance upon contingency. 96. Tenant bound by his cove- nant to pay rent though property is burned. 97. Instances of losses to tenants for the want of an exemp- tion from the payment of rent in case of fire. 98. Rents made payable to tenant for life apportioned under act of 1834. 99. Rent payable in grain, etc., apportioned under act of 1834. 100. When rent is payable in grain, it is not due until de- livered. loi. Interest of landlord in share of grain cannot be taken in execution before severance. 102. Good-will of demised prem- ises.. Covenants. 103. Covenants running with the land. 104. Implied covenants run with the land. 105. When covenants run with the land. 106. Assignees bound by cove- nants running with the land. 107. Examples of covenants run- ning with the land. 108. Covenant to pay rent. 109. Covenants not to assign or underlet, no. Are construed strictly. III. An assignment by law not a breach. SECTION 112. Covenant as to use and occu- pancy. 113. Landlord not bound to re- pair. 114. The repairs a tenant is bound to make. 115. Express covenant of tenant to repair. 116. Tenant is not bound by his covenant to repair injuries by act of God or public enemies. 117. Tenant cannot charge land- lord for permanent repairs made without his authority. 118. Agreement of landlord to re- pair minor to that of tenant to pay rent. 119. Measure of damages when landlord breaks his agree- ment to repair. 120. Tenant not relieved from loss in business during repairs. 121. The covenant that improve- ments shall remain should be guarded against by the tenant as dangerous. 122. Definition of the word "im- provement." 123. Covenant of landlord to sell to tenant. 124. Covenant for re-entry. 125. Requisites before entry. 126. There must not be a breach of the peace in making entry. 127. In Pennsylvania a re-entry is not necessary for a for- feiture. 128. Waiver of forfeiture. 129. Amicable action and confes- sion of judgment in eject- ment. 130. If tenant has not paid his rent punctually he must be warned before entry of the judgment for non-payment. AGREEMENTS FOE A LEASE. SECTION 131. For a purchaser to have benefit, the lease should be assigned. 132. No appeal to Supreme Court allowed. 133. Position of under-tenants. 134. Possession by those holding paramount title. 135. Implied covenant for quiet possession. 136. Implied covenant to pro- tect tenant against para- mount claims. 137. Implied covenant to use property in tenant-like man- ner. 138. Covenants as to farming. Inability of Tenant to Dis- pute THE Title of his Landlord. SECTION ; 139. The rule and its operation. 140. Liability of tenant to forfeit his lease. 141. Case of collusion with ten- ant. 142. Case of fraud by the landlord. Sealing and Execution of Lease, Stamps and Re- cording. 143. Where landlord does not sign lease. 144. Where tenant does not sign lease. 14s Kind of seal. 146. Witnesses required. 147. Erasures and Interlinea- ations. 148. Stamps on leases. 149. Recording. AGREEMENTS FOR A LEASE. Directions for Preparing. I. It is sometimes difficult to distinguish between a lease and an agreement for a lease. The intention if it can be found will govern. In case of any doubt the language will be con- sidered so as to discover indications of intent. The immedi- ate transfer of possession and the immediate payment of rent are strong indications of a present letting. The agreement for a lease should always be made plain so that there can be no question as to its character. The agreement for a lease should contain a minute of all the important terms to be in- corporated therein, as otherwise only the usual covenants can be required. What are usual covenants may often be a question. It has been held that the lessor could not, as a matter of right, demand a covenant of the lessee not to as- sign or underlet without license, although according to pres- ent practice it might be held a usual covenant. When under an agreement of lease, a lease is prepared even in what may be considered, in certain localities as the usual manner, the 6 LANDLORD AND TENANT. tenant may possibly have the right to object to clauses often used. The tenant possibly might have the right to object to an amicable ejectment clause for instance. If trouble over the form of lease is anticipated, the proper form should be selected in the agreement. A Specific Performance will be Decreed. 2. If the agreement for a lease is in writing and shows clearly the property to be rented and all necessary terms, an application may be made to a court of equity for a specific performance. If a person contracts to sell an estate or to grant a lease, a purchaser with notice of such contracts is liable to perform them.^ Damages for a Breach of an Agreement for a Lease. 3. A defendant agreed to lease to plaintifif a hotel for three years from the succeeding first of April. Before that date, the plaintifif bought many articles for the purpose of furnish- ing the hotel. He was not given possession. He sold those articles. He sold his house and personal property therein at vendue. When he failed to get the hotel he was without a home and was compelled to board. The court in- timated that* such evidence would be relevant as showing damage.^ Plaintifif made a parol contract with defendant to lease certain premises for five years. The defendant refused to take them at the time agreed upon and they remained un- tenanted for a year, and plaintifif brought an action to recover damages therefor. Held, that the action would lie, but, as the proposed lease was for over three years, and was within the statute of frauds, the damages recovered could only be those which arose directly from the breach, but that the rent agreed upon could not be used as a measure of damages, for by the statute, the plaintiff was not entitled to them.® The 1 Notes to Lc Neve v. Le Neve. 2 Leading Cases in Equity (3 Am. Ed.). I3S. 2 Yeager v. Weaver, 64 Pa. 425. 3 Sausser v. Steinmetz, 88 Pa. 324; McCafferty v. Griswold, 99 Pa. 270. AGREEMENTS FOR A LEASE. 7 ! rule or measure of damages for the breach of a contract to lease is the same as for a breach of a contract to sell land. A. bought of the tenant an unexpired lease upon an agree- ment with the landlord that he would renew it. The land- lord and remainderman each refused to renew, and the land- lord died before the expiration of the lease. Held, that the measure of damages in a suit by A., against the landlord's ad- ministrator was the price paid for the lease and its interest, and not the value of the contract. A purchaser is not en- titled to any compensation for the fancied goodness of his bargain when the vendor is without fraud incapable of mak- ing title.* Where a Tenant under a Parol Agreement for a Lease is Let into Possession and makes Improvements. 4. Even when there is no writing and the proposed tenant is let into possession and makes valuable improvements upon the faith of such agreement, a court of equity will compel the execution of the lease agreed upon.® A Lease Completed by an Actual Entry of th.e Tenant. 5. At common law no lease for years was looked upon as complete until an actual entry by the lessee; before such entry his right was called his interest in the term. When a lessor fails to deliver the premises acording to contract, the lessee has two remedies : either by a suit against the lessor on his covenant, or he may, if he think proper, enter and recover the term. In legal contemplation the right to possession is in the lessor as against a third person until the contract is consummated by the entry of the lessee. A notice by a les- sor in possession of the premises that the lease is forfeited, is substantially a declaration that he will refuse to give the lessee possession of the land, and if the lessee assents to this action, and accepts a new lease from the lessor, he rescinds 4 McGlowry v. Croghan's Adm., i Grant, 307. 5 Farley v. Stokes, I Parsons' Eq. Rep. 422. 8 LANDLORD AND TENANT. the former lease and terminates all his rights there- under.® PAROL EVIDENCE AS APPLIED TO WRITTEN AGREEMENTS. Admissible in Case of Fraud, Accident or Mistake. 6. The English rule that parol evidence is inadmissible to vary the terms of a written instrument has been said not to exist in this state, but it has also been said that perhaps it v^rould be more accurate to say that the rule has been relaxed, for the guards which the court has thrown around the modi- fication of the rule have, to some extent, preserved the rule itself. The cases in this state in which parol evidence has been allowed to contradict or vary written instruments may be classed under two heads. First, Where there was fraud, accident or mistake in the creation of the instrument itself, and Second, Where there has been an attempt to make a fraudulent use of the instrument in violation of a promise or agreement made at the time the instrument was signed, and without which it would not have been executed.'' Parol evi- dence is admissible to show a verbal contemporaneous agree- ment which induced the execution of a written obligation, though it may vary or change the terms of the writing,^ and this is so, although such oral stipulation was not omitted from the writing through fraud, accident or mistake.^ The agreement to change the written agreement must be shown by evidence that is clear, precise and indubitable, and this can only be done by the testimony of two witnesses, or of one witness, corroborated by circumstances equivalent to an- other.^" A written agreement may not be set aside on the 6 Gas Co. V. Phila. Co., 158 Pa. 317; Sennett v. Bucher, 3 P. & W. 392. 7 Assn. V. Hetzel, 103 Pa. 507; Phillips v. Meily, 106 Pa. 536. 8 Assn. V. Hetzel, 103 Pa. 507. 9 Ferguson v. Rafferty, 128 Pa. 337. 10 Ferguson v. Rafferty, 128 Pa. 337; Thomas v. Loose, 114 Pa. 35. PAROL EVIDENCE. 9 testimony of one party, contradicted by that of the other party. Yet where there are corroborating circumstances, or circumstances from which inference may be drawn, corrobora- tive of the contemporaneous parol agreement the question should be submitted to the jury.*^ Admissible in some other Cases. 7. Parol evidence is admissible to explain an ambiguity in a deed as to location of the land intended to be conveyed,^^ and to explain and define the subject of a written agreement. Under such circumstances, evidence as to what took place between the parties in negotiating the lease is competent and relevant.^* Where an agreement in writing is expressed in short and incomplete terms, parol evidence is admissible to explain that which is, per se, unintelligible, such explanation not being inconsistent with the written terms.^* It has been held that the rule excluding oral testimony is applied to simple contracts in writing to the same extent and with the same exceptions as to specialties or contracts under seal. To ascertain the meaning of the words, parol evidence of ex- traneous facts and circumstances may be admitted.^" Parol evidence is admissible to show that, for a new consideration, a prior contract under seal was changed.^® Agreement in Writing to Exclude Verbal Understandings, etc. 8. In a case there was the following clause : "It is agreed and understood that in writing and printing this paper con- tains the full and entire agreement between the parties thereto, and no verbal understanding is of any force and ef- fect whatever, and it is not to be held binding." The justice remarked in this case that, "this at least warned the parties II Smith V. Harvey, 40 W. N. C. 229. 12 Lulay v. Barnes, 172 Pa. 331. 13 Boice V. Zimmerman, 39 W. N. C. 306. 14 Leggoe V. Mayer, 39 W. N. C. 247. 15 I Greenleaf on Evidence, 4 Ed., §§ 276, 282. 16 Wilgus V. Whitehead, 89 Pa. 131; McCauIey v. Keller, 130 Pa. 53. 10 LANDLORD AND TENANT. that the entire agreement, with all its terms and stipulations, is presumed to be set forth in the instrument." ^'' CONSTRUCTION OF LEASES. Bules for Construction. 9. The rule of construction which attaches more relative importance to the written than to the printed part of the con- tract, is often a very useful one, and is recognized in many of our cases, but neither this rule nor the rule that every man's grant is to be taken most strongly against himself relieves the court from the duty of reconciling the different parts of the contract if it can reasonably be done, and where the interpre- tation and effect of the written portion are themselves in question, the other portions of the contract, although printed cannot be disregarded. The intention of the parties is to be ascertained from the entire instrument, and not from par- ticular words or phrases without reference to the context, and the instrument shall operate according to the intention, unless it be contrary to law. A deed must be so construed, if possible, that no part shall be rejected. The object of all construction is to ascertain the intent of the parties, and it. must have been the intent to have some meaning to every part. It never could be a man's intent to contradict himself, therefore we should lean to such a construction as recon- ciles the different parts and rejects a conclusion which leads to contradiction.^* A mere use of technical words or phrases which have a definite legal signification cannot be allowed to defeat the contrary legal intention of the parties to a con- tract if that intention be made manifest from the whole con- tract. The words "demise," "lease," "mine-let," "lessors" and "lessees," have no bearing if the contract is, in effect, not a lease.^®. Where the meaning is doubtful, the circum- stances at the making of the instrument and the subsequent 17 Thomas v. Loose, 114 Pa. 35. 18 Lane v. Nelson, 167 Pa. 602. 19 Coal Co. V. Wright, 39 W. N. C. 146. THE NATURE OF A LEASE. 11 acts of the parties are to be considered in determining the sense of the words.^" Tenant leased an academy for two weeks. He wrote to the company that he was unable to ful- fill his Contract and asked to have the lease cancelled. The company claiming to act as defendant's agent, and at his re- quest leased the academy for two nights of the tenant's term, being unable to dispose of the remaining portion ; on his re- fusal to pay suit was brought. A defence was set up that by the custom of the theatrical profession, one month's no- tice of an inability to fulfill a lease was all that was neces- sary to cancel it. It was held that such a usage, if estab- ished, would be binding, if the parties contracted in reference to it.2i THE NATURE OF A LEASE. Definition of a Lease. 10. A lease is a contract for the possession and profits of lands and tenements on the one side, and a recompense of rent or other income on the other. It is essential that there must be a lessor able to grant the land, a lessee capable of accepting the grant, and a subject-matter capable of being granted. It is the ordinary incident of every lease that the lessee shall pay a rent or consideration to the lessor for the use ©f the premises granted, but it is immaterial whether the rent is paid in money, or service, or in any stipulated article, such as grain or ore.^^ Distinction Between a Xease and License. 11. A mere permission to occupy certain premises without pay, on condition of leaving whenever required by the owner to do so, does, not create a tenancy ; for rent is the essence of a lease. Independent of the idea of a contract, a lease also 20 Lane v. Nelson, 167 Pa. 602; Berridge v. Glassey, 112 Pa. 442. 21 Academy v. Birt, 26 W. N. C. 351. 22 Kunkle v. Rifle Club, 10 Phila. R. 52; 2 Addison on Contracts, §675. 12 LANDLOED AND TENANT. possesses the property of pjissing an interest, and partakes of the nature of an estate which, when limited to a certain period for the enjoyment of land, becomes a term for years.^^ Incorporeal Things may be Bented. 12. A way, etc., may be rented.^* Lease of a Farm on Shares. 13. Jaquette agreed to farm the land of Brown, for which he was to have one-half the proceeds ; each party furnishing one-half the seed, stock, poultry, hogs, etc., Jaquette was to find all the farming implements, the working stock, and all the requisite labor, and pay the road tax and one-half of all other taxes. He was also to submit a statement every three months, and make settlement. Held, that this agreement was a lease of the farm on shares and not a partnership. That the landlord had the right to distrain. That the tenant was not a mere cropper or a servant working land for produce. That the products of the farm could be reduced to certainty.^' Where a contract for hiring provides for a certain money compensation per day Jo the employe and a house to live in, the employe has no distinct right of possession as the house he occupies is that of the employer, and it cannot sur- vive the living to which it is incidental, or under which it is part of the contract price for the service rendered. It is not necessary that the occupation of a house or apartments should be a necessary incident to the service to be performed in order that the right to continue in possession should end with the service. It is enough if such occupation is convenient for the purposes of the service and was obtained by reason of the contract of hiring.^* 23 Taylor on Landlord and Tenant, § 14. 24 Thomas v. Railroad, 9 W. N. C. 65. / 25 Brown v. Jaquette, 94 Pa. 113. 26 Bowman i/. Bradley, 151 Pa. 351. IMPLIED KENTING. 13 IMPLIED RENTING. In Case a Tenant Bemains with. Permission and Fays Bent after Lease Expires. 14. When a tenant for a year or for any term over a year, with the permission of the landlord, remains in possession of the demised premises after the expiration of the term, and pays rent, the law will imply a further renting from year to year, for the same rent and subject to all the agreements in the original lease as are applicable to the new situation, but not subject to agreements as to matters intended only to be performed during the original lease.*'' Occupancy under an Agreement for a Lease. 15. If a party occupy and pay rent under an agreement for a term, then, although such agreement may not operate to create the proposed term, either in consequence of its not amounting to a lease or not being a good execution of a power, yet the party so occupying and paying rent is con- sidered as holding upon all the terms of the agreement not inconsistent with a tenancy from year to year, such as an obligation to repair, and the like. If rent is paid with refer- ence to a yearly tenancy, the implied letting will be from year to year. When, however, the rent is paid monthly, the tenancy will, it seems, be presumed to be from month to month, as against a party who has refused to recognize the validity of the oral demise or accept a written lease in con- formity with its terms.** Occupancy of Land where there is no Agreement to Pay Bent. 16. If a person occupies land by the permission of another, the law will presume a promise to pay a reasonable compen- sation, though none has been expressly fixed. In such cases the contract is deduced from the assent of the owner and 2- Phillips V. Monges, 4 Whar. R. 225; Diller v. Roberts, 13 S. & R. 59- 28 Notes to Doe v. Bell, and Clayton v. Blakey, i Smith's Leading Cases, 186, 189, 192. 14 , LANDLORD AND TENANT. the action of the occupant under it. But there is no basis for any impHcation of a contract to pay for the use of land where an occupant enters without any understanding with the owner and without his knowledge.*^ The compensation is not rent, but an equivalent for rent, and it can be shown that the occupation has not been beneficial.®*' Where a Purchaser at Sheriff's Sale Elects not to take the Tenant. 17. When a purchaser at sheriff's sale elects to disaffirm a lease, he can claim for use and occupation until he obtains possession.®^ Where a Tenant Bemains in Possession after the End of his Xiease without Consent. 18. A tenant holding over after his term, without permis- sion of his landlord, is liable for the use and occupation.®^ A Tenant in Possession under a Void Lease. 19. A tenant who is in possession under a void lease, or who is let into possession before the execution of the lease, is bound' to pay for such occupancy.®® UNWRITTEN LEASES. Act of 1772, Bequiring Writing. 20. In Pennsylvania all leases not put into writing and signed by the parties making the same, or their agents, there- unto lawfully authorized by writing, have only the force and effect of leases from year to year, except, all leases not ex- ceeding the term of three years from the making thereof.®* The void lease will regulate the terms of the substituted in- terest.®" A parol agreement between a landlord and a tenant in possession of the premises for a lease of the same for a 29 Brolasky v. Ferguson, 48 Pa. 434; Marlatt v. Marlatt, 4 Pennypacker R. 91. 30 Kline v. Jacobs, 68 Pa. 57. 31 Assn. v. Frisdjen, s W. N. C. 318. 32 Bush V. Oil Co., s W. N. C. 143. 33 Stover V. Cadwallader, 2 Pennypacker R. 117. 34 Act of March 21, 1772. 35 Roberts' Dig. 317. DATE OF LEASE. 15 term of three years, commencing one year after the date of the agreement, is void under the statute of frauds. The facts that the tenant was in possession, and that he made certain improvements in consideration of said lease, do not create a sufficient equity to take the case out of the operation of the statute. Counsel argued, that to take a parol contract out of the statute of frauds, possession must be taken in pursu- ance thereof, and that a previous and continuing possession will not have that efifect.^® The decedent was in possession of the premises under a void lease for ten years. Under the statute of frauds this is to be considered a tenancy at will only; under the decisions in this state, a tenancy at will is to be considered as a tenancy from year to year.*'' A provision in a written lease for five years, for an extension for a further period of five years on the same terms, at the option of the lessee, by notice in writing at least three months before the expiration of the first term, is not within the statute of frauds, as the term embraced in the renewal is created and defined by the lease itself. Under a lease of real estate for five years, executed under seal by the lessee alone, the latter entered and remained in possession. By a separate writing under seal, attached to the lease, the defendant became responsible for the lessee's covenants, for the full time in which the latter might retain possession thereunder. In such case, the legal effect of the lessor's omission to sign the lease, under the statute of frauds, had no bearing on the defendant's respon- sibility ; for imder the terms of his own contract, the defend- ant was liable as surety, so long as the lessee remained in pos- session of the premises under the terms of the lease.** DATE OF LEASE. Histake or Omission of Date. 21. The date of a lease is no part of its substance, and need not, in fact, be inserted ; and, therefore, a mistake in the date 36 Whiting V. Opera Co., 88 Pa. 100; Wheeler v. Conrad, 6 Phila. 209. 37 Hey f.McGrath, 81 1/^ Pa. 310. 38 Duffee z/. Mansfield, 141 Pa. 507. 16 LANDLORD AND TENANT. will not vitiate the instrument. If there is no date or an im- possible one the term will be considered as commencing from the delivery of the deed; unless some particular time for its commencement is therein specified. It is competent for either party to show that the delivery took place on a day different from that of the date.^^ THE NAMES OF THE PARTIES. Mistakes or Omissions of Ifames. 22. An initial between the christian and surname is no part of either.*** The omission or insertion of the middle name is not required but it is better to have the correct middle names in a lease, as they are requisites in a judgment upon a lease, to give proper notice, and their omission might result in an er- roneous judgment. A mistake in the spelling of the name not materially different from the true name will not invalidate the instrument.*^ LEASES BY AGENTS. The Manner of Signing and Sealing a Lease by an Agent. 23. If an agent sign and seal a deed in his own name, it does not bind his principal, though it purports to be made between the other party and the principal by such agent ; nor will the confirmation by the principal, short of sealing the deed, render him liable on it; and as the one party is not bound, so neither is the other.*^ A lease by an agent should be in this way, viz. : A. B., by C. D., his attorney, and con- clude. In witness whereof A. B., by his attorney, C. D., has hereunto set his hand and seal, etc. ; and the agent in execut- ing such a lease should sign the name A. B., his principal, opposite a seal and under the same sign his own name op- 39 Taylor's Landlord and Tenant, § 148. 40 Bratton v. Seymour, 4 W. 329; Paul v. Johnson, 9 Phila. 3a. 41 Taylor's Landlord and Tenant, § 149. 42 Bellas V. Hays, s S. & R. 427. LEASE BY AGENTS. 17 posite another seal as follows : By his attorney, C. D.*^ A lease was signed by the agent of the owners, merely as agent, but reciting the names of the owners as his principals, and purporting to be a grant, not in his own right, but as agent. Held to be good.** Batification of a Parol Lease Void under the Statute of Frauds. 24. A lease of land in writing for seven years, by an au- thorized agent, may be ratified by the owner; but to avoid the effects of the statute of frauds and perjuries, the ratifica- tion must be in writing; a parol ratification gives to the tenant an estate from year to year.** An Agent should have Sealed Authority to make a Sealed Lease. 25. An agent, in order to seal a deed, must have sealed authority from his principal. For example, an agreement was signed and sealed "Garner," and also "William Irwin (seal), by agent McH.," and it was held that, there was no sealed authority by Irwin to the agent, nor did he adopt the seal or ratify it by a sealed instrument. Held, that the deed was not Irwin's deed and none of the covenants his cove- nants, but that if Irwin accepted the grant he became bound if he had signed and sealed the instrument.** Agents Sealing Leases without Authority Personally Liable. 26. Agents run risk in signing and sealing deeds without placing the names and seals of their principals ; for instance, agents contracted for the benefit of a company, yet they did it under their own individual seals, and hence the agents be- came individually liable.*^ 43 Taylor's Landlord and Tenant, § 139 44 Duncan v. Hartman, 143 Pa. 595. 45 McDowell V. Simpson, 3 Watts, 129. 46 Grove v. Hodges, 55 Pa. 504. 47 Quigley 'V. De Haas, 82 Pa. 267; Kroeger v. Pitcairn, 100 Pa. 311. 2 18 LANDLORD AND TENANT. Leases by Agents not under Seal. 27. A written contract not under seal is binding on the principal, in whatever form made or executed, if the princi- pal's name appear in it, and the intention to bind him be ap- parent. A verbal contract is binding on the principal if his name is disclosed, and the person making it contracts as his agent, and on his behalf.*® Parol Evidence Admissible to Prove a Lease not under Seal as Principal's. 28. Parol evidence is admissible to prove that an agree- ment in writing, not under seal, between A. and B. was in fact by A. as agent of C, and for his benefit.*® Agents making Leases in their own Names Deprive their Prin- cipals of their Kights as Landlords. 29. Agents made a lease in their own names throughout the lease, but added the word "agents" to their signatures to the lease. The principal distrained for rent, and he was held liable for a trespass, because he was not to be treated as land- lord. The lease does not appear to have been sealed.®** When Agent makes a Lease without Disclosing his Principal, Tenant Cannot Deny that the Agent is not Landlord. 30. "Andrew M. Martin, agent," by written lease rented to H. an office and in proceedings of the agent, the tenant wanted to prove that Martin was agent, but that his authority had been revoked. He was not permitted to do so and to deny his landlord's title. It was held, that it was Martin who let the premises. The relation of landlord and tenant by the terms of the lease was exclusively between them. Martin simply describing himself as agent, without disclosing prin- cipals, did not place him in the position as agent.**^ 48 I Am. Leading Cases, 613. 49 Gilpin V. Howell, S Pa. 41; Bank v. Smith, 3 Brewster R. 9. 50 Seyfert v. Bean, 83 Pa. 450. 51 Holt -v. Martin, 51 Pa. 499. LEASE BY AND TO PARTNERS. 19 Agent witlLout Authority in Writing may make Lease not over Three Years. 31. An agent need not be constituted by writing to make leases not under seal for a term not over three years.*^ Personal Liability of Agents for their Contracts when they do not Bisclose their Principals. 32. An agent who contracts on behalf of an undisclosed principal, is personally bound.'^ A lease was signed by the agent of the owners, merely as . agent, but reciting the names of the owners as principals, and purporting to be a grant not in his own right, but as agent. The informal ex- ecution would not leave the grantee in possession as a tres- passer. It is not at all analogous to Basset v. Hawke,^* and similar cases where the instrument purported to grant the at- torney's own estate only without connecting his principal at all.^^ A lessee, in the face of the terms of a written lease and an assignment thereof, cannot relieve himself of personal liability by showing by parol evidence that he was acting as agent of a proposed corporation without showing that the execution of the lease was induced by fraud, misrepresenta- tion, etc.®® LEASES BY AND TO PARTNERS. Leases by Partners should be Sealed by All the Partners. ^^. One partner cannot bind his co-partner by a deed, though given in a transaction in the course of the business of the firm and the benefit be received by the firm ; ^'^ he can- not, without authority of his co-partner, give a sealed lease of the partnership property.^® A partner may bind his co- partner by contract under seal if the latter previously assent or subsequently ratify it, and this may be shown by parol.^^ 52 Miles V. Cook, i Grant, 58. 53 Beymer v. Bonsall, 2 W. N. C. 229. 54 Basset v. Hawke, 114 Pa. 502. 55 Duncan v. Hartman, 143 Pa. 595. 56 Sanders v. Sharp, 153 Pa. 555. 57 Hart v. Withers, i P. & W. 285. 58 Snyder v. May, 19 Pa. 23S; Whitaker v. Richards, 134 Pa. 191. 59 Bond v. Aitkin, 6 W. & S. 165. 20 Lease by One Partner of Partnership Property. 34. If a lot is partnership property and used as such, a lease though made by one partner alone would inure to the benefit of the firm, for partners are the agents of each other in partnership transactions, and when real estate is brought into partnership business it is treated in equity as personal estate, and a lease of it by one partner is as much a partnership transaction as a sale of partnership goods by him would be.*** Partners taking Leases in their own Names for the Firm, Hold in Trust for the Firm. 35. If a partner takes a lease of lands in his own name for the purposes of the partnership, he will be considered in equity as a trustee of such lease for himself and co-partner.'^ If one partner obtains in his owp name, either during the partnership or before its assets have been sold, a renewal of a, lease of the partnership property, he will not be allowed to treat this renewed lease as his own, and as one in which his co-partners have no interest.*^ LEASES BY MINORS AND GUARDIANS. Minors' Leases. 36. If a minor leases lands, the lease is not void, it is only voidable. It may be avoided by the minor when he comes of age, or by his heir if he die in his minority.'^ Where an infant lessee, after reaching full age, holds over, he becomes liable for past and future rent under a lease made during minority.®* Leases hy Guardians. yj. A guardian of the estate may make leases and may sue and distrain for rent.'" 60 Moderwell v. Mullison, 21 Pa. 257. 61 Collyer on Partnership, 160. 62 Lindley on Partnership, 574. 63 2 Milliard on Contracts, 130. 64 Harris v. Knowles, 26 W. N. C. 249. 65 Carskadden v. M'Ghee, 7 W. & S. 140. LEASE BY AND TO CORPORATIONS. 21 LEASES BY AND TO MARRIED WOMEN. Power to Lease under Act of 1893. 38. By the act of assembly of June 8, 1893, a married woman has the same right and power as an unmarried per- son to lease her real estate, and may make any contract in writing or otherwise which may be necessary, appropriate, convenient or advantageous to the exercise or enjoyment of her right and power to lease. Leases to Married Women. 39. A married woman can become lessee.®® LEASES BY TENANTS FOR LIFE. Lease must Terminate at Death. 40. A tenant for life cannot make a lease to extend beyond the term of his own life. When the remainderman or rever- sioner joins with the tenant for life in making a lease, it is good, and is considered during the life of the tenant tor me as his lease, and the confirmation of the remainderman or re- versioner ; and after the death of the tenant for life it is taken to be the lease of the remainderman or reversioner.®'^ LEASES BY AND TO CORPORATIONS. May make Leases as Natural Persons. 41. When a corporation is acting within the scope of the legitimate purposes of its institution, all parol contracts made by its authorized agents are binding. Within the sphere of its proper functions it may contract pretty much as a natural person may.®* Hay Contract without Writing. 42. Corporations may contract otherwise than in writing.®' (:& Lloyd V. Underkofler, 13 Phila. 160. 67 6 Coke, 141. 68 Hamilton v. Insurance Co., 5 Pa. 339. 69 I Hilliard on Contracts, ss8. 22 LANDLORD AND TENANT. Xeases to Foreign Corporations. 43. A foreign corporation may lawfully take a lease of an office in this state in which to transact business. Tliough no corporation can hold real estate beyond the authority con- ferred in its charter, the principle does not extend tO' a lease. A foreigner may lease a house to shelter himself and family, although he be prohibited from holding real estate.'^"' Officers must be Authorized to Lease. 44. A lease made by certain officers of a corporation un- authorized so to do, will be declared invalid. Mere silence will not be construed into acquiescence.''^ In case of a lease of importance it would be well to see that the directors in a regular way authorized the lease. Corporation Cannot Disable Itself from Performing Public Duties by a Lease. 45. Railroad company cannot lease its rolling stock, etc., without the consent of the state.'^^ Corporate Seal Not Necessary to Hold a Corporation in Assumpsit. 46. Assumpsit lies for rent upon a lease by a corporation, executed without its seal.'^^ Corporation may Katify Agents' Acts. 47. The acceptance by a corporation, of the contract of its officer, and action under it, is a ratification of the authority of the officer in making the contract.'''* 70 Steamboat Co. v. McCutchen, 13 Pa. 13. 71 Oil Co. V. Railroad, 12 Phila. 374. 72 Thomas v. Railroad, 9 W. N. C. 65. y3 Morrison v. Beirer, 2 W. & S. 81. 74 Goldbeck v. Bank, 147 Pa. 267. ■ LEASES BY TRUSTEES AND EXECUTORS. 23 LEASES BY TENANTS IN COMMON. May make Joint or Separate Leases. 48. Tenants in common may make separate leases for their respective interests for separate rents, or they may all join in one lease, with one render of the entire rent to the lessors simply, in which case they may sue jointly.'" IVlieii a Joint Lease is made by Tenants in Common they must Sue Jointly. 49. Land belonging to eleven heirs of a decedent was leased by seven of them. The agreement was not to pay to each lessee his individual part, but to them all a gross sum, and it was held that, the lease being by the lessors jointly, one could not recover a fractional part of the rent.''® Xiiability of Tenant in Common to Fay his Co-Tenants not in Pos- session. 50. It was held that, in the absence of an express contract, one tenant in common could not recover from another for the use and occupancy of the common land, either at law or in equity.'''' To remedy the unjust effects of this law, the act of June 24, 1895, was passed, whereby tenants in common, not in possession, can recover from their co-tenants in pos- session, their proportionate parts of the rental value of the real estate, and in cases of partition the parties in possession are liable to have deducted from their distributive shares the rental value to which their co-tenants are entitled. LEASES BY TRUSTEES AND EXECUTORS. Powers of Trustees Limited by the Trusts. 51. Trustees of lands, being the owners of the legal estate, may grant leases which cannot be impeached, so long as they are justified by the quantity of the estate they possess.'® 75 Taylor's Landlord and Tenant, §§ 115, 116. 76 Marys v. Anderson, 24 Pa. 272. 77 Norris v. Gould, 15 W. N. C. 187. 78 Taylor's Landlord and Tenant, § 130. 24 LANDLORD AND TENANT. Administrator Cannot Lease. 52. An administrator has nothing to do with real estate, or the renting of the real estate, or the collection of rents. TTntil Beal Estate is Sold to Fay Debts the Bents go to Heirs or Devisees. 53. Until a sale of real estate of an intestate for the pay- ment of debts, it belongs to the heirs or devisees, who are en- titled to the rents although the estate may be insolvent.'^* An Executor, unless h.e is made a Trustee of Real Estate, Cannot Lease the Same. 54. An executor of a will is in the same position as an ad- ministrator as to real estate, unless in some way he is made a testamentary trustee of the real estate, and the parties taking leases from executors would often do well to take the advice of counsel as to the authority of the executors to lease, and when the lease is one of importance, and there are doubts as to the time for which the lease should run, it would be well to get the direction and approval of the proper court. In Case Executors have a Mere Power to Sell Beal Estate. 55. It often occurs that a will devises real estate directly to devisees with a power given to executors to sell real estate. In such case, until the power is exercised, the real estate be- longs to the devisees, who have control of the renting and of the collecting of the rents thereof.*" In Case of a Trust to Sell, but KTot to Bent. 56. A trustee will not be chargeable for not renting real estate, which is unproductive and uninclosed, when the object of the trust is a sale and not renting. Power of Trustees to Affree to a Benewal of Lease. 57. An estate was vested in a trustee to lease, and apply the rents during certain lives. The trustee leased for five 79 Adams v. Adams, 4 W. 160. 80 Blight v. Wright, i Phila. 54a DESCRIPTION OP PEOPEETY EENTED. 25 years with the option of renewal, and it was held that the lease was not void because subject to renewal. If the power was abused it might have given rise to a remedy against the trus- tee in damages, or if by collusion against both trustee and lessees.*^ Case of Personal Liability of an Executrix under a Lease. 58. A lease was made to a woman as executrix of the estate of her deceased husband, and it was held, that she was per- sonally bound, upon the principle, that a promise made by an executor does not bind the estate, but the executor per- sonally, and in such case the naming of a party as executor is mere surplusage. ^^ Assignee for the Benefit of Creditors Cannot Lease. 59. In case of an assignment for the benefit of creditors by deed of the usual form, the only duty of the assignee is to sell the real estate under the power of sale in the deed, or under order of court, and until such sale the assignor may occupy the premises or receive the rents thereof for his own use. The object of the assignment is to convert the property by sale, and not for the assignee to work the land or let it to others. His position is similar to that of an executor with a naked power of sale.*^ DESCRIPTION OF PROPERTY RENTED. Not Necessary to Particularly Describe Premises in a Lease. 60. It is not necessary nor usual to describe the premises demised with the same particularity as in a conveyance. If the property is described in the lease, in a general way, it is sufficient, but to provide for an action of ejectment under the lease, the property had better be fully described or a street number, if any, given to comply with the law as to ejectments. 81 Goehring's Ap., 8ij4 Pa. 283. 82 Gebler v. Culin, 6 Phila. 130. 83 Detwiler's Ap., 96 Pa. 323. 26 LANDLORD AND TENANT. Ambiguous Description Supplied by Evidence Outside of the Lease. 6i. Questions often arise as to what is demised which have to be solved by parol or other evidence outside of the lease. It may always be shown by parol evidence what was and what was not parcel of the demise, and intended to pass to the lessee. By evidence of extrinsic circumstances a general and comprehensive term may be controlled and re- stricted, to pass much less than is usually included in the common legal meaning of the term, and, on the other hand, a particular and limited term and description may be extended to comprehend and include much more than it generally com- prises, in order to give efifect to the plain and obvious mean- ing of the parties.** It was held that it was competent to ex- plain by parol evidence what land was demised, and that a part of a tract of land demised was not included in the lease.*' List of Furniture should be Annexed to Lease. 62. If a furnished house be leased it is important to have a list of the articles attached to the lease, to be retained by the landlord, and power can be given in the lease for the land- lord to take the furniture in case of trouble. The tenant is bound to preserve the furniture in good order.*® Intention of What is Leased, from Actual TTse. 63. So, where the agreement was that "the present lessee and occupant of the first floor," etc., might "continue to use" the same, it being conceded that he did not have a literally exclusive possession of the whole first floor, parol evidence was admitted to show what he actually used and occupied be- fore the agreement was executed. Case of Property Described as on the Wrong Corner. 64. It is no defence that the premises are described in the lease as on the wrong corner.*'^ 84 Addison on Contracts, vol. 2, § 681. 8s Tate v. Reynolds, 8 W. & S. 91. 86 2 Bouvier's Die. (Rawle), 45. 87 Henry v. Wilson, i W. N. C. 506. TERM OF A LEASE. 27 Exceptions and Reservations in licase. 65. When the whole of a property is not intended to be leased, and a part is to be retained by the landlord, a general description of the whole premises may be qualified by an ex- ception ; for example, a field can be excepted out of a farm, or a room out of a house, and if the lessor intends to retain a right of way or any other right or control over the demised premises, he must expressly resei-ve it. Implied Grant of Things Necessary for the Use of Property. 66. A grant of the thing passes the incident as well as the principal, thoug-h the latter only be mentioned ; thus a man- sion would include all the outbuildings used with the same. Generally all those things necessary to the enjoyment of the thing granted will pass without being described.^® Authority of Landlord to Enter After He has Leased. 67. The landlord can reserve the right to go upon the premises peaceably, for the purpose of ascertaining whether any waste or injury has been committed by the tenant or ether persons, first giving notice of his intention. But he has Tio such right unless he reserves it in the lease. He may also use all ways appurtenant thereto, and peaceably enter the premises to demand rent, to view waste, or to remove an ob- struction.** But if the rent is payable in hay or produce, to be delivered to him, he is not entitled to go upon the land and take it, until it is delivered to him by the tenant, or until after it has been severed and set apart for his use. TERM OF A LEASE. Estate for Years. 68. An estate for years is for some determinate period. If the lease be for but one-half a year, or a quarter, or a less time, the lessee is a tenant for years.*** 88 Taylor's Landlord and Tenant, §§ 157, 158, 161, 162. 89 Story on Contracts, § goo. 90 2 Blackstone's Commentaries, 140. 28 LANDLORD AND TENANT. Estate at Will. 69. An estate at will is where lands are let to hold at the will of the lessor.®^ Tenant from Year to Year. 70. A tenancy from year to year is where lands are ex- pressly or impliedly demised by the landlord to the tenant to hold from year to year, so long as the parties respectively please.*^ Tenancy from Quarter to Quarter, from Month, to Month, etc. 71. When the tenancy is for a short period, as for a quarter, a month or a week, and the tenant holds over, there is estab- lished like in the case of a tenancy from year to year, a ten- ancy from quarter to quarter, and from month to month, and from week to week.®^ Perpetual Leases. 72. The term of a lease may be perpetual.®^* Lease Without a Term Stated. 'j'i- Where there is a demise for an annual rent, and no term is mentioned, there is a lease from year to year.^* Tenancy from Year to Year by Express Agreement. 74. Where a lease is made from year to year conditioned to be null and void if rent is not paid at a stated time it is not for a fixed and determinate period, but a lease from year to year. Term of Tenancy Implied by the Payment of Kent. 75. Where rent is received by a landlord, that raises an 91 Blackstone's Commentaries, 145. 92 2 Addison on Contracts, § 684. 93 Taylor's Landlord and Tenant, § 478. 93* Effinger v. Lewis, 32 Pa. 367. 94 Hey V. McGrath, 8iJ^ Pa. 310. TERM OF A LEASE. 29 implied tenancy from year to year, or the like, though the tenant was originally let in under an invalid lease. Landlord may Elect to Treat Tenant Holding Over after Lease as Tenant or Trespasser. 76. Where the lease is for a definite period and the tenant holds over, the landlord may treat him as a tenant by suiifer- ance, and turn him out without three months' notice previous to the end of the period, but the landlord may at his election treat the tenant from year to year at the same rent.®® Tenant by the Konth may Terminate Lease at End of Any Konth. yy. If a tenant rents by the month he has the right to ter- minate the lease at the end of any month.®® When we are dealing with the question of an implied renewal of a tenancy, all the terms of the former lease must be considered. The purpose is not to make a new lease essentially different, but to continue the former as far as its terms may be applicable. In its very nature the implied renewal of a lease assumes a continuation of its characteristic features. Hence if a land- lord elect to treat one holding over as a tenant, he thereby afifirms the form of the tenancy under which the tenant pre- viously held. If there was a tenancy by the month, it will presumably so continue. The landlord cannot impose a longer term or one radically different from the former.®'^ A Lease from Year to Year, at the Pleasure of the Parties, a Con- tinuous Lease. 78. A lease from year to year during the pleasure of the parties, is only a lease for one year certain, and every year after it is a springing interest arising from the first contract and parcel of it; so that with a view to the time which has elapsed or the number of years which the tenant has occupied, it is considered an estate for all that time, including the cur- PS Hemphill v. Flynn, 2 Barr, 144. 96 Milling V. Becker, 96 Pa. 182. 97 HoUis v. Burns, 100 Pa. 206. 30 LANDLORD AND TENANT. rent year, and the lessor may distrain and avow as for so much rent in a,rrears upon one entire lease. After the com- mencement of each new year it becomes an entire lease cer- tain for years past and also for the year entered upon."* The Beginning and End of a Lease. 79. A lease of land for one year from the first day of April, expires on the last day of March of the next year. The first day of April when the lease was to commence, being included in the term.®* Continuation of Lease at Option of Tenant. 80. If the duration of a lease is left optional by the terms of the lease, it must be construed favorably to the tenant. If the duration is left optional by the terms of the lease, without saying at whose option, as, for instance, if a lease is made for seven, fourteen or twenty-one years, it means at the option of the tenant, who has the right of choosing whether he will put an end to the lease at the end of seven years, or continue it for fourteen years or twenty-one years. ^ Agreements for Extension of Terms and Options. 81. It is customary to have the lease to continue from time to time in default of notice and to give options of renewals. As to these matters the practical directions for renting prop- erty are referred to. RENT. In What Payable. 82. Rent may be payable in money, provisions, chattels or labor. What Bent may Issue Out Of. 83. A rent may issue out of lands and tenements cor- poreal and their furniture.^ 98 Roberts' Dig. 317. 99 Marys v. Anderson, 24 Pa. 272. I Com. V. McNeile, 8 Phila. 438. 2 Mickle v. Miles, 31 Pa. 20. RENT. 31 Interest on Bent. 84. Interest can be claimed on rent at the time it is due; although it cannot be included in a claim for a distress.* Rent carries interest from the time it is due, unless from the con- duct of the landlord it may be inferred that he means not to insist on it, or unless he acts in an oppressive manner by de- manding more than is due where the tenant is willing to do justice, or there are other equitable circumstances making the charge improper.* When no Time Fixed for the Payment of Rent. 85. In a lease for a year, if no time is fixed for the payment of rent, whether in money or kind, it is not payable until the end of the year.^ Bent Due After a Sale. 86. In case the landlord sells the demised premises, the rent which falls due after the sale goes to the purchaser, un- less there is an agreement to the contrary.* Custom in Philadelphia to Apportion Bent. 87. In Philadelphia it is the custom to apportion the rent to the date of the settlement of the purchase. A Tenant Sound by His Covenant to Pay Bent, although He Assigns I. McKinney, 74 Pa. 387. 12 Furbush v. Chappel, 105 Pa. 187. 13 Page V. Middleton, T18 Pa. 546. 14 Lane z>. Steinmetz, 9 W. N. C. 574. 15 Jones V. Goldbeck, 8 W. N. C. 532- 16 Gillian v. Tobias, 2 W. N. C. 371. 17 Spencer v. Darlington, 74 Pa. 286. DISTRAINT FOB RENT. 105 Goods in the custody of the law.^^ Where the tenant in the course of his business is necessarily put in possession of the property of those with whom he deals, or of those who em- ploy him, such property is not liable to distress for rent: for example, goods on storage, the goods of a guest at a hotel, the goods of a boarder for rent due by a boarding-house keeper, grain sent to a mill, cloth in a tailor's shop, goods on a wharf, goods of a principal in the hands of a factor.^® Authority Given to Distrain. 257. Thelandlord may himself distrain without theinterven- tion of a constable ; but a constable will be required when the inventory and appraisement shall be made thereafter. It will be best, however, to have a constable to attend to the matter from the beginning, so that one may have the benefit of his knowledge and experience. It is customary to give a con- stable a warrant authorizing him to distrain. A correct bill or statement for the rent due should be given to him. The constable will obtain the necessary information from the land- lord and make out the warrant. A landlord issuing a warrant for distress is required to credit on the rent in arrear only actual payments and such sums as the parties have agreed to treat as payments on account of rent. He is under no legal obligation to deduct any claim for unliquidated damages which the tenant may have against him.^*' In distraining for rent interest should not be added to the rent.^^ Penalty for Distraining when no Rent is Due. 258. By § 3 of the act of March 21, 1772, double the value of the goods distrained and sold with costs may be recovered. It has been held that the injured party may elect to bring an action at common law, and, if the circumstances warrant, 18 Simpson v. Hartopp, and notes, vol. i, part II, 8th ed., Smith's Leading Cases, 783, 450.* 19 Karns v. McKinney, 74 Pa. 387. 20 Speneer v. Clinefelter, loi Pa. 219. 21 Bantleon v. Smith, 2 Binney 145. 106 LANDLORD AND TENANT. recover exemplary damages exceeding the amount of the statutory penalty .^^ Making the distress, when the claim is wholly false, is a mere trespass.^* Distraining for more Bent than is Due. 259. When the landlord distrains for more rent than is due or makes an excessive distress he is liable in an action.^* Entering Premises to Make a Distraint. 260. A landlord may not break open an outer door to make a distraint, nor may he break open or tear down gates or en- closures for that purpose. He may enter an open door or window. He may break open inner doors. If he has entered and made a distraint and is refused admittance afterward, for the purpose of proceeding with the distraint, he may break open an outer door. A breach of the peace in so doing should be avoided. The rule that "a man's house is his castle" extends to a bam or outhouse.^* There is a question as to whether or not the landlord may lift a latch of a door, to open it, to make a distraint. During the absence of a ten- ant and his family the defendants came to his house with a landlord's warrant, and, finding the door locked, opened the front door with a key which they brought and made a levy on and sold certain goods, and it was held that the entry was wrongful. No violence was used, but force in the legal sense was employed to turn the key and open the "door. It was re- marked that some conflict of authority exists on the question whether the landlord may lift the latch of a door which is shut but not locked ; there was no need to enter into the con- troversy. However, it was suggested that if a man merely latches his door, he may, perhaps, he regarded as inviting all persons to enter his house who have business therein.^® In 22 Rees V. Emerick, 6 S. & R. 286. 23 Richards v. McGrath, 100 Pa. 389. 24 Richards v. McGrath, 100 Pa. 389. 25 Semayne's Case, vol. i, part I, Smith's Leading Cases (8th ed.), 244. 26 Murray v. Vaughn, 16 Pa. C. C. R. 657. DISTKAIXT FOE RENT. 107 New York it has been held that opening a door is a breaking, within the meaning of the law. Lifting a latch is, in law, just as much a breaking, as the forcing of a door bolted with iron. The fastening is enough. Sliding down a window fastened with pulleys will not be allowed.^^ This seems a very proper doctrine to hold. In case of a place of business when every one having business to transact with the proprietor has an invitation to enter by lifting a latch dur- ing business hours, it might be well to hold that a sherifif or constable can enter to levy or distrain, but in case of a dwell- ing-house it would be very improper to hold that they can enter by lifting a latch. In case of a dwelling-house the usual course is to ring or knock, and if there is no response the con- clusion will be that the proprietor is away. To allow a sherifif or constable to lift a latch and to enter a dwelling-house with no one about would be intolerable. As long as the rule is to be made for all kinds of buildings without distinction, the New York rule seems to be the proper one to adopt. The right of access should be confined to an open door or window, the presumption being in such cases that some one is in the house. To even allow an entry through an open window is. bad enough, and the law should not be made worse than it is. Not a case has been discovered in Pennsylvania in which any entry into an open \\indow was made, and the indication is that according to a custom and usage in this state, since its foundation, distraints have not been made generally in that way. If that is so, it seems that an ancient precedent in England permitting such an entry ought to be disregarded. That a sherifif or constable should be permitted to get through an open window into a dwelling-house, which may be for the time unoccupied, seems as bad as the cases of lifting a latch or unlocking a door to enter. Distraining upon the Goods. 261. The constable enters upon the premises and makes a 27 Curtis V. Hubbard, i Hill's Rep. N. Y. 336. 108 LANDLORD AND TENANT. seizure of such things as are liable for rent and proceeds to make an inventory of so many of the goods as he judges to be sufficient to cover the rent distrained for, together with the charges of the distress. The Supreme Court held that the seizure of property necessary to complete a distress need not be an actual seizure of the particular goods. If the land- lord g^ves notice of his claim for rent, and declares that the goods which he names shall not be removed from the prem- ises until the rent be paid, it is a sufficient seizure.^* Bescue of Goods Distrained. 262. Upon any pound-breach or rescous of goods or chat- tels distrained for rent, the person or persons grieved therein may recover treble damages and costs of suit against the of- fender or against the owner in case goods afterwards come to his possession.^^ "Upon any pound-breach or rescous of goods or chattels distrained for rent, the person or persons grieved thereby, shall, in a special action upon the case for the wrong thereby sustained, recover his, her or their treble damages and costs of suit, against the offender or offenders in such rescous or pound-breach, any or either of them; or against the owner or owners of the goods distrained, in case the same be afterwards found to have come to his or their use or possession." *" In case of pound-breach the distrainer may follow the goods and retake them and impound them again. ^' Interference with Distraint Proceedings. 263. A landlord's distress warrant is not legal process within the meaning of § 8 of the act of March 31, i860, and an indictment will not lie under that section for resisting the execution of that warrant. Until an appraisement has been made the constable is only the landlord's bailiff. After the 28 Furbush v. Chappel, 105 Pa. 187. 29 Act March 21, 1772, I P. & L. Dig. 2642; P. L. 370. 30 Act March 21, 1772. 31 Woglam v. Cowperthwaite, 2 Dall. 67. DISTRAINT FOR RENT. 109 appraisement the case might be different. The act of 1772 gives remedy for the rescue of goods distrained, but indict- ment will not lie.^^ The owner of a leased piano was held liable in damages for removing it from the premises of the lessee after the landlord had distrained upon it for rent ; but treble damages under the act of March 21, 1772, were not re- coverable, because the owner had no knowledge of the dis- tress. No notice that the piano was leased or hired was given to the landlord as required by the act of May 13, 1876, which exempts musical instruments from levy and sale, or an execution or distress for rent.^^ Trnreasonable or Xlxcessive Distraint. 264. By the statute of Marlebridge (52 Hen. Ill c. 4), in force in Pennsylvania, "distresses shall be reasonable, and not too great; and they that make unreasonable and undue dis- tresses shall be grievously amerced for the excess of such dis- tress." The remedy for a party aggrieved tmder this statute is by an action on the case and not trover or trespass.^* It often happens that constables, in giving notice to tenants of a distraint enumerate certain articles and then notify the ten- ant that all the goods on the premises are distrained upon. If this be so, it would seem that great injustice may be done a tenant, especially when all the goods in a store, factory or the like, are distrained upon. It appears to be the duty of the constable to exercise his judgment as to the quantity of goods to be distrained upon; and, consequently, the rule is, that the landlord will not be liable for a trifling excess. To hold the landlord liable, it is not necessary that the proceedings should have gone further than a levy under a distress warrant. If there be but one thing on the premises which can be taken, so that the landlord must either take it or go without his distress, an 32 Commonwealth v. Nichols, 4 Pa. Dis. R. 318. 33 Delp V. Hoffman, 7 Pa. Dis. R. 256. 34 Taylor's Landlord and Tenant, § 730. 110 LANDLORD AND TENANT. action will not lie, although the value of the thing taken greatly exceed the amount of rent due. In case the tenant causes a writ of replevin to be issued, he will be required to give security for double the value of the goods distrained upon ; and, in some cases, the amount of this security may be enormous, by reason of an excessive distraint. Placing Watchmaii. 265. Upon the distraint being made, a watchman may be placed in charge of the goods to prevent their sale or removal, or the landlord may remove the goods immediately, and the tenant should have notice of the place to which the goods have been removed. Leaving Goods on Premises. 266. It is usual to leave the goods on the premises, the landlord taking the risk of removal, or placing a watchman over them, or taking security for the goods. ITotice, etc., to Tenant. 267. A copy of the inventory, with a notice of the distress, and the cause of the taking, should be left in the house with the tenant, or some one for him. Within five days next after the distress taken, and notice thereof or before the sale, if the tenant has any defence to make to the payment of the rent, or the distress, he may cause the goods distrained upon to be replevied. Tender of Bent. 268. In order to stop a distraint or other proceeding of the landlord, it sometimes will become necessary to pay the rent; and, in endeavoring to do so, the laws respecting a tender of money should be regarded. To make a legal tender, the proper kind of money should be obtained, such as gold coin, legal tender notes, etc. The debtor must actually produce and offer the money, to the party entitled to payment, or his agent authorized to receive payment with- DISTRAINT FOR RENT. Ill out qualification or condition. Where a sale of goods under a distress for rent has been commenced and the tenant tend- ers the landlord the difference between the amount realized by the sale and the full amount of rent claimed with costs, the refusal of the tender and the continuance of the sale render the landlord liable in an action of trespass, for the value of the goods afterwards sold, notwithstanding the proceedings before the tender were legal and regular.^^ The tender was made to the constable and the attorney for the landlord in legal tender notes. Silver coins less than a dollar are made a legal tender for debts not over $10.^** Trade dollars are not good for legal tender.^''' Silver dollars of the weight of four hundred and twelve and one-quarter grains Troy, of standard silver are made a legal tender, except where otherwise stipu- lated by contract.^* Foreign gold or silver coins are not a legal tender.^* Gold coins of the United States are made a legal tender.*** United States notes are made a legal tender.*^ Bank notes are not made good for a legal tender. A tender was made of notes of the Branch Bank of Harrisburg and it was held that they were not a legal tender.*^ If a tender is made in bank notes not made a legal tender and they are not objected to on that ground but the tender is refused it seems that the tender will be good or excused.*^ Beplevin. 269. If a landlord should distrain for rent and there should be objections to make to his so doing, action of replevin can be brought. 35 Richards z'. McGrath, 100 Pa. 389. 36 Vol. I. Sup. Rev. Stat. U. S. 264. 37 Vol. I, Sup. Rev. Stat. U. S. 124. 38 Vol. I, Sup. Rev. Stat. U. S. 152. 39 Sec. 3584, Rev. Stat. U. S. 708. 40 Sec. 3585, Rev. Stat. U. S. 708. 41 Sec. 3588, Rev. Stat. U. S. 708. 42 Cornell v. Green, lo S. & R. 14. 43 Brown v. Dysinger, i Rawle, 408. 112 LANDLORD AND TENANT. The Time for Issuing the Writ. 270. After the distraint, the landlord cannot proceed to appraise and sell until five days have expired. Some persons have the impression that the writ of replevin must be issued and served within the five days. They are mistaken, for the tenant can have the replevin any time before the sale. How- ever, unless the writ be issued within the five days, the con- stable may proceed with the appraisement and sale. Order for the Writ. 271. The order for the writ to be taken to the clerk of the court of common pleas can be as follows : A. B. V. C. D., landlord; E. F., bailiff. Issue writ of replevin for (here describe the goods dis- trained upon). Value of goods, $ — ; Rent, $ — . Returnable (fill in the next return-day of writs). G. H., Attorney for Plaintiff. Entering Security. 272. Upon the receipt of the order for the writ, the clerk of the court will prepare the writ and deliver it to the plain- tiff's attorney ; but before the sheriff serves the writ, security will have to be given as required by the act of 1772. The bond must be executed by the plaintiff and one responsible person or trust company as surety for double the value of the goods distrained. The sheriff usually takes the word of the plaintiff or his attorney as to the value of the goods. If the value of the goods should be double the amount of the rent, it seems as if the valuation ought to be satisfactory. The bond is prepared by the sheriff, and is made to him, and is conditioned for the prosecution by the plaintiff of his suit against the defendant with effect and without delay, and for the return of the goods in case the decision of the suit DISTRAINT FOR RENT. 113 shall result in favor of the defendant. Formerly in the city of Philadelphia, the sheriff was liable for not taking proper security, but he now is relieved of the responsibility by the act of April lo, 1873, which requires the bond and security to be approved by a judge. In Philadelphia the surety makes an affidavit as to his property (as required by the rule of court), which is presented to a judge. Upon the judge's signing his approval, the clerk of the court certifies such ap- proval to the sheriff who enters the writ and prepares the bond. Upon the execution of the bond, the deputy sheriff serves the writ. Upon the constable being served with the writ he usually stops proceedings and surrenders possession of the goods. The Pleadings. 273. The plaintiff should promptly file the declaration. The defendant thereupon files what is called an avowry, whereby he justifies his action by stating the renting and the distraint for rent. In case an owner of goods, not the tenant, claims that the goods belong to him, and that they are not liable to be distrained upon, he sets forth the necessary facts to raise issue as to property. The plaintifif having filed a reply joining issue, the case is then ready for trial. The con- stable, if he is joined, files what is called a cognizance, wherein he justifies his conduct as baihff. Where, by a lease, the landlord has the right to distrain the tenant's goods for thirty days after removal from the demised premises, the plea, hors de son fee, is a proper one to raise the issue whether the dis- tress was made within thirty days after the removal of the goods distrained. The plea means, "I am no longer your tenant and am with my goods out of your land." In England at common law, the property of the tenant could never be taken after the disruption of the relation of landlord and ten- ant and a removal from the demised premises. To the said plea the landlord can reply that, "The goods so distrained 8 114 LANDLORD AND TENANT. were, by the terms of the lease, made Hable to distress during thirty days after removal and were distrained within said thirty days." " Trial and Judgment. 274. By the statute of 17 Charles II, in force in Pennsyl- vania, the jury may find the amount of the rent in arrear and the value of the goods distrained upon. Upon obtaining judgment, the landlord can have an execution to recover the amount of rent found to be due. If the amount of rent is not recovered by such execution, the landlord brings suit on the replevin bond. He should have an assignment made by the sheriff and he should bring suit in his own name; concern- ing the value of the goods, he can offer the finding of the jury as to their worth. The attorney for the landlord should in- form the judge that his client desires the benefit of the law, and that he desires the judge to instruct the jury to find the rent in arrear, if any, and the value of the goods. If this is not done, the landlord will be entitled only to a judgment for the return of the goods and for such damages as the jury may find. In such case, however, the landlord will have his right of action upon his replevin bond. As the landlord cannot claim property in him, a claim-property bond would be out of place. Replevin the Proper Remedy for Illegal Distraint upon Strangers' Goods. 275. The owner of a chattel in the possession of a tenant, which has been distrained for rent and sold, cannot maintain trover for it against the landlord where notice of the distress was given to the tenant. The notice may be given to the tenant or to the owner at the landlord's discretion. The principal object of notice is to enable and, indeed, compel the proper party to contest the legality of the distress before 44 Mather v. Wood, i Pa. Dis. Rep. 793. DISTRAINT FOR RENT. 115 the property is sold, and thus prevent the landlord's being involved in unforeseen difficulties.** Liability of Xiandlord for Distraining on Goods of a Stranger. 276. Under the act of March 21, 1772, replevin is the proper remedy to be used by a person whose goods have been improperly distrained upon by a landlord for rent due by a tenant. Where such a person receives notice of the dis- tress, and the landlord postpones the sale to give him an op- portunity to bring replevin, which he refused to do, he can- not after the sale bring trespass against the landlord for the value of the goods.** A landlord who distrains upon goods knowing them to be the property of another, left with the tenant for sale on commission, is a trespasser ab initio, and is liable to the owner of the goods in an action of trespass.*'^ Appraisement of the Goods. 277. At the expiration of the five days, the person distrain- ing, with the sheriff, under-sherifif or constable, causes the goods distrained upon to be appraised by two reputable free- holders. The day of the distress is to be excluded in the computation of the five days.** The appraisers are sworn by the ofificer to appraise the goods. Before an appraisement can be lawfully made, five clear days must intervene after the distress taken; and notice thereof, with the cause of taking must be left at the mansion-house or most notorious place on the premises. Notice must be in writing and should inform the tenant or the owner of the goods taken and the amount of rent in arrear.** Before a landlord can lawfully sell goods distrained for rent, he must cause the goods and chattels so distrained to be appraised by two reputable freeholders. An appraisement by three persons was irregular. As the pro- 45 Caldclegh v. Hollingsworth, 8 W. & S. 302. 46 Esterly Machine Co. v. Spencer, 147 Pa. 466. 47 Brown v. Siackhouse, 155 Pa. 582. 48 Brisbin v. Wilson, 60 Pa. 452. 49 Snyder v. Boring, 4 Pa. Super. Ct. Rep. 196. 116 LANDLOKD AND TENANT. ceeding is statutory, the direction of the statute must be fol- lowed, or its protection will be lost. If the seizure is ir- regular it is a trespass ; if the seizure is regular, but the sub- sequent steps are not in accordance with the statute, the landlord becomes a trespasser ab initio.^^ The landlord is not compelled to weigh and measure all the goods in a store which he has distrained, nor need he detail every article or no- tion in a stock of millinery goods. The inventory should be so full and complete as to inform the tenant of the goods distrained and for which he may issue a replevin.^^ "A fail- ure to have the appraisement made as required by the statute is fatal to the proceeding of distress, and renders the land- lord liable as a trespasser ah initio" ^^ It is immaterial whether the property belongs to the tenant or to a stranger, so far as the liabihty for a tortious sale is concerned.®^ Sale of Goods. 278. After the goods are appraised, they are sold at public sale by the constable, after the six days' public notice. Goods distrained for rent may be impounded on the premises for a reasonable time after five days, and seven days would be such reasonable time.®* As there has been some doubt as to the right to keep the goods in the tenant's house after the five days, sometimes the precaution is taken to get the tenant's consent to such occupancy. At all events, if the goods are to be kept over such reasonable time, the ten- ant's consent should be procured. In computing the six days' notice of the sale, the day on which the notice of the sale is given is excluded, and the day of the sale included. In computing the five days which must elapse before the ap- praisement, the day of seizure is excluded. If the fifth day 50 Snyder v. Boring, 4 Pa. Super. Ct. Rep. 196. 51 Richards v. McGrath, 100 Pa. 389. 52 Wyke V. Wilson,, 173 Pa. 12. 53 Hazlett V. Mangel, 9 Pa. Super. Ct. 139. 54 WiaU V. Ewing, 7 Phila. R. 195. DISTRAINT FOR RENT. 117 falls on Sunday it is also excluded, so that if goods be dis- trained on Tuesday, an appraisement cannot properly be made before the succeeding Tuesday. The appraisement being made on Tuesday, the five days allowed for a replevin will end on Monday.''® A distress with notice thereof on Febru- ary I, and an appraisement with a notice on February 7, of the sale to take place on February 13, and a sale in pursuance of such notice will satisfy the act of March 21, 1772, regulat- ing the proceedings in cases of distress for rent. The ap- praisement and "six days' public notice" required by the statute are, in the order named, conditions precedent to a sale; but there is no express provision in it or necessary im- plication from its language, which postpones the notice of the sale to a day subsequent to the appraisement. A notice of the distress is valid if served on the day that the distress is made. It sustains the same relation to the distress, in the order of procedure, as the notice of sale does to the appraise- ment. It is as necessary to a valid appraisement of the prop- erty distrained, as a six days' public notice is to a lawful sale of it. A notice given on Tuesday, the day of the appraise- ment, is sufficient to authorize a sale on the following Monday of the goods distrained; the intervening Sundaj' has no effect on the computation, because it did not fall on the last day of the period. The computation of time in such case is governed by the act of June 20, 1883, providing for the exclusion of the first and the inclusion of the last day.*® A postponement of the sale for a week will be permissible.^^ In case of a post- ponement of a sale, it will be well to get the written consent of the tenant. Manner of Sale. 279. Goods must be sold separately or in parcels, not the entire stock in the mass. They may be sold in such lots as 55 Davis V. Davis, 128 Pa. 100. 56 Whitton V. Milligan, 153 Pa. zy6. 57 Holland v. Townsend, 136 Pa. 392. 118 LANDLORD AND TENANT. shall be best calculated to bring the highest price. If sold in too large parcels the injured party may have a remedy.®^ Exemption, of Eented Pianos. 280. By the act of May 13, 1876, all pianos, melodeons and organs leased or hired by any person or persons, residing in this commonwealth, shall be exempt from levy and sale on execution and distress for rent due by such person or persons so leasing or hiring any such piano or pianos, melodeon or melodeons, organ or organs, in addition to any articles now exempt by law; Provided, that the owner or owners of any such piano, melodeon or organ, or his or their agent or the person or persons so leasing or hiring the same, shall give notice to the landlord, or his agent, that the instrument is leased or hired. In order to have a piano exempted under the act of May 13, 1876, the notice required by the law should be given to the lessor when the piano is delivered to the ten- ant, or before the right of distress has accrued.^® A piano was rented to the wife of a tenant for her private use, with the privilege of purchasing, and the piano was distrained upon for rent, and it was held that it was simply the property of a stranger found on the demised premises, and left for no pur- pose of trade. It did not belong to or further the business of the tenant, but was simply leased by his wife."" Exemption of Sewing Machines. 281. It would seem that sewing machines rented or hired are unprotected from distress for rent. By the act of April 17, 1869, sewing machines belonging to seamstresses are ex- empted from distress. , By the act of March 4, 1870, sew- ing machines used and owned by private families are also ex- empt. A tenant rented a sewing machine. A landlord's warrant was issued for the collection of rent, under which 58 Richards v. McGrath, 100 Pa. 389. 59 McGcary v. Mellor, 87 Pa. 461; Rohrer v. Cunningham, 138 Pa. 162. 60 Kleber v. Ward, 88 Pa. 93. DISTRAINT FOR RENT. 119 distress was made upon some personal property, including the sewing machine. The lease contained a waiver of ex- emption. At the hour fixed for the constable's sale the owner of the sewing machine gave the constable notice that it was his property, and forbade his selling the same as the property of the tenant, as it was only leased to him. The constable sold the other property, but not the sewing ma- chine, and adjourned the sale of it for one week, notifying the owner of the fact. At the expiration of the week, nothing having been done in the meantime by the plaintiff, the con- stable put up the machine and sold to E. Batterton, who took possession of it. The owner of the machine then sued out a writ of replevin for it, and summoned the purchaser. The Supreme Court held, first, that the machine was not exempt under the act of April 17, 1869, because it did not belong to a seamstress; second, it was not exempt under the act of March 4, 1870, as the property of the owner, because that act expressly excepts from its operation "persons who keep sewing machines for sale or hire;" third, that the owner could not claim it exempt as the property of the lessee. The latter had left it upon the premises, from which he had moved, and made no claim of ownership or demand to have it ex- empted, and at the date of the sale the lease had expired. It was not at that time a sewing machine "owned and used" by a private family within the meaning of the act ; and that the owner should have caused the replevin to be issued before the sale. The claim for exemption is a personal privilege, and must be claimed by the tenant. ^^ Liability of Goods Sold According to Instalment Plan. 282. The rule that the goods of a stranger on demised premises in the way of business are not subject to distress is this : That "where the tenant in the course of his business is necessarily put in possession of property of those with whom 61 Bogert V. Batterton, 6 Pa. Super. Ct. R. 468. 120 LANDLORD AND TENANT. he deals, or those who employ him, such property although on demised premises is not liable for rent due thereon from the tenant." The plaintiff was a furniture dealer and furnished certain furniture to the keeper of a boarding-house who agreed to pay $425 for the use of the articles. She agreed to pay $25 per week until the amount was paid, when said rent should cease, and the articles should become her property absolutely. It was provided that the title to the furniture should remain in the dealer until the tenant's obli- gation was complied with. These goods were distrained upon, were purchased at a constable's sale and removed by the purchaser. Held, that it was not the furniture of a boarder, but it was furniture in use of the proprietor of the house. As between the tenant and the furniture dealer the property belonged to the latter, but as between the tenant and her landlord, the same belonged to her, and was liable to dis- tress.®^ Three Hundred Dollars Exemption Law. 283. By the act of April 9, 1849, property to the value of three hundred dollars ($300), exclusive of all wearing apparel of the tenant and his family, and all Bibles and school books in use in the family [which remain exempted as theretofore] , owned by or in possession of the tenant, are exempted from distress for rent. Appraisers to be Appointed. 284. The constable, upon the request of the tenant, sum- mons three disinterested and competent persons, who are sworn or afifirmed to appraise the property which the tenant may elect to retain. The wife's separate property may be distrained for rent due by the husband ; the married woman's act, protecting the separate property of a married woman, does not alter the law of landlord and tenant.®* 62 Myers v. Esery, 134 Pa. 177. 63 Blanche v. Bradford, 38 Pa. 344. DISTRAINT FOR RENT. 121 ■Under-Tenants Cannot Claim Benefit. 285. Tenants held demised premises expressly subject to the condition in the original lease, that they would not assign their term or sub-let the premises without the consent of the landlord. The tenants assigned the lease in violation of the condition. There was no consent of the landlord to the as- signment, and no recognition by him of the sub-tenant. Neither the relation of landlord and tenant, nor of debtor and creditor, was established. It was held that the assignee, not being a debtor for the rent, was not entitled to the exemption of the statute as to the goods of his distrained upon. The claim was made against the original tenants. They were the debtors, within the meaning of the act, but they claimed no exemption; and those who came in under them, without the landlord's consent, had no right to claim it.^* Refusal of Exemption. 286. If a tenant's demand of exemption is refused, and the officer proceeds to sell, the tenant's right to the property is gone, and a right of action only remains for the wrong done by refusing the demand.*' Who can Claim Exemption. 287. Corporations, associations and partnerships cannot claim the exemption law for their property. The claim must be individual.*® A bachelor debtor may have the bene- fit of the exemption law, though it is generally spoken of as intended for the debtor's family.*'' Non-residents are not entitled to the benefit of the law.** When Claim Should be Hade. 288. A claim for exemption should be made promptly. It 64 Rosenberger v. Hallowell, 35 Pa. 369; Bogert v. Batterton, 6 Pa. Super. Ct. R. 468. 65 Bonsall v. Comly, 44 Pa. 442. 66 Bonsall v. Comly, 44 Pa. 442. 67 Dieffenderfer v. Fisher, 3 Grant, 30. 68 Snow V. Dill, 6 W. N. C. 330. 122 LANDLORD AND TENANT. should be made before the sale, and generally before the ad- vertisements are put up.^® Bequest for Appraisement. 289. The defendant must demand an appraisement; but any words which apprise the officer of his desire for the benefit of the exemption are sufficient.''*' How Claim is to be Kade when Tenant is Absent. 290. During the absence of the defendant, a child or any one of his family of proper age, his wife, attorney or agent, and perhaps a neighbor or relation as next friend, may claim the benefit of the law.^^ Bight to Distrain on Property Fraudulently Removed -under Act of 1772. 291. By the act of March 21, 1772, if a tenant fraudulently or clandestinely removes his goods from the demised prem- ises with intent to prevent a distraint, the landlord, within thirty days after the goods are removed, can take and seize such goods wherever the same may be found, as a distress for the arrears of rent, provided the goods have not been sold bona Ude and for a valuable consideration before such seizure. A removal of the goods in the night is in itself clandestine, and is sufficient evidence of fraud. . . . Suppose the landlord should come to the premises for the purpose of distraining, and should refrain from a distress on the tenant's promising that he would pay the rent or give satisfactory security by a certain hour, and in the meantime his goods should remain where they were; and after this the tenant should remove the goods as soon as the landlord's back was turned, and all this in the daytime — this would be a palpable fraud. But where there is no evidence of more than a simple removal in the daytime without the knowledge of the landlord, there is no ground for presumption of fraud, nor will the law suffer it 69 Diehl V. Holben, 39 Pa. 213. 70 Diehl v. Holben, 39 Pa. 213. 71 Wilson V. McElroy, 32 Pa. 82; Meitzler's Ap., 73 Pa. 368. DISTRAINT FOR RENT. l^^i to be presumed. The tenant is not bound to give notice to the landlord that he is about to remove his goods, nor is he under any obligation not to remove them; it is the landlord's business to be vigilant; he has the right to distrain v^^henever the rent has become due, and if he neglects it he runs the risk of losing this extraordinary remedy with which the law has favored him/^ Goods of a Stranger Not to be Followed. 292. The goods of a stranger removed from the premises before levy are not liable to be followed and levied on off the premises under the act of 1772.'^ Goods Sold are Exempt. 293- If goods have been sold to a bona fide purchaser having no knowledge of such removal, they cannot be dis- trained upon. Kent nust be Sue at Time of Kemoval. 294. In order to follow the goods under the act, rent must be due at the time of the removal.''* Kight to Collect Bent not Due in Case of Fraudulent Bemoval under Act of 1825. 295. By the act of March 25, 1825, and supplement, in Philadelphia, Pittsburg and Allegheny, if goods are fraud- ulently removed from the demised premises, with intent to defraud the landlord of his distress, the landlord can have his rent apportioned to the time of such removal, and follow and take the goods as a distress within thirty days from such removal; provided he makes oath or affirmation that he verily believes the goods were carried away for the purpose of de- frauding him as aforesaid; And provided further, that goods sold bona Me and for a valuable consideration are excepted. 72 Grace v. Shively, 12 S. & R. 216. 73 Sleeper v. Parrish, 7 Phila. R. 247. 74 Grace v. Shively, 12 S. & R. 216. ' CHAPTER XI. LIABILITY OF GOODS OF TENANT FOR TAXES OF LANDLORD. 296. Act of April 19, 1883, provid- on tenant's goods for taxes ing for a right to distrain in cities of the first class. Act of April 19, 1883, Providing for a Bight to Distrain on Tenant's Goods for Taxes in Cities of the First Class. 296. "The receiver of taxes of the said cities of the first class, is hereby authorized and empowered to distrain and levy upon and sell any goods, chattels or personal property found on any premises on which the taxes are delinquent, or upon the goods, chattels or personal property of the owner of said premises, wherever the same may be found, whether in his own possession or in that of any trustee or other person for him, or in the possession of his executors, administrators or legal representatives." There is a provision among others to said act reading as follows : "And provided further, That when goods, chattels or personal property of any tenant shall have been levied upon, by virtue of the provisions of this act, the said receiver of taxes is hereby authorized, em- powered and directed to proceed with due diligence, to col- lect from said tenant; and when the amount of taxes, costs and charges exceeds the amount of rent due, then only the amount of rent then due; but the lien of the levy shall remain upon said goods during the occupancy of said premises by said tenant, and all rents, after accruing, shall be applied to the extinguishment of said taxes, until the tax, charges and costs shall have been fully paid. The amount collected by said re- ceiver of taxes shall be a lawful deduction from the rent due, 124 LIABILITY OF GOODS OF TENANT FOR TAXES. 125 or that may thereafter become due, and in the event of the refusal of any landlord to allow of said deduction to said tenant on account of rent, and shall refuse to accept the re- ceipt of said collector in lieu thereof, then it shall be the duty of the city solicitor of said cities of the first class, to defend the said tenant in any action brought by the said landlord or his agent for the recovery of said rent from said tenant; the costs and expenses thereof to be paid by said city; Provided further, That in no case shall any tenant or tenants be com- pelled to pay the said tax, costs and charges, or any portion thereof, until the rent shall have become due and payable, neither shall said receivers of taxes follow said tenant's goods, chattels or personal property, to any other premises upon a previous levy, upon a change of residence of said ten- ants or a bona fide removal of said goods, in the ordinary course of business." ^ I 2 P. & L. Dig. 4530, § 169; 1883, P. L. 9, § 3. J CHAPTER XII. RIGHTS TO CROPS AND EMBLEMENTS. SECTION 297. Definition of emblements. 298. Growing grass. 299. Things not of annual growth. 300. Right lost by forfeiture of lease. 301. Definition of waygoing crop. 302. Who entitled to the crop. 303. Straw included. 304. Must be fall grain. 305. Crop may be sold by tenant. 306. The protection of the crop. Definition of Emblements. SECTION 307. Crop in case of execution. 308. Definition of a cropper. 309. Landlord not entitled to grain as rent until de- livered. 310. Under orphans' court sale, crops as rent pass to pur- chaser. 311. Crops payable as rent, grow- ing at the death of landlord, go to heirs. 297. The vegetable chattels, called emblements, are the corn and other products of the earth which are produced annually, not spontaneously, but by labor and industry. Growing Grass. 298. A growing crop of grass, even if grown from seed, and though ready to be cut for hay, cannot be taken as em- blements, because it is said the improvement is not distin- guishable from what is a natural product, although it may be increased by cultivation. Things not of Annual Growth. 299. Such things as are not of annual growth, and do not require the labor of the tenant, but are the permanent and natural product of the earth, such as trees, fruit and grass, are not emblements.^ I Reiff V. Reiff, 126 64 Pa. 134. RIGHTS TO CROPS AND EMBLEMENTS. 127 Bight Lost by Forfeiture of Lease. 300. A tenant who is ejected for breaking the terms of his lease is not entitled to emblements. In the month of August, while corn and potatoes which had been planted by the tenant during the term were still growing and un- gathered, the landlord entered an amicable confession of judgment in ejectment for conditions broken, and had the tenant put out of possession ; and it was held that the articles in question could not be taken away by the tenant.^ Definition of Waygoing Crop. 301. Although a tenant for a certain period may not be entitled to emblements, yet by a custom in Pennsylvania he is entitled, like a tenant for an uncertain period, to what is known as the waygoing crop. The waygoing crop is the crop of grain sown in the fall to be reaped at the next harvest.^ Who Entitled to the Crop. 302. A tenant from year to year is entitled to the waygoing crop.* This custom may be controlled by an express pro- vision in the lease." straw Included. 303. The straw is included.® Must be Fall Grain. 304. The tenant cannot sow the land with spring grain,, and cut it after the term is out.'^ 2 Hunter v. Jones, 2 Brewster's Rep. 370. 3 Demi v. Bossier, i P. & W. 224. 4 Clark V. Harvey, 54 Pa. 142. 5 Craig V. Dale, i W. & S. 509. 6 Craig V. Dale, 1 W. & S. Sop- 7 Demi v. Bossier, i P. & W. 224. 128 LANDLORD AND TENANT. Crop May be Sold by Tenant. 305. A tenant may dispose of his waygoing crop as he may of an article of personal property.^ The Frotection of the Crop. 306. The landlord or any other person who injures the waygoing crop can be sued by the tenant for damages.® A trespass by the landlord on the waygoing crop cannot be justified by a breach of the tenant's contract or bad hus- bandry. The redress must be by suit, and not by confisca- tion of the tenant's rights.^" Crop in Case of Execution. 307. A lessee of land encumbered with a judgment prior to the lease under which the premises are levied upon and sold, is entitled to the waygoing crops sown by him prior to the levy and condemnation in preference to the sheriiif's vendee. -"^ Definition of a Cropper. 308. If one be hired to work land, receiving for his com- pensation part of the produce, he is a cropper, and not a ten- ant. He has no interest in the land, but receives his share as the price of his labor. The possession is still in the owner.^^ Landlord Not Entitled to Grain as Bent until Delivered. 309. Where the rent of a farm is payable in a share of grain raised on it, division and delivery are essential to vest the title to the grain in the landlord. Under Orphans' Court Sale, Crops as Bent Pass to Purchaser. 310. By an orphans' court sale of the property, the right 8 Shaw V. Bowman, gi Pa. 414. 9 Forsythe v. Price, 8 Watts, 282. 10 Clark V. Harvey, 54 Pa. 142. u Bittinger v. Baker, 29 Pa. 66. 12 Adams v. McKesson's Ex., 53 Pa. 81. RIGHTS TO CROPS AND EMBLEMENTS. 129 to a share of the growing crops reserved as rent passes to the purchaser.*^ Crops Payable as Beat, Growing at the Death of Landlord, go to Heirs. 311. A crop was growing at the death of the intestate; it was harvested and divided afterwards, the tenant taking his part and delivering to the landlord his share. It was held, as a rent payable in kind, it passed with the inheritance, and belongedT;o the heirs, rather than the administrator.^* 13 Burns v. Cooper, 31 Pa. 426. 14 McDowell V. Adams, 45 Pa. 430; Waugh's Exrs. v. Waugh, 84 Pa. .ISO. ; CHAPTER XIII. POWER OF TENANT TO BIND OWNER's PROPERTY FOR mechanics' liens. SECTION SECTION 312. In what cases properties are quiring written consent of bound. landlord for tenant to bind 313. Act of May 18, 1887, re- premises for repairs, etc. In what Cases Properties are Bound. 312. It has been held that a lessee under an improvement lease, who has contracted with his lessor to put up a building on the land, may, by his contract with a mechanic and materialman, bind the estate of the lessor.^ But the pres- ence of an express covenant by the lessee to build is not that which distinguishes a building contract from an improvement lease, where the work is to be done by the tenant and his servants. There was no express covenant to build, but the amount of rent the lessee was to pay was directly afifected by his omission to build, or his actual building.^ Where a ten- ant contracts with a landlord to build, for compensation to be made by the landlord, either in money or the occupation and use of the premises he is as an ordinary contractor to build. He is the landlord's agent, holding possession for him, build- ing for him at ultimate cost; and the building is liable to lien as in all other cases of building by .contract. Occasionally such contracts have been inadvertently called improvement leases, but they are not in the ordinary meaning of the term. Improvement leases do not ordinarily contemplate the pur- 1 Reed v. Kenney, 4 W. N. C. 450. 2 Barclay v. Wainwright, 86 Pa. 191. 130 POWER OF TENANT TO BIND PROPERTY. 131 chase of material for building and the employment of me- chanics, but simply the labor of the tenant and his servants. A permission or license to build, without a duty on the tenant to do so, is not sufficient to subject a property to a lien. If the building is erected with the landlord's consent, and at his ultimate expense, a lien may be filed.^ The mechanics' lien laws were originally intended to apply to cases of the erection of new buildings, but by the act of August i, 1868, these laws were extended in Philadelphia to claims for the repair, altera- tion or addition to any house or building, when the same is for not less than fifty dollars. It is provided, however, that such extension will not apply where the repairs, alterations or additions are done by a lessee or tenant, without the writ- ten consent of the owner or his agent. The lien dates from the time of the filing of the claim, and until the lien is filed the owner may convey the property clear of the lien. Whether the insertion of a clause in a lease, authorizing the making of alterations and improvements by the lessee, con- stitutes such a written consent on the part of the lessor as authorizes the filing of a lien under said act, depends upon the question whether the cost of such alterations or improve^ ments is to be borne by the lessor or the lessee. If by the former, the consent is sufficient to authorize the filing of such Hen; if by the latter it is not. A tenant agreed to make re- pairs, to make no alterations or improvements without the lessor's consent, and further to leave all alterations at the ex- piration of the term, for the lessor's benefit. It was held that the terms of the lease indicated no intention that the ex- pense of the repairs was to be borne by the lessor, and that therefore a Hen could not be filed under the act of 1868.* In case a landlord makes an agreement with his tenant as to the erection of buildings and improvements, care should be taken not to subject the estate of the lessor to mechanics* Hens. The agreement should be carefully written under the 3 Hall V. Parker, 94 Pa. 109. 4 Boteler v. Espen, gg Pa. 313- 132 LANDLORD AND TENANT. ' supeivision of counsel acquainted with the authorities upon the nice distinctions the courts have made. Act of Hay 18, 1887, Requiring Written Consent of Landlord for Tenant to Bind Premises for Repairs, etc. 313. By this act the property of the landlord will not be liable to liens for repairs, alterations or additions where the same has been altered by the tenant without the written con- sent of the owner or his agent, and notice must be given to the owner or his agent at the time of furnishing the materials or performing the work of an intention to file a lien. CHAPTER XIV. INSURANCE BY TENANTS. SECTION 314. Such insurance distinguished from other insurance. Such Insurance Distinguished from Other Insurance. 314. A leasehold interest in buildings is insurable. A pro- vision that the policy shall become void "if the assured is not the sole and unconditional owner ©f the property, or if the building stands on ground not owned in fee simple by the assured, or if the interest of the assured is not truly stated in the policy" is not applicable to an insurance of such an interest. A policy of insurance, like any other contract, is to be read in the light of the circumstances that surround it.* I Tool V. Ins. Co., 25 W. N. C. 370. 133 CHAPTER XV. EVICTION. SECTION SECTION 315. Eviction in part does not 319. Landlord using a way. suspend the whole rent 320. Operation against current when tenant remains. rent. 316. Landlord taking possession 321. Eviction by an injunction. of ruins after a fire. 322. No eviction by conduct not 317. Physical expulsion not neces- depriving tenant of the use sary. of property. 318. Where tenant takes posses- 323. Waiver of eviction by paying sion in case of tenant's de- rent, sertion. Eviction in Part does not Suspend the Whole Kent wlien Tenant Bemains. 315. An eviction of a tenant from a portion of the de- mised premises, when the tenant continues in possession of the remaining part, using and enjoying it, does not work a suspension of all subsequent rent; and the tenant is liable to his landlord, in an action for use and occupation, for such portion of the rent as the value of the part retained bears to the whole. If a tenant be evicted from a part of the demised premises, he may remove from the residue, and thereby wholly relieve himself from the payment of future rent.^ Landlord Taking Possession of Buins After a Pire. 316. If the landlord takes possession of the ruins of his premises destroyed by fire, for the purpose of rebuilding, without the assent of his tenant, it is an eviction. If with his I Seabrook v. Moyer, 88 Pa. 417. 134 EVICTION. 135 assent, it is a rescission of the lease and, in either case, rent will be suspended.^ Physical Expulsion Not Necessary. 317. The modern doctrine as to what constitutes an evic- tion, is that actual physical expulsion is not necessary, but any interference with the tenant's beneficial enjoyment of the demised premises will amount to an eviction at law; and it has been held that a landlord's refusal to allow an under- tenant to enter the premises, under threats of suit, whereby the tenant is deprived of the underletting, is such an inter- ruption of the latter's right as amounts to an eviction.^ If the landlord claims, and uses, certain privileges upon the de- mised premises against the tenant's consent, he must show a reservation of them, or the rent is suspended.* Where Landlord Takes Possession in Case of Tenant's Desertion. 318. C. rented a tavern-house to S. for one year from April I, 1868. In January, 1869, a constable levied on the goods of S. for taxes. Before the sale, S. left the premises; the con- stable left the key with C. On the day after the sale there was a bill "To let" put upon the premises. In 1869 a new tenant leased from C, who had the key. After S. left and be- fore the expiration of the term, C. made some repairs to the bar-room. The claim was for rent from December, 1868, until April i, 1869. It was held that taking care of the key, and repairing after the tenant had voluntarily left, was no eviction. He would have been entitled to enter if he had re- turned, but he did not return. He was neither put out nor sold out by the plaintiff." A. demised certain premises to B., for business purposes, for a certain time. Before the lease expired B. locked the premises, moving certain goods, but 2 Magaw z'. Lambert, 3 Barr. 444; Hoeveler v. Fleming. 91 Pa. ,^22. 3 Dorian v. Chase, 2 W. N. C. 609. 4 Vaughan v. Blanchard, 4 Dall. 124. 5 Pier V. Carr, 69 Pa. 326; Milling v. Becker, 96 Pa. 182. 136 LANDLORD AND TENANT. leaving others. A. thereupon broke the lock of the door, re- moved B.'s signs and remaining goods, and used the rooms for the remainder of the term for his own purposes. Held, that there had been an eviction." When a tenant is evicted he is discharged from the rent for the time following, but not for that due before eviction.'^ Landlord Using a Way. 319. A landlord, after he made a lease, claimed a right of passage through the cellar leased to another cellar back, though he had other communication thereto, and had actually used this privilege against the tenant's consent. As the privilege had not been reserved, the rent was suspended. If the lessor enter into part, the whole rent is suspended; for the lessor cannot apportion it by a wrongful act of his own.* Operation Against Current Bent. 320. Eviction of the tenant by the landlord has no opera- tion on rent already due; it suspends the rent of the month, quarter, or other portion of time running on at the time of the eviction. The suspension of the rent is intended as a punishment, and operates in the nature of a forfeiture.® XlTlction by an Injunction. 321. When a tenant is enjoined by his landlord from using the demised premises by an ex parte injunction, there may be an eviction.*" No Eviction by Conduct not Depriving Tenant of the TTse of Prop- erty. 322. When the rental of a house is to be a sum certain and the board of the lessor, mere annoyances by the language 6 Burr v. Cattnach, 19 W. N. C. 22. 7 Pier v. Carr, 69 Pa. 326. 8 Vaughan v. Blanchard, I Yeates, 17s. 9 Kessler v. McConachy, i Rawle, 435. 10 Pfund V. Herlinger, 10 Phila. I3- EVICTION. 137 and general conduct of the lessor do not amount to an evic- tion, unless they are of such a character as to prevent the tenant from enjoying the house to its full capacity.^ ^ Waiver of Eviction by Paying Bent. 323. Where a tenant, after eviction from a part of the de- mised property continues to pay rent without setting up the eviction as a defence, he waives his rights, and his subsequent holding over, not only after the eviction but after the expira- tion of the term in which it occurred, is under a new or im- plied agreement to pay at the same rate for the use and occu- pation of so much of the demised property as remained in his possession after the eviction.^* 11 Ewing V. Cottman, 43 W. N. C. 525. 12 Ward's Est., 22 Pa. C. C. R. 284. CHAPTER XVI. SURRENDER. SECTION SECTION 324. Parol surrender of lease for 329. Surrender by a tenant does more than three years. not extinguish the term of a 325. Surrender must be accepted. sub-tenant. 326. Evidence of acceptance. 330. Effect of silence of landlord 327. Surrender to agent. upon a surrender. 328. Effect of surrender on re- quest. Parol Surrender of Lease for More than Three Years- 324. The fact that a lease is for a longer period than three years does not prevent a rescission thereof by parol, when accompanied by a surrender of the lease and premises by the tenant to the landlord, and the acceptance thereof by the latter.i Surrender Must be Accepted. 325. A tenant surrendered his term to his landlord, and paid him the rent in full to that time ; whereupon the landlord immediately took possession, and proceeded to repair the house by building a new bath-room, a new porch, putting in a new range, and making general repairs such as could not have been made while the house was occupied by a tenant. Judgment was obtained against the tenant, because his affi- davit of defence did not state that a surrender of the lease was accepted by the landlord; and it was held that taking pos- session, repairing, and advertising the house for rent were I Auer V. Penn, 99 Pa. 370. 188 SURRENDER. 139 all acts in the interest and for the benefit of the tenant, and did not discharge him from his covenant to pay the rent.^ Evidence of Acceptance. 326. Taking care of the key, cleaning and repairing by the landlord would not be conclusive evidence of the landlord's acceptance of a surrender.^ Surrender to Agent. 327. In an action to recover rent reserved under a written lease, an affidavit of defence which alleges that the defendant lessee surrendered possession to A. B., the agent for the plaintifif, and that possession thereof was accepted by him, is a good afifidavit and sufficient to carry the case to a jury.* It was held that agents for managing real estate can accept surrenders.® When a tenant abandons leased premises with notice to the agent of the lessor, who had collected rent for the premises, he will not be relieved from liability under the lease unless it is shown that the agent has authority to accept a surrender, or unless the lessor ratify his act.® Effect of Surrender on Bequest. 328. A surrender, with an acceptance of the keys, is not necessarily a surrender of the term. But where there is a precedent request by the landlord for the keys, his accept- ance of them is an acceptance of the term.'' Surrender by a Tenant does not Extinguish the Term of a Sub- Tenant. 329. A tenant after sub-letting a part of the demised premises, assigned his term to a stranger. Three days later, 2 Breuckrnann v. Twibill, 89 Pa. 58; Lane v. Nelson, 167 Pa. 602. 3 Milling V. Becker, 96 Pa. 182. 4 De Morat v. Falkenhagen, 148 Pa. 393. 5 Weightman v. Harley. 20 W. N. C. 470. 6 Murphy v. Losch, 148 Pa. 171. 7 Reaney v. Fahnessy, 14 W. N. C. 91. 140 LANDLORD AND TENANT. the assignee surrendered the lease to the landlord, who im- mediately granted him a new lease for a longer term. This arrangement was made without notice to, and in disregard of, the known rights of the sub-tenant. Held, such sur- render and new demise did not extinguish the term of the sub-tenant : he was entitled to hold thereafter, not under or in subordination to the new lease, but in hostility to it; and his goods could not be distrained by the landlord for rent due from the assignee on the new lease. Nor did the landlord thereafter sustain any relation to the sub-tenant out of which the right to distrain upon the latter' s goods, for rent in arrear on the sub-lease, could arise; if such right subsisted in the landlord, after the surrender, it passed out of him by virtue of the new lease which he granted to the assignee.^ Effect of Silence of Landlord upon a Surrender. 330. In a suit for rent a tenant paid all the rent due by him at the time of his removal, to the agent of the landlord; and handed to him the keys of the premises, and surrendered possession thereof to him, which he accepted without com- ment. The silence of the agent was considered to be an ac- ceptance of the surrender, because he ought to have declared his intention to hold the tenant responsible for future rent, if that was his purpose. Silence is acquiescence in such cases.^ 8 Hessel v. Johnson, 142 Pa. 8. 9 Weightman v. Harley, 20 W. N. C. 470. CHAPTER XVII. FORCIBLE ENTRY AND DETAINER. SECTION SECTION 331. Act of assembly relating to 334. Tenant holder-over not liable same. for forcible detainer. 332. Must be a breach of the 335. To constitute forcible entry peace. or detainer there must be 333. Forcible detainer. violence. Act of Assembly Belating to Same. 331. By the act of assembly of March 31, i860, the pro- visions as to forcible entry and detainer are as follows : — "If any person shall, with violence and a strong hand, enter upon or into any lands or buildings, either by breaking open doors, windows or other parts of the house, or by any kind of violence or other circumstances of terror, or if any person, after entering peaceably, shall turn out by force or by threats, or menacing conduct, the party in possession, every person so offending shall be guilty of a forcible entry, and on conviction, shall be sentenced to pay a fine not ex- ceeding $500 or to undergo an imprisonment not ex- ceeding one year, or both, or either, at the discretion of the Court, and to make restitution of the lands and tenements entered as aforesaid. "If any person shall, by force and with a strong hand, or by menaces or threats, unlawfully hold and keep the posses- sion of any lands or tenements, whether the possession of the same were obtained peaceably or otherwise, such person shall be guilty of forcible detainer, and upon conviction thereof, shall be sentenced to pay a fine not exceeding $500, or to undergo an imprisonment not exceeding one 141 142 LANDLOKD AND TENANT. year, or both, or either, at the discretion of the court, and to make restitution of the lands and tenements unlawfully detained as aforesaid: Provided, That no person shall be guilty of forcible detainer, if such person, by himself, or by those under whom he claims, has been in peaceable possession for three years next immediately preceding such alleged forcible detention." ^ Must be a Breach of the Peace. 332. These laws have an important place in considering the rights and remedies of landlords and tenants. "The general common-law principle is, that though the mere breaking and entering the house of another is not a misdemeanor; yet if that entry is attended by circumstances constituting a breach of the peace, it will become a misde- meanor >' 1* "A mere refusal to deliver possession when demanded will not warrant the process for forcible entry and detainer; but the possession must be attended with such circumstances as might excite terror in the owner, and prevent him from claim- ing his rights; such as apparent violence offered in deed or word to the person, having unusual offensive weapons, or being attended by a multitude of people." ^ "The force must exceed a bare trespass." "An entry by breaking the doors or windows, etc., whether any person be in the house or not, especially if it be a dwelling-house, i-s a forcible entry within the statute." ^ A landlord has no right to expel even a tenant at will by force, and he cannot enter with a strong hand to disposses a tenant with force after the expiration of the term ; he cannot assert his title with violence.* 1 P. L. Dig. 1203; P. L. 382, §§21, 22. I* Wharton's Criminal Law, § 2014. 2 Wharton's Criminal Law, § 2015. 3 Wharton's Criminal Law, §2034; i Wharton's Precedents of In- dictments, 435, 436; Com. V. Rees, 2 Brewster, 564. 4 Wharton's Criminal Law, § 2038. FORCIBLE ENTRY AND DETAINER. 143 The words "with strong hand" mean something more than a common trespass, viz. : the degree of violence amounting to a breach of the peace. A mere entry by an open door or window, or with a key, however procured, or by trick and contrivance will not suffice, nor an entry to which the posses- sor is induced by threats of destroying his cattle or goods.* Forcible Detainer. 233- The same circumstances of violence or terror which make any entry forcible will make a detainer forcible also. It was held in England that the offense may be committed by a lessee who forcibly maintains possession when his term has expired.® Prosecutors obtained a lease, and upon attempting to take possession were opposed by defendants, who closed and fast- ened the gate, and kept them out by main force. It was held that as the prosecutors, although the;y never had possession, had the right of possession, the defendants were liable for a forcible detainer.'' It has been held that a person rightfully entitled to posses- sion of a stall could lawfully require the lessor's agent in possession to leave the stall, and if he should refuse he could use such reasonabe force as would compel him to withdraw from it; that it did not appear that any breach of the peace was committed beyond the defendant's putting his hand to the collar of the agent's coat and walking him away from the stall; that this was done after the agent was required to leave.* Tenant Holder-Over not Liable for forcible Detainer. 334. A lessee, permitted to hold over after the expiration of his term, is in no sense a trespasser while he continues in 5 I Wharton's Precedents, 437. 6 Taylor's Landlord and Tenant. 584. 7 Com. V. Wisner, 8 Phila. 612. 8 Com. V. M'Neile, 8 Phila. 438. 144 LANDLORD AND TENANT. possession, but, on the contrary, he has a clear right to re- main upon the demised premises until he is notified to quit.* To Constitute Forcible Xlntry or Detainer there Must be Violence. 335. One who has leased premises to another is not guilty of the crime of forcible detainer if he refuse to admit the tenant to the premises. A prior possession of the prem- ises by the prosecutor and an unlawful detention of them by the landlord are necessary to sustain a conviction. The in- dictment must follow the words of the statute "and with strong hand." The words vi et armis are not a sufficient sub- stitute. The same description and degree of force is neces- sary to constitute a forcible entry as forcible detainer. A prosecution for forcible detainer is not an appropriate remedy for the breach of an agreement to give possession of lands and tenements.*" 9 Com. V. Knarr, 135 Pa. 35. 10 Com. V. Brown, 28 W. N. C. 149. CHAPTER XVIII. PROCEEDINGS TO RECOVER POSSESSION OF DEMISED PREM- ISES AT THE END OF THE TERM UNDER THE ACT OF MARCH 21, 1772. SECTION 336. Words of the act. 3Z7- Who are entitled to the bene- fit of the act. 338. Rent must be certain. 339. Notice to quit. 340. Service of notice to quit. 341. Complaint. 342. Venire to the sheriflf. 343. Service of summons. 344. Proceedings before the jury. 345. Proceedings when the title is disputed. 346. Finding of the jury, judg- ment and writ for posses- sion. 347. Proper form for the record. 348. Removal by certiorari. 349. What can be shown at hear- ing upon certiorari. 350. Appeal to the Supreme Court. 33!. Tenant may traverse the in- quisition in an action of ejectment. Words of the Act. 336. "Where any person or persons in this province, having leased or demised any lands or tenements to any person or persons, for a term of one or more years, or at will, paying certain rents, and he or they, or his or their heirs, or assigns, shall be desirous upon the determination of the lease, to have again and repossess his or their estate so de- mised, and for that purpose shall demand and require his or their lessee or tenant to remove from and leave the same, if the lessee or tenant shall refuse to comply therewith in three months after such request to him made, it shall and may be lawful to and for such lessor or lessors, his or their heirs and assigns to complain thereof to any two justices of the city, town or county, where the demised premises are situate, and 10 145 146 LANDLORD AND TENANT. upon due proof made before the said justices, that the said lessor or lessors had been quietly and peaceably possessed of the lands or tenements so demanded to be delivered up, that he or they demised the same under certain rents to the then tenant in possession, or some person or persons under whom such tenant claims or came into possession, and that the term for which the same was demised is fully ended, that then and in such case it shall and may be lawful for the said two justices to whom complaint shall be made as aforesaid, and they are hereby enjoined and required forthwith to issue their war- rant, in nature of a summons, directed to the sheriff of the county, thereby commanding the sheriff to summon twelve substantial freeholders to appear before the said justices within four days next after issuing the said summons, and also to summon the lessee or tenant, or other person claiming or coming into possession under the said lessee or tenant, at the same time to appear before them, the said justices and freeholders, to show cause, if any he has, why restitution of the possession of the demised premises should not be forth- with made to such lessor or lessors, his or their heirs or as- signs ; and if upon hearing the parties, or in case of the ten- ant's or other persons claiming or coming into possession under the said lessee or tenant, neglect to appear after be- ing summoned as aforesaid, it shall appear to the said jus- tices and freeholders, that the lessor or lessors had been pos- sessed of the lands or tenements in question, that he or they had demised the same for a term of years, or at will to the per- son in possession, or some other under whom he or she claims or came into possession at a certain yearly or other rent, and that the term is fully ended, that demand had been made of the lessee or other person in possession as aforesaid, to leave the premises three months before such application to the said justices, that then and in every such case it shall and may be lawful for the said two justices to make a record of such finding by them, the said justices and freeholders, and the said freeholders shall assess such damages as they TO RECOVEK POSSESSION OP DEMISED PREMISES. 147 think right against the tenant or other person in possession as aforesaid, for the unjust detention of the demised prem- ises, for which damages and reasonable cost shall be entered by the said justices, which judgment shall be final and con- clusive to the parties; and upon which the said justices shall, and they are hereby enjoined and required to issue their war- rant under their hands and seals directed to the sheriff of the county, commanding him forthwith to deliver to the lessor or lessors, his or their heirs or assigns, full possession of the de- mised premises aforesaid, and to levy the costs taxed by the justices, and damages so by the freeholders aforesaid assessed, of the goods and chattels of the lessee or tenant, or other person in possession as aforesaid, any law, custom or usage to the contrary notwithstanding." Who are Entitled to the Benefit of the Act. ;^3y. Lessors who have leased for one or more years or at will to tenants paying certain rents, or their heirs or assigns. Where there is a lease for less than a year the lessor may pro- ceed.^ An owner of premises leased them and gave notice to the tenant to quit, he afterwards conveyed the premises and his grantee afterwards conveyed them ; the last grantees are assignees within the meaning of the act and could recover possession under the act.^ The Supreme Court defined the word "lessor" in the act of 1863 to include whoever may succeed to the lessor's title.® Devisees under wills are not named, but it seems that they are assignees within the meaning of the law. A devise in this state is a kind of conveyance or declaration of uses in the life- time of the testator. On this ground, before the act of as- sembly to remedy this defect, a will did not pass after acquired property. Premises were leased, the landlord gave the tenant notice to quit and afterwards conveyed part of the premises; the 1 Shaffer v. Sutton, S Binn. 228; HoIIis v. Burns, 100 Pa. 206. 2 Duff V. Fitzwater, 54 Pa. 224. 3 Glenn v. Thompson, 75 Pa. 389. 148 LANDLORD AND TJENANT. grantee at the end of the term proceeded under the act of March 21, 1772, to recover possession of the part, the lessor not joining nor taking any steps to recover possession of the remainder. Held, that the case was within the act. The court remarked, however, that a landlord cannot proceed for part and hold the tenant for the residue.* Kent Hust be Certain. 338. By the terms of the act this is so. The rent of "tak- ing care of the grain of the landlord on the place, and keeping out the cattle" is not certain.^ A demise at will in considera- tion of services to be rendered annually to a religious society, as for singer and organist, was held not to be for a certain rent.^ The act does not apply where there is a lease at will without a reservation of rent.'' The words certain rent mean what is ordinarily understood by the expression, and the act applies only to leases in which a certain rent is clearly and dis- tinctly reserved, and not to cases where the rent reserved is so uncertain as to require the intervention of a jury to render it certain.* Notice to Quit. 339. A notice to quit "at the end of the term" is sufficient ; the tenant is bound to take notice of its expiration. It is sufficient to describe the property as in the lease, as the ten- ant will know what property has been rented.^ The notice must be positive, not in the alternative or conditional. The notice must be given by the person interested in the premises or his agent properly appointed. It should be signed by the landlord himself or by some person in his name who has been authorized by him, and directed to the tenant. As the tenant is to act upon the notice at the time it is given to 4 De Coursey v. Trust Co., 81 Pa. 217. 5 Scott V. Fuller, 3 P. & W, 55. 6 Hohly V. Society, 2 Pa. 293. 7 Graver v. Fehr. 89 Pa. 460. 8 Davis V. Davis, 115 Pa. 261. 9 Duff v. Fitzwater, 54 Pa. 224. TO KECOVEE POSSESSION OF DEMISED PREMISES. 149 him it should be binding on all parties concerned. The notice to quit may be waived, but such waiver should be stated in all the proceedings. Where the lease is for a fixed definite period a notice be- fore the expiration of the term is unnecessary; if the tenant do not remove, the landlord may, after the expiration, give notice and proceed under the act.^* In case the lease is for a fixed certain term the landlord does not have to wait until the end of the term before serving the notice to quit, he can give notice for possession at the end of term if he has time to give three months' notice before them, but if he has not time he can give notice to quit after the term and upon the expiration of the three months' notice. When the lease is from year to year the notice must be given three months be- fore the expiration of the current year.^^ Service of Notice to Quit. 340. The notice had better be served on the tenant person- ally on the demised premises if possible so as to avoid all questions. Care should be exercised in obtaining and pre- serving a proof of service of notice. Complaint. 341. If the tenant should refuse to comply with the notice, the landlord must make a written complaint, with an affi- davit before two justices of the peace of the county where the demised premises are, and state : That he was quietly and peaceably possessed of the demised premises (the premises should be described, located and identified, so that the officer executing the writ of possession will know what property he is to take possession of). That he demised the same on certain rents to the tenant in possession or to some person under whom he claims or came 10 Logan z'. Herron, 8 S. & R. 459. 11 Boggs z'. Black, i Binn. 332; Fahnestock v. Faustenauer, S S. & R. 174. . . . , . 150 LANDLORD AND TENANT. into possession. [The remarks concerning the complaint under the act of 1863, are referred to.] That the term for which the same were demised is fully ended. That notice to quit had been given three months before the end of a current year, in case of a tenancy from year to year; or three months before making the complaint, in case of a lease for a fixed period. That the tenant has neglected or refused to comply with the notice. Venire to the Sheriff. 342. Upon the proof being made, the justices prepare the summons, directed to the sherifif of the county, and thereby command him to summon twelve substantial freeholders to appear before them within four days after issuing the sum- mons, and also to summon the lessee or tenant, or other per- son claiming or coming into possession under the tenant, to appear before them, to show cause, if any they have, why restitution of the possession of the demised premises should not be forthwith made to the lessee or his heirs or assigns. The summons should particularly recite the complaint. Service of Summons. 343. The act does not state how the summons is to be served on the defendants. Leased premises were a theatre, and not a dwelling-house, nor did the defendant live in it, but it was occupied by his agent ; and the return of the sherifif showed that he sum- moned the defendant to appear by leaving a true and attested copy of the writ on the premises with the agent, and making known to him the contents thereof. The court held that the object of the law was, that the service should be made in such manner that the person in actual possession should have no- tice of the summons. The court called attention to the fact that, at the time of the passage of the act, personal service of TO RKCOVER POSSESSION OF DEMISED PREMISES. 151 the ordinary summons was not necessary, and that the sheriff might leave "notice in writing of such summons at the house of the defendant, in the presence of one or more of his family or neighbors, signifying that the defendant should be and ap- pear according to the contents of such summons." The court said : From the language of the act, service on the demised premises upon the person in possession seems to be contemplated ; that service on an agent in possession is suffi- cient.^^ Personal service on the tenant on the premises or else- where will probably be good as a notice to quit for non-pay- ment of rent, under the act of 1830, will be good served on the defendant off the demised premises.-'^ Under the act of 1863, the summons must be served upon the defendant personally or at his dwelling-house. If it can- not be served personally, and the defendant has no residence in the county, it may be necessary to proceed under the act of 1772, by serving a person in possession of the demised premises who holds possession under or by the authority of the tenant. Proceedings Before the Jury. 344. Sickness of counsel is a ground for continuance.^* When justices of the peace do not allow a reasonable time to the tenant to procure his testimony, the court will set aside the proceedings.^''' Upon certiorari, ground being laid by affidavit, the court will go into proof of partiality, corruption or extortion. ^^ A description of premises in an inquisition under the act is sufificient, if it is the same as in the lease. If the tenants knew what to take and enjoy by the description in the lease, they knew what to surrender, and if the sheriff has to be called in, he, will deliver only the premises which the tenants obtained 12 Watts V. Fox, 64 Pa. 336. 13 Reid v. Christy, 2 Phila. 144. 14 McMuIlin V. Orr, 8 Phila. 342. 15 Stewart v. Martin, 1 Yeates, 49. 16 McMullin V. Orr, 8 Phila. 342. 152 LANDLORD AND TENANT. under the lease. The description in this case held to be sufficient was, "Certain premises, stables, etc., with the ap- purtenances, situate on the north side of Filbert street above Eighth, in the city of Philadelphia." " Where the jurors cannot agree the justices may discharge them, and issue a new precept to the sheriff directing him to summon a new jury.^* Proceedings when tlie Title is Disputed. 345. "If the tenant shall allege that the title to the premises is disputed and claimed by some other person whom he shall name, in virtue of a right or title accrued or happening since the commencement of the lease by descent, deed or will of the lessor, and if the claimant shall forthwith, or upon a sum- mons immediately to be issued by the justices, returnable in six days next following, before them to appear, and if the claimant on oath or affirmation to be administered by the justices, shall declare that he verily believes that he is en- titled to the premises in dispute and shall, with one or more sufficient sureties, become bound by recognizance in the sum of one hundred pounds to the lessor, his heirs and assigns, to prosecute his claim at the next court of common pleas, then the justices shall forbear to give judgment. It being pro- vided, that if the claim shall not be prosecuted, the recog- nizance shall be forfeited to the use of the lessor, and the justices shall proceed to give judgment and possession to be given under the act of 1772." ^® Finding of the Jury, Judgment and Writ for Possession. 346. If the jury shall find the complaint to have been well founded, the record of their finding of these facts is made by the two justices. In that inquisition all the facts should be specifically found and stated, and the jury should assess damages for the unjust detention of the property, for which 17 Duff V. Fitzwater, 54 Pa. 224. 18 White z\ Arthur, 24 Pa. 96. 19 Act March 21, 1772. TO RECOVER POSSESSION OF DEMISED PREMISES. 153 damages and reasonable costs judgment shall be entered by the magistrates. Upon the finding of the jury being entered of record by the magistrates, it is final and conclusive, and the magistrates issue a writ of possession, under their hands and seals, di- rected to the sheriff, commanding him forthwith to deliver to the lessor full possession and to levy the costs taxed and the damages. Proper Form for the Becord. 347. The Supreme Court, in sustaining a record by Thompson, C. J., said : "The record here follows with the utmost strictness the form given in Binn's Justice in such cases, edition of 1870, by Brightly, p. 535. That form has been in use for more than a third of a century, and is copied from Graydon, which is much older. Hundreds of records have been made in accordance therewith, and, so far as I know, it has never been condemned by any court." ^^ Bemoval by Certiorari. 348. Proceedings may be removed by certiorari to the court of common pleas, but the certiorari will not be a super- sedeas to the execution. Not even in the city of Philadelphia, under the act of March 24, 1865.21 Neither an affidavit nor a bond is required to support a certiorari to the magistrate under the act of March 21, 1772. It is a common-law writ.^^ What Can be Shown at Hearing upon Certiorari. 349. Upon certiorari only the regularity of the proceed- ings, as it appears by the record, can be examined. A lease showed that its termination depended upon a contingency, 20 Buchannan v. Baxter, 67 Pa. 348. 21 De Coursey v. Trust Co., 81 Pa. 217. 22 Veditz V. Levy, 17 W. N. C. 477. 154 LANDLORD AND TENANT. but the record did not show it, and the court could not con- sider the terms of the lease not part of the record, and it was held to be improper to allow depositions to be read at the hearing.^* To establish fraud or want of jurisdiction the court may hear facts by affidavit: but not to show irregularity which would contradict the record.^* Appeal to the Supreme Court. 350. The judgment of the court of common pleas in pro- ceedings by certiorari may be brought before the Supreme Court. The jury before the justices was intended to take the place of a jury in court, but with differences. In case the jury should blunder as to law or facts, or in case the justices should blunder in advising and performing their parts of the proceeding there will be no remedy in the courts, provided the forms conform to the act of assembly. The remedy for informalities is by certiorari. By such a proceeding the court of common pleas can affirm or reverse the proceedings before the justices for informalities, subject to review by the Superior Court, but as to the evidence, law and merits of the case the decision of justices and their jury will be final and conclusive. As the warrant for possession follows im- mediately after the judgment the law seems to be very favor- able to landlords.^' Tenant May Traverse the Inquisition in an Action of Ejectment. 351. An adverse finding by the jury may be traversed by the tenant in an action of ejectment to try the title.^^ 23 Steamboat Co. v. Hass, 151 Pa. 113. 24 Wistar v. Ollis, yy Pa. 291. 25 Clark V. Yeat, 4 Binn. 184; Clark v. Patterson, 6 Binn. 128. 26 Galbraith v. Black, 4 S. & R. 206. CHAPTER XIX. PROCEEDINGS TO RECOVER POSSESSION AT THE END OF THE LEASE UNDER THE ACT OF DECEMBER I4, 1863. SECTION 352. Words of the act. 353. Power of justice of the peace extended to aldermen. 354. Act extended to assignees. 355. Appeal will be a stipersedcas in Philadelphia. 356. Tenancy to be established by parol or written agreement. 357. Notice to quit. 358. Tenant not bound to give notice to quit. 359. Notice given by assignee of lease. 360. Verbal notice. 361. Time of giving notice. Words of the Act. SECTION 362. No limitation for landlord to proceed on notice. 363. Notice to quit may be waived. 364. Service of notice for posses- sion. 365. Complaint. 366. Summons. 367. Service of summons. 368. Hearing. 369. Warrant for possession. 370. Appeal. 371. Judgment. 372. Record. 373. Certiorari. 374. Appeal to Superior Court. 352. "Sec. I. — That when any person, or persons, in this state, having leased or demised any lands, or tenements, to any person, or persons, for a term of one or more years, or at will, shall be desirous, upon the determination of said lease, to have again and repossess such demised premises, having given three months' notice of such intention to his lessee, or tenant, and said lessee or tenant, shall refuse to leave and surrender up .said premises, at the expiration of said term, in compliance with the terms of said notice, it shall be lawful for such lessor, his agent, or attorney, to complain thereof, to any justice of the peace, in the city, borough, or county, wherein the demised premises lie, whose duty it shall 155 156 LANDLORD AND TENANT. be to summons the defendant to appear at a day fixed, as in other civil actions, and upon due proof being made, the tenant, having notice of the time and place of hearing, that the said lessor was quietly and peaceably possessed of the lands, or tenements, so required to be surrendered up, and that he demised the same to the tenant in possession, or to some other person, under whom such tenant claims, and that the term for which the same were demised, is fully ended and that three months' previous notice had been given of his desire to repossess the same, then, and in that case, if it shall appear right and proper to the said justice, he shall enter judgment against the said tenant, that he forthwith give up the possession of the said premises to the said lessor ; and that said justice shall also give judgment in favor of the lessor, and against the lessee or tenant, for such damages as, in his opinion, the said lessor may have sustained, and for all the costs of the proceedings; and he shall forthwith issue his warrant, to any constable in the county, commanding him, immediately, to deliver to the lessor, his agent, or attorney, full possession of the said demised premises, and to levy the damages and costs, awarded and taxed by the said justice, of the goods and chattels of the lessee, or tenant, or other person in possession; any law, custom, or usage to the contrary not- withstanding : Provided, That the defendant may at any time within ten days after the rendition of judgment, appeal to the court of common pleas, in the manner provided in the first section of an act relative to landlords and tenants, approved April 3, 1830: And provided further, That such appeal shall not be a supersedeas to the warrant of possession aforesaid, but shall be tried in the same manner as actions of ejectment, and if the jury shall find in favor of the tenant, they shall also assess the damages which he shall have sustained by reason of his removal from the premises; and for the amount found by the jury, judgment shall be rendered in his favor, with costs of suit, and that he recover possession of the premises, and he shall have the necessary writ or writs, of execution to PROCEEDINGS TO RECOVER POSSESSION. 157 enforce said judgment: And provided further, That the ten- ant may have a writ of certiorari to remove the proceedings of the justice, as in other cases." ' Power of Justice of the Peace Extended to Aldermen. 353. The powers and jurisdiction conferred upon justices of the peace are conferred upon aldermen, and any one may act with Hke effect, as may be done by any justice of the peace.^ * Act Extended to Assignees. 354. Act applies to cases in which the owner or owners have acquired title by descent or purchase from the original lessor or lessors.^ Appeal will be a Supersedeas in Philadelphia. 355. That part of the act which provides that an appeal shall not be a supersedeas as to a warrant for possession was repealed as to the county of Philadelphia.* Tenancy to be Established by Parol or Written Agreement. 356. The proceedings shall be founded upon a written lease or contract in writing, or on a parol agreement, in and by which the relation of landlord and tenant is established between the parties, and a certain rent is therein reserved.* Notice to Quit. 357. It must be given three months before the end of the term, and must be to quit at the termination of the lease, not some other date. If a tenant is bound to give possession at a fixed period, the landlord may, without notice to him, set him out of pos- session, if it can be done without breach of the peace, or he may bring ejectment if the tenant will not go out, and he I I P. & L. Dig. 2650, §28: 1863, P. L. (1864) 1125. I* Act of April II, 1866, 2 Act of February 20, 1867. 3 Act of June 25, 1869. 4 Act of March 6, 1872. 158 LANDLORD AND TENANT. may sue him upon his covenant for damages. Tliese were the common-law remedies of the landlord. As an additional remedy the act of 1772 was passed, requiring three months' notice for possession "before the application to the justices." The act of 1863 was an additional remedy, not repealing the act of 1772. The act of 1863 requires the notice to be given "three months before the expiration of the term." Where the lease is from year to year or for any indefinite period, notice is necessary to terminate the demise. ° Where the lease is from year to year, or for any indefinite period, notice is necessary to terminate the demise and this, under the act of 1863, must be given three months before the expiration of the term.'^ The notice must be to quit upon the determination of the lease, and not upon some other date.'' In giving notice to quit on a certain date it will be well to require possession at the expiration of the lease, to wit, on a certain date. Notice to give possession "at the end of the said term of one year" is sufficient.* A landlord cannot without having given three months" notice, proceed under the act to dispossess a tenant holding from month to month, although the lease contains the ten- ant's agreement to surrender possession on receiving thirty days' notice.® Tenant Not Bound to Give Notice to Quit. 358. A tenant is not bound to give his landlord any notice that he intends to remove, unless the lease requires it.*° Notice Given by Assignee of Lessor. 359. When the assignee of a lessor gives notice to quit, or a note requiring the date of the commencement of a tenancv, 5 Rich V. Keyser, 54 Pa. 86. 6 Dumn v. Rothermel, 112 Pa. 272. 7 Borough V. Walters, 29 W. N. C. 483. 8 Snyder v. Carfrey, 54 Pa. 90. 9 Gault v. Neal, 6 Phila. 61. 10 Cook V. Neilson, 10 Barr, 41; Brown v. Brightly, 14 W. N. C. 497. PROCEEDINGS TO RECOVER POSSESSION. 159 he must show on the face of the paper his authority for giving the notice. He must sign as assignee of the lessor or recite the assign- ment in the notice. If, however, the tenant knew or was told of the assignment at the time of the notice, it would be good.^^ Verbal Notice. 360. A verbal notice to quit is sufficient; and if it be writ- ten, a mistake may be corrected at the time of service.^^ Time of Giving Notice. 361. Property was leased for one year from March 25, 1868. On December 25, 1868, notice was given, under the act of 1863, to quit at the end of the term. The lease com- menced on March 25, and the last day of the lease was March 24, 1869. March 24 counted a whole day when its last moment had arrived. Counting December 25, on which the notice was given, and March 24, when the lease expired, there was three months' notice before the end of the term. De- cember 25 is to be counted, for the law takes no notice of the fraction of a day in the computation of time. Service on that day was one day's notice. It was held that the notice was measured by the terms of the act itself.^^ No Iiimitation for Xandlord to Proceed on Notice. 362. After a notice to quit is given, there is no limitation as to the time when the landlord may commence proceedings for possession. The right runs on, unless it is waived.^* Notice to Quit may be Waived. 363. A three months' notice to quit under the act of 1772 11 Donaldson v. Likens, 2 Brewster, 486. 12 Tham v. Hamberg, 2 Brewster, 528; Koenig v. Bauer, i Brewster, 304- 13 Duffy V. Ogden, 64 Pa. 240. 14 Boggs V. Black, i Binney, 332. 160 LANDLORD AND TENANT. may be waived in the lease, as when the tenant agrees to quit "without further notice." ^^ A lease was made to James Glenn and Charles A. Glenn, but a notice to quit was directed to James Glenn & Son, and was only served on James Glenn; and it was held that a notice to one of two joint lessees is good, and that the verbal mis- take in the recital of the names is immaterial.^* Service of Notice for Possession. 364. The acts of March 21, 1772, December 14, 1863, April 3, 1830, February 28, 1865, and March 26, 1825, to enable tenants to obtain possession of demised premises, require notices for possession to be given by landlords. These acts do not state how such notices are to be given. It is remark- able that there are but few decisions as to the manner of service. According to the common law of England it was necessary to give notice to terminate leases of uncertain duration, and by the drift of our decisions it seems that the notices under our acts can be given in the same way as at ■common law. Under the act of 1772 it has been the practice to leave the notice at the dwelling-house of the tenant.'" In a case under the act of 1863, there was evidence to show that a written notice to quit was pushed under the defendant's door when absent to evade the service; that on his return he entered by the same door; and that the next day the plaintiflf told him of the written notice, and the Supreme Court held that such service was sufRcient.^* Under the act of 1830, it was decided by the court below that the notice must be served on the party in actual possession at the time, in order to deprive him of his estate. That a sub-lessee cannot be turned out of his possession under the act of 1830 without notice, for he may be willing to pay the rent; but the Su- preme Court did not consider the questions. 15 Hutchinson v. Potter, 11 Pa. 472. 16 Glenn v. Thompson, 75 Pa. 389. 17 Griffiths V. Marsh, 4 T. R. 465. 18 Currier v. Grebe, 142 Pa. 48. PROCEEDINGS TO RECOVER POSSESSION. 161 In a court of common pleas it was objected that a notice imder the act of 1830 did not appear to have been served upon the premises, but the objection v^ras not sustained.^^ In the case of the lease of a theatre, it was held that leaving a notice with the lessee's agent at the theatre was sufficient. These few authorities appear to be about all the hght we can get from the Pennsylvania authorities. It seems that resort may be had to the English authorities as to service of notices to quit for possession. According to the English practice, service of notice upon the tenant will be good, if given personally, if served upon the actual occu- piers, if given to the assignee of the lessee, if delivered to the wife or a servant of the lessee at his dwelling-house (when delivered to a servant or agent it should be expressly said that the notice is to the lessee to quit), if the notice is sent by mail, addressed to the landlord or his authorized agent.^" The best course would seem to be to serve the lessee per- sonally on the demised premises. If this cannot be done, then serve a notice at the demised premises on the lessee's wife or servant, if a dwelling-house, but if a place of business then on the principal person having charge thereof, and for an extra precaution serve a notice also on the lessee or his assignee, if recognized, personally. If the lessee or the as- signee is away from the city or place in which the demised premises are located, as an extra precaution send him a notice by registered letter and preserve the proof of mailing. In case a notice to quit is given under the act of 1830 for non- payment of rent, notice had better be given also to all the under-tenants, so that they will have an opportunity to pay tlie rent in arrear. Depositing a letter, properly addressed, with the postage prepaid is prima facie evidence that the person to whom it is addressed received it. Evidence that a letter was so sent, 19 Reid V. Christy, 2 Phila. 144. 20 I Addison on Contracts (8th ed.), *' 275. 11 162 LANDLORD AND TENANT. demanding payment of rent, is competent to rebut the allega- tion that no demand had been made;^^ and it seems that this authority will apply to all notices given by landlords to ten- ants. As the presumption, however, may possibly be over- come by the tenant testifying that he did not receive the letter, it will be best to use also other methods of service. A registered letter, however, had better be sent. Complaint. 365. In case the tenant shall refuse to comply with such notice, the persons entitled to the benefit of the act, or their agent or attorney, may complain thereof to any justice of the peace in the county where the demised premises lie. In Philadelphia county the complaint can be made to one of the magistrates. The complaint should show: first, that the lessor was quietly and peaceably possessed of the demised premises; second, that he demised the same to the tenant in possession for a certain term and rent therein stated, by a written lease or on parol agreement, in and by which the relation of land- lord and tenant is established between the parties and by which said rent is reserved ; that the term for which the prem- ises are demised is fully ended; that three months' notice of the owner's desire to repossess the premises has been given by him, previous to the end of the term or current year, and that the tenant in possession has neglected or refused to com- ply with the notice to quit the premises. In case the pres- ent owner claims by deed from the original landlord, the com- plaint should show that on a certain date, by a deed of con- veyance, duly made and executed, bearing date the same day and year, for the consideration therein mentioned, the original lessor did grant and convey the demised premises unto the present owner (and his heirs), who declares that he makes the complaint as such grantee. 21 Folsom V. Cook, 19 W. N. C. 544. PROCEEDINGS TO RECOVER POSSESSION. 163 In case the landlord has died intestate, it will be well to state that he died on a certain date, intestate, seized in fee of the demised premises, and that the complainant is solely en- titled to the same under the intestate law of the state of Penn- sylvania. In case of a devise by will or obtaining title other- wise, there should be statements in the papers accordingly. Summons. 366. Upon the complaint being made, the magistrate pre- pares the summons. This summons should contain a re- cital of all the statements of the complaint. Service of Summons. 367. It must be served as in a personal action, on the tenant personally or by leaving a copy thereof at his dwelling- house, and making known to an adult member of the family the contents thereof. A service of summons personally on defendant at his dwelling-house by leaving a copy of the original summons and making known the contents is a suffi- cient service. ^^ Hearing. 368. If it shall appear right and proper to the justice, he en- ters judgment against the tenant, that he forthwith give up the possession of the premises to the lessor or present owner; and he shall also give judgment in favor of the lessor or present owner and against the lessee or tenant for such damages as, in his opinion, the lessor may have sustained, and for all the costs of the proceedings. The act of Dec. 14, 1863, gives to a single justice the juris- diction exercised by two justices and twelve freeholders under the act of March 21, 1772. Under the act of 1863, the justice must hear any defence the tenant may ofifer. The appeal under the act of 1863 is in 22 Snyder v. Carfrey, 54 Pa. go. 164 LANDLORD AND TENAXT. ' place of the provisions of § 13 of the act of 1772, for with- drawing the proceedings from the justices and freeholders upon the assertion by a third party of a title adverse to the lessee's ; and of the act of March 20, 1810, excluding a jus- tice's jurisdiction when the title to land may come in ques- tion. A tenant before a justice or in court on appeal, may set up any defence of which he could avail himself in ejectment by his lessor. The scope of an inquiry into the rights of land- lords is no narrower than that into the rights of tenants.-" Warrant for Possession. 369. Upon judgment being entered, a warrant can be is- sued to any constable in the county for obtaining possession of the premises and to levy the damages and costs of the goods and chattels of the lessee or tenant or other per- son in possession. Appeal. 370. The defendant may, at any time within ten days after the rendition of the judgment, appeal to the court of common pleas in the manner provided in the first section of the act relative to landlords and tenants, approved April 3, 1830; but such appeal shall not be a supersedeas to the warrant of pos- session, and the appeal shall be tried in the same manner as are tried actions of ejectment; and if the jury shall find in favor of the tenant, they shall also assess the damages which he shall have sustained by reason of his removal from the premises and for the amount found by the jury, judgment shall be rendered in his favor, with costs of suit, that he re- cover possession of the premises; and he shall have the neces- sary writ or writs of execution to enforce the judgment. The tenant may have a writ of certiorari to remove the proceedings of the justice as in other cases. 23 Quinn v. McCarty, 8i Pa. 475; Heritage v. Wilfong, 58 Pa. 137; Mohan V. Butler, 112 Pa. 590. PROCEEDINGS TO RECOVER POSSESSION. 165 The act of June 25, 1869, provides that the appeal shall be a supersedeas of the warrant of possession in the city of Philadelphia, notwithstanding the terms of the act of 1863. Judgment. 371. The judgment should include all rent that has ac- crued up to the time of the rendition of the judgment.** The facts found by the justice must appear in the record of the ' judgment or by reference to the complaint, if fully set forth therein. The record must contain every essential to support his judgment. Nothing which ought to appear can be taken by intendment.*' Premises were not sufificiently described. There were boundaries given of the land, but the acres were in blank, with the addition of the words, "more or less." In this case the lease was said to be for a year or at will. One or other should have been stated.** Becord. 372. The record of the justice or magistrate should record the proceedings and should particularly find the facts stated in the complaint, using, as far as possible, the words of the act of assembly and its amendments. Certiorari. 373. The tenant may have a writ of certiorari. Upon a certiorari the evidence is not brought up. The regularity of the proceedings only is examined. It does not supersede or stay the proceedings except in the city of Philadelphia, as aforesaid. The writ of certiorari must be issued within twenty days, or in Philadelphia, under the act of 1865, within ten days after the judgment is entered. 24 Dunmire v. Price, 12 W. N. C. 179. 25 Givens v. Miller, 62 Pa. 133; Davis v. Davis, 115 Pa. 261. 26 Givens v. Miller, 62 Pa. 133. 166 LANDLORD AND TENANT. Appeal to Superior Court. 374. An appeal to the Superior Court from the judgment of the court of common pleas can be taken ; but such appeal to the Superior Court will not be a supersedeas to the writ of possession when the judgment shall be against the party at whose instance the writ of certiorari was issued. CHAPTER XX. PROCEEDINGS TO RECOVER POSSESSION IN PHILADELPHIA ON A LOST LEASE. SECTION 375. Act of February 28, 1865. Act of February 28, 1865. 375. "In all cases, in the city of Philadelphia, where there is a lease or verbal letting of property for a term of years or from year to year, and the landlord, whether the owner at the time of such lease or letting or by purchase subsequent thereto, has lost the lease or evidence of the beginning and conclusion of the term or cannot produce proof of the same, it shall be lawful at any time after the first year or after the term of years, as the case may be, for the landlord desiring to recover possession of the demised property, to give notice in writing to the tenant that he has lost such lease or is un- able to make such proof, and requiring the tenant, within thirty days from the time of service of such notice, to furnish him, in writing, with the date at which his term of tenancy commenced, and such notice, if supported by afifidavit, shall be evidence of what it sets forth. If the tenant shall furnish, in writing, the date as required, such writing shall be evi- dence of the facts contained in it ; but if the tenant shall fail or refuse, within thirty days, to comply with the said re- quirement, the landlord may, at the expiration of that period, give to the tenant three months' notice to quit the premises occupied by him, and so shall proceed thereafter in the same manner as is now provided in case of the usual notice to quit at the end of the term. Providing, That if the tenant shall 167 168 LANDLORD AND TENANT. make affidavit within the thirty days aforesaid, that he is un- able to comply with the requirement of the landlord, stat- ing the causes of such inability, the landlord shall give six months' notice to the tenant to remove from the demised premises upon which he shall proceed as provided in cases of the three months' notice as aforesaid." ^ I I P. & L. Dig. 2654; i86s, P. L. 253, § I. CHAPTER XXI. NEGLIGENCE AS TO RENTED PROPERTY. SECTION 376. Defects before renting. 377. Where property rented is un- fit for use. 378. Landlord employing plumber. 379. Liability of owners. 380. Landlord and tenant may both be liable. 381. Liability in case of an open grate. 382. Landlord and tenant may sue at same time. 383. Where landlord interferes with tenant. 384. Where tenant injures prop- erty. 385. Liability between tenants. SECTION 386. Liability depending upon ob- ligation to repair. 387. Remedy in case tenant com- mits waste. 388. Act of 1822 as a remedy for waste. 389. Order to permit inspection of waste. 390. Writ of eslrepement. 391. Remedy by suit for waste. 392. Remedy by an injunction for waste. 393. Liability of contractor for in- jury. 394. Liability for leakage from a cess-pool. 395. Liability for not repairing sidewalk. Defects Before Renting. 376. When a person rents a property to another, he is li- able for defects thereof; he is liable for defects which exist when he parts with its control.^ Where Property Bented is Unfit for Use. 377. One who erects a building for rent is bound to use reasonable skill and diligence in its erection, regard being had to the uses and purposes for which it is designed. If a landlord rents a house unfitted for the purpose of the tenant, as for heavy storage, he must forbid such use in the lease, or I Redfield on Negligence, § 502. 169 170 LANDLORD AND TENANT. he will be liable to a stranger for damages.^ In Curtin v. Somerset, 140 Pa. 70, the Supreme Court remarked that in Godley v. Hagerty, the builder was the owner and that in Car- son V. Godley, the warehouse was erected under the personal superintendence of the owner.* Landlord Employing Plumber. 378. It has been held that a landlord who employs a plumber to construct a water-closet in the upper story of a house, is not responsible for damages resulting from the im- proper construction of the water-tank to the tenant of the premises, it not being shown that the plumber selected was not a competent workman. That as the injury arose not from the water-closet, which was a lawful and useful construction in itself, but from want of skill in the construction of it, the landlord was not liable.* Plumbing work is a part of the real estate and for defects thereof the owner of the house is presumptively responsible. If the landlord provides pipes and other plumbing work of good quality, the tenant only is responsible for the mode in which these accommodations are used, and for any overflow caused either by neglect to turn off the water, or by such misuse of the works as deprives them of power to stop the flow of water.® Liability of Owners. 379. When an owner has done all in his power to erect a safe structure, he is not liable to others for its occult defects, if he had not knowledge of them nor reason to believe their existence. A warehouse fell and destroyed barrels of whisky and the plaintiff claimed that the house had been negligently built by defendants and there was a verdict for the defend- ants.® 2 Godley v. Hagerty, 20 Pa. 387; Carson v. Godley, 26 Pa. iii. 3 Curtin v. Somerset, 140 Pa. 70. 4 Meany v. Abbott, 6 Pliila. 256. 5 Redfield on Negligence, § 513. 6 Walden v. Finch. 70 Pa. 460. NEGLIGENCE AS TO RENTED PKOPERTY. 171 Xandlord and Tenant may both be Liable. 380. The landlord and tenant may be liable for the same injury — the former for negligent construction, and the latter for negligent use of the premises. A landlord is not liable for a nuisance erected by his tenant after the renting, nor in the absence of a covenant in the lease for the consequences of the natural decay of the premises, as where fences are suf- fered by the tenant to fall into decay, whereby a stranger's cattle stray and are injured.'^ Liability in Case of an Open Grate. 381. There was a vault under the sidewalk on the public street in front of the premises, into which there was an open- ing, covered by a grate. One of the bars of the grate was broken during the term, and by reason thereof a person was injured and it was held that the tenant was liable, but not the landlord; for it was shown that the premises were in good repair when demised, and it did not appear that the landlord was bound to repair.* Landlord and Tenant may Sue at Same Time. 382. A tenant and landlord may both maintain actions at the same time for injury done to the estate; the former for the interruption of his possession and diminution of his profits, the latter for the permanent injury to his property.* "Where Landlord Interferes with Tenant. 383. A tenant may sue the landlord for any interference with the leased premises, in violation of the lease.^** Where Tenant Injures Property. 384. A landlord may sue the tenant for an injury to the demised premises.*^ 7 Redfield on Negligence. § 56. 8 Bears v. Ambler, 9 Pa. 193. 9 2 Hilliard on Torts. 584. 10 2 Hilliard on Torts, 584. Ti 2 Hilliard on Torts, 589. 172 LANDLORD AND TENANT. Liability Between Tenants. 385. As between different tenants under a common land- lord, the question of liability from the condition of the prem- ises is always one of negligence in the use of premises.-*^ Liability Depending' upon Obligation to Repair. 386. If a landlord agrees to repair, he will be liable to a third person for the want of the repairs.^* Remedy in Case Tenant Commits Waste. 387. Waste as respects tenants is the spoil or destruc- tion done or permitted to lands, houses or other corporeal hereditaments by the tenant thereof, to the prejudice of the heir or of him in reversion or remainder. Waste may be permissive or active or voluntary. If a tenant should permit buildings to go to ruin for the want of tenantable repairs, that would be permissive waste ; if he should injure buildings, that would be voluntary waste, other cases of voluntary waste would be in case a tenant should not cultivate farm land ac- cording to usual course of husbandry or when he should open and work new mines. Act of 1822 as a, Remedy for Waste. 388. It is provided that it shall and may be law- ful for any owner or owners of any lands or tene- ments, leased or let for years or at will, at any time during the continuance or after the expiration of such demise, and due notice given to the tenant or tenants to leave the same, according to the provisions of the act of as- sembly in such case made and provided, to apply to the court of common pleas of the proper county while in session, or to any judge thereof, in vacation, by petition and afifidavit made by him, her or them, or some credible person, setting forth such of the facts before mentioned as may be necessary to 12 2 Hilliard on Torts. 589. 13 2 Hilliard on Torts, 588. NKGLIGEN'CJi AS TO RENTED PROPERTY. 173 bring him, her or them within the provisions of the act and that the tenant or person in possession has committed waste to the freehold (or allow it to be done by others), or threat- ens to do the same, and that such owner or some other per- son for him or them, verily apprehends, in consequence of such threat, that such waste will be committed, unless the same be restrained by law, it shall be lawful for the court or judge to order a writ of estrepement to stay waste. A motion my be made to dissolve the writ.^* The writ cannot be issued without security being given to indemnify the respondent as in case of the issuing of preliminary injunctions.^^ Order to Permit Inspection of Waste. 389. After the issuing of a writ of estrepement the court will make an order for the inspection of the premises to ascertain whether waste has been committed since the service of the writ.^® Writ of Estrepement. 390. Valuable forms in proceedings for waste appear in Richards' Pennsylvania Form Book, under the subject, "Estrcpemcnf' (see, also, his comments). The writ contains a command to the sherifif to prohibit and restrain the defendant from committing waste and also a command to the defend- ant not to commit waste. By virtue of the writ the sherifif may resist those who commit waste or offer to do so; and he may use sufficient force for the purpose. At common law if the writ is directed and delivered to the tenant and he com- mits waste, the court could imprison for contempt.^^ K^medy by Suit for Waste. 391. If a tenant injures the landlord's house or lands the landlord can sue for damages. 14 Act March 29, 1822. 15 Act April 11, 1862, 16 Lutz V. Winkler, 4 W. N. C. 442. 17 3 Blackstone's Com. 233. 174 LANDLORD AND TENANT. Remedy by an Injunction for Waste. 392. The equity jurisdiction of courts was extended to the prevention or restraint of the commission or continuance of acts contrary to law and prejudicial to the interests of the community, or the rights of individuals, and, consequently, waste being an act contrary to law, an injunction will be granted.^^ Liability of Contractor for Injury. 393. Where a contractor for cleaning a well in an out- house removed some boards in the course of his work which were replaced on the roof without being fastened and thirteen months after the work was done and the contractor was paid by the landlord, a member of the family of the tenant of the premises was injured by one of the boards falling upon her. It was held that the contractor was not liable for such injuries. That if the contractor had failed to fully perform his contract, he would be responsible to the landlord with whom he con- tracted for any breach ; but he owed no duty to a stranger for such non-performance, much less to one who was injured more than a year after the work was done. The contractor's work having been accepted by the landlord, he owed no duty to persons who should afterwards use the well ; and the land- lord not being bound to replace the boards unless under a covenant to repair ; it was the duty of the tenant of the prem- ises to secure the boards if they were dangerous, or to see that they were made secure by the one whose duty it was to do so.'* Liability for Leakage from a. Cess-pool. 394. It was held that if a cess-pool was not improperly near a neighbor's dwelling, was properly constructed and was in good repair when the tenant took possession, the 18 Act June 16, 1836; i P. & L. Dig. 710; 1836, P. L. 784, § i3- ig Fitzmaurice i'. Fabian, 29 W. N. C. 339; Curtin v. Somerset, 140 Pa. 70. NEGLIGENCE AS TO RENTED PROPERTY. 175 landlord was not responsible for injuries to a neighbor from leakage. The tenant who used the defective cess-pool would be liable because of its use. The court did not place the liability of the tenant upon his liability to repair. It seems that if the leakage could have been stopped by an ordinary repair the. tenant would also be liable on that ground.^** Liability for Not Kepairing Sidewalk. 395. It is the duty of property owners on a street to keep in proper repair the sidewalk along their respective residences, and if they fail to do so they will be liable for any injury re- sulting therefrom. An owner of property in the actual pos- session of a tenant is liable for injuries caused by defects in the sidewalk on the public streets, along his property, even though he had no notice to repair the same. Owang to this primary liability after recovering from the municipality, the latter can recover from the property owner.^^ 20 Wander v. McLean, 134 Pa. 334. 21 Mintzer v. Hogg, 192 Pa. 137. CHAPTER XXII. RIGHTS OF LANDLORDS AND TENANTS IN CASE RENTED PROP- ERTY IS TAKEN FOR PUBLIC USE. SECTION SECTION 396. Constitutional provision. 401. Landlords and tenants may 397. Difference when state takes. unite to recover damages 398. Damages awarded to land- for taking property for lords and tenants. public use. 399. Party wall condemned and 402. Land may be cultivated until taken down by public possession taken, authority. 403. Effect of taking on liability 400. Tenant can recover damages for rent. to building erected before 404. What damages can be re- ordinance for removal. covered. Constitutional Provision. 396. The constitution of the state of Pennsylvania provides that : "Municipal and other corporations and individuals in- vested with the privilege of taking private property for pub- lic use, shall make just compensation for property taken, in- jured or destroyed by the construction or enlargement of their works, highways and improvements, which compensation shall be paid or secured before such taking, injury or de- struction. The general assembly is hereby prohibited from depriving any person of an appeal from any preliminary as- sessment of damages against any such corporation or indi- viduals, made by viewers or otherwise; and the amount of such damages, in all cases of appeal, shall, on the demand of either party, be determined by a jury, according to the course of the common law." Difference when State Takes. 397. When the commonwealth exercises the power of 176 RENTED PROPERTY TAKEN FOR PUBLIC USE. 177 eminent domain, it must provide the means of payment be- fore taking the property ; but a corporation or individual must pay or secure its price.^ Damages Awarded to Landlords and Tenants. 398. When land is appropriated by the sovereign, the land- lord is entitled only to the present value of his reversion, or the property subject to the term of the lease, and the tenant, being personally bound, is entitled to the value of his term, subject to the rent and so much besides as vi^ill indemnify him for the rent payable in the future ; but a chancellor would re- gard the damages awarded to the tenant to indemnify him against his covenant to pay rent as in equity the money of the landlord, and decree it paid to him ; a jury of view to as- sess damages ought at once to award it to him. The in- evitable consequence of such award is to release the tenant from his personal obligation. The landlord receives his full loss, the value of the rent and the reversion — what the land, subject to the term, would be worth to a purchaser of the reversion, who would, of course, be entitled to the rent as in- cident to it. The tenant receives his full loss, the value of his term, subject to the rent; what it would be worth to an assignee who would assume the payment of the rent. If the rent is the full value of the premises he has lost nothing, and is entitled to receive nothing. If he has paid a consideration for the term, and has it at a pepper-corn or nominal rent, he is entitled to recover what such a lease is worth.^ Party Wall Condemned and Taken Down by Public Authority. 399. The owner of an adjoining lot caused a party-wall to be condemned, whereby he was authorized to remove the same. In taking it down the tenant's house was exposed. Held, not a defence to a claim for payment of rent.^ 1 McClinton v. Railroad Co., 66 Pa. 404; Railroad Co. v. Railroad Co., 141 Pa. 407. 2 Dyer v. Wightman, 66 Pa. 425. 3 Wilson V. Barns, 17 W. N. C. 27. 12 178 LANDLORD AND TENANT. Tenant can Kecover Damages to Building Erected before Ordinance for Bemoval. 400. A tenant who has leased a building after the passage of an ordinance providing for the widening of the street upon which the building is situate, is entitled to recover damages for the injury caused by the demolition and re-erection of the front of the building which had been erected before the en- actment of the ordinance. An ordinance for the widening of a street was subsequent to the date of the plaintiff's lease. Held, that the tenant could recover damages for actual injury from dirt and grime, which were necessarily encountered, and which injured his stock. He could not recover for loss of profits in business.* Landlords and Tenants may Unite to Becover Damages for Taking Property for Public Use. 401 . The landlords and tenants of properties taken and in- jured by railroad corporations may unite in a proceeding to recover damages for such taking or injury. The jury should ascertain the aggregate amount of damages sustained and designate the proportion to which each of the parties inter- ested is entitled. In estimating the damages payable to the tenant it is proper for the jury to consider as elements of damage the facts that the location of the railroad compelled the removal of the business conducted by the tenant, and the depreciation in value of the leasehold, and also of the ma- chinery and personal property of the tenant used in the busi- ness consequent upon such removal.'' Xand may be Cultivated until Possession Taken. 402. A land owner may continue in the cultivation of his land after the location of a railroad upon it, until actual entry by the company, and may recover compensation not only for injuries to the land but for the loss of growing crops planted 4 Justice V. Phila., i6g Pa. 503; Shaw v. Phila., 169 Pa. 506.' 5 Getz V. Railroad Co., 105 Pa. 547. KENTED PROPERTY TAKEN FOR PUBLIC USE. 179 before a bond given or notice to enter for construction. So a tenant to whom the land is demised after the location of the line and the notice thereof may recover for all his growing crops destroyed by the construction, which were planted be- fore he had notice of the time when his possession would be interfered with by the company.* Effect of Taking on Liability for Bent. 403. Where under the right of eminent domain a lease is wholly destroyed, the tenant is relieved from the payment of any further rent although the term of the lease may not have expired ; but where there is but a partial destruction the lessee is liable for the rent for the residue of the term and he must look to the state or her grantee for compensation for any injury he may have sustained^ What Damages can be Becovered. 404. Tenants were under a contract to remove daily from the city gas works a large quantity of tar and the premises which they leased enabled them to receive the tar without cost and to manufacture it without transporting it to and from distant points, and in a proceeding to recover damages for the taking of the leasehold premises by a railroad com- pany it was held proper to admit evidence that after the land was taken it became necessary to carry the tar to the place of distillation by a boat specially constructed; that it was nec- essary to erect temporary works for distillation of tar when received and that it was necessary to haul over inaccessible roads the barrels needed to hold the tar and its product.^ 6 Lafferty v. Railroad Co., 124 Pa. 297. 7 Rap V. Klair, 5 Mont. 16. 8 Ehret v. R. R. Co., 151 Pa. 158. CHAPTER XXIII. FEES OF CONSTABLES, JUSTICES OF THE PEACE AND WATCH- MEN IN LANDLORD AND TENANT PROCEEDINGS. SECTION SECTION 405. The act of Feb. 17, 1899, re- lating to the fees of justices lating to fees of constables. and magistrates. 40s*. The act of May 23, 1893, re- 406. No provision in the act of 1899 for watchman. The Act of I'eb. 17, 1899, relating to Fees of Constables. 405. The act of May 23, 1893,^ provided for fees of con- stables in Pennsylvania. The intention of the act was to make the fees uniform throughout the state. The act pro- vided that all inconsistent acts or parts of acts were repealed. By the act of Feb. 17, 1899,^ * the fees of constables are fixed nearly the same as under the act of 1893, as follows : For executing landlords' warrant, $0.50 For taking inventory of goods (each item), ... .02 For distraining goods, 50 For selling the same, for each dollar (not ex- ceeding one hundred dollars), 03 For each dollar above one hundred dollars, . . .02 ' For advertising the same, i.oo For copy of vendue paper when demanded (each item), 02 For putting up notice of distress at mansion house, or at any other place on the prem- ises, 25 For executing a writ of possession, 2.00 For executing writ of restitution, 2.00 I I P. & L. Dig. 2064; 1893, P. L. 117, § 2. I* P. L. 1899, p. 3. 180 FEES OP CONSTABLES, ETC. 181 For serving summons in landlord and tenant proceedings, $0.50 For serving summons notices on tenant, 50 Constable and appraisers, personally, each one dollar on appraisement, i.oo The Act of Iffay 23, 1893, Relating to the Fees of Justices and Itlagistrates. 405 *. By the act of May 23, 1893,'' the fees of justices and magistrates throughout the state in landlord and tenant pro- ceedings are as follows : Holding inquisition under landlord and tenant act, each day, each justice, $2.00 Process, et cetera, to sherifif, each justice, 75 Recording proceedings, each justice, 1.50 Writ of restitution, each justice, 75 Fees in landlord and tenant proceedings under act of 1830 are: Entering complaint, $0.25 Issuing process, 25 Hearing and determining case, 50 Record of proceedings, 50 Writ of possession (and return), 50 When more than one magistrate is required in landlord and tenant proceedings the above fees shall be charged by each magis- trate. Fees in landlord and tenant proceedings under act of 1863 are: Entering complaint, $0-75 Issuing process, 75 Hearing and determining case, i.oo Record of proceedings, 1.50 Issuing writ of restitution (and return), i.oo 2 I P. & L. Dig. 2057; 1893, P- & L- 117, § I- 182 LANDLORD AND TENANT. No Provision in the Act of 1899 for Watchman. 406. Under the act of 1872 the fees for watchmen in Philadelphia county were fixed at the rate of $3.00 per day. The act of 1893 did not provide and the act of 1899 does not provide for the fees of watchmen, and it may possibly be held that in Philadelphia they will still be entitled to their fees under the act of 1872. CHAPTER XXIV. MINING LEASES. Page 184. SECTION 407. Mining leases in Pennsyl- vania. 408. Mining right distinct from surface right 409. Rights of tenant for life. 410. Rights of guardians to lease. 411. Tenant bound to work mine. 412. Clause for re-entry necessary. 413. Incidental rights of mining tenant. 414. Right of support. 415. Loss of springs on surface. 416. Tenant cannot open mines. 417. Rent to be paid, though no clay be taken out, not damages. 418. No warranty of coal. 419. Relief in case of mistake. 420. Tenants taking partners. 421. Forfeiture for not developing favored. 422. Manner of conveying in case of sales of minerals. 423. Questions as to whether there is a sale, a lease or right to take coal without a sale. 424. Mining by tenants in com- mon. 425. Oil and gas leases. 426. Right to mine for oil or gas is necessarily exclusive of SECTION the right of the landlord to mine. 427. Liability to pay compensa- tion in case of exhaustion of mines. 428. Obligation to drill through land worthless for oil or gas. 429. Mortgages of mineral lease- holds. 430. Perpetual lease of ore lands. 431. Options to drill or to pay rent. ' 432. Provisions for the forfeiture of an oil or gas lease for the benefit of the lessor only. 433. Right of mining tenants to pollute streams. s 434. Liability for manufacturing coke and injuring crops, etc., of adjoining premises. 435. As to whether or not a min- ing lease has been forfeited for not operating. 4,36. Rights to make openings to reach coal. 437. Agreements for diligence in drilling and working for oil, etc. 438. In agreements for coal leases time is of the essence of the contract. 183 184 LANDLORD AND TENANT. SECTION 439. Relief against forfeiture of an oil and gas lease for non- payment of rent. 440. Partnership in mineral lease- holds. 441. Relief against forfeiture of mining leases. 442. A lease for exploration for oil ceases when exploration finished. 443. Interest on royalties. 444. Tenant will not be compelled in equity to test land for oil or gas if there is no fraud. 445. Covenants to pay royalties run with the land. SECTION 446. When lessee to follow his own judgment in sinking additional wells. 447. The meaning of the phrase, "to continue so long as oil or gas are produced in pay- ing quantities." 448. Necessity for having oil leases recorded. 449. Jurisdiction in equity for ac- count of gas, etc. 450. Rent may be payable in oil or gas. 451. Liability of assignee of an oil or gas lease for the payment of royalties. Mining Leases in Pennsylvania. 407. It is customary in Pennsylvania to lease lands for the mining of coal and other minerals, and for the obtaining of coal oil and gas. By such leases it is generally arranged that the tenant is required to mine or drill and to pay the land- lord a certain proportion of the products of the mining or drilling, usually called royalties. Such leases are generally for a term of years, or for so long as ore, oil, gas, etc., can be obtained in paying quantities. Kining Bight Distinct from Surface Bight. 408. A right to dig for minerals is essentially different from a right to the soil. Nothing is more common in every part of the state where coal or iron abounds than a right to dig for it below the surface of the ground, separated from a right to the surface itself. A grant of it conveys no more than a license to take and appropriate the minerals beneath ; and it vests no property in them until they are taken and ap- propriated.^ 1 Brandt v. McKeever, 18 Pa. 70; Grubb v. Grubb, 74 Pa. 25. MINING LEASES. 185 Rights of Tenant for Life. 409. A tenant for life or his grantees may work open mines to exhaustion.^ Riglit of Guardians to Lease. 410. A guardian has ordinarily power to lease any of his ward's property of such character as makes it the subject of a lease; but without the approval of the orphans' court he cannot dispose of any part of the realty. Oil is a mineral, and being a mineral is part of the realty; and a guardian cannot lease the same, as it would in effect be the grant of the corpus of the estate of his ward.^ This doctrine may possibly be held to extend to any trustee who is bound to preserve the corpus or principal of an estate intact. Tenant Bound to Work Mine. 411. A tenant of a mine is bound to work the same in a proper manner and with reasonable diligence, so that the lessor may receive the compensation or income contem- plated. Damages can be recovered for failure to do so.* Clause for Re-entry Necessary. 412. Clauses of re-entry belong to all mining leases from the necessity of the case. Mining exhausts the land itself, and if the landlord has no clause of re-entry for non-payment of rent he may lose not only his rent, but that part of his land which has been exhausted by the extraction of minerals. It is not waste for a tenant to mine and not pay his rent.' . Incidental Rights of Mining Tenant. 413. A lease which gives the right to take out all the coal beneath a certain surface confers also the right to make all 2 Irwin V. Covode, 24 Pa. 162. 3 Stoughton's Ap., 88 Pa. 198. 4 Koch's Ap., 93 Pa. 434. 5 Heil v. Strong, 44 Pa. 264. 186 LANDLORD AND TENANT. necessary openings to reach the coal. When anything is granted all the means to obtain it are granted.® Bight of Support. 414. Of natural right the surface land is entitled to support from the strata below.'' Xoss of Springs on Surface. 415. The loss of springs to the owner of the surface by reason of the ordinary working of mines does not render the owner of minerals liable for damages.* tenant Cannot Open Mines. 416. It is waste for a tenant without authority to open mines and take minerals. He can work open mines.® Sent to be Paid, though no Clay be Taken Out, TSlot Damages. 417. An agreement to pay for the privilege of taking clay, whether exercised or not, is not for liquidated damages, but for a privilege.^" ITo Warranty of Coal. 418. In a lease there is no implied warranty that the lease contains coal-veins.^* Sellef in Case of Mistake. ' 419. A lease was made upon the supposition that an oil- well was upon the demised premises. The well was upon the premises of another person, and it was held that the ten- ant was to be relieved from the mistake.*^ 6 Trout V. McDonald, 83 Pa. 144- 7 Chadwick v. Coleman, 80 Pa. 81. 8 Coleman v. Chadwick, 80 Pa. 81. 9 Griffin v. Fellows, 8iJ^ Pa. 114. 10 Johnson v. Cowan, 59 Pa. 275. 11 Harlan v. Coal Co., 35 Pa. 287. 12 Mays V. Dwight, 82 Pa. 462. MINING LEASKS. 187 Tenants Taking Partners. 420. Where a lease is made of certain coal mines to two persons as tenants in common, and the lessees afterwards associate themselves as partners for the purpose of mining, 'hipping and selling coal from the demised premises for the whole period of the lease, the leasehold is thereby converted into partnership assets, and becomes the property of the firm.^* ^Forfeiture for Not Developing Favored. 421. Forfeiture for non-development or delay is essential lo private and public interests in relation to the use and aHen- ation of property. In such cases as this equity follows the law. In general, equity abhors a forfeiture, but not where "Jt works equity and protects a land-owner from the laches of a lessee whose lease is of no value till developed, except for a purpose foreign to the agreement.^* banner of Conveying in Case of Sales of Uinerals. 422. The technical words grant, bargain and sell, or the ]ike, are not necessary to the creation of a separate estate in the coal, provided the intention to sell the coal is mani- fest." The reports of the decision of cases in Pennsylvania abound with questions as to whether or not there is a sale of coal, and it will be best, if a sale is intended, to have the deed to conform as nearly as possible to a regular deed of conveyance of real estate. Questions as to Whether there is a Sale, si. Lease or Bight to Take Coal Without a Sale. 423. It is held to be settled that an instrument which is in terms a demise of all the coal in, under and upon a tract of 13 Patterson v. Silliman, 28 Pa. 304. 14 Mowne v. Armstrong, Leg. Int., July 14, 1882. rs Finnegan v. Stineman, 5 Pa. Super. Ct. 124. 188 LANDLORD AND TENANT. land, with the unqualified right to mine and remove the same is a sale of the coal in place, and this, too, whether the pur- chase-money stipulated for is a lump sum or is a certain price for every ton mined, and is called rent or royalty. There is no distinction to be made between a perpetual lease and a term lease as to the application of the above law. There will be a sale, notwithstanding a term is created within which the coal is to be taken out.^® A deed of bargain and sale, with words of inheritance. granted the perpetual right to mine, dig, and carry away coal in certain veins. A royalty was reserved to the grantor on all coal mined. It was held that the omission of the word "all" before coal, and the reservation of the word "royalty." showed that it was not the intention of the parties to con\'ey the coal absolutely, or to exclude the grantor from mining. No time was fixed for payment of the royalty, and there was- no covenant requiring the grantees to mine. There was no consideration for the sale. There was a grant of the privilege of raising iron ore at twenty-five cents per ton. there was only a sale of the privilege. After referring to numerous cases, and considering them, the court said that it will be observed that in every case where it is held that an exclusive right was conveyed, a deed in expressed word? granted all the mineral or provided payment for all.^'^ (See further on this subject Practical Directions, Chapter XXV.) Mining by Tenants in Common. 424. A tenant in common may mine, but if he does so he will have to account to his co-tenants for their shares. No presumption of partnership arises from the operation of an oil well by tenants in common.^* Tenants in common may become partners; but the law will not create the relation 16 Finnegan v. Stineman, 5 Pa. Super. Ct. 124, 17 Jennings v. Beal, 158 Pa. 283. 18 Neill V. Shamburg, 158 Pa. 26.3. MINING LEASES. 189 for them as tHe consequence of a course of conduct naturally referrable to the relation existing between them.^* Oil and Gas Leases. 425. The grant of oil and gas privileges cannot be of oil and gas in place, as in case of coal, iron and other minerals. On the lease of land for the sole purpose of drilling and operating for oil and gas, the lessee's right is in the nature of easement of entry and examination, with a right of possession arising where the particular place of operation is selected for egress, storage, transportation, etc., during the continuance of operations. The real subject of possession to which the lessee is entitled is in the oil and gas contained in or obtainable through land; these are minerals ferce natures, and are part of the land and belong to the owner only so long as they are in it and under his control. The lessee, when he has drilled a gas well and controls the gas produced thereby, is in possession of all the gas in the land. There was a lease of exclusive right and privilege of operat- ing for oil for the term of fifteen years. It was for a definite term. It was only a grant of the exclusive right to operate for oil, not a sale of the oil. It must be treated as a lease for the production of oil and not as a sale of the oil or the land.^o Right to Mine for Oil or Gas is Necessarily Exclusive of the Right of the Xandlord to Mine. 426. This principle arises from the necessity of the case. The joint operation of the landlord and tenant would pos- sibly conflict, and the tenant may be deprived of all the bene- fits of the gas or oil on the premises. Ijiability to Pay Compensation in Case of Exhaustion of Mines. 427. Where the lessor in a coal lease sells to the lessee all 19 Dunham v. Loverock, 158 Pa. 197. 20 Duffield V. Rosenzweig, 144 Pa. 520. 190 LANDLORD AND TENANT. the coal in the land described in the lease at a certain mini- mum royalty per year for a term of years, whether there was any coal or not; and both parties know of the existence of workable and marketable coal in the land, although they do not know the quantity of coal, the fact that the coal is ex- hausted before the end of the lease will not relieve the lessees from the payment of the minimum royalty for the term of years because of such exhaustion of the coal.^^ The parties contracted with reference to iron which was supposed to exist, and did exist on the lands demised. There was no agreement to pay a fixed, absolute sum for ore in place. The lessee was bound to use all proper efforts to find ore to mine, and to take it away. He was only bound to pay for the ore as mined or as it could be mined; and if the ore was exhausted before the termination of the lease, the obliga- tion to pay royalty ceased. In this case Fulmer simply agreed to mine a thousand tons of ore each year, and to pay seven- teen and one-half cents per ton, whether he mined or not. That is, if he failed to mine the quantity of ore he agreed to take out, he paid for it just as if he had mined it. But it is only for ore which he might have taken out if he would. If the ore was not there, he was under no duty to pay, because he never could get it. The foundation of his liability to pay was the supposition that the ore was there. If the ore was not there the fundamental condition of all liability is gone.^' Obligation to Drill Though Land Worthless for Oil or Gas. 428. After a lease was executed it was claimed that the demised premises were worthless for either oil or gas; that the land did not contain either oil or gas in paying quantities. It was held that such claim would not be a defence in a suit for sums to be paid for not drilling, etc. ; that the damages for delaying to drill were fixed and liquidated by the parties, and that only in this way or by reserving rent could the land- 21 Timlin v. Brown, 158 Pa. 606. 22 Boyei" r'. Fulmer, 176 Pa. 282. MINING LEASES. 191 owner make himself sure of any compensation for allowing an oil or gas lease to become and remain an encumbrance of his property.^^ Mortgages of Mineral Leaseliolds. 429. In case of a mining lease it can be mortgaged like a chattel; and a mortgage in such case will not be subject to the act of June 8, 1881, providing against absolute convey- ances with parol and unrecorded defeasances. That act is ap- plicable to deeds for real estate only. Mining leases may be mortgaged and recorded, etc., under the act of April 27, 1853-''* Perpetual Lease of Ore Laiids. 430. A lease of coal lands for a certain period "and for such other and longer time as the lessee shall continue to pay rent is not invalid by reason of the uncertainty of the term." The case of Lewis v. Efhnger, 30 Pa. 281, and Efhnger v. Lewis, 32 Pa. 367, settle the validity of a lease for a term certain, and thereafter to continue at the will of the lessee.** A per- petual lease at the will of the lessee may be created under the common law of Pennsylvania, inasmuch as livery of seisin is not necessary to pass an estate which may be equivalent to a fee simple.*® Options to Drill or to Pay Rent. 431. An oil lease provided that the lessee should complete a well on the leased premises within six months "or in de- fault thereof, pay to the party of the first part for further delay an annual rental of $500, payable quarterly in advance." Held, that upon failure to drill the well within six months, the lessor was entitled to the stipulated rental.** 23 Springer v. Gas Co., 145 Pa. 43o. 23* I P. & L. Dig. 1607; P. L. 368, § 8. 24 Myers v. Coal Co., 126 Pa. 582. 25 Effinger v. Lewis, 32 Pa. 367- 26 Leatherman v. Oliver, 151 Pa. 646; Galey v. Kellernian, 123 Pa. 491. 192 LANDLORD AND TENANT. Provisions for the Forfeiture of an Oil or Gas Lease for the Benefit of the Lessor Only. 432. It was provided that "a failure to complete said well, or pay said rental for ten days after the time above specified for so doing, shall render this agreement null and void, and it can only be renewed by mutual consent; and no right of action shall after failure accrue to either party on account of the breach of any promise or agreement herein contained." Held, that the lessor could enter upon giving ten days" no- tice, but that the lessee could not compel the lessor to termi- nate the lease.^^ Bight of IVCining Tenants to Pollute Streams. 433. Damages resulting to another from the natural and lawful use of his land by the owner thereof are, in the absence of malice or neghgence, damnum absque injuria. One open- ing a coal mine in the ordinary and usual manner, may, upon his own lands, drain or pump the water which percolates into his mine into a stream which forms the natural drainage of the basin in which the mine is situate, although the quantity of the water may thereby be increased and its quality so aifected as to render it totally unfit for domestic purposes by the lower riparian owners.^® Liability for Manufacturing Coke and Injuring Crops, etc., of Ad- joining Premises. 434. One who is engaged in manufacturing coke from coal not mined by himself, but purchased at mines of other per- sons, will be liable in damages for a substantial injury to the crops and soil of an adjoining farm, caused by the smoke and vapors emitted from his ovens. ^* 27 Springer v. Gas Co., 143 Pa. 430; Leatherman v. Oliver, 151 Pa. 646; Ray V. Gas Co., 138 Pa. 576. 28 Coal Co. V. Sanderson, 113 Pa. 126. 29 Robb V. Carnegie, 14s Pa. 324. MINING LEASES. 193 As to Whether or Not a Mining Lease has been rorfeited for Not Operating. 435. The acts and declarations of the tenant may evince an intention to abandon permanently the premises and opera- tion.*" Bights to Make Openings to Beach Coal. 436. A lease which gives the right to mine, to take out all the coal beneath a certain surface confers also the right to make all necessary openings to reach the coal. Tenant opened a new shaft near a barn, whereby a spring was destroyed. Held, that the tenant could do so; that if the destruction of the spring was a necessary incident of mining under the lease, it would be damnum absque injuria.^''- Agreements for Diligence in Drilling and Working for Oil, etc. 437. It was held that ceasing operations for three months, and making no efifort during that period to produce oil, was a ground for forfeiture.^'' In Agreements for Coal Leases Time is of the Essence of the Con- tract. 438. Held that as an interest was an oil and gas leasehold, liable to sudden changes in value, time was of the highest im- portance in dealing with it, and presumably the essence of all contracts in relation to its sale.^^ Belief Against Forfeiture of an Oil and Gas Lease for Non-Payment of Bent. 439. The lessor in an oil and gas lease will not be per- mitted to enforce a forfeiture of the lease for a delay of one day in the payment of rentals where by his acts and declara- tions he has lured the lessee into the belief that a forfeiture will not be enforced for so short a delay .^* 30 Karns v. Tanner, 66 Pa. 297. 31 Trout v. McDonald, 83 Pa. 144. 32 Kennedy v. Crawford, 138 Pa. 561. 33 Kelly V. Marshall, 172 Pa. 396. 34 Steiner v. Marks, 172 Pa. 400. 13 194 LANDLORD AND TENANT. Partnership in Mineral Leaseholds. 440. A demise of land for a term of years, "with the sole and exclusive privilege, during said period, of digging and boring for oil and minerals, and of gathering and collecting the same therefrom," conveys an interest in the land, a chattel real, but none the less a chattel. Though such a leasehold be held by owners in undivided shares, under instruments made to them in their individual names, yet the property be- ing a mere chattel, the owners by associating as partners in its operation and development, may convert it into partnership assets ; and such association may be established by evidence of the several admissions of the alleged partners, or the admis- sion of one and the acts and declarations of others. If one partner assigns his interest in the leasehold without the knowledge and assent of the others, such assignment is sub- ject to the equity of the other partners to have the partner- ship debts then existing first paid out of the partnership assets.^® Belief Against Forfeiture of Mining Leases. 441. Where time is not stipulated as essential and a for- feiture for non-payment of money, or other matter that admits of accurate and full compensation, is provided as a mere pen- alty whose object is to enforce performance of another and principal obligation, equity will relieve against it and will not permit it to be used for a dififerent and inequitable purpose.^® A Lease for Exploration for Oil Ceases when Exploration Finished. 442. An oil lease contained a grant of a right to mine and remove oil for a fixed period of twenty years at a royalty of one-eighth of the oil so mined and removed. Held, that the right of the lessee was to explore for and determine the ex- istence of oil under the land and if none were found, his right 35 Brown v. Beecher, 120 Pa. sgo. 36 Lynch v. Gas Co., 165 Pa. 518. '' MINING LEASES. 195 ceased when the explorations were finished and the lot abandoned.^^ Interest on Royalties. 443. Where a coal lease provides for an annual rental, pay- able quarterly, and a royalty for coal mined in excess of a specified quantity, and in the course of dealing between the parties the lessor frequently accepted royalties long after they were due, without demanding interest on the same and finally gave a receipt "in full payment for coal rent in excess of minimum," and it appears that the receipt was not given under a mistake as to any matter of fact, the representatives of the lessor cannot, after his death, recover interest on the royalties which had accrued and were paid prior to the giving of the receipt. Interest is a legal and uniform rate of dam- ages allowed in the absence of any express contract when payment is withheld after it has become the duty of the debtor to discharge his debt. When a balance of an account was paid without any charge for interest it cannot be claimed. When there is a stipulation for interest it may be recovered even after the principal debt has been paid; but it is other- wise when the interest is recoverable merely as damages or as an incident to the debt. A receipt in full is in effect a stated account and if interest is not claimed it is waived by the re- ceipt.^* Tenant Will Not be Compelled in Equity to Test Land for Oil or-Gas if there is no Fraud. 444. A bill in equity will not lie by the lessor of an oil and gas lease against the lessee or his assigns to compel the latter to test part of the leased land not yet drilled, or upon his failure to do so, to surrender the land to the lessor, unless it is shown that the failure of the lessee to drill amounts to a fraud upon the rights of the lessor.^® 37 Oil Co. V. Fretts, 152 Pa. 451. 38 Waller v. Coal Co., 191 Pa. 193. 39 Young V. Oil Co., 194 Pa. 243; Calgan v. Oil Co., 194 Pa. 234, 196 LANDLORD AND TENANT. Covenants to Pay Boyalties Bun with the Land. 445. Covenants to pay royalty in an oil lease run with the land and are binding upon the assignee who has received the production from the wells.*" An assignment of an oil and gas lease in consideration of a certain sum paid at the time of the assignment and the further consideration of the sum of $1,000 if oil is found, etc., creates no covenant running with the land and the assignor is not entitled to recover from an assignee of the assignee the $1,000.''^ When Lessee to Follow his own Judgment in Sinking Additional Wells. 446. Where a lessee under an oil and gas lease has entered upon land and sunk wells he is entitled, in determining whether he shall sink additional wells, to follow his own judg- ment. If that is exercised in good faith, a different opinion by the lessor, or the experts, or the court, or all combined is of no consequence, and will not authorize a decree interfering with him.*^ The Meaning of the Phrase, "To Continue so Long as Oil or Gas are Produced in Paying Quantities." 447. Where a lease is to continue as long as oil or gas is found or produced in paying quantities, the phrase "found or produced in paying quantities" means paying quantities to the lessee or operator. If a well, being down, pays a profit, even a small one, over the operating expenses, it is producing in "paying quantities," though it may never repay its cost, and the operation as a whole may result in a loss.*^ Where an oil or gas lease provides that the lessee shall market gas if "found in sufificient paying quantities to justify marketing the same," the lessee must do so but he will not be required to do so at a loss, but only at a reasonable profit; and in determining whether it could be so marketed, the distance to market, the expense of marketing and every cir- 40 Williams v. Short, 155 Pa. 480. 41 Fisher v. Guffey, 193 Pa. 393. 42 Young V. Oil Co., 194 Pa. 243. 43 Young v. Oil Co., 194 Pa. 243. MINING LEASES. 197 cumstance of a similar kind should be taken into considera- tion." necessity of Having Oil Leases Kecorded. 448. Where the lessees in an oil lease fail to put their lease on record and never go into actual possession or occupation of the land, their title may be cut out by that of a subsequent purchaser for value without notice.*** Jurisdiction in Equity for Account of Gas, etc. 449. The lessor can have discovery and account in equity relating to his share of the profits of gas, etc.*® Bent may be Payable in Oil or Gas. 450. Rent need not be money, it may be a share in the product, as the share in an oil lease or the share of the pro- ceeds of the sale of gas in a gas lease.*'^ Liability of Assignee of an Oil or Gas Lease for tHe Payment of Boyalties. 451. The assignee of an oil or gas lease will be liable for the payment of royalties which accrue whilst holding the assign- ment of the lease, the covenant to pay royalty runs with the land." Owing to his privity of contract with the lessor, a lessee's liability upon his covenants in an oil and gas lease continues after his assignment of the lease ; but an assignee of the lease being in privity of estate only with the lessor, is liable only upon covenants which are broken while his privity of estate exists. An assignee would not be liable to drill a well when the time for performance had elapsed before the assignment, but the obligation of a covenant to prosecute the business of developing the land is a continuing one.*' 44 lams V. Gas Co., 194 Pa. 72. 45 Aye Z'. Phila. Co., 193 Pa. 437. 46 Stone V. Oil Co., 188 Pa. 602. 47 Stone v. Oil Co., 188 Pa. 602. 48 Fennell v. Guffey, 155 Pa. 38; Stone v. Oil Co., 188 Pa. 602; Fen- nel! V. Guffey, 139 Pa. 341. 49 Gas Co. V. Johnson, 123 Pa. 576. CHAPTER XXV. PRACTICAL DIRECTIONS IN MATTERS RELATING TO THE RENTING OF PROPERTY. Page 199. SECTION 452. Examination of the prop- erty. 453. See what neighbors can do in diminishing the value of .demised premises. 454. Inquiries of landlord before renting. 455. False representations by les- see. 456. See if demised premises in the city of Philadelphia are liable to be taken for public use. 457. Examination of the title of the landlord. 458. Examination as to encum- brances. 459. See if lease can be destroyed by an orphans' court sale. 460. See if there is a liability for a distraint for taxes. 461. Obtaining rights for a show case. 462. Obtaining sign rights by tenant. 463. Provisions in case of fire or other casualty. 464. Directions for making rents certain for distraint and possession. 465. Directions in case of an underletting. 198 SECTION 466. Giving rights to tenants to purchase. 467. Fixtures of tenant to be pro- tected in Cases of renewed leases. 468. Making a penalty to be paid as rent. 469. Directions in taking assign- ments of leases. 470. Provisions prohibiting parol testimony to affect written leases. 471. Restrictions as to the use of demised premises. 472. Making rent due in advance by occurrences after the lease. 473. Providing against the lia- bility of the owner for nuisances. 474. Prevention of defences being waived by paying rent or other action. 475. Prevention of the termina- tion of farm leases by death of tenant. 476. Provisions for amicable eject- ments. 477. Providing for distraint after removal of tenant. 478. Giving sub-tenants the bene- fit of the exemption law. PRACTICAL DIRECTIONS IN RENTING PROPERTV. 199 SECTION 479. Providing for surety in cases of extensions of lease. 480. Getting the consent of the surety to alter lease. 481. Extension of right to termi- nate lease to assignees, etc. 482. Danger of landlord losing his right to rent by the non- performance of an entire contract. 483. Cautions in preparing agree- ments for the extension of term and for options. 484. Necessity of a consideration for an agreement to change the terms of a lease. 485. Protecting landlord in farm leases. 486. Making the payment of taxes, charges, etc., as rent. 487. Necessity of reading leases. 488. Protecting fire insurance from conduct of tenant. 489. Distinguishing between a lease and sale in granting mining rights. 490. Necessity of a particular de- scription of the extent of a right to mine. 491. Ascertaining if any old min- ing leases are outstanding. 492. Protection to landlord who reserves the surface in a lease to mine. 493. Binding remainderman in case of a lease by tenant for life. 494. Necessity of recording oil lease when tenant does not take possession. Examination of the Property. 452. The property proposed sible, be examined thoroughly, which cannot be well examine SECTION 495. Necessity for having time fixed for delivery of land- lord's share of crops. 496. Protection of parties in agreements to pay for taxes, charges, assessments, etc. 497. Dangers in using clause that landlord may change terms of lease. 498. In case of doubtful con- struction, the tenant fa- vored. 499. Fixing a time for the tenant to perform an agreement to make improvements. SOD. Protecting landlord's right to tenant's fixtures at the end of the lease from levy, etc. 501. If an assignee assigns his lease and retains an interest he will remain liable. 502. Necessity of having a clause for forfeiture for a breach of a covenant not to assign. 503. Guarding against the breach of trifling covenants giving the right to recover pos- session. 504. In case a tenant agrees to use or not to use demised prem- ises for a certain business or purpose. 505. Danger of there being a breach of a covenant not to assign lease by taking a partner. 506. Necessity for a description to locate premises in leases or amicable ejectments. 506*. Giving right to distrain off the demised premises. to be rented should, if pos- As to the parts thereof d, inquiry should be made. 200 LANDLORD AND TENANT. The premises may be out of repair and in bad condition, but these circumstances would be no ground for a legal com- plaint by a tenant. A tenant discovered that demised premises were wholly in an unfit and uninhabitable condition, owing to the defective construction of the drains. Having been informed by his physician that it would be dangerous to remain on the prem- ises, he removed therefrom, and it was held, that the defects were no defence to a claim for rent.^ A tenant leased premises to be used as a saloon. After he took possession he discovered that they had a bad reputation. In consequence of such reputation the business people of the neighborhood did not care to enter them. It was held that the tenant was bound to pay the rent; that there was no rela- tion of confidence between landlord and tenant; that they deal as strangers; that the tenant should have inquired into the reputation of the premises; that mere silence in regard to a material fact, where there is no legal obligation to dis- close, will not avoid a contract, although it operates as an injury to the party from whom the fact is concealed.^ There is no implied covenant that the landlord warrants the leased premises to be tenantable, or that he undertakes to keep them so, in the absence of a provision in the lease that the landlord shall repair. A tenant having abandoned the premises, alleging that they were not habitable, it was held that he was liable for the rent for the remainder of the year." These cases, selected from a large number, are sufficient to show the necessity of the examination and inquiry re- commended. If landlord is to repair, the lease should so provide. It is a general practice for landlords to repair and keep rented premises in good condition; and this practice has led to a general erroneous belief that the landlord is bound to 1 Hollis V. Brown, iS9 Pa. 539. 2 Twibill V. Brown, 17 W. N. C. 221. 3 Reeves v. McCormick, 168 Pa. 571. PRACTICAL DIRECTIONS IN RENTING PROPERTY. 201 conform to this practice.* The consequence has been that a large amount of litigation has arisen for want of a knowledge of the laws on this subject. The landlord can agree in the lease to repair and keep in good condition, but should make an exception in case of fire and other casualties, if he should need such protection. See what Neighbors Can Do in Diminishing the Value of Demised Premises. 453. A bill-posting company rented the roof and wall of premises for the display of advertisements on the wall by means of a stereopticon; and a neighbor placed a structure so that it prevented advertisements being seen from the streets. The lease was rendered practically valueless, and the tenant refused to pay the rent. It was held that the landlord was not responsible; that the covenant for quiet possession relates only to the acts of the lessor and those claiming under him, or the holder of a better title. This case shows the necessity there is for tenants to consider, be- fore renting property, what may be done by the owners of adjoining or neighboring properties to their prejudice.^ Inquiries of Landlord before Renting. 454. The proposed tenant can question the landlord as to everything he desires to know about the premises; and if the landlord should give any false or fraudulent answers to such questions, they will be a ground for defence. A lessor falsely represented that he had an ofifer of $20,000 for a lease. The real ofifer was one of but $10,000; and the lessee obtained a judgment against the lessor for $10,000 — the difiference, in an action for deceit.® A tenant contemplating a lease of prem- ises for the purpose of using them as a millinery store, in- quired of the landlord as to the condition of the bulk show- 4 Huber v. Baum, 152 Pa. 626. 5 Oakford v. Nixon, 39 W. N. C. 49. 6 Guffey V. Clever, 146 Pa. 548. 202 LANDLORD AND TENANT. windows, and was told by him that they had new roofs and were in perfect condition. The roofs of these windows were not new, and were in bad condition. It was held that the landlord was liable for the deceit.'' In case the proposed landlord is questioned as to the con- dition of the premises or other matters relating thereto, and is mistaken in his answer, without any intention to deceive or defraud the tenant, that tenant will have no remedy for such erroneous answer. In case the representations of a land- lord are relied upon it will be best to have them in the shape of an agreement in a lease, or in a paper executed therewith. I'alse Bepresentatlons by I/essee. 455. The landlord can question the tenant concerning his ability to pay the rent, and other existing matters relating to the tenancy. A lease may be avoided by the lessor at his option where he was induced to make the lease by false rep- resentations of the lessee.^ See if Demised Premises in the City of Philadelphia are Liable to be Taken for Public Use. 456. For the city of Philadelphia there are plans to show streets opened and unopened. Where a lease is of property in Philadelphia in an unimproved neighborhood, which lease is to exist for a considerable term, and improvements will be erected by the lessee, it may be well to see whether or not any unopened streets on the city plan are made to run through the demised premises, and what effect the opening of such streets will have upon such improvements. In case any improvements are built on such unopened streets, it may be that the tenant can recover no damages from the city. Examination of the Title of the Landlord. 457. See that the proposed landlord has a good title. This 7 Sacks V. Schitnmel, 39 W. N. C. 452. 8 Harvey v. Gunzberg, 148 Pa. 294. PEACTXCAL DIKECTIOXS IX EKNTING PROPERTY. 203 should be done especially in cases where the lessee intends to expend a considerable sum of money for improvements. The tenant can question the landlord as to his ownership; but if he wishes to be thoroughly satisfied and protected, he should have the title examined or insured. The law implies a covenant of the landlord that the tenant shall have undis- turbed possession of the demised premises during the term, but it seems that such a covenant will be an insufficient pro- tection. It was held that where a tenant was evicted during his term by the holder of a paramount title, without fraud on the part of the lessor, his measure of damages was the con- sideration paid by him. If he had paid only the rent during the term of his possession, he was entitled to only nominal damages. In such case the lessee was not entitled to re- cover the value of the improvements for the prosecution of his business — some of the improvements having been erected in pursuance of a covenant made by him in the lease, and which improvments, by the terms of the lease, the lessee had the right to take down and remove at the end of the term.* Examination as to Encumbrances. 458. See that there are no charges or encumbrances which may result in a sherifif's sale of the premises and the de- struction of the lease. As to any judgments, municipal claims, or mortgages, the lessee can procure certified searches, as in the case of purchase of a property. In case of a sherifif's sale upon a prior encumbrance, the purchaser can give notice for possession, and break the lease. There may be proceedings on mortgages, or for arrears of ground rent; and such proceedings may result in leases being broken by sherifif's sale. It was held that a tenant can tender payment of the amount due on a prior mortgage, and have the owner of the same restrained from selling.^'^ 9 Lanigan v. Kille, 97 Pa. 120. 10 Hartman v. Quay, i Chester Co. R. 487. 204 LANDLORD AND TENANT. In proceedings by sheriff's sale under mortgages, ground rents, and even under judgments, the effect may be to de- stroy what are known as easements — such as rights of way, and the like — created after the recording of the mortgage, the creation of the ground rent, or the entry of the judgment. See if Lease can be Destroyed by an Orphans' Court Sale. 459. Purchasers at orphans' court sales will have the same right to break leases that purchasers at sheriff's sale have. In case an owner of the property proposed to be rented should be lately deceased, it ought to be ascertained whether or not there is any probability of the property being sold by order of court to pay the debts of the decedent. The lien of debts will expire at the end of two years from death of lessor if no statement is filed as by law provided. See if there is a Liability for a Distraint for Taxes. 460. In case property in the city of Philadelphia is leased, ascertain whether or not there are delinquent taxes; for if there are, there will be a liability of the goods on the demised premises to be seized upon for the payment of the taxes. Any taxes, however, paid by the tenant to the tax collector, will be considered as payments on account of rent. Obtaining^ Bights for a Show Case. 461. In renting a business place it may be desirable to have the privilege of exhibiting a show-case at the street entrance. In such case the lease should provide for the privilege. A? to the entry, the tenant will only have a right of way. It may be desirable to have a show-case at the front door, on the outside. There may be public authority for the placing: of such show-cases. In that case authority can be obtained from the owner for such outside show-case and the hke. The first floor was rented to a merchant tailor. The second floor was rented to a photographer. The tailor complained that the photographer had placed a show-case upon the pave- PRACTICAL DIRECTIONS IN RENTING PROPERTY. 205 ment by the side of his door. It was held that all that any of the tenants had was an uninterrupted passageway in com- mon with the public. If the tailor, when he rented the premises, had wanted to have the door and passageway clear, he could have attained that end by a provision in the lease; provided the lease to the photographer was not in the way.^^ Obtaining Sign Bights by Tenant. 462. If a tenant desires to have any rights to have signs on the walls he should contract for them. Where a tenant rents a floor, he rents the inside, and not the outside, and he has no right to put out a sign in front, unless with the con- sent of the landlord.^" Provisions in Case of Tire or other Casualty. 463. When a tenant rents an upper floor merely, and such floor shall be wholly destroyed by fire or other casualty, with- out his fault, in case there is no covenant to rebuild, the lease ends and the rent ceases ;i^ but this is not so in case a tenant rents a whole property or from the ground. He is without any protection in the lease; he is hable to pay rent, although the premises are destroyed by fire or other casualty, and of late it has become customary to have the tenant pro- tected in his lease against such results. There is a variety of ways of having such agreements made in leases. In case of the total destruction of the prem- ises by fire, without the fault or neglect of the tenant or of his agents or servants, there may be a provision that the lease shall become void; provided, however, that all back rent, and the current rent apportioned up to the date of the fire, may be recovered under and according to the terms of the lease. In case of a destruction in part, by fire, so that the prem- ises may be repaired by the landlord, there can be a provision 11 Cunningham v. Eentrekin, 15 Pa. C. C. R. 183. 12 Hall V. Stewart, 19 W. N. C. 129. 13 Camp V. Casey, 7 Pa. C. C. R. 160. 206 LANDLORD AND TENANT. that the landlord shall repair, and that the tenant shall not be required to pay any rent during such time as he may be re- quired to vacate the premises while repairs are being made. In case, however, he remain in possession of the premises, and be deprived of the use of but a part thereof, he could be allowed a just proportion of the rent for the parts not occu- pied during the repairs. The most difficult transaction to provide for is the renting of a place of business. If a loss in part shall be so great as to hinder or prevent the tenant from continuing his business, it may be best to agree that the lease shall terminate; but if the loss will not materially prevent such continuation, the landlord can agree to repair, and the tenant can be allowed a just deduction from his rent for the loss of the use of the parts destroyed during repairs. To protect the landlord, the rental value of the parts de- stroyed should be the only measure of the allowance. As to the loss to business, the tenant may not be able to protect himself by insurance further than the loss of goods. There may be a loss in part, leaving to the tenant room and con- veniences sufficient to continue the business; but he may not be able or willing to do so, by reason of a great or entire loss of stock, fixtures, machinery, etc.; and such conditions may be made grounds for terminating the lease. There may be a lease of land with several buildings thereon used as a plant for carrying on a manufacturing busi- ness, and one of the buildings in which a particular branch of the business shall be carried on may be destroyed and the tenants cannot wait for the repair or rebuilding, and it may be to the interest of the tenant for the lease to terminate, and in another case one or several of a number of buildings may be destroyed but a business can still be carried on in the others until the lost or damaged building or buildings are rebuilt or repaired. In some cases an arbitration clause will be useful to decide in case of a dispute as to the right to remove and to fix the PRACTICAL DIRECTIONS IN RENTING PROPERTY. 207 amount of the deduction for i-ent following a partial loss and continued occupancy. Directions for Making Rents Certain for Distraint and Possession. 464. The acts of assembly for the recovery of the posses- sion of property at the end of the term require that the rent shall be certain. The act for the recovery of the possession of rented properties for the non-payment of rent indicates that it applies only to cases where the rent is certain; and rent made certain is one of the essentials for making a dis- tress for rent. These requirements make it important that the rent shall be made certain. The requirement of certainty, however, does not mean that the rent must be pay- able in money. It may be paid in any commodity whose value may be accurately estimated in money. Rent may be payable in the proportion of the toll of a mill, or of a pro- portion of iron or wheat.^* There may be cases where nearly the whole rent is made payable in money, yet there may be a provision concerning some small matter whereby the whole rent may be rendered uncertain. If rent is to be paid in produce, or from products from mining, it may be necessary to have an accounting and settlement; and in im- portant leases there can be provisions for such accounting- and settlement at certain periods; and in case of the tenant's default there can be a provision for the landlord's annulling the lease and recovering possession by amicable ejectment, or in case of disputes as to accounts there can be a provision for arbitration. Directions in Case of an TTnderletting. 465. In case of an underletting the under-tenant will take, of course, subject to the terms of the lease of the head land- lord, and subject to all rent due, and which shall fall due, to him. There may be a provision in the lease whereby the first tenant cannot underlet without the written consent of 14 Jones V. Gundrim, 3 W. & S. 531. 208 LANDLORD AND TENANT. the landlord. If there be any such requirement in the lease it should be complied with. It may happen that the under- tenant will promptly pay his rent to the first tenant (his land- lord), but that such landlord will not pay his rent to the head landlord; and the consequence may be that the under-tenant's goods will be distrained upon for rent, although he has paid his rent to his own landlord. In case a lessee for years transfers his interest to a third person, with a reservation of rent, he cannot distrain for his rent unless the sub-lease contains an express power of dis- tress.^^ Giving Bights to Tenants to Purchase. 466. It sometimes happens that the tenant is given an op- tion (or the privilege of purchasing) the demised premises during the term of the lease. In such case it will be well to have the terms of sale fully expressed in the lease, so that, in case of a resort to a court of equity, a decree for specific performance can be granted. To protect the right of the tenant to purchase it may be important that notice should be given by having the lease acknowledged and recorded. If the tenant is in possession, possibly that would oblige any one purchasing from -the landlord to inquire of the tenant as to whether or not there is an agreement to purchase the premises. In case there is an option in the lease for the tenant to purchase, there may be danger to the landlord, upon the ten- ant's exercising his option, of such tenant's being in pos- session of the premises as purchaser before the execution of a deed and settlement. To avoid this result it can be pro- vided in the lease that the tenant shall remain as such until the execution and delivery of the deed and the settlement for the purchase.^® Knowledge of the existence of a lease will not relieve one 15 Manuel v. Reath, S Phila. ii. 16 Newell's Est., 100 Pa. 513; Knerr v. Bradley, 105 Pa. 190. PEACTICAL DIKBCTIOKa IN RENTING PROPERTY. 209 dealing with the lessor from the duty of inquiring of the per- son in possession whether he claims otherwise than under the lease, the possession, apart from the lease, being notice of the possessor's claim of title, whatever that may be.^'^ Eiztures of Tenant to be Protected in Cases of Renewed Leases. 467. If a tenant, at the expiration of his lease, does not re- move his fixtures, they become the property of the landlord. If a tenant, at the close of his term, renews his lease and ac- quires a fresh interest in the premises, he should take care to reserve the right to remove such fixtures at the end of the extended term. Where his continuance in possession is under a new lease, his right to remove fixtures is determined, and he is in the same situation as if his landlord, being seized of land, together with the fixtures, had demised both to him;^* and as this doctrine may be upheld by our courts, it will be well to have the reservations recommended. Uaking a Penalty to be Paid as Bent. 468. A tenant agreed to pay a penalty, in the nature of rent, as punishment for the breach of a covenant not to carry on business on the demised premises; and this penalty was to be paid in addition to the amount of rent, in equal monthly payments, at the time of the payment of the rent. It was held that the penalty, in fact, was not rent, and that it could not have the incident of distress because that incident per- tains only to that which, in strict legal contemplation, is rent. There was not a stipulation for a right to distrain. The dis- tinction between that which was rent and that which was penalty was preserved throughout the agreement. The court seemed to intimate that if the penalty had been definitely named as additional rent, and if a power of distress had been given, there might have been a right of distress.^® 17 Anderson v. Brinser, I2g Pa. 376. 18 Taylor on Landlord and Tenant (4th Ed.), 405. 19 Latimer v. Groetzinger, 27 W. N. C. 223. 14 210 LANDLORD AND TENANT. Directions in Taking Assignments of Leases. 469. In case of the taking of an assignment of a lease it should be ascertained whether or not there exists any prohib- ition against the tenant's assigning his lease. Leases gen- erally require the written consent of the landlord for the ten- ant to assign or underlet, and if so, such assent should be obtained. Of course, in case of the assignment of a lease, the lease should be examined by the proposed assignee, and the as- signor or his landlord can be questioned as to whether or not there have been any changes in the terms of the lease. Records can be examined, or the tenant questioned, to as- certain if he has mortgaged his lease under acts of assembly or otherwise. An assignee will only be liable for the payment of rent, or for the performance of agreements during the time he holds the demised premises as such assignee. To protect the landlord against assignments without his assent, the prohibitory clause should be made to extend and apply to all assignments after the first with consent, and to all assignments by operation of law, or in any way whateyer. Provisions Prohibiting Parol Testimony to AfEect Written Leases. 470. In negotiations for a lease it often happens that con- versations take place about the terms thereof; and, to prevent the admission of such testimony there can be a clause in the lease providing that parol testimony will not be admissible to show any agreement, term or provision not in the lease. Restrictions as to the TJse of Demised Premises. 471. The lease may provide that the premises may be used solely for a certain ptirpose. or that the premises shall not be used for certain purposes. The tenant will have a wide lati- tude to carry on business if there is no restriction; and it may be a business prohibited in fire insurance policies. PRACTICAL DIRECTIONS IN RENTING PROPERTY. 211 -Making Kent Due in Advance by Occurrences after tlie Lease. 472. There can be a stipulation in the lease that if the lessee should become embarrassed, make an assignment for the benefit of his creditors, or be sold out at sherifif's sale, the whole rent for the balance of the term shall become due and payable in advance; and the landlord can be preferred in the distribution of the proceeds of the sheriff's sale of the tenant's goods to the extent of one year's rent, although the rent be payable in advance, as aforesaid.^" Providing Against the Liability of the Owner for Nuisances. 473. An owner of real estate cannot, by leasing the same to a tenant, avoid liability to a third party for the continuance of a nuisance on the premises, which, before such leasing, it was his duty to abate. A lessor out of possession is liable in damages to a third party for continuance by his tenant of a nuisance arising from a well and private sewer that were either defectively constructed or out of repair at the begin- ning of the lease. If the tenant contribute to the nuisance by use of the well and sewer, he will be liable; but such liability would not relieve the landlord of his duty to see that his property, before it passed out of his possession, was in such condition that its use would be uninjurious to his neighbors. The landlord should be careful that there are no nuisances on the property at the time he rents — and in some cases it would be well to have witnesses who have inspected the premises and who will testify as to the condition of the property at the time of the lease. Prevention of Defences being Waived by Paying Bent or other Action. 474. Where a lease provided that a building should be completed by a certain date, and the lessor failed to keep that part of his contract, and the lessee made a large number of payments of rent after entering, without making any claim 20 Piatt V. Johnson, 168 Pa. 47. 212 LANDLORD AND TJENANT. for deduction on account of the delay in obtaining posses- sion, he was held to have waived any right that he had to make such a claim.^^ Sometimes tenants may think it best to be protected against such waivers by their actions, and in paying rent, payments may be made under protest. Prevention of the Termination of Farm Leases by Death of Tenant. 475. There is a conflict of authority as to whether or not a farm lease will terminate with the death of the tenant; and if that is not the intention there can be a provision in the lease to the contrary. Provisions for Amicable Ejectments. 476. For the protection of the landlord it has become com- mon to have an agreement in the lease for the entry of a judg- ment in ejectment for the recovery of the demised premises by the landlord, in case the tenant makes default in the pay- ment of rent or breaks any of his agreements. Such an agreement will be of great benefit to the landlord, as other- wise legal proceedings may be necessary to recover posses- sion, whereby there may be great delay and troublesome litigation. According to the decisions, the landlord may lose his right to such a provision for amicable ejectment for non-payment of rent if he has been in the habit of giving time to the tenant to pay the rent after it is due, and thereby leading the tenant to believe that a forfeiture will not be insisted upon. To avoid such a result, the lease can provide that in case the land- lord shall not demand or collect his rent when due, or in case, by words or actions, he shall have given additional time to the tenant to pay his rent, any such circumstances or actions shall not be set up as a defence against the amicable suit and judgment in ejectment, and that the landlord may institute such suit and obtain such judgment without notice to the tenant. 21 Murphy 2'. Marshall, 39 W. N. C. 446. PRACTICAL DIRECTIONS IN RENTING PROPERTY. 213 In entering the suit and judgment, that tenant alone who has signed the lease, or his assignee, if right is given to the assignee, should be made a party defendant. If he alone is made a party, the sheriff under his execution can put an under-tenant, and all persons claiming any right to posses- sion under the tenant, out of possession. There should be a provision that the clause in question shall apply to the heirs, executors, administrators and assigns of the parties. There was an amicable action in ejectment and confession of judgment. The record showed as a ground for the for- feiture of the lease that the tenant did not pay the rent. The judgment was stricken off, one of the reasons being "that there being no place named in the lease for the payment of the rent, the landlord was bound. to be on the premises by himself, or his agent, on the day or days when the rent fell due, ready to receive the same, and if he allowed these days to pass, then, before he could declare a forfeiture, he mvist demand the rent of the defendant in person." ^* To avoid any questions like this the lease can provide that the rent shall be paid to the lessor at his residence, place of business, or at any place the lessor may designate. Where a lessee for years holds over after the expiration of his term, he is tenant from year to year, subject to all the covenants and stipulations in the original lease, so far as they are compatible with a yearly holding; but a warrant of attorney for a confession of judgment in ejectment for non- payment of rent, etc., contained in the lease limited to the former year is not applicable to the new situation unless made so by express agreement.^^ This case is not like McBrier V. Marshall, 126 Pa. 390, in which there was an option to hold for an additional term. Leases generally provided for a continuation of the term in case of a holding over, but in case of renting for only a 22 Hughs V. Lillibridge, 8 Pa. Dis. R. 358. 23 Hughs V. Lillibridge, 8 Pa. Dis. R. 358. 214 LANDLORD AND TENANT. certain term it will be well to agree that the rights and remedies to the ejectment shall extend to any renting what- ever, by implication or otherwise, after the expiration of the term. It will be well for the lease to provide for the filing of a copy of the lease in court in lieu of filing the original lease. Providing for Distraint after Kemoval of Tenant. 477. In case the tenant removes his goods from the de- mised premises clandestinely, they can be followed and dis- trained upon for thirty days, as provided by an act of as- sembly; but in case there is no clandestine removal of the goods, they cannot be followed and distrained upon. Hence it is important to have a clause inserted in the lease that in case the tenant shall remove any of his goods from the prem- ises, whether clandestinely or not, they may be distrained upon wherever found, say within thirty days after removal. Giving Sub-Tenants the Benefit of the Exemption Law. 478. There was a provision against a tenant assigning or sub-letting without the consent of the landlord, and it was held that a sub-tenant of a tenant, who has not been recog- nized as such by the landlord, cannot claim the benefit of the exemption law, as against a distress for rent.-* In view of this decision it may be to the interest of under-tenants to get the consent and approval of head landlords before leasing, and that they shall have the same rights to the exemption law as their landlords have. And lessees, in order to pro- tect under-tenants, may provide in their leases that the right to the exemption shall extend to assignees or under- tenants who may become such with the consent of the head landlords. Providing for Surety in Cases of Extensions of Lease. 479. In case of a person becoming surety for a tenant, 24 Rosenberg v. Hallowell. 35 Pa. 369. PRACTICAL DIRECTIONS IN RENTING PROPERTY. 215 there is danger of the surety's denying his liabiUty for ex- tended periods, upon giving notice. To avoid such results the surety can be made to agree that his liabihty as surety shall extend, not only to the original term, but to any con- tinuations or extensions thereof under or by reason of the lease. A lease can provide that all renewals or extensions shall be upon the condition that the surety consents to be bound for the same. Getting the Consent of the Surety to Alter Lease. 480. In case of an alteration of the terms of a lease without the consent of the surety, he may be discharged. Such con- sent had better be in writing. Extension of Bight to Terminate Lease to Assignees, etc. 481. Have a right to terminate a lease to extend to grantees, assignees, devisees, heirs, executors, administra- tors, etc., if so intended. There was a reservation in the lease by the lessor of the right to terminate the lease at any time by giving thirty days' notice. It was held that such reservation did not inure to the benefit of the lessor's grantees, there being no provision to extend this right to the grantees or assigns, as a number of other agreements in the lease had been made to extend to grantees and assigns.^' Uanger of Landlord Losing his Bight to Bent by the Non-Perform- ance of an Entire Contract. 482. Landlords, in renting property, should be careful, in case they promise to do something to the demised premises in the future, not to make their contract for performance entire. The plaintiff leased a warehouse to the defendants at an annual rent of $1,500, payable quarterly; at the time of the making of the contract he delivered to them possession of the 25 McClintock v. Loveless, S Pa. Dis. R. 417. 216 LANDLORD AND TENANT. three lower stories, and agreed to give them possession of the cellar and of the fourth and fifth stories on demand; he re- fused to deliver possession thereof, and the defendants were compelled for want of room to abandon the premises and to rent another house for the transaction of business. The plaintifif sued for use and occupation. The court held that the contract was entire, and being so, there could be no recovery unless complete performance had been prevented or waived by the party entitled to demand it."*^ To the same effect is Block V. Dowling.^^ Cautions in Preparing Agreements for the Extension of Term, and for Options. 483. In case there is a lease for a certain term the tenant can go out of the demised premises and the landlord may enter without notice. Even in a case of a tenancy from year to year it has been held that the tenant can go out at the end of any year without notice. For mutual convenience leases often contain the following or a similar form : "And it is hereby mutually agreed, that either party hereto may determine this lease at the end of said term, by giving the other notice thereof, at least prior thereto, but in default of such notice, this lease shall continue upon the same terms and conditions as are herein contained, for a further period of and so on from to unless or vmtil terminated by either party hereto giving to the other notice for removal previous to the ex- piration of the then current term." As questions may arise as to whether the provisions as to notice are to apply not only to the present but to future terms, it will be well if such is the intention to have the notice to terminate to expressly apply not only to the original term 26 McClurg V. Price, 59 Pa. 420. 2y Block V. Dowling, 7 Pa. Dis. R. 261. PRACTICAL DIRECTIONS IN RENTING PROPERTY. 217 but to the termination of the second term, and to each futur« additional or extended term there may be, express or im- phed. It sometimes occurs that a tenant is given an option to continue for an extended term, certain or uncertain, and it appears that care should be exercised in the language of the lease giving such option. The Supreme Court affirmed a judgment on the opinion of the court below. In that opinion it was said : "The lease was to continue 'for the term of one year with the privilege of three years from the first day of April, 1885, at the rent of two hundred and four dollars per year.' We interpret this language to mean that the lessee could remain one year or from year to year, not exceeding three years. A privilege to remain three years must include the privilege to remain two years. The whole necessarily includes the parts. We must construe the lease in favor of the tenant rather than in favor of the lessor. In the absence of anything to the con- trary the tenant, by giving due notice, such as was given, had the right to terminate the lease at the end of the second year; he exercised the option secured to him under the lease. The lease fixed the rent at two hundred and four dollars per year, indicating a term from year to year rather than a term for three years. The landlord cannot complain, for he received due notice of the intention to quit. It is argued that this interpretation destroys the mutuality of the contract, but we must remember that the contract starts out with granting a privilege in favor of the tenant." ^^ In case a term can be extended at the option of the tenant it is suggested that there can be the usual clause that either party may terminate the lease on notice, say, on three months' written notice if a yearly tenancy, and that the ten- ant must give notice, say, three months and one week before the end of the term, whether or not he exercises the option. That if the option is not exercised the tenancy shall run on 28 Gillion V. Finley, 22 W. N. C. 124 (s. c). 218 LANDLORD AND TENANT. from year to year unless either party gives three months' notice to terminate before the end of the term, as provided in the other clause. The tenant may not exercise an option for two years, but he may be willing to remain for another year as a tenant from year to year, and so on, and the landlord may also be willing, and a provision can consistently be made for the running on of a tenancy from year to year if the option is not exercised. Modern cases show considerable litigation as to agreements for extending leases and the exercise of options, and it will be well for the practitioner to carefully examine these cases and to steer clear of any mistakes.^* A lease provided "that if the said lessee should continue on the premises after the termination of the above contract, then the same is to continue in force for another year, and so on from year to year, unless either party shall give legal notice in writing to the other party of his intention to terminate said letting." It was held that as a tenant from year to year is not bound to give notice of his intention to quit at the end of the current term, the tenant, in this case, was not bound to give notice under the foregoing clause. Some printed leases have the word "legal" inserted. It will be well to see that the word is omitted to guard against the above decision.*'' Necessity of a Consideration for an Agreement to Change the Terms of a Lease. 484. An agreement between landlord and tenant, made during the term, to modify the lease, is not binding until the end of the term \\-ithout some new consideration; but it may be valid for anytime subsequent to the expiration of the term; and the continuance of the tenant in possession paying the rent agreed upon would be sufificient consideration for the modification as to the subsequent time. Such a contract may 29 Lipper v. Bouve, 41 W. N. C. 366; Harding v. Seeley, 148 Pa. 20; Ashhurst i>. Phonograph Co., 166 Pa. 357; Megargee v. Longaker, 10 Pa, Super. Ct. R. 491; Rohbock zr. McGargo, 6 Pa. Super. Ct. R. 134, 30 Brown v. Brightly, 14 W. N. C. 497. PEACTICAL DIRECTIONS IN EENTING PROPERTY. 219 be implied by the acts of the parties. Even if it be an ex- press agreement, not binding in law, but supposed to be so by the parties and carried out by them ; and if a new year be entered upon, under the supposition and intention that it is and should be mutually binding, such agreement will be en- tirely valid;*^ In case of an agreement as to the amount of rent and other matter during the term, care should be exer- cised to have some consideration expressed. Protecting Landlord in Parm Leases. 485. In farm leases it may be important for the landlord to have agreements incorporated in the lease, as to the manage- ment of a farm by the tenant. Notwithstanding there may be a custom concerning such management, it would be well to understand distinctly what the tenant is or is not to do in the way of farming. For example, there may be the usual clause against the tenant's removing things necessary for the nourishment of the land, against plowing, or for planting of crops and manuring. making the Payment of Taxes, Charges, etc., as Bent. 486. In case the tenant is required by the lease to pay taxes, water rent, for light, or for power and the like, it will be well to have a provision that such payments shall be paid as rent, and that they can be treated and distrained for as rent. It may be well to have fixed charges for such pay- ments, with fixed times of payment, so that the landlord can distrain for certain amounts in such cases; but where this is not done, the maxim that "that is certain which can be ren- dered certain" will apply. Necessity of Beading Leases. 487. Before leases are executed, the parties should read them or have them read. It has been said : "If a party who can read will not read a 31 Walker v. Githens, 32 W. N. C. 505. 220 LANDLOED AND TENANT. deed put before him for execution; or if, being unable to read, will not demand to have it read or explained to him, he is guilty of supine negligence. This is undoubtedly true where the parties stand on an equal footing and deal at arms' length." Protecting Pire Insurance from Conduct of Tenant. 488. Sometimes insurances are affected by renting to ten- ants, or by tenants making alterations or putting in or using things prohibited in the policy. A shoe store was changed into a dry goods, hardware and grocery store, in which a keg of powder was placed. The occupation of grocer and storage of gunpowder were pro- hibited. There was a loss by a fire in the grocery store, and an explosion of the powder. It was held the insurance company was not liable; that it was not material that the landlord did not know that his tenant kept gunpowder; that forbidden articles in a policy of insurance would be of no practical importance if the effect of keeping them depended upon the landlord's knowledge that they were kept by his tenant.^^ In renting properties for business, or consenting to assign- ments, or an underletting, it would often be well to examine the policies of insurance to see if the business of the proposed tenant is prohibited. If the business is found to be so, per- haps the insurance companies will allow the business for an additional premium. It would also be well to insert an agreement of the lessee, that he will not, on penalty of instant forfeiture, occupy or permit the demised premises to be oc- cupied excepting for a particular business, and that he will not, knowingly, do or commit, or willingly suffer to be done or committed, any act or thing contrary to the conditions or stipulations of the policies of insurance on the premises. Of course, it will have to be proved that the tenant had notice in 32 Fire Assn. v. Williamson, 26 Pa. 196. PKACTICAL DIRECTIONS IN KENTING PROPERTY. 221 some way of such conditions and stipulations. Unless some- thing of this kind is done, a tenant, assignee, or any under- tenant, may, at any time, imperil the insurance. Distinguishing Between a Lease and Sale in Granting Mining Bights. 489. In Pennsylvania there has been much confusion and litigation under the laws relating to mining rights or leases. It has sometimes been a difificult question to determine whether there is a sale of ore in a mine, or whether there is a lease. In such instances the question becomes important because of the differences between a sale and a lease. If there is a sale, rights are given to the purchaser similar to those he obtains under title as the purchaser of a piece of land. Ore or coal is a portion of the land, and not produce. A purchaser may hold the right to ore as to a piece of land, yet another person may own the soil above. In case of a sale, there should be a deed executed by the proper parties, and recorded, so as to give notice; although the purchaser being in possession of the mine possibly may give notice. If full ownership is intended, the word "heirs" had better be used. In case of a conveyance of the ore, the title to it will belong wholly to the purchaser, as real estate. If royalties or other amounts are to be paid in the future, they will be in the shape of purchase-money. In case the vendor shall die, the mine or ore will not belong to his estate. The unpaid purchase- money will not go to the heir or devisee as rent, but to the executor or administrator, like any debt due to the estate. Testators may happen to die under the impression that they own the mine, and that there was a lease. In consequence, blunders may be made in wills for which there will be no remedy. If there is a lease the landlord will retain the ownership of the coal or ore until it is separated by mining; and he will have what is called a reversion — that is, the right to the pos- session of the property at the end of the term of the lease. 222 LANDLORD AND TENANT. .; In case the lessor dies, the rent or royalty falling due after his death will go to his heir or devisee, and not to his ex- ecutor or administrator. In case of a sale, the purchaser will pay taxes on the mine; but in case of a lease, the lessor will be liable to pay the taxes. In case a person bargaining for a mining property is to have an unlimited right to take all of the coal or ore for a price, there will be a sale. The principle leading to such a re- sult seems to be that where there is the right to take th.e whole product of the piece of land, the effect is the same as if there was an express grant of the land. What has led to mistakes and disastrous results is this : that there can be a sale or grant of coal in place, although there may be nearly every indication of a lease. The document may be entitled a lease; the words, "demised" or "rented," may be used; there may be a term of years; there may be amounts to be paid called "rent"; there may be provisions against assigning or underletting, and of forfeiture for non-payment and the like — and yet, because of an indication that the grantee is to pay for all of the coal, whether mined or not, there will be a sale, and often so contrary to the real intention of the vendor. If there be a provision in the lease that the grantee shall mine a certain amount of coal per annum, and if he do not, that he shall pay a certain amount of money per annum, that circumstance may result in a sale. Such clauses are prob- ably put in what are supposed to be leases as a spur to urge a supposed tenant to diligence in mining. In order to avoid mistakes in drawing grants or leases of mining rights, the following suggestions are made : In case the owner of a mine, after explanation, should see fit to sell and convey all of the coal or ore in a mine, let there be a deed made in the manner used when a piece of land is conveyed, the words, "grant," "bargain" and "sell." etc., being used instead of such words as "leased," "demised," etc. Let the deed express the fact that it is the intention to sell the mineral, and not to lease it. The coal or ore can be PRACTICAL DIRECTIONS IN RENTING PROPERTY. 223 granted for a sum of money payable at once or in instal- ments, or there can be a provision that the purchaser shall mine continuously and pay a certain proportion of the pro- duct of the mine as purchase-money. The deed should be signed by the proper parties, exactly as in the case of con- veyance of real estate. Married women should join in the deed with their husbands; minors' interests should be sold under order of the orphans' court; the deed should be ac- knowledged and recorded. If life tenants hold title, and the mine is not opened, they themselves will have no right to open mines, and, con- sequently, they cannot convey or lease to others any right to open mines. The question has arisen in the mind of the author as to whether or not the vendor will be secured the payment of the purchase-money. The payment of the purchase-money can be charged upon the mine in the deed of conveyance; and, in such case, a sale of the mine can be made to secure the charge by equitable ejectment or by judgment against the owner of the mine. It is not customary to charge a mine expressly with the payment of the purchase-money, and it may be doubtful whether or not there will be any charge without such expression. The best way to secure purchase-money would probably be by a purchase-money mortgage. Such mortgage may be made to bind, not only coal or ore in place, but minerals severed by mining. As to coal or ore severed by mining, however, there may be doubts as to whether the mortgage would not be void as to creditors, although it may be good between the parties. If there is to be a lease of coal or ore, then the paper should be styled a lease, and should have all of the features or indica- tions of one; and, particularly, there should be a term, leaving a reversion in the landlord. The lease can expressly declare that there is to be no sale or conveyance of the coal, but only a lease. The lease can also declare that the owner- ship of the coal or ore in place shall remain the property of 224 LANDLORD AND TENANT. the landlord until severed by mining. Above all, the lease should guard against granting to the tenant all the minerals, or in requiring him to pay in any way for all the minerals. If the rent is to be paid in the form of royalties, it w^ill be best to have the payments made from a portion of the coal mined. The lease can provide, as usual, that the tenant shall mine continuously; and there can be a clause of forfeiture for failure to do so. If the land is unoccupied by the lessor, and only valuable for mining, then it will be well to lease the land with the right to mine. It was held that in order to constitute a lease, it is not necessary that the lessee should have an interest in the surface.** In the mining districts leases of lands for mining purposes are restricted to the use of only so much of the surface as will be necessary for mining purposes, with the right in the lessor to use the remainder of the surface. An agreement that a person shall for a term enter on the land, dig ore, erect buildings, etc., and pay, say fifty cents a ton, for all ore mined, amounts to a lease. The following cases draw distinctions between a sale, lease and license for the purpose of obtaining minerals : There was a demise of land for a term of years with the sole and exclusive right and privilege, during said period, of digging and boring for oil and other minerals, and of gather- ing and collecting the same therefrom. The Supreme Court said : "The contract referred to was a lease of the lands for a specified term and for a particular purpose, at a fixed rent or royalty reserved out of the production." It was "not a mere license, as in Funk v. Haldeman, 53 Pa. 229, for in that case the words of the grant amounted neither to a lease nor a sale of the land, nor of any of the minerals in the land. Funk's right was, therefore, declared to be a license to work the land for minerals, a license coupled with an interest which the licensor could not revoke. Nor does the act of February 33 Sheets v. Allen, 89 Pa. 47. PRACTICAL DIRECTIONS IN RENTING PROPERTY. 225 3, 1882, import a sale of all the coal, gas and other minerals in the land, absolutely; the cases of Caldwell v. Fulton, 31 Pa. 476; Sanderson v. City of Scranton, 105 Pa. 469, and others involving the same principle, do not, therefore, have any application." ^* There was an agreement whereby one gave a defendant the sole right to quarry, take and sell stone for a term for which he was to pay a certain amount per annum. The Supreme Court said: "The agreement between Cooper and defendant granted the latter the sole right to quarry, take and sell ganister stone from a certain tract of land for the term of fifteen years. Without going into the niceties of dis- tinction between licenses, chattel interests and sale of min- erals in situ, as sales of the land, it is sufficient for the present case to say, while the grant from Cooper to defendant was more than a license, because it passed an exclusive interest in the land for a certain purpose for the specified term, it was less than a sale, for the term was limited, and stone not ac- tually taken would remain part of the land and revert to the lessor at the end of the term. It was, therefore, a lease, a chattel interest within the case of Brown v. Beecher, 120 Pa. 590." 3» In connection with the practical questions here consid- ered, it will be well to read Chapter XXIV, on Mining Leases. Necessity of a Particular Description of the Extent of a Bight to mine. 490. There was a tract of two hundred acres, on which coal had been mined at several openings. The lease de- scribed the thing granted b}^ the lessors no otherwise than as their "coal-bank." It was said that the lease ought to have been drawn so as to exclude dissension; that it was for the jury to say what was the extent of the demise. Words 34 Brown v. Beecher. 120 Pa. 590. 35 Duncan v. Hartman, 143 Pa. 595. 15 226 LANDLORD AND TENANT. enough were not put into the instrument to define the boundaries of the grant.*® Ascertaining if any Old Mining ILeases are Outstanding. 491. It is customary in mining leases to have agreements for the forfeiture of the lease for the non-payment of royal- ties, or for the non-performance of certain things to be done by the tenant. The forfeiture will depend upon the election of the landlord, as the provision for such forfeiture will be for his benefit. It sometimes happens that tenants, after making attempts to find minerals, or to mine, abandon the demised premises; and if there is any evidence of previous mining, inquiry should be made of the landlord as to whether or not he has exercised his right of forfeiture. If he has not, there may be an outstanding tenancy that will make the title of the new tenant defective. Protection to Landlord wlio Beserves the Surface in a Lease to Mine. 492. In case a lessee has a right to mine he can open mines so near to the lessor's dwelling-house, to a spring, or to a stream, as possibly to do damage, for which there will not be remedy. Mine owners have the right to pollute streams in mining, and that in some cases should be considered. The right to open and work mines may be restricted to certain localities so as to avoid such damage. Binding Bemainderman in Case of a Lease by Tenant for Life. 493. A lessor having a life estate made a coal lease in which it was stated that "All covenants herein bind ex- ecutors, administrators and assigns." The lessor having died, the representatives and heirs of the lessor executed an instrument in writing, providing that the lessee should not be dispossessed until the end of the term, and it was held that 36 Tiley v. Meyers, 43 W. N. C. 404. PRACTICAL DIRECTIONS IN RENTING PROPERTY. 227 the lessee had no right to have the lease cancelled upon the death of the lessor.^^ In taking a lease from the owner of a life estate, if those entitled in remainder join in the lease in renting the prop- erty for a certain term, the rent to be paid to the tenant for hfe during his life and then to those entitled in remainder, it seems as if the remaindermen will be bound according to the above authority. In such case it will be well to have the lease acknowledged and recorded, so as to give notice to purchasers or mortgagees of the remaindermen. It can be agreed that in case the remaindermen, their heirs or assigns, shall not be bound by the lease, that it shall cease. ITecessity of Becording Oil Lease wlien Tenant does not Take Pos- session. 494. If a tenant does not go into actual possession or oc- cupation and his lease is not recorded, his title may be cut out by that of a subsequent purchaser for value without notice.^* necessity for Having Time Fixed for Delivery of Landlord's Share of Crops. 495. Rent reserved for a farm was one-half of all the crops raised thereon. The lease did not indicate in terms when the rent should be paid. As there was no covenant to pay at any particular time, it was held that the end of the year was the period which the law assigned for the annual reditiis to the landlord. The crops were severed from the ground, and it was held that the fact that the grain had been severed prior to a sheriff's sale of the farm, but not delivered to the landlord, did not vest the title to the grain in him as against the sheriff's vendee.^® The lease can provide that the delivery of the crops shall be due to the landlord upon severance, and then they should 37 Gas Co. V. Patterson, 184 Pa. 364. 38 Aye V. Phila. Co., 193 Pa. 457. 39 King V. Bcsserman, 13 Super. Ct. R. 480. 228 LANDLORD AND TENANT. be delivered. In coal oil and gas leases they may possibly be treated like farm leases as to questions when productions mined are due to the landlord. In case of a private sale, and the crops not being due until the end of the year, the vendee may become entitled to the crops although harvested unless the vendor reserves such crops in the agreement of sale.'*" Protection of Parties in Agreements to Pay for Taxes, Charges, Assessments, etc. 496. In case a tenant agrees to "pay taxes, v^ater rents and assessments upon the premises" he will have to pay for paving and curbing a street opposite the demised premises and he possibly would not agree to do so. When tenant is to pay taxes, gas, water rent, etc., he has to pay the parties entitled to receive payment.*^ A lease can provide that in case tenant does not pay such claims, the landlord can treat the amounts unpaid as rent and collectible by distress, and that the agreement to pay shall extend to and bind the assigns of the parties. Dangers in Using Clause that Landlord may Change Terms of Lease. 497. In the city of Philadelphia and, it may be, elsewhere in Pennsylvania, the following form has been used exten- sively : "And it is hereby mutually agreed, that either party hereto may determine this lease at the end of said term, by giving the other notice thereof, at least prior thereto, but in default of such notice, this lease shall continue upon the same terms and conditions as are herein contained, for a fur- ther period of and so on from to unless or until terminated by either partj^ hereto giving to the other notice for removal previous to the expira- 40 King !'. Bosserman, 8 Pa. Dis. 344. 41 Hand v. Suravitz, 148 Pa. 202. PRACTICAL DIRECTIONS IN RENTING PROPERTY. 229 tion of the then current term. Provided however, that if the lessor shall have given notice previous to the expiration of said term, or any extension or renewal thereof as above, of intention to change the terms and condi- tions of this lease, and the lessee shall hold over after such notice he shall be considered lessee under the terms and conditions mentioned in such notice, for such further period as he may remain in possession of said premises, and until this lease is terminated by notice as hereinbefore provided.'' It seems that care should be exercised in filling in the form, or its use. For an instance, a lease was prepared for a ten- ant to sign in which the blanks were filled in so that either party could terminate the lease upon three months' notice before the end of the term, but so that the landlord could change the terms of the lease upon ten days' notice before the end of the term, and if the proposed lessee had signed the lease the result would have been that the lessee could have been compelled to vacate on ten days' notice by the lessor so changing the terms that they would not be accepted by the lessee. Even supposing the lease should provide that the notice to change the terms should be given three months before the end of the term, and the notice by lessor should be given at the last hour, there may be a question whether according to the reading of the form the lessee would not be in for another year with changed terms because he had no opportunity to give and had not given notice to terminate the lease at the end of term three months before its termina- tion. In. Case of Doubtful Construction, the Tenant Favored. 498. The rule of law respecting leases of doubtful dura- tion is, they must be construed favorably to the tenant. If the duration is left optional by the terms of the lease, without saying at whose option, as for instance, if a lease be made for seven, fourteen or twenty-one years, it means at the option 230 LANDLORD AND TENANT. of the tenant who has the right of choosing whether he will put an end to the lease at the end of seven years, or continue it for fourteen or twenty-one years. And in all cases of un- certainty, the tenant is most favored by law, because the land- lord, having the power of providing expressly in his own favor, has neglected to do so; and on the principle that every man's grant shall be taken most strongly against himself." In view of the above principle of construction the landlord should be careful to see that his lease is entirely free from doubt, and in doing so the aid of counsel should be obtained in every important lease. Fixing a Time for the Tenant to Perform an Agreement to Make Improvements. 499. In case tenant agrees to make improvements he can do so at any time during lease. There was a lease for five years with privilege of a ten years' lease. The tenant was to improve, and it was held that the lessee could make the improvements at any time during the lease." There may be a case where it will be to the interest of the landlord that the improvements shall be made before the end or near the end of the lease. If the tenant has the whole term in which to improve he may happen to break his agree- ment near the end of the lease and go out without improving, and the landlord may have no redress but in action for damages, which may be useless. Protecting Landlord's Bight to Tenant's Fixtures at the End of the Lease from Levy, etc. 500. If there be an agreement between the landlord and tenant that the fixtures of the tenant are to become the prop- erty of the landlord at the end of the lease, such fixtures may be levied upon in the meantime.** 42 Com. V. McNeile, 8 Phila. 438. 43 Palethrop v. Bergner, 52 Pa. 149. 44 Lemar v. Miles, 4 Watts, 330. PKACTICAL DIRECTIONS IN RENTING PROPERTY. 231 It is suggested that the landlord possibly may be protected by a provision in the lease that in case of a levy upon such fixtures the title and ownership thereof shall vest in the land- lord immediately before the issuing of any execution or at- tachment against the tenant, subject to any rights of the tenant to use the same during his lease. Under such cir- cumstances delivery to the landlord would not be necessary. If an Assignee Assigns his Lease and Betains an Interest He will Remain Liable. 501. The privity of estate which induces the liability of the assignee is the actual or beneficial enjoyment of the premises. It is not necessary that the legal title shall be, or shall con- tinue, in him who is to be held because of his privity of estate. One who has a beneficial interest in the estate created by the lease, or enjoys the profits thereof, or has a right to enjoy such profits, is in privity of estate, as the successor to the title of the lessee. When the assignee of a leasehold estate executes a lease of the premises, reserving a larger rent or containing covenants more advantageous than those found in the original leasehold, he reserves to himself a benefit under the original lease, and his privity of estate is thus continued.*^ In case an assignee assigns his lease he should be careful not to retain any interest in the demised premises or in the rents and income thereof in any way or manner, directly or indirectly. Necessity of Having a Clause for Forfeiture for a Breach of a Covenant Not to Assign. 502. The fact that an assignment of a lease is in violation of a covenant therein does not prevent the passing of the title.** In view of this consequence it becomes important that the landlord should have the right to terminate the lease for such a breach, as otherwise he may have only a right to 45 McQaren v. Oil Co., 14 Super. Ct. R. 167. 46 Petroleum Co. v. Oil Co., 23 Pa. C. C. R. 153. 232 LANDLORD AND TENANT. an action for damages which may prove fruitless. In assess- ing damages for a breach of covenant not to assign it is con- sidered in how^ much worse position the plaintiff will be than he would have been in if he had retained the defendant's liability.*" As to the assignor's liability, he will remain liable although he assigns, and the landlord financially may be in the same and, perhaps, a better position, and if so, how can there be any damages recovered? Guarding Against the Breach of Trifling Covenants Giving the Bight to Recover Possession. 503. It seems that in justice to a tenant he should have reasonable notice to perform trifling covenants before the landlord can recover possession. In a lease commonly used, if the tenant does not keep the premises in good order and repair, and remove ashes, rubbish or refuse matter therefrom the lease shall determine and the landlord may recover pos- session. It will not do to argue that a breach in such case is a small matter. Landlords generally tolerate such viola- tions of a lease, but it is not safe always to rely upon such conduct. If a landlord should desire to break a lease he may be tempted to take every advantage allowed by the law. In Case a Tenant Agrees to Use or Not to Use Demised Premises for a Certain Business or Purpose. 504. A lessee under a lease containing a covenant that under penalty of forfeiture he would neither occupy nor per- mit the premises to be occupied otherwise than as a saloon or dwelling, without the lessor's written consent indorsed, was not released from liability for the rent by a failure to obtain a license to sell liquors.*® This case shows a danger there may be in a person renting a property for only a certain business or use and then discontinuing the business or the use provided. When there is a restriction as to a business it 47 Sedgwick's Measure of Damages. 233, note. 48 Teller v. Boyle, 132 Pa. 56. PRACTICAL DIKECTIONS IN RENTING PROPERTY. 233 should be broad enough so that the tenant can get another person to take his place in case he should vacate. Danger of there being a Breach of a Covenant Not to Assign Lease by Taking a Partner. 505. Case of tenant taking a lease with a covenant not to assign and then taking a partner: Where a partner of the lessee, on a dissolution, becomes his successor in the busi- ness, and continues to occupy the demised premises, and the lease contains a clause against an assignment without the consent of the landlord, such continuing partner will be deemed as assignee of the term.'*^ It may occur that an individual tenant may take a partner and assign to him a right in the lease, and in such case it may be well to have the prohibition against an assignment, with the provision that the tenant may take a partner and give him a right in the lease. For safety, if there is no such clause, the consent of the landlord to the assignment had better be procured. Necessity for a Description to Locate Premises in Leases or Amicable Ejectments. 506. An amicable action with confession of judgmnt upon a lease was entered for premises No. 136 South Third Street, in the city of Philadelphia. The case appears to have been taken to the Supreme Court by a writ of error without any intermediate rule. There was an objection that the descrip- tion was too indefinite, but the Superme Court affirmed the judgment, because the street number alone indicated the premises.^** The question arises: Supposing no street num- ber had been given, what would have been the result? The act of 1806 requires a description to be filed in proceedings in ejectment. The safe practice is to describe the land so that the sherifif 49 McAdam on Landlord and Tenant, 285. 50 Flanigan v. The City, 51 Pa. 491. 234 LANDLORD AND TENANT. can execute the writ without difficulty and with no extrinsic aid or explanation.^^ It is suggested that it will be well to give the street number, if any, in a lease, or to give some description that will particularly locate the demised prem- ises. If this is not done it will be well for the amicable action and writ of execution to define and locate the premises, as it is not known how the courts will decide in case objection is made. Giving Bight to Distrain 0£C the Demised Premises. 506*. At common law a landlord could not distrain goods oft" the demised premises. By the act of March 21, 1772,^^ if a tenant should fraudulently or clandestinely remove his goods from the demised premises to prevent the landlord from distraining, the landlord, within thirty days after the removal of goods, may follow and distrain upon them, if they should not be sold. By the act of March 25, 1825,®* and a supplement thereto, if goods should be fraudulently re- moved in Philadelphia, Pittsburg or Allegheny to prevent a distress, the rent can be apportioned to the date of removal and goods can be followed and distrained upon an affidavit being made as to fraudulent removal. It was held as to the first act that a mere removal in the daytime, without the knowledge of the landlord, would not be fraudulent; that the landlord must be vigilant, and if he should neglect to distrain when the rent becomes due he will lose his remedy under the act."* A lease contained a clause reading as follows: "And it is further agreed, that should the property of the lessee be removed from the aforesaid premises, the lessor is hereby authorized, at any time within ninet}' days thereafter, to enter upon the same wherever found, and to seize and sell so much thereof as will fully satisfy him, the said lessor, for all arrears 51 I Brewster's Practice, 363. 52 Act of March 21, 1772, i P. & L. Dig. 2638; i Sm. L. 370. 53 Act of March 25, 1825, i P. & L. Dig. 2639; P. L. 114. 54 Grace v. Shively, 12 S. & R. 216; Grant's Ap., 44 Pa. 477. PRACTICAL DIKECTIONS IN RENTING PROPERTY. 235 of rent then due or to become due, as above provided, and the costs thereon." The court of common pleas of York county, in considering this clause, said: "Can it mean a re- moval to which the landlord consents, if that be the fact, or can it mean any other than a fraudulent or clandestine re- moval? Without deciding a question which, on this motion, has not arisen, it looks as if it must be construed to mean a fraudulent or clandestine removal, and if it was neither, but with the knowledge and consent of the landlord, then it is not effective, and no levy could be made under the landlord's warrant, and the plaintiff would not have been injured by the conduct of the defendant under it : Owens v. Shovlin, 1 16 Pa. 371." ^^ From the narrow construction of the act of 1772 by the decisions, such clauses as that above stated have been commonly inserted in leases. According to the letter of such clauses, after a removal at any time, by day or by night, with or without the knowledge of the landlord, the goods removed can be levied upon at any time. The words being plain and leading to no absurdity, there is no room for construction or to incorporate by implication the words "fraudulently" or "clandestinely." In construing the contract the acts of assembly can have no application fur- ther than this : that the acts were narrow and such clauses were made broader, omitting the words "fraudulently" or "clandestinely." In treating the clauses in question as the acts of assembly there would be a violation of fundamental rules of construction. The plain words of the lease would be disregarded, and, above all, the intention of the parties would not prevail. Owens v. Shovlin, quoted in Baer v. Kuhl, has no application to the question considered. There was a provision for a distress in case of a tenant's removal from the premises, but there was no provision for fol- lowing" and distraining upon goods removed. A lease was for a store room for two years, for the yearly rent of $2,000, 55 Baer v. Kuhl, 8 Pa. Dis. 389- 236 LANDLORD AND TENANT. with the stipulation that if the lessee should "at any time during the continuance of this lease, attempt to remove or manifest an intention to remove his goods and efifects out of or ofif the premises, without having paid in full for all rent which shall become due during the term of this lease, then the whole rent for the whole term shall be taken to be due, and the lessor may proceed to distrain and collect the whole as if by the conditions of the lease the whole rent was pay- able in advance." It was held that by the lease it was not required that the attempt or intention to remove the goods should be fraudulent in order to authorize a distraint.^® This case shows the great liberality of the courts in allowing persons generally to make their contracts regardless of re- sults or hardships. Considering the doubts which have arisen, as above indicated, it is suggested that the clauses in question can provide for the apportionment of the rent to the date of' the removal of goods, or to have rent fall due in advance; and to give the right to distrain, whether the removal may be by day, by night, fraudu- lent, with the knowledge or consent of the landlord or other- wise. The right to distrain on goods removed, with the rent apportioned to the date of removal, with the right to recover possession for non-payment of rent by an amicable ejectment, would be sufficient generally to protect a landlord. To go further than this and to have the whole future rent to fall due, if of considerable amount, seems morally wrong, though, like Shylock's bond, it may be legally right. 56 Goodwin v. Sharkey, 80 Pa. 149. CHAPTER XXVI. FORMS. Page 238. SECTION 507. A lease. 508. Farm lease. 509. Farm lease on shares. Sio. Farm lease on shares, short form. SI I. Covenant that lessee shall fallow the land and mow but once a year, etc. 512. Covenant that lessee may dispose of hay and straw. 513. Covenant to lay down part of the ground with clover, etc. 514. That the lessee shall use the hay, dung, etc.. on the premises. 515. Fire clause for farm lease, No. I. 516. Fire clause for farm lease. No. 2. 517. Fire clause for a dwelling. 518. Fire clause for a business property. Sig. To protect against assign- ment of lease. 520. For insertion after ejectment clause. 521. Giving an option to pur- chase. 522. Surety for tenant. 523. Assignment of lease. 524. Surrender of lease. 525. Distress warrant. SECTION 526. Notice of distraint. 527. Affidavit of appraisers and appraisement. 528. Consent of tenant to permit distrained goods to re- main. 529. Notice of constable's sale. 530. Claim for benefit of exemp- tion law. 531. Summons of appraisers. 532. Affidavit of appraisers and election. 533- Appraisement of exempted goods. 534. Amicable action and judg- ment in ejectment. 535. Notice to quit for non-pay- ment of rent under act of 1830. 536. Complaint. 537. Summons. 538. Writ of restitution. 539. Record. 540. Notices to quit at end of lease. 541. Complaint for possession under act of 1772. 542. Precept to the sheriff. 543. Inquisition. 544. Record. 545. Summons to third party claiming title. 237 238 LANDLORD AND TENANT. SECTION SECTION 546. Complaint for possession 550. Notice in case of lost lease. under act of 1863. 551. Second notice. 547. Summons. 552. Notice when tenant is unable 548. Record. to answer first notice. 549. Writ of restitution, A Lease. 507. This Agreement Witnesseth, that A. B., of , doth hereby let unto C. D. [here describe premises] for the term of one year from the first day of January A. d. nine- teen hundred, at the rent of three hundred dollars per annum, to be paid monthly in advance, the first monthly payment thereof to be made on the first day of January, Anno Domini 1900, and said lessee doth hereby agree to pay said rent to the said lessor on the days and times aforesaid, at the of the said lessor, or at such other place within as said lessor may in writing from time to time direct, withovit de- mand being made therefor, and that he will not assign this lease, nor underlet the said premises, or any part thereof, or use or occupythe sameother than as a without thewritten consent of the said lessor first had and obtained, and during the said term will keep said premises in good condition, order and repair, and at the termination of said term or of any ex- tended term, will deliver up the said premises in as good con- dition, order and repair as they now are, reasonable wear and tear, and loss or damage by fire or other casualties, excepted. And the said lessee further agrees that if the rent shall re- main unpaid on any day on which the same ought to be paid, then the lessor may enter the premises, and proceed by distress and sale of the goods there found, to levy the rent and all costs and officer's commissions. The said lessee further agrees that all goods on the said premises, and for thirty days after removal, shall be liable to distress for rent, and hereby waives the benefit of all exemption laws in relation thereto. And said lessee further agrees that this waiver shall extend and be applicable to any process, execution or executions that may be issued in any or all suits, actions or proceed- FORMS. 239 ings, for the collection of rent due and in arrear, and for damages for the non-fulfilment of any of the covenants herein contained. And it is hereby mutually agreed, that either party hereto may determine this lease at the end of said term, by giving the other notice thereof, at least prior thereto, but in default of such notice, this lease shall continue upon the same terms and conditions as are herein contained, for a further period of one year and so on from year to year unless or until terminated by either party hereto giving to the other notice for removal previous to the expiration of the second or any succeeding, current, additional or extended year or term under said lease, expressed or implied. All rights and liabilities herein given to, or imposed upon, either of the parties hereto, shall extend to the heirs, execu- tors, administrators, successors and assigns of such party. In witness whereof, the said parties have hereunto set their hands and seals, this day of , one thousand nine hundred. Sealed and delivered in the presence of SEAL. SEAL. Note. — The above lease can have clauses inserted according to the circumstances, such as the following: To remove rubbish; to pay for hght, heat or power as rent; for amicable ejectment proceedings to re- cover possession for not performing the terms of the lease; for the land- lord to enter the demised premises for examination; a fire clause; for sign rights; for rights of way; for elevator rights, etc. In case the tenant's ownership shall be transferred by operation of law, such an event may be made a ground for recovering possession of the premises. Farm. Lease. 508. This Agreement Witnesseth, that A. B., of doth hereby let and demise unto C. D. [describe farm], for the term of three years from the first day of April, a. d. nineteen hundred, at the rent of six hundred dollars per annum, to be paid quarterly in advance by the lessee at the or at 240 LANDLORD AND TENANT. such place as the lessor or any subsequent owner may re- quire ; the first quarterly payment thereof to be made on the first day of April, 1900, which said rent the said lessee doth hereby agree to pay to the said lessor on the days and times aforesaid, and that he shall not nor will assign this lease nor underlet the said premises, or any part thereof, or use or oc- cupy the same other than as a farm, without the written con- sent of the said lessor first had and obtained, and shall and will during the said term keep, and at the termination thereof deliver up, the said premises in as good order and repair as they are now in, reasonable wear and tear and casualties which may happen by fire or otherwise only excepted. The lessee agrees as follows, viz. : That he will use on the said premises all the hay, straw and fodder which shall be grown thereon ; that he will not sell, assign, pledge, remove or cause or suffer to be removed any of the dung, manure or com- post made or which shall be on said premises, and that he will use and spread the same thereon at proper times and places for the nourishment thereof, and that upon the termination of this lease or any subsequent letting thereunder he will leave upon the said premises any remaining hay, straw, fodder or manure, which shall then become the property of the lessor; that he will not convert into tillage or garden ground any of the pasture or meadow ground ; that he will not mow any of the meadow or pasture ground more than once in any one year ; that he will not cut down or use any of the trees upon the said premises ; that he will mow or keep down in the usual manner, thistles, docks and other seeding weeds ; that he will keep the fences in good repair, the lessor furnishing such ma- terials for the purpose as he may think necessary ; that he will cultivate the said farm with respect to crops and in every re- spect according to the usual course and custom of good husbandry, sowing winter grain with a sufficient quantity of timothy and clover seed. And if the rent shall remain unpaid on kny day on which the same ought to be paid, then the lessor may enter the premises, and proceed by distress and FORMS. 241 sale of the goods there found, to levy the rent and all costs and ofiicer's commissions. The said lessee further agrees that all goods on the said premises, and for thirty days after re- moval shall be liable to distress for rent and hereby waives the benefit of all exemption laws in relation thereto or to any execution. And it is hereby mutually agreed, that either party hereto may determine this lease at the end of the said term, by giving the other notice thereof, at least three months prior thereto, but in default of such notice, this lease shall continue upon the same terms and conditions as are herein contained, for a further period of one year and so on from year to year unless or until terminated by either party hereto giving to the other three months' written notice for removal previous to the expiration of the second or any succeeding or extended term under this lease, express or implied. And it is further agreed, that if the lessee shall die or if there shall be any involuntary assignment of this lease by law or otherwise, or if the said rent shall at any time be in arrear and unpaid, or if the said lessee shall underlet or otherwise use the said prem- ises than as above expressed, or shall fail to comply with the conditions of this lease or shall not well and truly perform and fulfil all and every the covenants and agreements herein contained on the part of the lessee to be performed and kept, then this lease shall, at the option of the said lessor, cease and absolutely determine, and any attorney may immediately thereafter, as attorney for the said lessee, at the sole request of the said lessor, sign an agreement for entering in any competent court, an amicable action and judgment in eject- ment (without any stay of execution or appeal) against the said lessee and all persons claiming under said lessee for the recovery by the said lessor of possession of the hereby de- mised premises, without any liability on the part of the said attorney, for which this shall be a sufficient warrant; and thereupon a writ of habere facias possessionem may issue forth- with without any prior writ or proceeding whatsoever, and the lessee hereby releases to the lessor all errors and defects 16 242 LANDLORD AND TENANT. whatsoever in entering such action or judgment, or causing such writ of habere facias possessionem to be issued, or in any proceeding thereon, or concerning the same; and hereby agree that no writ of error or objection or exception shall be made or taken thereto ; and a copy of this lease verified by affi- davit, being filed in said action, it shall not be necessary to file the original as a warrant of attorney, any law or rule of court to the contrary notwithstanding. No such determina- tion of this lease, nor taking or recovering possession of the premises, shall deprive the lessor of any other action against the lessee for possession for rent or for damages. It is mutually agreed that this lease shall extend and apply to and bind the respective heirs, assignees, devisees, executors and administrators of the lessor and lessee and all covenants, agreements, conditions and provisions herein shall apply to and bind the owner of the lease or demised premises as if the same ran with the land or as if they were original parties and the lessee agrees that no objection shall be made to the said ejectment proceedings by reason of rent not having been de- manded or collected when due or by any waiver. In witness whereof, the said parties have hereunto set their hands and seals, this day of one thousand nine hundred. Sealed and delivered in the presence of SEAL. SEAL. Farm Lease on Shares. 509. This Agreement Witnesseth, that A. B. doth hereby let and demise unto C. D. [here describe the farm with buildings] for the term of one year from the first day of April, A. D. nineteen hundred; the said C. D. to yield and pay unto the said A. B. one-half part of all the grain which shall be raised or grown upon the said premises, and which letting is to be according to the following agreements : The said C. D. shall plant crops and cultivate the farm as FOKMS. 24S follows [state how fields are to be planted; what crops are to be sown; how much winter grain, etc.]. Each party is to find and pay for one-half the seeds for crops. The said C. D. is to find and pay for all farming implements, all the working stock, all the necessary labor and all the other expenses in working and cutivating the farm and is to work the farm diligently in a husband-like manner. The said C. D. is to have the right to keep and feed not more than horned cattle and horses; the products of the dairy and garden products are to be for the exclusive use and benefit of the said C. D. The manure, hay, straw and corn which shall be grown upon the premises and all manure made thereon shall belong solely to the said A. B., but the same shall be used upon the farm for its nourishment, but any part thereof which shall not have been so used shall belong to the said A. B. The said A. B. shall have the right to store in the farm buildings his share of the crops, and the said A. B. re- serves the right of entering and visiting the said farm and the farm buildings, to inspect the farming operations, receive, take care of and dispose of his share of the grain. The said C. D. shall keep the fences up and in good order and repair at his own expense; keep down the weeds and preserve all trees and timber. It is agreed that there shall not be any partnership between the parties hereto; and it is hereby mutually agreed that the said A. B. shall have the ownership of one-half part of all the grain sowed when in the ground and until it shall be divided and that all crops shall be cut and harvested in due season by the said C. D., and that there shall be a division between the said A. B. and C. D. of their shares of the grain upon such harvesting. And the said les- see doth hereby agree to pay the said rent to the said lessor and deliver to him his share of the said grain at the time aforesaid, at or in said barn or at such other place, within said as said lessor may in writing from time to time direct, without demand being made therefor, and that he will not assign this lease nor underlet the said premises, or any 244 LANDLORD AND TENANT. part thereof, or use or occupy the same other than as a farm without the written consent of the said lessor first had and ob- tained, and during the said term will keep said premises in good condition, order and repair, and at the termination of said term will deliver up the said premises in as good condi- tion, order and repair as the same now are, reasonable wear and tear and casualties which may happen by fire or other- wise excepted. And the said lessee further agrees that if the rent shall remain unpaid on any day on which the same ought to be paid, then the lessor may enter the premises and pro- ceed, by distress and sale of the goods there found, to levy the rent and all costs and ofificer's commissions. The said lessee further agrees that all goods on the said premises, and for thirty days after removal, shall be liable to distress for rent and hereby waives the benefit of all exemption laws in rela- tion thereto. And said lessee further agrees that this waiver shall extend and be applicable to any process, execution or executions that may be issued in any and all suits, actions or proceedings, for the collection of rent due and in arrear, and for damages for the non-fulfilment of any of the covenants herein contained. And it is further agreed, that if the said rent or grain shall at any time be in arrear and unpaid or un- delivered, or if the said lessee shall underlet said premises or any part thereof or assign this lease, or in case of an assign- ment of the lease by operation of law, or if he shall use the said premises otherwise than as above expressed and pro- vided, or shall not well and truly perform and fulfil all and every the covenants and agreements herein contained on the part of the lessee to be performed and kept, or in case the les- see shall die ; or in case of a levy by execution on the lessee's right or interest in the crops, then this lease shall, at the option of the said lessor, cease and absolutely determine, and any attorney may immediately thereafter, as attorney for the said lessee, at the sole request of the said lessor, sign an agreement for entering in any competent court, an amicable action and judgment in ejectment (without any stay of exe- FORMS. 245 cution or appeal) against the said lessee and all persons claim- ing under said lessee for the recovery by the said lessor of possession of the hereby demised premises, without any lia- bility on the part of the said attorney, for which this shall be a sufficient warrant; and thereupon a writ of habere facias possessionem may issue forthwith without any prior writ or proceeding whatsoever, and the lessee hereby releases to the lessor all errors and defects whatsoever in entering such ac- tion or judgment, or causing such writ of habere facias pos- sessionem to be issued, or in any proceedings thereon, or con- cerning the same; and hereby agrees that no writ of error or objection or exception shall be made or taken thereto; and a copy of this lease verified by affidavit, being filed in said action, it shall not be necessary to file the original as a war- rant of attorney, any law or rule of court to the contrary not- withstanding. No such determination of this lease, nor tak- ing or recovering possession of the premises, shall deprive the lessor of any other action against the lessee for possession, rent, grain, or damages. All rights and liabilities herein given to or imposed upon either of the parties hereto, shall extend to the heirs, executors, administrators, successors and assigns of such party. In witness whereof, the said parties have hereunto set their hands and seals this day of , one thousand nine hundred. Sealed and delivered in the presence of SEAL. ' SEAL. Farm Lease on Shares, Short Form. 510. This agreement, made this 20th day of October, a. d. 1864, between J. J. Brown, of the one part, and J. L. Jaquette, of the other part, as follows: That for the term of one year, commencing on the first day of April, 1865, to be fully completed on the thirty-first day of 246 LANDLORD AND TENANT. March, 1866, the said Jaquette for and in consideration of one-half the product, agrees to farm for the said J. J. Brown, the land lately purchased by him of John E. Morgan, on the following terms and conditions : Each party is to find one-half the stock, including cattle, poultry, etc., and one-half the seeds for crops. The said Jaquette to find all the farming implements and all the working stock, and it is distinctly understood that no more of such stock is to be kept on the place than is absolutely necessary for the working thereof. The said Jaquette to find all the requisite labor, pay the road tax and one-half of all other taxes. He is to submit to J. J. Brown at the end of every month or three months, as may be agreed upon, a true and careful statement of all receipts and make settlement of the same. No timber is to be cut on the premises without the special direction of the owner. The fences are to be kept in good repair, the weeds kept down and the premises generally preserved in tidy and neat order. J. J. Brown is to pay one-half the blacksmith's and wheel- wright's bill, and reserves for himself the privilege, should he at any time desire, of keeping on the farm, for his own use, one horse. Note. — The above form appears in the report of the case of Brown v. Jaquette, 94 Pa. 113, in which it was held that there was a lease of the farm on shares, and not a partnership; that the interest of Jaquette was divested by a sherifif's sale, as well as the right of Brown to distrain. Covenant that the Lessee shall Fallow the Land, and Mow but Once a Year, etc. 511. And also that he, the said C. D., his executors, admin- istrators or assigns, shall not crop or sow any part of the arable land which he hath liberty to keep in tillage as afore- said, above two years together, but every third year permit the same to lie fallow and unsown, and not cross-crop the same or any part thereof; and when and as it shall be laid down, shall and will sow the same with grass seed in a hus- band-like manner, and shall not mow or cause to be mowed. FORMS. 247 any of the meadow or pasture ground hereby demised, more than once in any one year of the said term ; but shall and will, during the said term, plough, sow, manure and manage all the ground hereby demised in a due and regular course of husbandry, according to the custom of the country, and pre- serve all the trees, young oaks and saplings growing on the said premises, and not to do or commit or cause to be done or committed, any manner of waste, spoil or destruction in or upon the said demised premises or any part thereof. Covenant that Lessee may Dispose of Hay and Straw. 512. And also that he, the said C. D., his executors, admin- istrators or assigns, shall and may, at any time during this de- mise, except only in the last year thereof, have liberty to dis- pose of any quantity of the hay and straw arising from the said premises, on bringing and laying upon the same prem- ises, where most need requires, one good load of rotten dung for every load of hay or straw so sold and disposed of. Covenant to Lay Down Part of the Ground with Clover, etc. 513. And also that he, the said C. D., his executors, ad- ministrators or assigns, shall and will, the summer preceding the expiration or other sooner determination of this demise, summer-fallow twenty-five acres of such part of the arable land hereby demised, as shall be then in course, in a husband- like manner, fit to be sown with a crop the ensuing season, and also lay down with clover seed and rye grass, twenty- five acres more of the arable land hereby demised, which shall be then in tillage and sow upon each acre thereof ten pounds of the best clover seed and two bushels of the best rye grass seed. That the Lessee shall Tlse the Hay, Dung, etc., on the Premises. 514. And also that he, the said C. D., his executors, admin- istrators or assigns, shall and will, during the continuance of this demise, use and spread on the said demised premises, all 248 LANDLORD AND TENANT. the hay and straw arising therefrom, and all the compost and dung which shall be made thereby shall spread and bestow upon the said premises in a husband-like manner, save only the compost or dung to be made in the last year of his de- mise, which the said C. D., his executors, administrators or assigns shall leave upon the said premises, unto and for the said A. B. or his assigns, if then living, but in case of his decease, to and for such other person or persons as shall then be entitled to the freehold and inheritance of the said premises without being paid or allowed anything for the same. Fire Clause for Farm Lease, No. 1. 515. It is hereby mutually agreed and provided that in case the dwelling house or barn on the demised premises, by rea- son of fire or other casualty, shall be totally destroyed or rendered unfit for continued occupancy, then the said lease shall continue until the maturity of the crops the lessee may have planted on said premises and until the expiration of a reasonable time for harvesting such crops and taking the same away, and the lease shall then terminate and rent shall be apportioned and paid to that time, but the lessee shall be allowed and have deducted from his rent the rental value of such portions of the demised premises as he shall be deprived of by such fire or casualty. Provided, however, that in such case the lessor shall have the right at any time after the fire or casualty to enter said premises with his employes, contractors, workmen, materials and vehicles and to rebuild the building or buildings destroyed or damaged by such fire or casualty, which shall then become the property of the lessor free from any rights of the lessee to the same, and the lessor may, at any time, rent such buildings again to the said lessee or any other party. And it is hereby agreed that in case of a partial destruction or damage of the dwelling house and barn or either of them, by fire or other casualty, so that they can both be continued to be occupied, then the les- sor shall, with the least possible delay, have the said premises FORMS. 249 restored to the same condition as before such loss or damage by fire or other casualty ; but said lessee shall be allowed and have deducted from his rent the rental value of such parts of the demised premises as he shall be deprived of until such repairs are completed. Fire Clause for Farm Lease, No. 2. 516. It is hereby mutually agreed and provided that in case of a total destruction of the dwelling house or barn, or in case that either of them shall become untenantable or unfit for occupancy by reason of fire or other casualty, then this lease shall terminate on the date of such fire or casualty, and the rent shall be apportioned and paid to that date ; but if in any such case the lessee shall have any crops planted or growing in said farm, they shall belong to the said lessee, who shall have the right to cultivate, harvest and take them away in the proper season, but for such continued partial use and oc- cupation, the said lessee shall pay the lessor such a reasonable sum as may be agreed upon by the parties, but in case they cannot or will not so agree, then each party shall choose an arbitrator to fix such amount, but if the arbitrators cannot or will not agree, they shall choose a third arbitrator to act with them, and the decision shall be by a majority of the arbitrators, which decision shall be final and conclusive upon the parties. Fire Clause for a Dwelling. 517. It is hereby agreed that if the dwelling on the demised premises shall be wholly destroyed or damaged by fire or other casualty or shall be partially destroyed or damaged by fire or other casualty, so that the same cannot be continuously occupied, then, and in either such case, the lease shall termi- nate on the date of such fire or casualty, and the rent shall be apportioned and paid to that date ; but in case of a partial loss or damage so that the said dwelling can be continuously occupied whilst repairs are being made, then the lease shall 260 LANDLORD AND TENANT. be continued and the said lessor, with workmen and others, at seasonable times in the daytime, may enter said building and premises and shall repair and amend the said building at his own cost and expense as soon as the same can be prac- tically done, and in case of such continued occupancy, the lessee shall be allowed and have deducted from his rent, such part thereof as shall compensate him for being deprived of any portions of the building or premises until repairs are made; such compensation, however, being rated and esti- mated only according to the rental value of such portions during the deprivation thereof. Pire Clause for a Business Property. 518. It is hereby agreed that if the building on the demised premises shall be wholly destroyed or damaged by fire or other casualty, or in case the said building shall be partially destroyed or damaged by fire or other casualty, and such par- tial destruction or damage shall be so great, to such an extent or of such a nature or character, as to prevent the occupation or the continuation of business on the demised premises; or if the destruction or damage of the property of the lessor or les- see in said building by such fire or casualty, shall be so great, to such extent or of such a nature as to prevent the continua- tion of said business at an early date or profitably; then in either such case of total or partial destruction or damage, this lease shall terminate at the date of such fire or casualty, and the rent shall be apportioned and paid to that date ; but otherwise and in case of a partial destruction or damage of said building or the contents, by fire or other casualty, so that the same can be continued to be occupied and said business can be continued profitably, then this lease shall be con- tinued and the lessor, with his workmen and others, may enter said premises at reasonable times, during working hours, to repair said building, and the said lessor shall, with due diligence, at his own cost and expense, repair said prem- ises and the lessee shall be allowed and have deducted from FORMS. 251 his rent such an amount as will compensate him for being de- prived of any portions of said premises whilst repairs are be- ing made ; such compensation to be rated and estimated, how- ever, only according to their rental value. To Protect against Assignment of Lease. 519. It is hereby agreed that this lease or any continua- tion or extension thereof, expressly or impliedly, shall not, without the written consent of the lessor, or his successor in title, be sold, assigned, transferred or mortgaged by the les- see, or his successor in title, or by reason of his or their death, bankruptcy or insolvency, or by execution, by attachment, by operation of law, or by any legal or equitable proceedings whatever in any way or manner, and upon any of such oc- currences happening, this lease shall, at the option of the lessor, his heirs and assigns, terminate, and upon such termi- nation, the rent shall be apportioned and paid to the lessor and his successors to the date of any such occurrences, and possession can be recovered by the amicable ejectment pro- ceedings hereinafter mentioned ; and it is further agreed that any consent of the lessor, his heirs or assigns, to any assign- ment of this lease, shall not obviate the necessity of obtaining consent to any future assignments; and the rights of the les- sor, his heirs and assigns, to terminate the lease shall not be lost or waived by the receipt of rent or any other act, ex- cepting written consent aforesaid ; and this clause against as- signments shall extend to and bind, not only the lessee, but all persons claiming by, through or under him, or under this lease. I For Insertion after Ejectment Clause. 520. [Clause to be inserted after an ejectment clause.] It is agreed that the lessee shall not make any defence to the proceedings or judgment in ejectment above provided or to any proceedings in relation thereto, by reason of any rent not having been demanded or collected when due, or any habit 252 LANDLORD AND TENANT. or custom in collecting or receiving rent after the same shall fall due, or by reason of any act or acts of the lessor by the receipt of rent or otherwise, which might be a waiver of his rights to said ejectment proceedings, or by reason of any misdescription or inadequate description of the demised premises in said proceedings; and that the above ejectment clause shall run and be binding upon and operative against any person or persons, company or corporation who may be- come a tenant under this lease, or any renting thereunder, or under the terms thereof, by assignment, operation or implica- tion of law, or otherwise; and further, no objection shall be made by reason of the joinder of improper parties in the ejectment proceedings, or by reason of the lessor not having given to the lessee any notice before proceedings in eject- ment, and all agreements for said ejectment proceedings shall run with the land and be for the benefit of the lessor and against the lessee and their respective successors in title. Giving an Option to Purchase. 521. It is hereby agreed that the lessee shall have the op- tion to purchase the said demised premises [here give a par- ticular description of the premises if general description in- definite in lease] at any time during the existence of any ten- ancy express or implied under this lease for the price or sum of $ in the following manner, viz. : $ to be paid in cash upon the execution and deliver)^ of the deed and the balance thereof $ is to be paid at the expiration of five 3'ears from the execution and delivery of the deed, with in- terest at the rate of five per cent, per annum, payable half yearly, and the payment of which balance shall be secured upon the said premises by a purchase-mone}' hiortgage with bond and warrant of the said lessee of the usual form, and the said lessee shall assign to the said lessor a perpetual fire insurance of said premises for the sum of $ as col- lateral security for the payment of the said mortgage debt, and upon the said lessee giving written notice to the said les- POEMS. 253 sor of the exercise of his said option and offering and agree- ing to purchase said premises upon the said terms, then the said lessor and his wife shall and will sell, grant and convey the said premises to the said lessee upon said terms. It being hereby agreed and provided that the lessee shall re- main as lessee under said lease and letting until the execution and delivery of the deed of conveyance. The said wife of the said lessee has signed and acknowledged this lease with her husband so that the lessee in case he shall purchase shall have a title free of her interest. Surety for Tenant. 522. I, A. B., do hereby agree to be responsible as surety to C. D. or his assigns, for the true and faithful performance of the above-named contract on the part of E. F., and this obligation shall extend to and bind the executors and ad- ministrators of the said A. B., and shall extend to and be for the benefit of C. D., his heirs, assigns and successors in title, and as long as the above lease and any letting thereunder shall continue. In witness whereof, I have hereunto set my hand and seal, the day of one thousand nine hundred. Sealed and delivered in the presence of SEAL. Assignment of Lease. 523. This indenture, made the day of , a. d. 1900, between A. B., of , of the first part, and C. D., of , of the second part, Witnesseth that the said A. B. for and in consideration of the sum of dollars, to him in hand paid by the said CD., at and before the ensealing and delivery of these presents, the receipt whereof is hereby acknowl- edged, hath granted, bargained, sold, assigned, transferred and set over and by these presents doth grant, bargain, sell, assign, transfer and set over unto the said C. D., his ex- ecutors, administrators and assigns a certain lease, bearing 254 LANDLORD AND TENANT. date the ist day of January, 1895, made between E. F., of the one part, and the said A. B., of the other part, of the prem- ises [here briefly describe the premises] for the term of years at and under the. rent of per annum. Together with the said premises and all the rights and privileges of the said A. B. to the same and by and under said lease. To have and to hold the said premises and every part thereof with the appurtenances unto the said C. D., his executors, administra- tors and assigns, for and during all the rest, residue and re- mainder yet toi come and unexpired of the said term of years, in as full, large and ample a manner to all intents and pur- poses as the said A. B., his executors, administrators or as- signs now holds or may at any time hold, and enjoy the same by virtue of the said lease. Subject, nevertheless, to the several rents, covenants, conditions and agreements in the said lease reserved and contained. In witness, etc. SEAL. Surrender of Iiease. 524. Know all men by these presents that the undersigned A. B. doth hereby, on the date hereof, surrender and yield up to C. D. the lease made by the said C. D. to the said A. B., dated the day of , A. d. 1885, for premises [here describe the premises] and the possession of the said prem- ises; and the said C. D., in consideration thereof doth hereby accept the said surrender and possession. Witness the hands and seals of the said parties this day of , A. D. 1900. Witnesses : SEAL. Distress Warrant. SEAL. 525. To , constable of Whereas, C. D. is indebted to me in the sum of dollars and cents for the rent of [here briefly describe the premises] due on the day of , a. d. 1899, FORMS. 255 you are hereby authorized and empowered to collect the said amount of rent, by distraining the goods and chattels in and on said premises, according to the acts of assembly in such case made and provided ; and to proceed to sell the same ac- cording to law, for the best price that can be obtained for the same, returning the overplus if any, to the said C. D. after paying the said rent and all legal costs and charges of such distress. Witness my hand and seal this ist day of January, 1900. A. B. SEAL. By virtue of the above landlord's warrant, I do levy on the following goods, being on the premises, to wit : One piano. One carpet. O. P., Constable. January i, 1900. Notice of Distraint. 526. A. B. V. C. D. By virtue of a landlord's war- rant to me directed and dated the ist day of January, 1900, for the sum of dollars I do hereby levy on the following goods, being on the premises therein described. Debt, $ To wit : One piano. One carpet. To C. D. Take notice, that by authority and on behalf of your land- lord, A. B., I have this day distrained the several goods and chattels specified in the above schedule, on the premises situ- ate for the sum of dollars, rent due to him, the said A. B., as aforesaid, and if you do not pay the said 256 LANDLORD AND TENANT. rent so due and in arrear as aforesaid, or replevy the same goods and chattels according to law, within five days here- after, I shall, after the expiration of the said five days from the date hereof, cause the said goods and chattels to be ap- praised and sold according to the act of assembly in such case made and provided. Given under my hand the ist day of January, 1900. O. P., Constable. Affidavit of Appraisers and Appraisement. 527. We, G. W. and T. J., being duly say that we will well and truly, according to the best of our understand- ing, appraise the goods and chattels of C. D., distrained for rent by A. B. and subscribed before me this day of A. d. 1900. G. W. T.J. Appraisement of the goods and chattels of the above- named C. D. : One piano, $250 One carpet, 50 $300 day of , A. D. 1900. G. W. T.J. Consent of Tenant to Permit Distrained Goods to Bemain. 528. I, C. D., do hereby consent that A. B., my landlord, shall continue in possession of my goods and chattels on my premises, upon which he has distrained for rent, for the space of days from the date hereof, he at my request having agreed to extend the time of sale of said goods and chattels until that time. Dated the day of A. d. 1900. C. D. FORMS. 257 Notice of Constable's Sale. 529. Will be sold at public vendue, on the day of A. D. 1900, at [briefly describe place of sale] the fol- lowing goods and chattels, distrained for rent as the property of C. D., that is to say : One piano. One carpet. Claim, for Benefit of Exemption Law. O. p.. Constable. 530. To . constable. Sir: — Please take notice that as to the distraint of A. B. upon my goods for rent, I claim the benefit of the act of as- sembly, approved the 9th day of April, a. d. 1849, entitled, "An act to exempt property to the value of three hundred dollars from levy and sale on execution and distress for rent." And that I desire appraisers summoned and an appraisement made of the goods elected to be retained by me under and according to said act. C. D. Summons of Appraisers. 531. To M. N., G. H., K. L. You are hereby summoned to appraise, after having been duly sworn or affirmed, the goods of C. D., distrained upon for rent due to A. B., which he may elect to retain to the value of three hundred dollars under the exemption law. O. P., Constable. Afiidavit of Appraisers and Election. 532. We, the subscribers, having been summoned by O. P., constable, to appraise the goods of C. D., distrained upon for rent due A. B., and which the said C. D. may elect to retain, under the exemption law of 1849, being duly sworn 17 258 LANDLORD AND TENANT. or affirmed, say that we will well and truly appraise the same. M. N., G. H., K. L. Sworn to or affirmed before me this day of A. D. 1900. To M. N. I G. H. > Appraisers. K. L.J Sirs : — Please notice that I hereby elect to retain the fol- lowing goods to be exempted under the $300 exemption law. Viz. : One piano. One carpet, etc. CD. Appraisement of Exempted Goods. 533- We, the subscribers, the appraisers appointed to ap- praise the goods of C. D., distrained upon by A. B. for rent, and claimed by the said C. D. as exempt under the $300 ex- emption law, and having been respectively sworn or affirmed, do value and appraise the same as follows : One piano, $250 One carpet, 50 $300 Appraised the day of 19 . M.N. G. H. K. L. Amicable Action and Judgment in Ejectment. 534- " ' (in the Court of Common Pleas of C. D., defendant. J county, Pa. Amicable Action and Confession of Judgment in Eject- ment by a provision in a lease. FORMS. 25& Whereas, the above-named A. B., by a certain lease dated the first day of January, 1900, leased and demised to the said C. D. [here describe premises as in the lease], said lease is hereunto annexed and made a part of this document. And whereas, the said C. D. entered into possession of said prem- ises under the said lease as tenant thereunder and is still in possession of the same. It is hereby agreed that an amicable action in ejectment be entered by the prothonotaryof the court of common pleas of county, as if a summons in ejectment had been issued by A. B., the said plaintiff, against C. D., the said defendant, for [here describe the property as in the lease, and if not described according to a street number in a city or town, or by metes and bounds, describe the premises more par- ticularly ; for example say : and which premises are more par- ticularly described as follows, viz. : All that certain three-story brick dwelling house and lot of ground on which the same is erected, situate on the south side of Washington street, fifteen feet westward from the west side of Front street, in the city of Philadelphia, containing in front on Washington street fifteen feet and extending of that width southward between parallel lines at right angles with said Front street sixty feet; or as follows, viz. : All that certain tract of land and farm with the buildings and improvements thereon erected, situate on the west side of road, between road and road, in township, in the county of , in the state of Pennsylvania, containing acres, and bounded on the east by said road, on the north by land of , on the west by land of , and on the south by land of ] and as if said summons in ejectment had been issued and made returnable to the Monday of , 1900, and had been duly returned "served" by the sherifif upon the said C. D. And the said C. D. hereby confesses judgment in ejectment for said premises in favor of said A. B., plaintiff, without any stay of execution, appeal, writ of error or objec- tion or exception. This judgment is entered under, by virtue of and in pursuance of an agreement and provision in the 260 LANDLORD AND TENANT. said lease and upon the determination of the lease by reason of the said C. D. not having paid to A. B. the following rent under said lease, due as follows, viz.: one month's rent, due day of , A. D. 1900, $25, but in permitting the same to be in arrears and unpaid, whereby the said lease has absolutely ceased and determined, G. H., as attorney for C. D., has signed this agreement under and by virtue of the authority in said lease. E. F., attorney for A. B., the plaintiff. G. H., attorney for C. D., the defendant. County of Philadelphia, .y.?. A. B., being duly sworn, doth depose and say, that the facts set forth in the above agreement are true ; that the lease re- ferred to in the agreement is annexed thereto ; that the above- named C. D. has not paid to this deponent $25, one month's rent due under said lease and which became due on the day of A. D. 1900, and that said rent is, remains and now is wholly unpaid and the said C. D. is indebted to this deponent for the same. A. B. Sworn and subscribed, etc. ITotice to Quit for Non-Payment of Rent under Act of 1830. 535. Philadelphia, , 19 . To : You are hereby notified to quit the premises situate which I have leased to you, reserving rent — "or pay and sat- isfy the rent due and in arrear," being $ , which amount was due on the day of .19. ^"d is hereby de- manded — (you having neglected or refused to pay the amount so reserved, as often as the same has grown due, according to the terms of our contract — and there being no goods on the premises adequate to pay the rent so reserved, except such articles as are exempt from levy and sale by the laws of this commonwealth) within fifteen days [or thirty days, accord- FORMS. 261 ing to the time of year] from the date hereof, or I shall pro- ceed against you as the law directs. Respectfully yours, Complaint. 536. County of ss. On this day of , a. d. 19 , personally ap- peared before me, one of the in said county, who, being duly sworn according to law, saith : That he de- mised the premises situate to a certain for the term of reserving rent; that the said rent is in arrear and unpaid; that there are not sufficient goods and chattels on the premises to pay and satisfy the said rent, except such as are by law exempt from levy and. sale, and that the said lessee has (after being notified to quit the said premises within days from the date of said notice) refused to render and deliver up possession of the said premises. SEAL. Sworn and subscribed before me, 19 . Summons. 537. City of Philadelphia, .?5. The Commonwealth of Pennsylvania, to any constable of said city, greeting: Whereas, Complaint on oath or afifirmation hath been made before me, the Subscriber, Magistrate of Court No. , of said city by that demised to the premises situate No. street, in said city, reserving rent, which rent is in arrear and unpaid, and there are not sufficient goods and chattels on the premises to pay and satisfy the said rent, except such as are by law exempted from levy and sale ; and that the said lessee has, after being notified according to law, refused to pay the rent in arrear or remove and re-deliver up possession of the premises : You are therefore hereby commanded to summon the said 262 LANDLORD AND TENANT. to be and appear before the said magistrate, at his court, on the day of , a. d. 19 , between the hours of o'clock m., and o'clock m., to answer the said complaint. Witness our said magistrate and the ofHcial seal of the said court, the day of , A. d. 19 . Magistrate of Court No. Wi'it of Bestitution. 538. County of ss. The Commonwealth of Pennsylvania, to any constable of the said county, greeting: Whereas, proof was made on the day of 19 , before , one of in said county, That rented to a certain tenement, situated in the rent whereof is in arrear and unpaid; that there are not sufficient goods and chattels on the premises to pay and satisfy the said rent, except such as are by law exempt from levy and sale, and that the said lessee has, after being legally notified, refused to remove and re-deliver up possession of the premises, according to the act of assembly in such case made and provided, and whereon the said in consideration of the premises, did enter judgment against said lessee that said premises should be delivered up to the lessor, and did also ascertain the amount of rent in arrear to be dollars. Therefore we command you forthwith to deliver actual possession of said premises to the lessor, and we also com- mand you that you levy the costs indorsed hereon on the goods and chattels of the said and of your proceed- ings herein make return to the said within ten days after your receipt of this writ, to wit: on the day of 19 . In witness whereof, the said hath hereunto set his hand and seal the day of , A. d. 19 . SEAL. FORMS. 263 Becord. 539- ! Landlord and tenant case. On the day of a. d. , A. B., the plaintiff, appears and com- plains, on oath, that on the day of A. D. he demised to C. D., the defendant (here describe prem- ises), for the term of at the rent of per annum, payable quarterly; that on the day of A. D. the amount of dollars of said rent due, according to the terms of said demise, on the day of A. D. , was in arrear and unpaid; that on the day of A. d. , he notified the said de- fendant, C. D., that such amount of rent was due, and de- manded payment thereof, or in default that the said defend- ant should quit the said premises within days from the service of said notice; that there are not on the said premises sufficient goods, etc., exempted from levy and sale; and that the said defendant, after being so notified, has refused to de- liver possession of said premises to said A. B. Same day, sum- mons issued returnable . E. F., constable. Returned on oath, "Served by delivering a true copy to the said defendant personally upon the premises on the day of a. d. ." The day of , a. d. , parties appear. G. H. sworn for plaintiff. Whereupon, on hearing, it ap- pearing that the above complaint is in all particulars just and true, judgment is entered against the said defendant, that he deliver actual possession of the premises to the plaintiff; and it is ascertained that the rent due to the plaintiff is The day of a. d. , writ of possession is- sued. Returnable the day of , a. d. , Possession given the day of , a. d. ; T. J., Constable. 264 LANDLORD AND TKNANT. Notices to Quit at End of Lease. 540. To A. B.: You are hereby notified and required to quit and deliver up to me possession of the premises (describ- ing them), which you hold as tenant under me, upon the expiration of your lease, viz. : the day of a. d. , as I desire to have again and repossess the same. C. D. Note. — It is suggested that the above notice can be given under either the act of 1772 or 1863 when there is a certain term and when the notice shall be given three months before the end of the term. To A. B.: You are hereby notified and required to quit and deliver up to me possession of the premises (describing them), which you hold as tenant under me from year to year, at the end of your current term, viz. : the day of A. D. , as I desire to have and repossess the same and to terminate the tenancy at that time. C. D. Note. — It is suggested that the above notice can be given under either of said acts when served three months before the expiration of the current year if there is a yearly tenancy. To A. B. : You are hereby notified and required to quit and deliver up to me possession of the premises (describe them), which you hold under me as tenant from month to month, at the end of the monthly term which will expire on the day of a. d. , as I desire to have again and repossess the same and to terminate the monthly tenancy at that time. C. D. Note. — It is suggested that the above notice can be given under a monthly tenancy. Under the act of 1863 three months' notice must be given before the end of the lease, and where there is n monthly tenancy the notice to quit must necessarily be given three months before the termina- tion of a future monthly tenancy. This course must be pursued or the remedy under the act of 1772 will have to be taken. Under that law there can be a month's notice to terminate the renting from month to month, with a notice that possession will be required three months after the notice or three months after the termination of the monthly tenancy. FORMS. 265 or there can be a month's notice to terminate the lease, and after it ter- minates three months' notice can be given for possession. To A. B. : Sir — E. F., having leased to you the premises [here describe the premises], for the term of five years, and the said E. F. having, by deed dated the day of , A. D. , granted, assigned and conveyed the said prem- ises to me with the lease, you are hereby notified and re- quired to quit and deliver up to me possession of said prem- ises, which you now hold as tenant under me, at the expira- tion of the said lease, viz. : the day of , a. d. , as I desire to have such possession. C. D. To A. B. : Sir — E. F. died on the day of , a. d. , having by his will devised to me absolutely and in fee simple the premises now occupied by you [here describe the premises], and at the time of the death of said testator you held said premises as his tenant from year to year, which rental has continued since then. Therefore, you are hereby notified and required to give me possession of said premises, which you hold as tenant under me from year to year, at the end of your current term, viz. : the day of , a. d. , as I desire to terminate the lease at that time and to have possession of said premises. C. D. Complaint for Possession under Act of 1772. 541. To David Beitler and Robert R. Smith, two of the aldermen in and for the city of Philadelphia : The complaint of Nelson Gavit, by A. F. Blair, agent, most respectfully sets forth : That he is the owner of a certain tenement, with the appurtenances, situate No. 1419 Race street, in the city of Philadelphia, and was in possession thereof on August i, 1871, when he demised the said premises to a certain Mary Hall for the full term of one year from August i, 1 871, at the rent of $41.67 per month, which said term is fully ended; That said Nelson Gavit, being desirous, upon the determina- 266 LANDLORD AND TENANT. tion of the said term, to have again and repossess his said estate and premises; for that purpose he did, on the i6th day of April, 1872, last past, demand and require the said Mary Hall to remove from and leave the same; and that the said Mary Hall hath hitherto refused and still doth refuse to com- ply therewith; that three months having elapsed since the service of the said notice, and said demise ended, he makes this complaint, that such proceedings may be taken by you as are directed by the act of assembly of 1772, in such case made and provided. Nelson Gavit, Per A. F. Blair, Agent. Sworn before us, this 6th day of August, a. d. 1872. David Beitler, Alderman. Robert R.Smith, Alderman. Precept to the Sheriff. 542. County of .tj. The Commonwealth of Pennsylvania, to the sheriff of county, greeting: Whereas, complaint and due proof was this day made be- fore A. B., Esq., and C. D., Esq., justices of the peace, in and for the county of , that , of , on the day of , 1899, was quietly and peaceably possessed of [here describe the premises so as to certainly locate the same] , in the city of Philadelphia, and being so thereof pos- sessed, on the same day and year aforesaid, did demise the said premises to for the term of [number of years] then next ensuing, at the annual rent of dollars, and that the said by virtue of the said demise entered into posses- sion of the said demised premises, and held the same during the said term, and is still possessed of the same, and that the said term for which the said premises were demised is fully ended; and the said being desirous upon the said FORMS. 267 ■determination of the said term to have again and repossess the said premises, for that purpose did, on the day of , 1899, demand of and require the said to re- move from and leave the same, on or before [date], and that the said hath hitherto refused and still doth refuse to comply with the said demand and requisition to remove from and leave the said premises : Therefore w^e command you, that you summon twelve substantial freeholders of your bailiwick, so that they be and appear before our said justices at in the city of Philadelphia, on the day of , A. D. 1900, at p. M., and that you also summon the said so that he be and appear before our said justices and the said freeholders, at the day, time and place aforesaid, to show cause, if any he has, why restitution of the possession of the said demised premises should not be forthwith made to the said , according to the form and effect of the act of general assembly of 1772, in such case made and pro- vided. Witness the hands and seals of the said , Esq., and Esq., at the city aforesaid, the day of , A. D. 1899. SEAL. '• SEAL. Inquisition. 543. Inquisition taken at in the county of , , A. D. 1900, before , Esq., and , Esq., two of our justices of the peace, by the oaths of and the solemn afifirmations of , twelve substantial freeholders of the said county; who, upon their oaths and afifirmations with the said justices respectively, do say and find that A. B., on the day of , A. d. 1900, was quietly and peace- ably possessed of certain premises [particularly describe the same] , and being so possessed thereof, on the same day and year last aforesaid, did demise the said premises to C. D. for the term of years then next ensuing, at the rent of dollars per annum, and that said C. D., by virtue of the 268 LANDLORD AND TENANT. said demise, entered into possession of the said demised premises, and held the same during the said term, and is still possessed of the same; and that the said term for which the said premises were demised is fully ended; and the said A. B., being desirous upon the said determination of the said term to have again and repossess the said premises, for that purpose did, on the day of , 1900, demand of and require the said C. D. to remove from and leave the same within , and that the said C. D. hath hitherto re- fused and still doth refuse to comply with the said demand and requisition to remove from and leave the said premises, and the said freeholders do assess damages against the said C. D. for the unjust detention of the said demised premises at $ , beside all costs of suit. Whereupon it is considered and adjudged by the said E. F. and G. H., justices aforesaid, and they enter judgment, that restitution of the said demised premises be made to the said A. B., and that he recover of the said C. D. his damages aforesaid, together with costs of suit amounting to $ In testimony whereof, as well the said justices as the said freeholders have hereunto set their hands and seals the day and year first above written at aforesaid. Justice of the Peace. SEAL. Justice of the Peace. SEAL. (Signatures of freeholders opposite their seals.) Record. 544. Be it remembered, That on the day of A. D. 1900, at in the due proof was made before A. B., Esq., and C. D., Esq., two of our justices of the peace, that E. P., of , on the day of , A. D. FORMS. 269 was quietly and peaceably possessed of premises [here par- ticularly describe them], and being so thereof possessed, on the same day and year last aforesaid, did demise the said premises to G. H., of the said , for the term of then next ensuing, at the rent of dollars per annum, and that the said G. H., by virtue of the said demise, entered into pos- session of the said demised premises and held the same during the said term, and is still possessed of the same, and that the said term for which the said premises were demised is fully ended; and the said E. F., being desirous upon the determi- nation of the said term to have again and repossess the said premises, for that purpose did, on the day of , A. D. , demand of and require the said to remove from and leave the same, on or before , and that the said G. H. hath hitherto refused and still doth refuse to com- ply with the said demand and requisition to remove from and leave the said premises. Whereupon the said E. F. then, to wit, on the said day of , a. d. , at the aforesaid, prayed us, the said justices of the peace, that a due remedy in that behalf be provided for him according to the act of the general assembly of the state of Pennsylvania in such case made and provided; upon which proof and com- plaint the sheriff of the county of is commanded that he summon twelve substantial freeholders of his bailiwick, so that he be and appear before us, the said justices, at the [place of meeting] on the day of , a. d. , at o'clock, p. M., and that he also summon the said , so that he be and appear before us, the said justices and the said freeholders, at the day and place last aforesaid, to show cause, if any he has, why restitution of the possession ■of the said demised premises should not be forthwith made to the aforesaid . Afterwards, to wit, on the said day of , A. D. , at the [place], , Esq., sheriff of the county of , appears before us, the said justices, and returns that by virtue of the said warrant to him directed he had summoned twelve substantial free- 270 LANDLORD AND TENANT. holders, to wit [give the names of the freeholders], and had also summoned the said to be and appear on this day and place, as by the said warrant he was summoned; and the said freeholders, being called, appear, and are severally sworn and affirmed. And the said also appears; that we, the said justices and the aforesaid freeholders, proceed to hear and examine the proofs and allegations offered by the said parties [note witnesses examined], and do find that the said , on the day of , a. d. , was quietly and peaceably possessed of premises [here describe the premises]. And being so thereof possessed, on the same day and year last aforesaid did demise the said premises to the said for the term of years then next ensuing, at the rent of per annum, and that the said , by virtue of the said demise, entered into possession of the said demised premises and held the same during the said term, and is still possessed of the same, and that the said term for which the said premises were demised is fully ended; and that the said being desirous upon the determination of the said term to have again and repossess the said premises, for that purpose did, on the day of , a. d. , dernand of and require the said to remove from and leave the same on or before , and the said hath hitherto refused and still doth refuse to comply with the said demand and requisition to remove from and leave the said premises. And the said freeholders assess the sum of dollars for the damages of the said , occasioned by the unjust detention of the said premises. Therefore it is considered- and adjudged by us, the said justices of the peace, that the said shall and do recover possession of the said prem- ises, and have of the said as well the said sum of dollars, for his damages aforesaid, as dollars, for his reasonable costs by him expended in and about this suit in this behalf, concerning which the premises aforesaid we do hereby make this our record. In testimony whereof we, the said justices of the peace. FORMS. 271 to this our record have set our hands and seals, at aforesaid, this day of , a. d. SEAL. SEAL. Simninons to Third Party Claiming Title. 545. County of jj. The Commonwealth of Pennsylvania, to the sheriff of the said county, greeting: Whereas, complaint and due proof have been made before E. F. and G. H., two of our justices of the peace [or alder- men] in and for the said county [or the city of ], that A. B., on the day of , in the year of our Loi'd one thousand nine hundred and , was quietly and peaceably possessed of a certain [here describe the premises as before] together with the appurtenances, and being so thereof possessed on the same day and year aforesaid, at the county aforesaid, did demise the said premises to one C. D. for the term of years then next ensuing, at the yearly rent of dollars, lawful money, payable for the same ; and that the said C. D. by virtue of the said demise entered into possession of the said demised premises with the ap- purtenances, and held them during the said term, and is still possessed thereof, and that the said term for which the said premises were demised is fully ended and that the said A. B., being desirous upon the determination of the said lease to have again and repossess his said estate so demised, for that purpose did, on the day of last past, require the said C. D. to remove from and leave the same, and that the said C. D. hath hitherto refused and still doth refuse to com- ply therewith. And whereas, the said C. D. being duly sum- moned doth appear before our said justices [or aldermen] and doth allege that the title to the said [messuage or other- wise, as the case may be] is disputed and claimed by O. P., of , in the said county, in virtue of a right or title ac- crued or happening since the commencement of the lease sa 272 LANDLOED AND TENANT. as aforesaid made to him the said C. D. by virtue of a deed made by the said A. B. to the said O. P., you are therefore commanded to summon the said O. P. to appear before our justices [or aldermen] at the , in the county aforesaid, on the day of instant at o'clock in the noon, to declare on oath or affirmation to be by our said justices [or aldermen] administered that he verily be- Heves that he is entitled to the premises in dispute; and with one or more sufficient sureties to become bound by recog- nizance in the sum of to the said A. B., his heirs or assigns, to prosecute his claim at the next court of common pleas to be held for the said county (if to him it shall be ex- pedient). Make return hereof according to law. Witness the said E. F. and G. H., at , in the county aforesaid, the day of , in the year of our Lx)rd One thousand nine hundred and E. F. G. H. Complaint for Possession under Act of 1863. 546. County of J.y. On this day of a. d. 189 , personally ap- peared before me, the subscriber, one of the in said county who, being duly according to law, doth depose and say: That on the day of 189 , he was quietly in possession of a certain messuage or tenement, with the appurtenances, situate ; that on the said last- mentioned day he demised said premises to a certain for the term of at the rent of dollars which said term is fully ended ; that the said being desirous upon the expiration of the said term to have again and repossess the said premises, for that purpose did, three months previous to such expiration, demand and re- quire of the said to remove from and leave the same, and that the said having hitherto refused, and still re- fusing to comply therewith, he makes this complaint that FORMS. 273 such proceedings may be taken as are directed by the act of assembly in such case made and provided. and subscribed before me, 189 . SEAL. Summons. 547. County of w. The Commonweahh of Pennsylvania, to any constable of the said county, greeting : Whereas, it appears to me, the subscriber, one of the in said county, by complaint on oath that was on the day of 189 , quietly in the possession of a certain messuage or tenement, with the appurtenances, situ- ate that on the said last-mentioned day demised said premises to a certain for the full term of at the rent of which said term is fully ended; that the said being desirous upon the expiration of the said term to have again and repossess the said premises, for that purpose did, three months previous to such expiration, de- mand and require of the said to remove from and leave the same, and that the said hath hitherto refused and still doth refuse to comply therewith. You are therefore hereby commanded to summon the said to be and appear on the day of 189 (be- tween the hours of and o'clock, m., at the office of the subscriber, to show cause, if any has, why restitution of the possession of the said premises should not be forthwith made to the aforesaid according to the form and effect of the act of assembly in such case made and provided. And this you shall in nowise omit. In witness whereof, the said has hereunto set his hand and seal the day of , 189 . SEAL. Kecord. 548. Be it Remembered, that on the day of a. d. , at the city of Philadelphia, due proof was made be- fore A. D., magistrate of court No. , in and for the said city, 18 274 LANDLORD AND TENANT. that C. D. on the day of , a. d. , was quietly and peaceably possessed of [here briefly but certainly describe the demised premises] and being so thereof pos- sessed on the same day and year last aforesaid, did demise the said premises to E. F. for the term of years then next ensuing, at the yearly rent of dollars ; and that the said E. F. by virtue of the said demise, entered into possession of the said demised premises, and held the same during said term, and is still possessed of the same; and that the said term for which the said premises were demised is fully ended ; and that the said C. D. being desirous, upon the said determi- nation of the said term, to have again and repossess the said premises, for that purpose did on the day of a. d. , demand of and require the said to remove from and leave the same, and that the said has hitherto refused, and still doth refuse to comply with the said demand and requisition to remove from and leave the said premises. Whereupon the said then, to wit, on the said day of , A. D. , prayed the said magistrates that a due remedy in that behalf be provided for him, according to the form of the act of the general assembly of the state of Penn- sylvania in such case made and provided, upon which proof and complaint one of the constables of the said city was com- manded to summon the said to be and appear on the day of , A. D. , between the hours of and o'clock in the forenoon, before our said magistrate, at his court in the said city, to show cause, if any he has, why restitution of the possession of the said demised premises should not be forthwith made to the aforesaid on the day of , a. d. , and G. H., constable, returned on oath served on defendant [here insert the return of the manner of service]. Afterwards, to wit, on the said day of , a. D. , at o'clock [a. m. or p. M.], at the said court, at in the said city [here state the appearances and briefly state the evidence and note witnesses examined]. After hearing the proofs and allegations of- FORMS. 275 fered by the said our said magistrate finds that the said on the day of a. d. was quietly and pfeaceably possessed of [here describe the premises so as to locate them] and being so thereof possessed on the same day and year last aforesaid did demise the said premises to the said for the term of years then next ensuing at the yearly rent of dollars; and that the said by virtue of the said demise, entered into possession of the said demised premises and held the same during the said term, and is still possessed of the same, and that the said term for which the said premises were demised is fully ended and that the said being desirous, upon the said determination of the said term, to have again and repossess the said premises for that purpose did on the day of a. d. de- mand and require the said to remove from and leave the same, and that the said has hitherto refused and still does refuse to comply with the said demand and requisi- tion to remove from and leave the said premises. And our said magistrate doth assess the sum of dollars for the damage of the said occasioned by the unjust detention of the said premises. Our said magistrate did thereupon enter judgment against the said tenant that he forthwith give up possession of the said premises to the said lessor, and that the said lessor shall and do recover, and have of the said les- see or tenant as well the said sum of dollars for his damages aforesaid, as dollars for his reasonable costs by him expended in and about this suit in this behalf, con- cerning which the premises aforesaid our said magistrate doth make this his record. In testimony whereof, our said magistrate to this, his record hath hereunto set his hand and the official seal of the said court, at the city of Philadelphia, this day of A. D. A. B., Magistrate of Court No. . OFFICIAL SEAL. 276 LANDLORD AND TENANT. Writ of Bestitution. 549. City of Philadelphia, .yj. Tlie Commonwealth of Pennsylvania, to any constable of the said city, greeting: Whereas, due proof hath been made before me, the sub- scriber, one of the magistrates in and for the city of Phila- delphia, that A. B. did on the day of , A. d. , demise to C. D. [here describe the premises] in said city for the full term of at a yearly rent of , which said term is fully ended ; that the said A. B., being de- sirous upon the expiration of the said term to have again and repossess the said premises, for that purpose did, three months previous to such expiration, demand and require of the said C. D. to remove from and leave the same; and that the said C. D. hath hitherto refused and still doth refuse to comply therewith; all which premises being duly found by me, the said magistrate, according to the form of the act of as- sembly in such case made and provided. You are, therefore, hereby commanded forthwith to deliver to the said A. B., full possession of the demised premises aforesaid. And you are also commanded that of the goods and chattels of the said C. D. in your bailiwick, you cause to be levied as well the sum of dollars, which the said A. B. has had awarded for damages sustained by the unjust detention of the prem- ises, as dollars for his costs and charges by him in and about his suit in that behalf expended, whereof the said C. D. is convict. And hereof fail not. \\'itness our said magistrate, at the city of Philadelphia, aforesaid, the day of , A. d. E. F., Magistrate. SEAL. Notice in Case of Lost Lease. Philadelphia, ,18 . 550. Having lost the evidence of the beginning and conclusion of your term in the following described premises FORMS. 277 [demised to you by J, to wit : All . And being de- sirous to recover possession of the said described premises, you are hereby notified that unable to make proof of the beginning and conclusion of your said term, and therefore require you, within thirty days from the time of the service of this notice to furnish in writing, with the date at which your said term of tenancy commenced, according to the terms and provisions of the act of assembly in such case made and provided. Yours, etc., To . Second Notice. 551- City of Philadelphia, i8 . On the day of i8 , I gave you notice that the evidence of the beginning and conclusion of the term for which the premises now occupied by you, situate Philadelphia, was lost, etc., and that you should, within thirty days thereafter, furnish me in writing, with the date at which your term of tenancy commenced; you having failed to comply with the requirements of said notice I hereby re- quire you to remove from said premises and deliver up pos- session of the same to me, within three months from the time you shall receive this notice. Yours, etc., To Mr. Hotice when Tenant is Unable to Answer First Notice. 552. City of Philadelphia, 18 . On the day of , 18 , I gave you notice re- quiring you to furnish me in writing, within thirty days from the time of the service of the said notice, with the date at which your term of tenancy commenced, of the premises now oc- cupied by you, situate Philadelphia, and you having made affidavit within the said thirty days, that you are unable to comply with the requirements therein ; you are hereby re- 278 LANDLORD AND TENANT. quired to remove from and surrender to me possession of said premises, within six montiis from the time you shall receive this notice. Yours, etc.. To Mr. TABLE OF CASES. Academy v. Birt ii Adams v. Adams 24 Adams v. McKesson's Ex. 128 Agnew V. Whitney 40 Anderson v. Brinser, 209 Ashhurst v. Phonograph Co. 218 Assigned Est. Snyder 76 Association v. Frisdjen, 14 Association v. Hetzell 8 Association v. Jones 103 Alter V. Penn 138 Aye V. Phila. Co. 50, 197, 227 Baer v. Kuhl 235 Bank v. Ege 63 Bank v. Hanson 63 Bank v. Legrand 58 Bank v. Smith 18 Bank v. Yard 57 Bank v. Wise 32 Bantleon v. Smith 105 Barclay v. Wainwright 130 Barns v. Wilson 45 Barnes v. Carney 58 Barrington v. Justice 46 Basset v. Hawke ig Bears t'. Ambler 171 Becker v. Werner 78 Bellas V. Hays 16 Berridge v. Glassey 11 Beymer v. Bonsall 19 Bittinger v. Baker 128 Blanche v. Bradford 120 Blight V. Wright 24 ^lock V. Dowling 216 Boggs V. Black 149, 159 Bogert V. Batterton 119, 121 Boice V. Zimmerman 9 Bohd V. Atkin 19 Bonsall v. Comly 121 Borie v. Crissman 34 Borough V. Walters 158 Boteler v. Espen 131 Bowman v. Bradley 12 Boyd V. McCombs 31 Boyer v. Fulmer 190 Boyer v. Smith 48 Brandt v. McKeever 184 Bratton v. Seymour 16 Breneman's Est. 61 Breuckmann v. Twibill 139 Brisbin v. Wilson 115 Brolasky v. Ferguson 14 Brown v. Beecher 194, 225 Brown v. Brightly 158, 218 Brown v. Dysinger 48, in Brown v. Jacquette 12, 103 Brown v. Stackhouse 115 Buchannan v. Baxter 153 Burns v. Cooper 129 Burr V. Cattnach 136 Bush V. Oil Co. 14 Caldelegh v. HoUingsworth 115 Calgan v. Coal Co. ips Camp V. Casey 205 Carskadden v. McGhee 20 Carson v. Godley 170 Carver v. Gough 54 Chadwick v. Coleman 186 Clark V. Everly 83, 127, 128 Clark V. Harvey 127, 128 Clark V. Patterson Clark V. Yeat Clayton v. Blakey Cleary v. Allen Coal Co. V. Sanderson Coal Co. V. Wright Coe V. Vogdes Cogley V. Brown Coke Cole V. Bolard Coleman v. Chadwick Com. V. Brown Com. V. Knarr Com. V. McNeile IS4 IS4 13 47 192 10 57 43 21 47 186 144 144 30, 143, 230 279 280 TABLE OF CASES. Cook V. Neilson Com. V. Nichols Com. V. Rees Collins V. Whilldin Com. V. Wisner Cooper V. Smith Coppel's Est. Cornell v. Green Craig V. Dale Cunningham v. Eentrekin Currier v. Grebe Curtin v. Somerset Curtis V. Hubbard Davis V. Davis 41, 117, Davis V. Moss De Coursey v. Trust Co. Delph V. Hoffman Demi v. Bossier De Morat v. Falkenhagen Detwiler's Ap. Detwiler v. Cox Dickson v. Wolf Diehl V. Holben Dieffenderfer :;. Fisher Dikeman v. Parrish Diller v. Roberts Doe V. Bell Donaldson v. Likens Dorian v. Chase Double V. Heat Co. Duff V. Fitzwater 147, ■ Duffee V. Mansfield DufBeld V. Rosenzweig Duffy V. Ogden Dumn V. Rothermel Durapor's Case Duncan v. Hartman 17 Dunham v. Loverock Dunmire v. Price Dyer v. Wightman PAGE iS8 109 142 46 143 47 74 III 127 20s 160 170 107 148, i6s 54 148, 153 log 127 139 25, 61 103 S8 122 I2T 48 13 13 II, 159 I3S 32 148, 152 15, 59 189 159 158 36 . 19, 22s i8g 165 177 Effinger v. Lewis 28, 191 Ehret v. R. R. Co. 179 Elliott's Ap. 74 Esterly Machine Co. v. Spen- cer IIS Evans v. Hanwick 98 Ewing V. Cottman 137 Fahnestock v. Faustenauer 149 Farley v. Stokes 7 Fennel v. Guffey 197 Ferguson v. Rafferty 8 Finnegan v. Stineman 187, 188 Fisher v. Allen 96 : Fisher v. Guffey 196 Fire Assn. v. Williamson 220 Fitzmaurice v. Fabian 174 Flanigan v. Rossiter S8 Flanigan v. City 233 Folsom V. Cook 162 Forsythe v. Price 128 Frank v. Maguire 31, 72 Fretag v. Anderson 90 Fry V. Jones 103 Furbush v. Chappell 104, 108 Galbraith v. Black 154 Galey v. Hellerman 191 Galloway v. Ogle 47 Garrett v. Dewart 63 Gas Co. V. Johnson 197 Gas Co. V. Patterson 227 Gas Co. V. Phila. Co. 8, 40 Gaskins v. Gaskins 31 Gault V. Neal 158 Gebler v. Culin 2^ Geisenberger v. Cerf 91 Gerson, In re 95 Getz V. R. R. Co. 178 Gill V. Weston 79 Gillion i: Finley 217 Gillian v. Tobias 104 Gilpin V. Howell 18 Givens v. Miller 165 Glenn v. Thompson 83, 147, 160 Godley v. Hagerty 170 Goehring's Ap. 25 Goldbeck v. Bank 22 Goodwin v. Sharkey 33, 149 Goss V. Brick Co. /3 Grace v. Shively 74, 123, 234 Graham v. Moore 47 Grant's Ap. 97, 234 Graver v. Fehr 148 Griffin v. Fellows 186 Griffin v. Pottery Co. 32 Griffiths v. Marsh 160 Grider v. Mclntyre 91 Groves v. Hodges 17 Grubb V. Grubb 184 Guffey v. Clever 201 Hall V. Parker 131 Hall V. Stewart 205 Hamilton v. Ins. Co. 21 Hand v. Suravitz 22S Harding v. Seeley 21S Harlan v. Coal Co. 186 Harris v. Knowles 20 Hart V. Withers 19 Hartman v. Quay 203 Harvey v. Guntzberg 202 Haynes v. Synnott 58 Hazlett V. Powell 33 TABLE OF CASKS. 281 Hazelett v. Mangel ii6 Heil V. Strong i8s Hemphill v. Flynn 29 Hemphill v. Tevis 63 Henry v. Wilson 26 Heritage v. Wilfong 164 Hessel v. Fritz 45 Hessel v. Johnson 140 Hey V. Bruner 54 Hey V. McGrath 15, 28 Hill V. Sewald 54 Hilton's Ap. 78 Hockley v. McGlinn 44 Hoeveler v. Fleming 135 Hohly V. Society 148 Holland v. Townsend 117 Hollis V. Brown 200 Hollis V. Burns 29, 147, 200 Holt V. Martin 18 Hoskins v. Houston 95 Hoy V. Holt 38 Huber v. Baum 201 Hunter v. Jones 127 Hughs V. Lillibridge 213 Hutchinson v. Potter i6o lams V. Gas Co. 197 Iron Works Ap. 76 Irwin V. Covode 185 Jennings v. Beal 188 Johnson v. Cowan 186 Johnson v. Smith 31 Jones V. Goldbeck 104 Jones V. Gundrim 207 Jones V. Whitehead 47 Justice V. Phila. 178 Kaier v. Leahy 48 Karns v. McKinney 103, 104, 105 Karns v. Tanner 193 Kelly V. Marshall 193 Kendig v. Kendig 96 Kennedy v. Crawford 193 Kenney's Ap., 22 W. N. C. 89 53 Kessler v. McConachy 136 Kile V. Giebner 54 King V. Bosserman 227, 228 - Kleber v. Ward 118 Kline v. Jacobs 14, 38 Knerr v. Bradley 208 Koch's Ap. i8s Koenig v. Bauer 159 Korn V. Hohl 56 Kroeger v. Pitcairn 17 . Kunkle v. Rifle Club 11 Ladley v. Creighton 77, 78 PAGE 179 45 94 104 II, 139 203 209 191, 192 76 9 40, 230 6 46 Lafferty v. R. R. Co. Lampleigh v. Brathwait Lane v. Hotel Co. Lane v. Steinmetz Lane v. Nelson 10, Lanigan v. Kille Latimer v. Groetzinger Leatherman v. Oliver Leidich's Est. Leggoe V. Mayer Lemar v. Miles Le Neve v. Le Neve Lewis V. Jones Lipper v. Bouve 218 Long V. Seavers 34 Logan V. Herron 149 Lloyd V. Underkofler 21 Lulay V. Barnes 9 Lutz V. Winkler 173 Lynch v. Gas Co. 194 Magaw V. Lambert 3^, 135 Mahon v. Kunkle 98 Manuel v. Reath 208 Market Co. v. Lutz 63 Marlatt v. Marlatt 14 Marys v. Anderson 23, 30 Mather v. Wood 114 Maxwell v. Perkins 87 Mays V. Dwight 186 McCafferty v. Griswold 6 McCauley v. Keller 9 McClaren v. Oil Co. 231 McClintock V. Loveless 215 McClinton ii. Railroad Co. 177 McCormic v. Connell 41 McClurg V. Price 216 McCoy V. McMurtrie 97 McDowell V. Adams 129 McDowell V. Simpson 17 McGeary v. Mellor 118 McGlowry v. Groghan's Adm. 7 McKean v .King 83 McKim's Est. 94 McMuIIin V. Orr 151 McNamee v. Cresson 58 Meany v. Abbott 170 Medary v. Gathers 58 Megargee v. Longaker 218 Meitzler's Ap. 122 Mickle V. Miles 30 Miles V. Cook 19 Milling V. Becker 29, 135, 139 Mintzer v. Hogg 175 Moderwell v. Mullison 20 Mohan v. Butler 86, 164 Moore v. Weber 45 Morrison v. Beirer 22 282 TABLE OF CASES. Mowne v. Armstrong 187 Mund V. Vanfleet 91 Murphy v. Losch 139 Murphy v. Marshall 212 Murray v. Vaughn 106 Myers v. Coal Co. 191 Myers v. Hulseman S8 Myers v. Esery 104, 120 Neill V. Shamberg 188 Newell's Est. 208 Newell's Ap. 40 Newell V. Gibbs 48 Newman v. Rutter 47 Norris v. Gould 23 Oakford v. Nixon 201 Obermyer v. Nichols 31 Oil Co. V. Fretts 192 Oil Co. V. Railroad 22 Oil Co. V. Mining Co. 57 Oliver V. Brophy 43 Page V. Middleton 103, 104 Palethrop v. Bergner 230 Palethorp v. Schmidt 86 Patterson v. Silliman 187 Paul V. Johnson 16 Pennant's Case 42 Petroleum Co. v. Oil Co. 231 Pfund V. Herlinger 136 Phillips V. Meily 8 Phillips V. Monges 13 Pier V. Carr 135 136 Piatt V. Johnson 211 Pleasanton's Ap. 57 Pollard V. Shaaffer 38 Powell V. Campbell 91 Pratt V. Levan 75 Prescott V. Otterstatter 33 Prutzman v. Ferree 48 Quinn v. McCarty 164 Quigley v. De Haas 17 Railroad Co. v. Railroad Co. 177 Railroad Co. v. Smith 31 Rap V. Klair 179 Ray V. Gas Co. 42 192 Reaney v. Fannessy 139 Reed v. Kenney 130 Reed v. Ward 33 Rees V. Emerick 106 Reeves v. McCormick 200 Reid V. Christy 83, 151 161 Reiff V. Reiff 126 Reigart v. White 56 Reinman v. Blair 40 Rich V. Keyser 158 Richards v. McGrath 106, III, 116, 118 Riddlesburg C. & I. Co. Ap. 98 Rinehart v. Olwine 34 Robb V. Carneige 192 Roberts v. Ristine 41 Rohbock McGargo 218 Rohrer v. Cunningham 118 Rosenberger v. Hallowell 121, 214 Sachs V. Schimmel Sanders v. Sharp Sausser v. Steinmetz Scott V. Fuller Seabrook v. Moyer Seeger v. Pettit Semayne's Case Sennett v. Bucher Seyfert v. Bean Shaffer v. Sutton Shaw V. Bowman §haw V. Phila. Sheets v. Allen Sheaffer v. Sheaffer Simpson v. Hartopp Singer v. Solomon Sleeper v. Parrish Smith V. Harvey Snow V. Dill Snyder's Assd. Est. Snyder v. Boring Snyder v. Carfrey Snyder v. May Spencer v. Darlington 202 19 6 148 134 S3 106 8 18 147 128 178 224 41 105 61 123 9 121 76 IIS, 116 85, 158, 163 19 37, 104 Spencer v. Clinefelter 105 Springer v. Gas Co. 191, 192 Steamboat Co. v. Hass 154 Steamboat Co. v. McCutchen 22 Steel V. Frick 103 Steiner v. Marks 193 Stewart v. Lawson 44 Stewart v. Martin 151 Stewart v. Roderick 48 Stockton's Ap. 62 Stoever v. Miller 83 Stone V. Marshall 197 Stone V. Oil Co. I97 Stoughton's Ap. 185 Stover V. Cadwallader 14 Strange 7', Austin 63 Sturtevant's Ap. 77 Swartz's Ap. 44 Tate V. Reynolds 26 Taylor v. Kennelly s6 Teller v. Boyle 232 Thackray's Ap. 35 TABLE OF CASES. 283 Tham v. Hamberg 159 Thomas v. Loose 8, 10 Thomas v. Railroad 12, 22 Thropp's Ap. 55 Tiley v. Meyers 226 TimUn v. Brown 190 Tool V. Ins. Co. 133 Townsend v. Underbill, 6 Pa. C. C. R. 544 53 Trout V. McDonald 186, 193 Twibill V. Brown 200 Vaughn v. Blanchard 13s, 136 Veditz v. Levy 153. Walbridge v. Pruden 1 102 Walden v. Finch 170 Walker v. Gitbens 219 Walker's Est. 46 Waller v. Coal Co. 195 Wain V. Conner 47 Wander v. McLean 17s Ward V. Wandell 91 Ward's Est. 137 Warren v. Forney 103 Watts V. Fox 85, 151 Waugh's Exrs. v. Waugh 129 White V. Arthur 152 Wilgus V. Whitehead 9 Williams v. Short 196 Wilson V. Barns 177 Wistar v. Ollis 154 Woglam V. Cowperthwaite 108 Weinmann's Est. 75 Weightman v. Harley 139, 140 Wheeler v. Conrad 15 Whelen v. Boyd 57 Whitaker v. Richards 19 White V. Arthur 152 Whiting V. Opera Co. IS Whitton V. Milligan 117 Wiatt V. Ewing 116 Wickey v. Fyster 96 Wiley's Ap. 74 Wilson V. McElroy 122 Wyke V. Wilson n6 Yeager v. Weaver 6 Young V. Oil Co. 19s. 196 INDEX. References are to the sections. ' ABANDONMENT by tenant, 295. forfeiture for not developing mine favored, 421. ACCEPTANCE surrender must be accepted, 325. evidence of, 326. ACTION before justice for rent, 224. in court for rent, 226. of ejectment, 129. of replevin, 269. for viraste, 391. ACTS OF ASSEMBLY 1772, March 21, i Sm. 389. § I, requiring a writing for a lease over three years, 20. § I, requiring assignment of lease to be by writing, 178. 1772, March 21, i Sm. 370. § I, providing for manner of proceeding with goods dis- trained for rent, 244. § 2, providing penalty on any pound breach or rescous of goods, etc., distrained, 262. § 3, providing penalty for distraining when no rent in arrear, 258. § 4, providing that landlord shall be paid one year's rent from sherifif sale of personal property, 234. §§ 5 and 6, providing that goods clandestinely removed may be distrained on for thirty days unless sold be- fore seizure, 291. § 7, providing for a distraint on cattle, corn, grass, etc., 255. § 12. for the recovery of possession at the end of term, 336. 285 286 INDEX. References are to the sections. ACTS OF ASSEMBLY— (Continued.) 1772, March 21, i Sm. 370. § 12, providing for proceeding for possession at end of term when title disputed, 336. § 14, providing for a distraint after termination of lease, 245- 1772, March 22, 6 Sm. 182. § 6, providing for jurisdiction of justice of the peace, 229. 1822, March 29, 7 Sm. 520. § I, providing for a writ of estrepement to stay waste, 388. 1825, March 25, 8 Sm. 411. § I, providing for a distraint upon goods fraudulently removed in Philadelphia, 295. § I, providing for possession when tenant moves, 219. 1830, April 3, P. L. 187. § I, for possession for non-payment of rent, 202. 1833, April 8, P. L. 315. § I, original intestate law, 177. 1834, Feb. 24, P. L. IT. § 21, preference for year's rent in case of death of tenant, 230. 1834, Feb. 24, P. L. 7T. § 30, providing that executors of tenant for life may re- cover rent to time of the decease of such tenant, 98. 1836, June 13, P. L. 568. §§ 44 and so, providing for collecting rent by foreign at- tachment, 243. June 16, P. L. 784. § 13, providing a remedy by an injunction for waste, 392. June 16, P. L. 7SS. § 83, providing for the payment of one year's rent from sheriff's sale of personal property, 234. 1849, April 9, P. L. 533. § I, the $300 exemption law, 283. i8ss, April 27, P. L. 368. § 8, providing for tenant's mortgaging leases and ma- chinery, 193. April 27, P. L. 368. § 3, providing for inheritance by illegitimate children, 177. i860, March 31, P. L. 382. §§ 21 and 22, relating to forcible entry and detainer, 331. 1863, Dec. 14, P. L. 1125. § I, for possession at the end of lease, 352. 1865, Feb. 28, P. L. 253. § I, for possession at the end of lease in case of its loss, 37S- INDEX. 287 References are to the sections. ACTS OF ASSEMBLY— (Continued.) 1867, Feb. 20, P. L. 30. § I, providing that the act of Dec. 14, 1863, shall apply when owner has acquired title by descent or pur- chase, 354. 1869, April 17, P. L. 69. § I, exempting sewing machines from distraint for rent, 281. June 25, P. L. 1275. § I, providing that an appeal under act of Dec. 14, 1863, will be a supersedeas in Philadelphia, 355. 1876, May 13, P. L. 171. § I, exempting rented pianos from distraint, 280. 1878, June 12, P. L. I. Giving preference of wages over rent, 240. 1883, April 19, P. L. 9. § 3, providing for a distraint on tenant's goods for taxes, 296. 1883, June s, P. L. 88. § I, providing that illegitimates may inherit from each other, 177. 1885, June 3, P. L. 61. § I, liability of landlord for fire escapes, 156. 1887, April 13, P. L. 53. § I, providing that adopting parents shall inherit, 177. May 18, P. L. 118. § I, requiring written consent of landlord for tenant to bind property for mechanics' liens for repairs, 313. 1889, May 13, P. L. 197. § I, providing for mortgages of royalties for mines, 201. 1891, May 20, P. L. 102. § I, providing for mortgaging of ores, 201. May 26, P. L. 122. § I, providing for the payment of rent in case of assign- ment for the benefit of creditors, 189. 1893, May 23, P. L. 117. § I, providing for fees of justices, 405. June 8, P. L. 344. § I, giving married women power to lease, 38. 1895, June 24, P. L. 238. providing for liability of tenants in common in possession to co-tenants, 50. 1899, March i, P. L. 3. § I, providing for fees of constables, 405. ADMINISTRATOR cannot lease, 52. 288 INDEX. References are to the sections. AGENTS See Lease, §§ 23 to 32. AGREEMENTS FOR A LEASE directions for preparing, i. specific performance will be decreed, 2. damages for breach of, 3. where a tenant under a parol agreement for a lease is let into possession and makes improvements, 4. lease completed by an actual entry of tenant, 5. AGREEMENT TO SELL TO TENANT practical directions, 466. covenant to sell, 123. AGRICULTURAL FIXTURES See Fixtures, 152. AMICABLE EJECTMENT covenant for, 129. if tenant has not paid his rent punctually he must be warned before entry of judgment, 130. for a purchaser to have benefit of, lease should be assigned to him, 131. no appeal to Supreme Court in case of, 132. position of under-tenants in case of, 133. possession by those holding paramount title in case of, 134. form for entry in court of, 534. practical directions as to necessity for proper description in, 505. APPEAL to Supreme Court under act of 1772 for possession, 350. to court of common pleas under act of 1830 for non-payment of rent, 215. to Supreme Court under act of 1830 for non-payment of rent, 218. to court of common pleas under act of 1863 for possession, 370. to Supreme Court under act of 1863 for possession, 374. APPORTIONMENT OF RENT. in case of a sale of reversion in parts, 94. payable to tenants for life under act of 1834, 98. payable in grain to life tenant, 99. APPRAISEMENT in case of a distraint, 277. , forms for, 526. in case of $300 exemption law, 284. form for, 533. INDEX. 289 References are to the sections. ASSESSMENTS protection to tenant from agreement to pay assessments, 496. ASSIGNMENT OF LEASE covenant not to assign, 109. construed strictly, no. an assignment by law not a breach, in. form for, 523. must be by writing, 178. diflference between, and underletting, 179. position of under-tenant, 180. power of tenant to assign, 181. tenant bound to pay rent after he assigns, 182. assignee liable as long as he holds title, 183. implied indemnity of assignee, 184. when tenant dies, 186 when representatives become personally liable, 187. directions in taking, 469. assignee assigning liable if he retains interest, SOi. necessity of having a clause for forfeiture for a breach of cov- enant not to assign, 502. danger of breach of covenant not to assign by taking partner, SOS- ASSIGNMENT FOR THE BENEFIT OF CREDITORS assignee has right to accept lease or not, 188. landlord's preference in case of, 189. liability of assignee for rent, 191. agreement of assignee with sheriff for sale of goods, 190. assignee cannot lease, 59. ASSIGNEE extension of right to terminate lease to, 481. ATTACHMENT of rents by attachment-execution, 242. foreign attachment, 243. BANKRUPTCY collection of rent in case of, 233. BREACH OF THE PEACE See Forcible Entry and Detainer. should not be made by re-entry, 126. CERTIORARI under act of 1772 for possession, 348. under act of 1830 for possession, 216. under act of 1863 for possession, 373, 19 290 INDEX. References are to the sections. COLLECTION OF TAXES by distraint on tenant's goods, 296. COLLECTING RENTS by suit before justices of the peace, 224. the hearing, 225. in court, 226. in equity by receivers, 227. during administration of receivers, 228. loss of rents collected by receiver from sub-tenants, 229. in case of death of tenant rent not exceeding for one year pre- ferred, 230. landlord to present claim to orphans' court, 231. in bankruptcy, in case of, 232. not apportioned under act of 1898, 233. from sheriff's sales. act of 1836, 234. apportioned, 235. landlord should notify sherifif of claim, 236. note taken no waiver of, 237. goods must have been liable to distraint, 238. preference of wages over rent, act of April 9, 1772, 240. claim for wages may be sold, 241. when claimed by two adverse parties, 239. by attachment-execution. the remedy, 242. by foreign attachment. the remedy, 243. CONSTRUCTION rules for, 9. when doubtful tenant favored, 498. CO-PARTNERS lease by, 33, 34. lease to, 35. CORPORATIONS may make leases as natural persons, 41. may contract without writing, 42. leases to foreign, 43. officers must be authorized to lease, 44. cannot disable itself from performing public duties by a lease, 45. seal of, not necessary to hold in assumpsit, 46. may ratify agent's acts, 47. COVENANTS running with the land, 103. I INDEX. " 291 References are to the sections. COVENANTS— (Continued.) implied, run with the land, 104. when run with the land, 105. assignees bound by, when running with the land, 106. examples of running with the land, 107. to pay rent, 108. not to assign or underlet, 109. ( are construed strictly, no. !| 1 assignment by law not a breach of, in. as to use and occupation, 112. landlord not bound to repair, 113. repairs a tenant is bound to make, 114. of tenant to repair, 115. tenant is not bound under, in case of damage by act of God or public enemies, 116. tenant cannot charge landlord for permanent repairs made without his authority, 117. of tenant to repair minor to that of the tenant to pay rent, 118. measure of damages when landlord breaks his covenant to repair, 119. tenant not relieved from loss in business during repairs, 120. that improvements shall remain, dangerous, 121. definition of the word improvement, 122. of landlord to sell to tenant, 123. for re-entry, 124. requisites before entry, 125. there must not be a breach of the peace in making entry, 126. 'in Pennsylvania a re-entry is not necessary for a forfeiture, 127. waiver of, forfeiture, 128. for amicable action and confession of judgment in ejectment, 129. See Amicable Ejectment. implied for quiet possession, 135. to protect tenant against paramount claims, 136. to use property in tenant-like manner, 137. as to farming, 138. ' CROPS way going, definition of, 301. who entitled to, 302. straw included in, 303. grain sown in spring not included, 304. may be sold by tenant, 305. the protection of, 306. in case of execution, 307. ; 292 INDEX. ' ', References are to the sections. CROPS— (Continued.) landlord not entitled to grain as rent until delivered, 309. as rent will pass to purchaser at orphans' court sale, 310. payable as rent, growing at death of landlord, will go to heirs, 311. covenants as to, 507, 508, 510, 511, 512, 513, 514, 515 and 516. covenants as to farming, 138. necessity for having time fixed for delivery of landlord's share of crops, 495. CROPPER definition of, 308. CUSTOM way going crop, 301. DATE of lease, 21. DEATH OF LESSEE collection of rent in case of, 230, 231. DEATH OF LESSOR transfer of lease in case of will, 176. transfer of lease in case of intestacy, 177. DISTRAINT FOR RENT See Replevin; Forms. act of March 21, 1772, regulating, 244. after termination of lease, 245. by lessor who has conveyed, 246. by executors and administrators, 247. by assignee of the reversion, 248. by joint tenants, 249. by tenants in common, 250. by guardians, 251. by receivers, 252. by heirs, devisees, etc., 253. for what rent, 254. goods liable to, 255. goods privileged from, 256. authority given for, 257. penalty for, when no rent due, 258. for more rent than is due, 259. entering premises to make, 260. upon the goods, 261. rescue of goods taken by, 262. interference with proceedings for, 263. unreasonable or excessive, 264. INDEX. 293 References are to the sections. DISTRAINT FOR RENT— (Continued.) placing watchman in case of, 265. leaving goods on premises in case of, 266. notice to tenant of, 267. tender of rent upon a, 268. liability for, of goods of a stranger, 276. appraisement of goods upon a, 277. sale of goods upon a, 278. manner of sale upon a, 279. ^ exemption of rented pianos in case of, 280. exemption of sewing machines in case of, 281. liability of goods sold according to instalment plan for, 282. three hundred dollar exemption law in case of, 283. appraisers under exemption law in case of, 284. under-tenants cannot claim benefits of exemption in case of, 285. refusal of exemption in case of, 286. who can claim exemption in case of, 287. when claim for exemption should be made in case of, 288. request of appraisement in case of claim for exemption upon a, 289. how claim for exemption to be made when tenant absent in case of, 290. rights to, in case property is fraudulently removed under act of 1772, 291. goods of a stranger not to be followed in case of, 292. goods sold exempt from, in case of removal, 293. must be for rent due at time of removal, 294. right to, for rent not due under act of, 1825, 295. providing for distraint after removal of tenant, 477. EJECTMENT See Amicable Ejectment. EMBLEMENTS ' See Crops. definition of, 297. growing grass not to be taken as, 299. things not of annual growth not, 299. right to, lost by forfeiture of lease, 300. EMINENT DOMAIN See Rented Property Taken for Public Use. see if devised premi.ses in Philadelphia can be taken for public use, 456. ENCUMBRANCES examination as to, 458. 294 INDEX. References are to the sections. EQUITY a specific performance of an agreement for a lease will be decreed in, 2. remedy by injunction in, for waste, 392. ESTREPEMENT writ of, 390. EVICTION in part does not suspend the whole rent when tenant remains, 315. physical expulsion not necessary for, 317. operation of, against current rent, 320. by an injunction, 321. not by conduct not depriving tenant of the use of property, 322. waiver of, by paying rent, 323. when landlord takes possession in case of tenant's desertion, 318. landlord using a way, 319. when landlord takes possession after a fire, 316. EVIDENCE parol, admissible in case of fraud, accident or mistake, 6. in some other cases, 7. agreement in writing to exclude, 8. EXECUTOR unless made a trustee, cannot lease, 54, in case he has a mere power to sell, 55. in case of a trust to sell, but not to rent, 56. a lease a part of decedent's assets. 186. EXEMPTION under $300 law, 283. appraisers appointed, 284. under-tenants cannot claim, 285. refusal of exemption, 286. who can claim, 287. when claim should be made, 288. reqijest for appraisement, 289. how claim made when tenant absent, 290. of rented pianos from distress, 280. of sewing machines from distress, 281. liability of goods sold under instalment plan to distress, 282. FARM LEASE See Crops. form for, 508. on shares, 509. on shares, short form, 510. j INDEX. 295 References are to the sections. FARM LEASE— (Continued.) covenant in that lessee shall fallow land and mow but once a year, 511. may dispose of hay and straw, 512. shall plant clover, 513. shall use hay, dung, etc., 514. fire clause in No. i, siS- fire clause in No. 2, 516. protecting landlord in, 485. prevention of the termination of farm leases by death of tenant, 475- FEES of constables, 405. of justices, 405. of watchmen, 406. FIRE tenant liable to pay rent if premises destroyed by, 96, 97. clause for farm lease, 515, 516. clause for lease of dwelling, 517. clause for lease of a business property, 518. FIXTURES ■ domestic, 150. trade, 151. agricultural, 152. not removed at end of lease, 153. tenant's, liable to execution, 154. notice to landlord upon constable's sale of, 155. duty of placing fire escapes in Philadelphia, 156. of tenant to be protected in case of renewed leases, 467. protecting landlord's rights to fixtures at end of lease, 500. FORCIBLE ENTRY AND DETAINER act of assembly relating to, 331. must be a breach of the peace to constitute, 332. to constitute there must be violence, 335. FORCIBLE DETAINER what constitutes, 333. tenant holding over not liable for, 334. FORMS a lease, 507. farm lease, 508. farm lease on shares, 509. farm lease on shares, short form, 510. covenant that lessee shall fallow the land and mow but once a year, 511. 296 INDEX. References are to the sections. FORMS— (Continued.) covenant that lessee may dispose of hay and straw, 512. covenant to lay down part of the ground with clover, etc., 513. covenant that lessee shall use the hay, dung, etc., on the prem- ises, 514. fire clause for farm lease, No. i, 515. fire clause for farm lease. No. 2, 516. fire clause for a dwelling, 517. fire clause for a business property, 518. to protect against assignment of lease, 519. for insertion after ejectment clause, 520. giving an option to purchase, 521. surety for tenant, 522. assignment of lease, 523. surrender of lease, 524. distress warrant, 525. notice of distraint, 526. affidavit of appraisers and appraisement, 527. consent of tenant to permit distrained goods to remain, 528. notice of constable's sale, 529. claim for benefit of exemption law, 530. summons of appraisers, 531. affidavit of appraisers and election, 532. appraisement of exempted goods, S33- amicable action and judgment in ejectment, 534. notice to quit for non-payment of rent under act of 1830, 535. complaint, 536. summons, 537. writ of restitution, 538. record, 539. notices to quit at end of lease, 540. complaint for possession under act of 1772, 541. precept to the sherifif, 542. i inquisition, 543. record, S44- summons to third party claiming title, 545. complaint for possession under act of 1863, 546. summons, S47- record, 548. writ of restitution, 549. notice in case of lost lease, 550. ' second notice, 551. notice when tenant unable to answer first notice, 552. FRAUD parol evidence admissible in case of, 6. false representations by lessee, 455. INDEX. 297 References are to the sections. FRAUDULENT REMOVAL rig-ht to distrain in case of, 291. goods of a stranger not to be followed, 292. goods sold exempt in case of, 293. rent must be due at time of, 294. right to collect rent not due, 295. FURNITURE list of, should be annexed to lease when rented, 62. GRANTEE rent due after a sale, 86. custom in Philadelphia to apportion rent, 87. GROWING CROPS See Crops. GUARDIAN leases by. ZT- rights of, to lease mines, 410. HEIRS rights of, under intestate laws, 177. INABILITY OF TENANT TO DISPUTE THE TITLE OF HIS LANDLORD the rule as to, and its operation, 139. liability of tenant to forfeit his lease, 140. case of collusion with tenant, 141. case of fraud by landlord, 142. IMPLIED TENANCY by the payment of rent, 75. IMPLIED COVENANTS run with the land, 104. INSURANCE by tenants distinguished from other insurance, 314. protecting insurance from conduct of tenant, 488. INTEREST on royalties, 443. LEASE See Term; Rent; Amicable Ejectment; Inability of Land- lord TO Dispute Titles of Landlord. directions for preparing, i. specific performance will be decreed, 2. damages for a breach of an agreement for, 3. 298 INDEX. References are to the sections. LEASE— (Continued.) when a tenant under , a parol agreement for, is let into posses- sion and makes improvements, 4. completed by an actual entry, 5. parol evidence admissible in case of fraud, accident or mistake in, 6. parol evidence admissible in some other cases, 7. agreements in writing to exclude verbal understandings as to, 8. rules for construction of, 9. definition of, 10. distinction between, and a license, 11. incorporeal things may be granted, 12. lease of, in farm on shares, 13. implied renting. in case a tenant remains with permission and pays rent after lease expires, 14. occupancy under an agreement for a lease, 15. occupancy of land where no agreement to pay rent, 16. where a purchaser at sheriff's sale elects not to take tenant, 17. where a tenant remains in possession after the end of lease with- out consent, 18. a tenant in possession under a, void, 19. act of 1772 requiring written lease, 20. mistake or omission of date of, 21. mistakes or omissions of names of, 22. by agents. the manner of signing and sealing in case of, 23. ratification of a parol lease void under the statute of frauds in case of, 24. should have sealed authority to make a sealed lease, 23. sealing leases without authority personally liable, 26. not under seal, 27. parol evidence admissible to prove a lease not under seal as principals, 28. making leases in their own names deprives their principals of their rights as landlords, 29. when agent makes a lease without disclosing his principal, tenant cannot deny that the agent is not landlord, 30. agents without authority in writing may make a lease not over three years, 31. personal liability of agents for their contracts when they do not disclose their principals, 32. by partners. should be sealed by all, 33. lease by one of, of partnership property, 34. INDEX. 299 References are to the sections. LEASE — (Continued.) to partners. if they take leases in their own names for the firm, hold in trust for the firm, 35. by minors, 36. by guardians, 37. by married women, under act of 1893, 38- to married women, 39. by tenants for life must terminate at death, 40. by corporation, corporations may lease as natural person, 41. may contract without writing, 42. officers of, must be authorized to lease, 44. cannot disable itself from performing public duties by a lease, 45. seal of, not necessary to hold in assumpsit, 46. may ratify agent's acts, 47. by tenants in common. may make joint or separate lease, 48. when a joint lease made by, they must sue jointly, 49. liability of, to pay co-tenants not in possession, 50. by trustees and executors. powers of, limited by trusts, 51. administrators cannot lease, 52. until real estate is sold to pay debts, rents go to heirs or devisees, 53. executor, unless he is made a trustee, cannot lease the same, 54. in case executors have a mere power to sell real estate, SS- in case of a trust to sell, but not to rent, 56. power of trustees to agree to a renewal of a lease, 57. case of personal liability under a lease, 58. assignee for the benefit of creditors cannot lease, 59. description of property in, not necessary to particularly describe, 60. ambiguous supplied by evidence outside lease, 61. list of furniture should be annexed to lease, 62. intention of what is leased from actual use, 63. on the wrong corner, 64. exceptions and reservations in lease, 65. implied grant of things necessary for use of property, 66. authority of landlord to enter after he has leased, 67. where landlords do not sign, 143. where tenants do not sign, 144. seals of, 14s. 300 INDEX. References are to the sections. LEASE— (Continued.) witnesses to, 146. erasures in, 147. interlineations in, 147. stamps on, 148. recording, 149. necessity of, when tenant does not take possession, 494. MECHANICS' LIENS power of tenant to bind, 312. act of 1887 requiring written consent of landlord to bind, SIS- MINING LEASES mining leases in Pennsylvania, 407. mining right distinct from surface right, 408. rights of tenant for life, 409. rights of guardians to lease, 410. tenant bound to work mine, 411. clause for re-entry necessary, 412. incidental rights of mining tenant, 413. right of support, 414. loss of springs on surface, 415. tenant cannot open mines, 416. rent to be paid, though no clay be taken out, not damages, 417. no warranty of coal, 418. relief in case of mistake, 419. tenants taking partners, 420. forfeiture for not developing favored, 421. manner of conveying in case of sales of minerals, 422. questions as to whether there is a sale, a lease or right to take coal without a sale, 423. mining by tenants in common, 424. oil and gas leases, 425. right to mine for oil or gas is necessarily exclusive of the right of the landlord to mine, 426. liability to pay compensation in case of exhaustion of mines, 427. obligation to drill through land worthless for oil or gas, 428. mortgages of mineral leaseholds, 429. perpetual lease of ore lands, 430. options to drill or to pay rent, 431. provisions for the forfeiture of an oil or gas lease for the benefit of the lessor only, 432. right of mining tenants to pollute streams, 433. liability for manufacturing coke and injuring crops, etc., of ad- joining premises, 434. as to whether or not a mining lease has been forfeited for not i operating, 435. INDEX. 301 References are to the sections. MINING LEASES— (Continued.) rights to make openings to reach coal, 436. agreements for diligence in drilling and working for oil, etc., 437. in agreements for coal leases time is of the essence of the con- tract, 438. relief against forfeiture of an oil and gas lease for non-payment of rent, 439. partnership in mineral leaseholds, 440. relief against forfeiture of mining leases, 441. a lease for exploration for oil ceases when exploration finished, 442. interest on royalties, 443. tenant will not be compelled in equity to test land for oil or gas if there is no fraud, 444. covenants to pay royalties run with the land, 445. when lessee to follow his own judgment in sinking additional wells, 446. the meaning of the phrase, "to continue so long as oil or gas are produced in paying quantities," 447. necessity for having oil leases recorded, 448. jurisdiction in equity for account of gas, etc., 449. rent may be payable in oil or gas, 450. liability of assignee of an oil or gas lease for the payment of royalties, 451. distinguishing between a lease and sale granting mining rights, 489. necessity of a particular description of the extent of a right to mine, 490. ascertaining if any old mining leases are outstanding, 491. protection to landlord who reserves the surface in a right to mine, 492. MORTGAGE by tenant under act of 1855, 193. lease must be recorded under act, 194. machinery put in after mortgage under act, 195. a breach of covenant not to assign, 196. act not restricted to mining leases, 197. fixtures and machinery under act cannot be removed with- out consent of mortgagee, 198. of mining rights under act of 1853, 199. of ores, etc., under act of 1891, 200. by landlord under act of 1899, 201. NEGLIGENCE AS TO RENTED PROPERTY liability of owners, 379. in case of an open grate, 381. 302 INDEX. References are to the sections. NEGLIGENCE AS TO RENTED PROPERTY— (Continued.) liability between tenants, 385. depending upon the obligation to repair, 386. of contractor for injury, 393. for leakage from a cesspool, 394. for not repairing sidewalk, 395. remedy in case tenant commits waste, 387. by an injunction for waste, 392. by suit for waste, 391. defects before renting, 376. landlord employing plumber, 378. and tenant may both be liable, 380. may sue at the same time, 382. where landlord interferes with tenant, 383. tenant injures property, 384. property rented is unfit for use, 377. act of 1882 as a remedy for waste, 388. order to permit inspection of waste, 389. writ of estrepement, 390. NOTICE TO QUIT See Forms; Proceedings for Possession. OPTIONS TO PURCHASE giving tenant right, 466. PAROL TESTIMONY provision prohibiting to afifect written leases, 470. PARTNERS leases by and to, 33, 34, 35. PENALTY making penalty to be paid as rent, 468. POSSESSION See Proceedings for Possession Under Following Acts: proceedings for, under act of 1772, 336 to 351. proceedings for, under apt of 1825, 219 to 223. proceedings for, under act of 1830, 202 to 218. proceedings for, under act of 1863, 352 to 374- proceedings for, under act of 1865, 375. PRACTICAL DIRECTIONS FOR RENTING examination of the property, 452. see what neighbors can do in diminishing the value of demised premises, 453. inquiries of landlord before renting, 454. false representations by lessee, 455. INDEX. 303 References are to the sections. PRACTICAL DIRECTIONS FOR RENTING— (Continued.) see if demised premises in the city of Philadelphia are liable to be taken for public use, 456. examination of the title of the landlord, 457. examination as to encumbrances, 458. see if lease can be destroyed by an orphans' court sale, 459. see if there is a liability for a distraint for taxes, 460. obtaining rights for a show case, 461. obtaining sign rights by tenant, 462. provisions in case of fire or other casualty, 463. directions for making rents certain for distraint and possession, 464. directions in case of an underletting, 465. giving rights to tenants to purchase, 466. fixtures of tenant to be protected in cases of renevifed leases, 467. making a penalty to be paid as rent, 468. directions in taking assignments of leases, 469. provisions prohibiting parol testimony to affect written leases, 470. restrictions as to the use of demised premises, 471. making rent due in advance by occurrences after the lease, 472. providing against the liability of the owner for nuisances, 473. prevention of defences being waived by paying rent or other action, 474. prevention of the termination of farm leases by death of tenant, 475- provisions for amicable ejectments, 476. providing for distraint after removal of tenant, 477. giving sub-tenants the benefit of the exemption law, 478. providing for surety in cases of extensions of lease, 479. getting the consent of the surety to alter lease, 480. extension of right to terminate lease to assignees, etc., 481. danger of landlord losing his right to rent by the non-performance of an entire contract, 482. cautions in preparing agreements for the extension of term and for options, 483. necessity of a consideration for an agreement to change the terms of a lease, 484. protecting landlord in farm leases, 485. making the payment of taxes, charges, etc., as rent, 486. necessity of reading leases, 487. protecting fire insurance from conduct of tenant, 488. distinguishing between a lease and sale granting mining rights, : 489- necessity of a particular description of the extent of a right to mine, 490. 304 INDEX. References are to the sections. PRACTICAL DIRECTIONS FOR RENTING— (Continued.) ascertaining if any old mining leases are outstanding, 491. protection to landlord who reserves the surface in a lease to mine, 492. binding remainderman in case of a lease by tenant for life, 493. necessity of recording oil lease when tenant does not take pos- session, 494. necessity for having time fixed for delivery of landlord's share of crops, 495. protection of parties in agreements to pay for taxes, charges, assessments, etc., 496. dangers in using clause that landlord may change terms of lease, 497- in case of doubtful construction, the tenant favored, 498. fixing a time for the tenant to perform an agreement to make improvements, 499. protecting landlord's right to tenant's fixtures at the end of the lease from levy, etc., 500. if an assignee assigns his lease and retains an interest he will remain liable, 501. necessity of having a clause for forfeiture for a breach of a cove- nant not to assign, 502. guarding against the breach of trifling covenants giving the right to recover possession, 503. in case a tenant agrees to use or not to use demised premises for a certain business or purpose, 504. danger of there being a breach of a covenant not to assign lease by taking a partner, 505. necessity for a description to locate premises in leases or amicable ejectments, 506. giving right to distrain off the demised premises, 506.* PROCEEDINGS FOR POSSESSION AT END OF TERM UNDER ACT OF MARCH 21, 1772. See Forms. words of the act, 336. who are entitled to the benefit of the act, 337. rent must be certain, 338. notice to quit, 339. service of notice to quit, 340. complaint, 341. venire to the sherifi, 342. service of summons, 343. proceedings before the jury, 344. proceedings when the title is disputed, 345. finding of the jury, judgment and writ for possession, 346. proper form for the record, 347. INDEX. 305 References are to the sections. PROCEEDINGS FOR POSSESSION AT END OF TERM UNDER ACT OF MARCH 21, 1772— (Continued.) removal by certiorari, 348. what can be shown at hearing upon certiorari, 349. appeal to the Supreme Court, 350. tenant may traverse the inquisition in an action of ejectment, 351. PROCEEDINGS FOR POSSESSION AT END OF TERM UNDER ACT OF DEC. 24, 1863. See Forms. words of the act, 352. power of justice of the peace extended to aldermen, 353. act extended to assignees, 354. appeal will be a supersedeas in Philadelphia, 355. tenancy to be established by parol or written agreement, 356. notice to quit, 357. tenant not bound to give notice to quit, 358. notice given by assignee of lease, 359. verbal notice, 360. time of giving notice, 361. no limitation for landlord to proceed on notice, 362. notice to quit may be waived, 363. service of notice for possession, 364. complaint, 365. summons, 366. service of summons, 367. hearing, 368. warrant for possession, 369. appeal, 370. judgment, 371. record, 372. certiorari, 373. appeal to Superior Court, 374. PROCEEDINGS FOR POSSESSION AT END OF LEASE IN CASE OF ITS LOSS See Forms. act of Feb. 28, 1865, relating to same, 373. PROCEEDINGS FOR POSSESSION FOR NON-PAYMENT OF RENT UNDER ACT OF APRIL 3, 1830. See Forms. the act, 202. who may have the benefit of, 203. the rent due must be certain, 204. the notice to quit, 205. by whom notice can be given, 206. to whom notice should be given and manner of service, 207. 20 306 INDEX. References are to the sections. PROCEEDINGS FOR POSSESSION FOR NON-PAYMENT OF RENT UNDER ACT OF APRIL 3, 1839— (Continued.) payment of rent on removal, 208. the complaint, 209. summons, 210. the service of the summons, 211. the hearing, 212. the necessary proof, 213. the judgment, 214. appeal, 215. certiorari, 216. the execution, 217. appeal to Supreme Court, 218. PROCEEDINGS FOR POSSESSION OR SECURITY WHEN TENANT REMOVES IN PHILADELPHIA act of March 25, 1825, 219. tenant must remove, 220. notice must be signed by landlord or his agent, 221. complainant must shovir a lease for years, 222. tender of rent, 223. PUBLIC USE property taken for. See Rented Property Taken for Public Use. RECORDING necessity of recording oil lease when tenant does not take pos- session, 494. RENT in what payable, 82. what may issue out of, 83. interest on, 84. when no time fixed for payment of, 85. due after a sale, 86. custom in Philadelphia to apportion, 87. tenant bound by his covenant to pay, although he assigns his lease, 88. due landlord before he dies goes to his executor as personal prop- erty, 89. due landlord after he dies goes to his heir or devisee, 90. agreement of tenant to pay assessments, 91. notice to lessor on contingency releasing a lessee, 92. landlord leaving a number of children, each child is entitled to his or her share of, 93. apportionment of, in case of a sale of reversion in parts, 94. payable in advance upon contingency, 95. INDEX. 307 References are to the sections. RENT— (Continued.) tenant bound by his covenant to pay though property is burned, 96. instances of losses to tenants for the want of an exemption from the payment of, in case of fire, 97. made payable to tenant for life apportioned under act of 1834, 98. payable in grain, etc., apportioned under act of 1834, 99. when payable in grain, not due until delivered, 100. interest of landlord in share of grain cannot be taken in execution before severance, loi. good will of demised premises, 102. RENTED PROPERTY TAKEN FOR PUBLIC USE constitutional provision relating to, 396. difference when State takes, 397. damages awarded to landlords and tenants for, 398. landlords and tenants may unite to recover damages for, 401. effect of taking, on liability for rent of, 403. what damages can be recovered for, 404. party wall taken down by public authority, 399. tenant can recover damages to building erected before ordinance for removal, 400. land may be cultivated until possession taken, 402. REPAIR landlord not bound to, 113. repairs a tenant is bound to make, 114. express covenant of tenant to, 115. tenant not bound to, injuries by act of God or public enemies, 116. tenant cannot charge landlord for permanent repairs made without his authority, 117. agreement of landlord to, minor to that of tenant to pay rent, 1 18. measure of damages when landlord breaks his agreement to, 119. tenant not relieved from loss in business during repairs, 120. REPLEVIN writ of. 269. time for issuing writ of, 270. order for the writ of, 271. entering security for, 272. the pleadings in, 273. trial and judgment in, 274. the proper remedy for illegal distraint upon stranger's goods, 275. SEAL kind of, 145- SHOW CASE agreement in lease for, 461. 308 INDEX. References are to the sections. SIGN RIGHTS agreement in lease for, 462. STAMPS on leases, 148. SURETY FOR TENANT when liable to be sued at once, 157. covenant of, runs with the land, 158. tenant bound to exonerate, 159. position of in case of tenant holding over, 160. alteration of a lease afifects, 161. discharge of, by variation of lease, 162. discharge of, if landlord allows goods distrained to be removed, 163. discharge of, by giving time, 165. liable under a void lease, 166. demand of rent by landlord, 164. providing for surety in case of extension of lease, 479. getting consent of surety to alter lease, 480. SURRENDER by parol of lease for more than three years, -324. must be accepted, 325. evidence of acceptance of, 326. to agent, 327. effect of, on request, 328. by a tenant does not extinguish the term of a sub-tenant, 329. effect of silence of landlord upon, 330. TAXES distraint for, 296. see if there is a liability for taxes, 460. TENANT FOR LIFE binding remainderman, 493. .TENDER to stop a distraint, 268. TERM estate for years, 68. at will, 69. tenancy from year to year, 70. tenancy from year to year by express agreement, 74. tenancy from quarter to quarter, 71. perpetual leases, 72. not stated in lease, 73. implied by the payment of rent, 75. INDEX. 309 References are to the sections. TERM— (Continued.) landlord may elect to treat tenant holding over after lease as tenant or trespasser, 76. tenant from month to month may terminate lease at end of any month, TJ. a lease from year to year, at the pleasure of the parties, 78. the beginning and end of lease, 79. continuation of lease at option of tenant, 80. agreements for extension of, and options, 81, 483. TERMS OF LEASE necessity of consideration to change, 484. TIME the essence of the contract in oil leases, 438. TRANSFER OF INTEREST OF LANDLORD IN DEMISED PREMISES by a sale of demised premises, 167. by an assignment of the landlord for the benefit of creditors, 168. by a conveyance to trustees to collect rents, etc., 169. by the will of the landlord, 176. by descent, 177. by a judicial sale, 170. notice of affirmation of lease to be given to tenant in case of, 171. when lease antedates incumbrance, lease preserved in case of, 172. when rent is paid in advance, in case of, 173. rent before and after date of sherifif's deed, 174. right of a purchaser at an orphans' court sale to rents or possession, 175. TRUSTEE power to lease, 51. UNDERLETTING directions in case of, 465. giving sub-tenants benefit of exemption law, 478. implied indemnity to under-tenant, 185. WAGES preference of, over rent, 240.